Abstract
The phrase “who says contractual, says justice” “qui dit contractuel dit juste” does not fully express the truth of our present reality, where the phrase itself falls into doubt, since the contract does not always result in fair obligations, as the contract is an expression of often unequal wills. In this regard, the French judiciary realized that the absence of justice in the contract might arise as a result of the contractual freedom afforded to the contracting parties and, thus, they developed the idea of Commutative Justice in the contract, such as the Piller’s decision, which is considered one of its most important applications. However, the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code was limited to monitoring the matter of the existence of the corresponding obligation whatever it was. In this context, this paper seeks to prove that the provisions of the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code can be used as a means of monitoring the economic contractual equilibrium of the contract. To do so, the legal provisions of the causation theory should be analysed in a comparative analytical approach with the French judicial decisions to illustrate the Palestinian and Indonesian legislative deficiencies and the need for adopting the French judicial approach.
Highlights
The theory of cause is one of the most complex and mysterious theories of civil code,1 and even the idea of the cause itself has been the subject of debate as to its usefulness and existence.2 On this matter, legal jurists split into two groups: a team headed by the French jurist Henri Capitant, who defended the existence of causation theory, known as the causalistes,3 and the other team headed by the French jurist Planiol, who rejects it as useless; they are referred to as the anti-causalistes.4 this division only increases the ambiguity of this theory in jurists’ explanations
This paper seeks to prove that the provisions of the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code can be used as a means to monitor the economic contractual equilibrium of a contract
Legal jurists split into two groups: a team headed by the French jurist Henri Capitant, who defended the existence of causation theory, known as the causalistes,3 and the other team headed by the French jurist Planiol, who rejects it as useless; they are referred to as the anti-causalistes
Summary
The theory of cause is one of the most complex and mysterious theories of civil code, and even the idea of the cause itself has been the subject of debate as to its usefulness and existence. On this matter, legal jurists split into two groups: a team headed by the French jurist Henri Capitant, who defended the existence of causation theory, known as the causalistes, and the other team headed by the French jurist Planiol, who rejects it as useless; they are referred to as the anti-causalistes. this division only increases the ambiguity of this theory in jurists’ explanations. In the later part of the last century, the French judiciary has shown an effective role for the theory of causation in the protection of a contract itself by using causation as a supportive means to protect the economic contractual equilibrium of the contract, whenever necessary, such as in the decision issued on 03 July 1996 by the French Court of Cassation in Piller’s case.12 All of this will be analysed within the framework of the causation theory provisions in the PDCC and ICC to ensure that this mechanism performs its legal function, which requires determining the content of the causation theory in the beginning Causation theory in this scope has two requisite functions: the equivalence of rights and obligations and the interdependence of obligations. in the later part of the last century, the French judiciary has shown an effective role for the theory of causation in the protection of a contract itself by using causation as a supportive means to protect the economic contractual equilibrium of the contract, whenever necessary, such as in the decision issued on 03 July 1996 by the French Court of Cassation in Piller’s case. All of this will be analysed within the framework of the causation theory provisions in the PDCC and ICC to ensure that this mechanism performs its legal function, which requires determining the content of the causation theory in the beginning
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