The role of the judge in amending the employment contract in line with economic transformations and labor market developments
Prepared by the researche :Dr. Kaid Hafida, Faculty of Law and Political Sciences, University of Mostaganem
Democratic Arabic Center
Journal of Political Science and Law : forty-first Issue – September 2024
A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin
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Abstract
The development of economic life results in the growth of a close relationship between production and trade. This situation results in the multiplicity of parties and the increase in contr acts, the most important of which is the work contract due to its effects that are in line with the needs of people and the achievement of their common goals. However, a group of economic transformations may occur in this contract.And social and political, which change the features of the contract theory in general, and thus imposes on the Algerian judge to amend the contracts to comply with these emerging transformations, preserving the balance and stability of the contracts, and the Algerian legislator granted him a set of powers for that, so we tried through this research paper Shedding light on the authority of the judge to change the features of the work contract, as well as the legal limits and effects of amending the work contract on the market economy.
Introduction:
Economists have interpreted the principle of will power for decades on the basis that the market is governed by the laws of supply and demand, and that it is these laws that benefit society and the economy. individual in order to enable the activation of commerce. and trading in the market and encouraging economic activity, any obstacles to it must be removed.
As for legal thought, applications of the principle became widespread after the publication of Napoleon’s non-codification, which bears the title: “GOUNOT”. The first work devoted to him is the professor’s treatise on the principle of the authority of the will, a contribution. to the criticism of legal individualism. He brought together the most important results resulting from this principle, notably in the field of contracts, and he criticizes it because it imagines the individual as if he were a person living apart from the society in which he exists.
Economic, social and political transformations have contributed to changing the characteristics of contract theory, raising questions about the future of contract. It may seem daring to predict the principles of tomorrow due to these transformations and developments, but it is possible to identify some trends which show some of the developments made in this area. It should be noted that there is not only a general “contract” or “theory” of contract, but also an awareness of the particularly important impact of very diverse private contracts. It is difficult to cover all cases in which developments are revealed due to their large number, but we will discuss the most common examples that attract attention.
In light of these data, we pose the following legal problem:
What powers has the legislator granted to the judge to modify the characteristics of the employment contract in light of current economic transformations? What are the limits and legal effects of modifying the employment contract on economic life? .
To address this issue, we have divided the research document into two sections. In the first section, we examine the judge’s power to interpret the contract in light of economic transformations, and in the second section, the judge’s legal mechanisms to modify the contract and its modifications. effects on the market economy.
We relied on the descriptive and analytical approach to study the subject in all its parts by reading and analyzing Algerian legal texts and sometimes comparing them with French legislation.
first section, we examine the judge’s power to interpret the contract in light of economic transformations :
- The power of the judge to interpret the contract in the light of economic transformations
The world has witnessed several accelerated events, such as wars and the economic crisis of 1929, which have made it cumbersome or impossible for the debtor to fulfill his obligations in continuing contracts, and in the face of the absence of a text explicit legal authorization authorizing the judge to intervene in the modification of the contract, allowing the judge to exercise his discretionary power by sometimes interpreting the contract, sometimes by interpreting the general principles of law. However, economic, social and political conditions do not allow us to accept the same principle of “authority”. of will” in such a way that it led to the formation of legislative texts which give the judge the power to intervene in the interpretation of the contract through an explicit text.
1-1: personal interpretation of the employment contract:
Jurisprudence has been divided, with regard to the means which help the judge to reach the content of the contract of which he is convinced and to decide on its basis in the dispute before him, into two schools: the school of personal interpretation and the school of objective interpretation.
A- intervenes to restore the contractual balance based on the interpretation.
Proponents of the personal doctrine of interpretation argue that, when interpreting, one must seek the common intention of the contracting parties from the words and expressions used by the contracting parties themselves in the contract. The text of article 1156 of the French Civil Code. stipulates that: “In agreements, the common intention of the contracting parties must be constantly sought… On the literal meaning of the words
However, before addressing the authority of the judge to interpret the contract, it is necessary to understand the definition of this contract.
B: An overview of the employment contract and the determination of its legal nature:
Perhaps the most comprehensive definition of employment contract is: “A contract under which the worker agrees to work for the employer or employee under his supervision and direction in exchange for a specified wage and for a fixed or indefinite period. » includes the four elements of the contract, namely work, salary, subordination and time. The characteristics, qualities and pillars of the contract were embodied in the provisions, legislative and regulatory texts, then in the agreement.[1]
As for the Algerian legislator, he did not define the employment contract in the previous legislation. [2]This is Law No. 78-12 of August 5, 1978, which contains the general fundamental law for the worker, that is to say workers in all sectors, in all sectors. its article 51, which states: “A relationship must be established. » Work under a written or unwritten contract. In any case, this relationship simply involves working for an institution that employs one and creates a working relationship between those affected by the rights and entitlements. obligations specified in the general fundamental law for the worker, in the standard fundamental laws of the sector of activity and in the specific fundamental law of the institution which employs him.
In the legislation in force, namely Law No. 90-11 of April 21, 1990 relating to labor relations, which governs labor relations with the exception of employees referred to in article three thereof.
If we try to look at article 8 of this law, which specifies: “The employment relationship is established by a written contract or not, and in any case this relationship exists by the sole fact of working for an employee, it creates rights and duties. of the persons concerned in accordance with what is determined by legislation and regulations and collective agreements or employment agreements and contracts.[3]
By extrapolating the text of this article, we see that the Algerian legislator did not define the employment contract, but rather gave the field a broader definition including the employment contract.
work, which is the employment relationship. The contract was considered as a simple means and tool. prove the employment relationship in order to protect the weaker party in the relationship, which is the worker.
– The legal nature of the employment contract:
Case law differs in the definition of employment contract due to differences in economic and social trends. Thus, the development of the employment contract has gone through several stages, from the point of considering it as a contract that subjected the person to the logic of supply and demand, unfair to their rights as a human being, to ‘to consider it as a contract of submission in which the employee or the employer imposes his conditions, even arbitrary, on the worker because of his need and his need to work to earn his living, to live and ensure his daily bread, it has acquired a particular nature which distinguishes it from other contracts. The condition of compliance became negotiable, and the obedient person was monitored and restricted thanks to the intervention of various legislations around the world which regulate the employment relationship by defining the rights and duties of both parties to the contract and the Algerian legislator like the others. comparative legislation regulating the employment relationship, this was covered by Law No. 16-01 of March 6, 2016, which amends the 1996 Constitution, in its articles 69, 70 and 71, and Law 90 11 – which regulates labor relations, and other legal texts, such as occupational medicine and social insurance and the Labor Inspection through its intervention to implement the provisions and rules of the Labor Code, particularly in matters labor disputes[4].
All this has contributed to the unique character of the employment contract, in addition to the involvement of the workers themselves in the organization of the employment relationship, through local and international unions and federations and the mutual influence between them, towards this which results from workers’ rights in the field of social security, occupational medicine and prevention[5].
In relation to work accidents and occupational diseases, the independence of labor law has influenced the formation of its own nature and the adoption of characteristics that prevent it from mixing and approaching other work-related contracts[6] .
1-2 match the will with the facts:
This means that the contracting parties assume in any contractual relationship a series of circumstances and conditions and assume their continuation, and that they would not have [7]concluded the contract if they had included in their calculations the modification or disappearance of these conditions. is not explicitly indicated in the contract, but the judge assumes it. Because, according to the requirements of good faith, we cannot oblige the entrepreneur to implement the pledge when the contractual basis does not exist initially or when it no longer exists. after the contractual conditions have fundamentally changed.
Article 111 of the Algerian Civil Code, as well as articles 1156 et seq. of the French Civil Code, indicate a series of rules which allow the judiciary to achieve the common will of the contracting parties. The intention which must be considered is the true intention of the contracting parties without stopping at the literal meaning of the texts. The Algerian legislator has enshrined the principle of good faith in article 111 of the Civil Code in the forms of honesty and trust so that. the judge can draw inspiration from it in his search for the common intention of the contracting parties. In this area, the legislator has defined The judge has a certain behavior towards the contracting parties, because they must have honesty and mutual trust, and these two. elements are necessary for each contracting party to be reassured by the other party, and honesty and trust between the contracting parties result in the obligation of each contracting party to refrain from anything which makes difficult or impossible the execution of the obligation by the debtor, as well as Cooperation between the contracting parties in the execution of the contract.
The obligation of cooperation between the contracting parties involves helping the debtor to overcome unexpected obstacles at the time of conclusion of the contract, either by not insisting on the execution of the contract on the appointed date or by modifying the contract by distributing the additional and unusual burden between him and a creditor.
A-: Means of personal interpretation of the contract:
There are many checks that the judge uses to find the intention of the parties. These may be internal or external controls, in order to achieve the implementation of the will by adapting the contract.
B- Contract interpretation controls can be classified into two categories:
controls contained in the act, and controls not contained in the act. The judge is guided to discover this common intention by various elements mentioned in article 111 of the Civil Code, which specifies. : If it is a matter of interpretation of the contract, then the common intention must be sought.
This should be guided by the nature of the transaction and what needs to be available. Honesty and trust between the contracting parties in accordance with current usage in transactions.
B-1: the objective doctrine in the interpretation of the contract:
The text of article 111 of the Civil Code is not limited to internal means of interpretation, but rather provides a set of external means on which the judge can rely to arrive at an interpretation of the contract. Rather, it is article 111, corresponding to this one. the text of article 1156 of the Civil Code itself, invites the judge to seek the common intention of the contracting parties without forcing him to specific means of interpretation, he is prohibited from relying on other . We can therefore say that the dominant tendency today, whether in France or in Algeria, is the objective tendency of interpretation, that is to say using all possible means of interpretation so that the judge identifies the common will of the contracting parties.
First: traditional means of interpretation:
Although these ideas are specific to philosophical science, in the field of law they are flexible and grant those who use them broad interpretive and explanatory authority, as detailed below:
B-2 Rely on the rules of justice:
Justice plays an important role in interpreting the contract as it is assumed that the contracting parties have contracted under its sovereignty and have kept themselves away from illegal contractual means such as fraud, deception and forgery , and followed the path taken by the common rules. honorable people who have a sense of justice and avoid harming others, and in this area the question arises of what is meant by justice and when is it used?
As for what we mean by justice, this principle is surrounded by a lot of ambiguity and ambiguity, because its meaning differs from person to person, and can even change depending on times and places. However, despite this formal change, it. is objectively fixed, and in reality it is a set of fixed foundations The ideal system to achieve, which is superior to any formal or customary writing. It is a rule of natural law, if not its essence, and the foundation of correct moral values.
This is what the first article of the civil codification states: “If there is no legislative text, the judge will rule in accordance with the principles of Islamic Sharia, and if there is no ,[8] then according to custom, and if there is none, according to custom, and if there is none, then in accordance with natural law and the rules of justice. is limited to obliging the contractor to do only what is stipulated therein, but it also addresses what is part of its requirements in accordance with law, custom and justice, depending on the nature of the obligation.
This is what the first article of the civil codification indicates: “If there is no legislative text, the judge will rule in accordance with the principles of Islamic sharia, and if there is no , then according to custom, and if there is no legislative text. text, then in accordance with natural law and the rules of justice. » He also used the idea of justice when he spoke of the effects of the contract when it was stipulated in the second paragraph of article 107 of the Civil Code that. the contract is limited to obliging the contractor to do only what is stipulated therein, but it also addresses what is part of its requirements in accordance with law, custom and justice, depending on the nature of the obligation.
The idea of public order: The French civil group included text from Article VI stating that it is not permitted to enter into special agreements on laws relating to public order and public morals. Article 97 of the Algerian civil codification included the provisions of the Algerian civil code. Articles 1128 and 1133 of the French civil codification. Article 97 of the civil codification: If the entrepreneur complies with it For an illegal cause or contrary to public order or good morals, the contract is void.
According to custom, the judge has a flexible tool that helps him adapt the obligations generated by the contractual relationship with the aim of coping with changing economic conditions. Custom is therefore one of the factors determining the scope of the contract that custom must adopt. The judge uses the adaptation of the obligations generated by the contract with the aim of coping with the changing economic conditions in which the contract was concluded.[9]
B-3 – The legal mechanisms of the judge in modifying the contract and its effects on the market economy.
The modification of the contract constitutes an exceptional power granted by law to the judge to restore the contractual balance, through restrictions that the judge cannot exceed, with the aim of balancing the stability of legal acts and the balance of the contract. , as well as practical trends. which govern the judge’s power to exercise the modification. This task must be accomplished, represented by relying on certain means in order to be able to apply the principles of justice, and these means govern the exercise of this power.[10]
The judge does not have separate authority in the area of using the power of modification, because it is limited to certain exceptional cases, and if he tries to resort to justice to move it, so that he can use the power of modification in the case before it, it must resort to the legal mechanisms represented in the following claims:
D- The limits of the judge’s power to modify the contract, taking into account good faith and economic circumstances:
What we mean by modification is “making a partial modification to the contract.” This modification concerns one of its elements, or one of its clauses, either by cancellation, by addition, or otherwise, so that this modification does not occur, to its greatest extent. , amounts to canceling or terminating the contract. implement it, or cancel one of the terms of the contract or one of its conditions, as it applies to the time element of the contract by increasing it, decreasing it, temporarily suspending its execution, or in other forms in which this endorsement may appear.
The principle of good faith of the debtor: The first means that the judge proposes to justify the use of the power of modification is good faith which must be available. The judge cannot justify his intervention by modifying the contract for the benefit of the debtor. , and the latter is in bad faith. The debtor must be in good faith to be able to benefit from the judicial period to perform his obligation, for example because the contract contains an implicit clause of obligation of the contracting parties to perform the contract. in good faith, and the latter embodies the principle of the obligatory force of the contract, which requires otherwise, that is to say the failure of the debtor to perform his obligation in good faith.
The debtor’s failure to fulfill his obligation to perform the contract in good faith has the consequence of depriving him of the intervention of the judge to reduce the onerous obligation to a reasonable extent so that the debtor benefits from the intervention of the judge to reduce the onerous obligation at a reasonable level. To a reasonable extent, it is necessary that the source of the emergency incident is foreign to the debtor, and this is not intended to cause The debtor is responsible for his fault in the occurrence of an emergency accident, since the management of the company cannot file a lawsuit to require the intervention of the judge to modify the contract on the pretext that its execution has become cumbersome, because the creditor has proven that the cause of the emergency accident is due to a mismanagement or fraud, since in the latter case, the sanction is not modification of the contract. , the driver incurs criminal and civil liability.
In addition to what we have mentioned above, the debtor is obliged to exercise due care and caution when executing the contract. For example, a debtor who has demonstrated negligence and lack of competence in the management of his business does not benefit from a modification of the contract because. legal logic dictates that the debtor should not benefit from his error by confronting his creditor. However, the question arises when the judge assesses the good faith of the debtor. Is the debtor’s good faith linked to the execution of the contract, or to the cause of the unforeseen event, or to the debtor’s good faith in adhering to the theory presented to the court and we discover the good faith of the debtor, particularly in the management of the establishment, since the establishment does not benefit from legal settlement in the event of violation by the partners or the business manager of the rules of good faith in the management of the company, given that the principle of good faith imposes on the debtor the obligation to faithfully account for his negative and positive financial debts from the opening of the legal settlement, and that the debtor does not does not benefit from judicial settlement in commercial matters, anyone who commits the offense of bankruptcy by fraud and who commits one of the acts provided for in article 370 of the Algerian Commercial Code.
D-1 : Manifestations of good faith:
There are two manifestations of good faith, the first is represented by the duty of honesty and the second is the duty of cooperation between the contracting parties.
The duty of honesty: The duty of honesty is that the contracting party, during the execution phase of the contract, similar to the negotiation and contracting stages, is obliged to inform the other party of all the details .
Necessary for the proper execution of the contract. This obligation concerns both the debtor and the creditor. It requires the debtor to perform his pledges with complete loyalty, honesty, integrity and sincerity. The debtor’s obligation to properly perform the contract implies that he is required to execute his pledge with complete loyalty, honesty, integrity and sincerity. all integrity, honesty and integrity.
National and comparative legislation imposes this duty or obligation, as is the case in the insurance contract under Algerian law, where good faith requires that the insured notifies and informs the insurer of all information relevant to the risk. subject to insurance, in accordance with Article 15 of Decree No. M 95-07 relating to insurance, in which “: which is indicated”: The insured is required: to declare at the time of subscription of the contract all the data and circumstances of which he is aware… to pay the premium or subscription… declare in advance to the insured the modification or aggravation of the risk.. Respecting the obligations agreed with the insurer, as imposed by current legislation, by informing the insurer of any accident resulting from the guarantee as soon as it is informed and within a period not exceeding 7 days. Except in cases of emergency or force majeure, he must provide him with all the necessary details relating to this accident and its extent, and he must also provide him with all the necessary documents that he requests…”[11]
D-2– The duty to cooperate:
The duty to cooperate is the need to facilitate the execution of the contract and to take, as part of this objective, all the precautions dictated by the transactions and the good faith of the Professionals, when they enter into relationships legal between them. or with others, are affected by this obligation, since in this case any contracting professional must inform the other party of the information necessary for the proper execution of the contract. This principle also imposes on the seller, in his professional capacity, the obligation to inform and advise the buyer, in his capacity as a foreign person, of all the characteristics, particularities and data of the thing sold, which would affect the progress of the transaction. the transaction. contractual sales relationship.[12]
This commitment to cooperation is imposed by new developments in the contractual relationship. This is a cooperative relationship and not one of adversity, because the conflict and conflicts of interest of those entering into a contractual relationship do not prevent them from doing so.
Join hands and cooperate to achieve the desired goal for the benefit of all, given that individual effort is very limited, which is seen for example in the company contract, where this cooperation is manifested in the intention of sharing between partners. The correct principle of obligatory performance of the contractual relationship applies to most, if not all, contracts, such as contracts of sale, transportation, subcontracting, insurance, rental and ‘agency. We can therefore say that the obligation of performance in good faith. requires sincerity and honesty and understands the duty of cooperation, trust and participation between the contracting parties.[13]
D-3 Considering the economic conditions and the state of emergency:
It is clear from the sentence contained in the text of Article 107 of the Civil Code, second paragraph: (and according to the circumstances) that the judge takes into account the economic situation of the debtor, which is why he resorts to compensation on his part or when he sees that unfair results may result from these circumstances.
The judge takes into account in particular the consequences of the debtor’s performance of the onerous obligation on his financial responsibility, in order to prevent the emergency event from inflicting a huge loss on the debtor, leading to his insolvency or bankruptcy.
Therefore, the intervention of the judge in the contract by modifying it has a role in continuing the economic process that both contracting parties are responsible for carrying out. Otherwise, the negative impact of the cancellation of the contract is not limited to the debtor, but it. also has effects on the national economy, since the bankruptcy of the debtor merchant leads to effects such as: mass layoffs of workers, non-payment of workers’ wages, tax evasion.
In case of emergency, the trial judge may also consider the urgency as one of the reasons that push him to intervene in the contract by modifying it, such as postponing the execution of the debtor’s obligation, by granting him a judicial deadline, and the legislator took this circumstance into account when he specified that: “And in case of emergency, the granting of deadlines falls within the jurisdiction of the interim relief judge.[14]
second section, the judge’s legal mechanisms to modify the contract and its modifications. effects on the market economy
The basic principle is that when the two contracting parties agree on a deadline within which the contract will be executed, then at this deadline, the obligation resulting from this contract will be due and must be executed voluntarily, but the debtor may refrain from doing so.
Implementation despite the possibility of concrete implementation and not its impossibility. In this case, the legislator gave the creditor the right to choose between filing an action for annulment or an action for execution, depending on what it included and what it required, to obtain what it required. is known as contractual security and to establish the stability of transactions. However, breaking with this principle and to limit the severity of the principle of binding force on the contract, most modern legislation has provided that the judge can intervene to modify the contract whenever it is unbalanced. This is an exceptional authority after its authority. was limited to the power to interpret the contract as a general principle. Perhaps granting the judge this exceptional power has a strong objective, that of establishing the fairness of the contract and protecting the weak entrepreneur in the contract, since the legislator has granted this right to the judge with the power to intervene to modify the deadline for execution. the contract and grant a judicial deadline.
A-the power of the judge to grant a judicial delay in order to preserve economic transactions:
The deadline is defined as a future event whose occurrence is certain and whose occurrence results in the execution or expiration of the obligation. The term is characterized by being a future affair, which means that it is a date set for the execution or expiration of the obligation. The term must be for the future and cannot be past or present.
The term is also characterized by the fact that it is something whose realization is certain, and this is what distinguishes it from a condition, because if the obligation is linked to something whose realization n is not certain, so this matter is not considered a term, but rather a condition.
Finally, the deadline is characterized as an incidental element of the obligation and not as an essential element, and is therefore only associated with the obligation after the obligation has fulfilled all its essential elements. The deadline can be either contractual, legal or judicial. , in terms of source, and in this simplified research we will only present one type, which is The judicial term, or what is called in jurisprudence the easy view.[15]
This is in accordance with the provisions of Article 272 of the Syrian Civil Code, which states that: If it appears from the obligation that the debtor will only perform it if he is capable or has the means, the judge will designate an appropriate judge. future due date, taking into account the current and future resources of the debtor and requiring the care of the man keen to fulfill his obligations.
1: – Definition of the legal deadline and its nature
The judicial period or concessional notice is called the period during which the judge grants the unlucky debtor a period within which he can pay his debts if an emergency beyond his control prevents him from fulfilling his obligation.
It is therefore a postponement of the execution of an obligation ordered by the judicial power despite the expiration of the execution period, taking into account the situation and circumstances of the debtor. Although this deadline is an exception, it is part of the general order. this right cannot be suspended and, therefore, any agreement that contradicts it is invalid.
The Maisarah view is characterized by general application, whether in terms of the subject of the obligation or the source of the obligation. In terms of the locus of obligation, the Maisarah view is recognized in all obligations, regardless of their locus, whether the subject. of the obligation is a financial performance or the execution of work. In terms of the source of the obligation, the Maisarah view is granted in all obligations, whether the source of the obligation is a will or a unilateral contract.
B: The scope of the judicial deadline and the power of the judge to grant it:
The judge has absolute discretionary power to grant the debtor concessional consideration or a judicial period to grant it or prevent him from doing so. He is also free to determine the duration of the concessional compensation as long as it is reasonable.
and that his estimate in this regard is reasonable. final and not subject to comment by the Court of Cassation.
Likewise, the judge can grant the debtor a single deadline to pay, or successive deadlines to pay. As we have indicated, the judge’s ability to grant a concessional review is a public policy order, and it is not permitted. to accept that the judge withdraws it, and the debtor can in any case submit a request to grant him a concessional review. He must file a lawsuit, even for the first time, in the Court of Appeal.
The judge can also grant him this period on his own initiative and without request. The debtor may also request that judicial time be granted to him while the creditor begins enforcement proceedings in the case where the executive act is an official act and not an enforceable judgment, because in this case the debtor cannot pose execution problems. procedures to request that a concessional consideration be granted to him, since the deadline has expired and the duty was due. This must be requested during the trial and before the decision is handed down. If the decision is made, there is no way to do it. , because the decision must be executed as it is and no other judge can modify it, except by appeal in the prescribed legal forms.[16]
C: Conditions for granting a judicial deadline, its effects and the legal deadlines for its expiration:
C-1- Conditions for granting the judicial deadline: The judicial deadline is known among jurists as the “vision of ease”, and this term is taken from Islamic jurisprudence, whose name comes from the word of the Almighty : “And if he is in difficulty, then look to what is easy, and that giving alms would be better for you, if only you knew” (Surah 280, verse 280).
– For the judge to grant the debtor a judicial period, the following conditions must be met:
– That the debtor’s state requires that the judge grant him a concessionary consideration, he must therefore be in good faith in his delay in the execution of his obligation, and he must be unlucky, neither intentionally nor negligent in doing so. , and he may not be insolvent, otherwise there is no point in granting him the aforementioned period. He must have enough money to fulfill his obligation, and he cannot temporarily sell that money to fulfill the obligation, as if the money were real or personal property. cannot be sold immediately.
– That the creditor is not seriously harmed by granting a gentle look to the debtor if there is something in the gentle look that causes serious harm to the creditor, for example if he was counting on the debt to be paid to honor a obligation. a debt he owes someone else and can’t delay paying, or if his soft look means he’s missing a deal. Failure to do so will cause him serious harm, as it is not fair to grant relief to the debtor. seriously harm the creditor.
– That there is no legal obstacle to the concessional thesis, including what is stipulated in article 158 of the Civil Code, which states that: It is permitted to agree that the contract will be considered
as resolved by itself without the need to resort to a judicial decision when the obligations arising therefrom are not fulfilled. In this case, the judge cannot give the debtor a deadline for payment.
– That the period that the judge grants to the debtor with a view to the concession is a reasonable period. The judge is not permitted to grant the debtor a long period during which the creditor will suspend his right. be measured by what is necessary for the debtor to pay[17].
C-2 – The effects of granting judicial time :
The granting of the concessional view entails the following consequences of the suspended period in general:
1- Suspension of execution until the expiration of the period granted by the judge to the debtor. If the debtor executes according to the so-called promissory note and then grants him a concessionary notice, the execution procedures must be interrupted and the procedures which were completed before the granting of the concessional notice, they will be valid and valid if the period that the judge granted to the debtor has expired and the debtor repays the debt and the creditor follows up on the execution procedures by leaving them suspended.
The concessional offer has a relative effect, because it is limited to the debtor who has benefited from the grace period to the exclusion of other debtors, even if they were joint with him, provided that they have not granted a similar concessional offer. As for the debtor’s guarantor, if he makes a concessional offer to the debtor, he benefits from it, and the effect of the concessional offer is also limited to the creditor who has been the subject of a decision against him, it does not therefore does not extend to other creditors. , even if they are in solidarity with the first creditor, as specified in article 464/2 of the Algerian Commercial Code: “It is not permitted to grant deadlines, whether legal or legal, except in the cases provided for in articles 426 and 438 of this law.”
Remember that the debt remains due: The granting of the concessional view does not have the effect of delaying the maturity of the debt, because the debt remains due, which has the consequence: – The concessional view does not prevent the compensation between the debt for which the concessional notice was granted and a debt owed by the creditor to the debtor, payable after its granting in application of the text of article 297 of the civil code: “The debt is entitled to compensation between which is. owes to his creditor and what is owed to him, even if the reason for the two debts differs, if the object of each of them is money or similar objects of the same nature and quality, and that each of them is established, without dispute, and is payable. » It is valid to claim it in court, and the delay in payment due to a deadline granted by the judge or given by the creditor does not prevent compensation. 1534 Judicial power is always legitimate in the interest of the debtor. The debtor can make payment before the date specified in the Maysara revision.[18] .
– The expiration of the deadline according to Maisarah:
The period granted to the debtor under the concessional formula expires in the following cases:
1-If the debtor is declared bankrupt or insolvent in accordance with the provisions of the law.
2- If the debtor, by his act, greatly weakens the special insurance granted to the creditor, even if this insurance was granted in a subsequent contract or in accordance with the law.
3-If the debtor does not provide the creditor with the assurance that he undertook to provide.
4- If the conditions of compensation are met between the debt for which the consideration was granted and a debt arising from the debtor’s creditor, whether this debt arose before the granting of the judicial period or arose afterwards.
C-3: Violation of the criminal condition of the employment contract:
The penal clause can be defined as follows: Article 1226 of the French Debtor defines it as follows: “It is that according to which the contracting parties determine themselves and decisively the amount of damages and interest to be paid in the event of non-performance . » Or compensation.
The creditor for damages suffered due to non-performance of the initial obligation. The penalty clause can also be defined as the condition contained in the contract according to which the contracting parties estimate in advance and arbitrarily the compensation due in the event of an event. that one of them fails to fulfill his contractual obligation. This often involves removing the judge’s power to modify and eliminating the burden of proving the damage on which compensation depends.
This is what the Algerian Civil Code allows in its article 183: The contracting parties may determine in advance the compensation by stipulating it in the contract, or in the rights agreement….” The penal condition is characterized by a set of characteristics which are: The penal condition is compensation and cessation of the damage that happens to the creditor due to the debtor’s failure to fulfill his obligation, so that the debtor has no choice between implementing its obligation or repudiating it[19].
– The creditor is only entitled to the penalty clause if he suffers damage due to non-performance or delay in its execution, even if it is moral.
The amount agreed in the penalty clause may be reduced in proportion to the damage suffered by the creditor as a result of the debtor’s failure to fulfill his obligation. The excuse rules apply to him before the deadline.
– The penal condition is considered compensation. The Algerian legislator grants the judge the power to modify the penal condition or reduce the penal condition in the case where the debtor fulfills part of the initial obligation if the debtor has an estimate of the compensation. a penal condition which is greater than the damage, then it can increase it if it is less, and with regard to the amount or percentage of exaggeration which allows the judge to modify the penal clause, this has not been specified nor by the Algerian. or the French legislator, but it was noted that a French jurist considered that the authority of the judge if the penal clause was set at an amount greater than the damage, while the French Court of Cassation gave the freedom to the judges concerned to determine the amount of compensation. .
However, the contractual condition of a text may exempt and mitigate liability under contractual liability in accordance with article 178 of the Algerian Civil Code, as follows: “It may be agreed that the debtor will bear the consequences of an accident suddenly or due to force majeure. It may also be agreed that the debtor will be exempt from all liability
resulting from non-performance of its contractual obligation. of fraud or serious error committed by persons he calls upon to fulfill his obligation.
Any condition requiring exemption from liability resulting from a criminal act will be invalidated. In matters of tort liability, the condition of exemption or mitigation will be invalidated, whether it is linked to material or physical damage, serious or perpetual, and it will not be invalidated if it occurs after the damage has occurred.
As for contractual liability, the basis is the freedom of the contracting parties to modify the rules. If the exemption condition results from fraud associated with serious misconduct, then it is considered null and void, and this is what French justice held in invalidating it. conditions which exempt one of the contracting parties from any liability for personal injury caused to the other contracting party. The Algerian legislator clarifies the same idea by recognizing the exemption for minor errors, and he authorizes the condition which exempts him from contractual liability resulting from the errors of his subordinates. In the text of article 178, paragraph 2, the nullity of a condition invalidates the contract as a whole, and the legality of this condition being considered as an arbitrary condition if it concerns an adhesion contract in accordance with the text of the Article 110, Algerian Civil.[20]
The third requirement: The impact of the modification of the contract on economic life:
C -4- : the contract is affected by the state of the market economy:
The development of economic life is reflected in the growth of a close relationship between production and trade. This situation creates a multiplicity of active actors in the economic field, in order to ensure the transfer of the product or service from the producer to the final consumer. However, the balance of active power within the contractual group differs, with the result that the monopoly of the good or service is no longer the only reason for economic dominance in the market, because the supplier’s sales concentration from a specific distributor leads to the emergence of an unequal contractual relationship, which leads to the domination of the distributor in imposing the terms of the contract on the supplier, and the latter can only accept the terms of the contract without discussion.
The Competition Council in France considers that the reasons for the economic superiority of the distributor over the supplier may be the economic weakness of the supplier, or economic dependence on the distributor. The economic imbalance in this case appears in the lack of freedom. the choice of the entrepreneur, which imposes weak contractual conditions on the economically strong entrepreneur because the latter does not have the possibility of contracting with another entrepreneur.
A situation of market domination occurs in the case of economic blocs that restrict competition in the market, and this situation arises particularly in the case where one of the distributors exploits the position of economic dependence in such a way that it obliges modify the contract with unjustified commercial conditions imposed. by the distributor of its own will, under penalty of termination of the contract.
The business relationship and facts of the case revolve around the Cowar Group, one of the distributors of the supplier’s goods, and Cora’s share amounts to 100/67.5% of the imports purchased by the Cowar Group, and the goods supplied by the supplier were not of high quality and was exposed to intense competition, and therefore it is considered that the Cowar group is one of the important customers of the supplier and, therefore, the Cowar group imposed on the supplier to modify the contract at the sole discretion of the group, under penalty of unilateral termination of the contract. However, this behavior was not considered by the Competition Council in France as behavior based on the order of December 1, 1986 and is, according to its interpretation, anti-competitive. of the text of article 8, with the promulgation of the law of July 1, 1996, the clause providing for the modification of the contract with unjustified commercial conditions under penalty of termination of the commercial relationship has become arbitrary. In this case, the weak entrepreneur is exempt from the duty. the onus is to prove abuse by the dominant institution, and tort liability lies with an institution that abuses its position of economic dependence[21].
C- 5 -the nature of the evolution of the economic situation and its impact on thecommitment to the contract:
If the source of the obligation is the renegotiation clause, then in general the renegotiation clause includes the specification of the economic circumstance, whether a change in legislation, a strike or an increase in prices. The contracting parties specify in the contract the type of economic circumstance. this requires adapting the contract, such as changing legislation, changing the price of a currency, and if the parties are aware of the dangers and changing circumstances that accompany the execution of the contract, but are unaware of the nature of the circumstances, the time of their occurrence and the extent of the accident. This leads them to ignore them at the time of concluding the contract, which requires that the accident be unexpected.
The circumstance must be characterized by generality, that is, it leads to a change in the balance of the contract, which means that it has an impact on all contracts concluded during the same period and at the same place of the contract. in general, it is a change in the general situation or circumstances in which the contract was concluded and an imbalance in the fundamental obligations of the contract. In addition to the condition of generality, it is necessary that the circumstance be exceptional, uncommon or unique. this rarely happens. However, taking this element into account leads the parties to the contract to exclude all circumstances, particularly economic ones, given that economic conditions are always in constant evolution, especially since they have a direct impact on the element of the price in addition to their knowledge. of its effects, but on the contrary, the exceptional circumstances are linked to the moment of occurrence of the circumstance, and the aim of stipulating the element of exception in the terms of the renegotiation lies in respecting the principle of obligatory force of the contract in order to reconcile the maintenance of price stability and the various elements of the contract and what is necessary for the stability of contractual links and the pursuit of their implementation.
In addition to the type of accident, the accident must be independent of the will of the party requesting renegotiation depending on the extent of its contribution to the realization of the situation which leads to an economic imbalance of the contract, which is logical given that it is not reasonable for the debtor to obstruct the execution of the contract. His commitment then adheres to the renegotiation provisions of the contract even though what happened was the result of his actions or a planned affair on his part.
This is what is expressed in international commercial contracts through the good faith implementation of contractual obligations. The provisions of the Uniform Principles of International Contracts emphasized the element of independence of circumstances in their article 6 when they use the term that the circumstance or incident escapes the situation. control of the injured party.[22]
Conclusion :
We conclude from the above that contracts adapt and modify with economic, social, political and cognitive developments, particularly economic, and this evolution continues, in particular with the development of electronic commerce and the entry into the era of artificial intelligence, which will inevitably affect contract theory and push it to new horizons.
Thus, the legislator granted the judge the power to control the formation of the contract, allowing him to intervene to modify the contract in several cases. The legislator clarified to the judge, in accordance with several provisions, articles 358, 413, 426, 454, 581 and 732 of the Civil Code, and article 66 of the ordinance relating to copyright and rights, for example , contiguity and the text of article 344 of the Maritime Code are cases in which it intervenes to eliminate the abusive nature of the contract. exclusively, to ensure the stability of transactions, which would strengthen the principle of the contract according to the law of the contracting parties, because the stability of the contract is more important than the contractual balance, and from here it can be said that the legislator took the principle stability of the contract. It is original and there is an exception in particular cases to protect doctrinal balance. Among the reasons why the legislator has granted the judge the power to modify the contract, there is the situation in which it clearly appears to him that there is an imbalance in the contract between the obligations of one of the contracting parties and the obligations of the other party. , and this imbalance resulted from the fact that one party exploited the state of weakness in which the other contracting party found itself when concluding the contract, which is stipulated in Article 90 of the Civil Code.
The study of the question of the power of the judge to modify the contract is of great importance because it includes most aspects of civil law and makes it possible to determine to what extent the will of the contracting parties is affected by the intervention of the judge to modify the contract.
The contract is because the judge first seeks this will, trying to create a balance between the two parties. As a result, we have drawn some results from this topic, which are as follows:
– Although the judge has the power to modify the contract – even if limited to exceptional cases – this has a practical advantage, which is represented by the intervention of Q in the contract to restore the balance between the obligations of both parties without harming the interest of either of them.
– The legislator deviated from the general rule that the contract is the law of the contracting parties, granting this power to the judge, but this is due to a valid reason represented by human weakness or lack of experience of the one of the contracting parties, which caused him to be the victim of injustice or in arbitrary conditions which made him passive in the face of the complacent party. The authority of the judge was a solution to such cases.
– Interfere with laws prohibiting work in various types of contracts containing arbitrary clauses, whether such work is individual or collective.
– The power of the judge to modify the contract remains a discretionary power for the judge alone, that is to say he rules according to the circumstances and circumstances presented before him, but the power to modify the contract remains, it is that is to say by decreasing it or increasing it, without putting an end to it. Open the way for the judge to seek just and equitable solutions, far from those restricted by legislation, under the control of the Supreme Court of any judicial decision violating the law.
Format of bibliographic references:
Legal texts
- Law No. 78,-12 of August 5, 1978, establishing the fundamental law for workers.
- Law No. 90-11 of April 21, 1990 relating to labor relations, Official Journal No. 17.
- Ordinance No. 95-07 of January 25, 1995 relating to insurance, c.r., No. 13, of January 25, 1995, p. 06, amended and supplemented by Law No. 06-04 of February 20, 2006.
- Law No. 16-01 of March 6, 2016 amending the Constitution of 1996, in its articles 69, 70 and 71, of the Official Journal No. 14 of March 7, 2016.
Book
- Bashir Hadfi, Al-Wajeez fi Explanation of labor law and individual labor relations, Jusoor for publishing and distribution, Algeria, third edition. 2015.
- Abdel Hakam Fouda, Interpretation of the contract in Egyptian and comparative civil law, Alexandria Knowledge establishment, Egypt, ed. 2002.
- Fathi Abdul Rahim Abdullah, Explanation of the General Theory of Obligations, Sources of Obligation (without mentioning the publishing house and the place), 03rd edition, 2000-2001.
- Abd al-Razzaq Ahmad al-Sanhouri, The Mediator in the Explanation of Civil Law, The Theory of Commitment in General, Descriptions – Transfer-Extinction, Part Three, Arab Heritage Revival House 1958, Egypt,
- Ali Fellali, The General Theory of Contracts, Obligations, National Foundation of Printing Arts, Algeria, 2010, 2- Articles:
Articles
- Tartak Nouria, The Judge’s Authority to Grant a Conciliatory Review, an article published in Al-Ijtihad Journal of Legal and Economic Studies, published by the University Center of Tamanrasset, Algeria, issue 5, 2014.
- Rabia Nasiri, Real Estate and Environmental Law Review, Volume 9/Issue: 01 (2021), The Power of the Judge to Modify the Contract in the Algerian Civil Code.
Thesis or memory :
- Nuzhat, Swasi, the Power of the Civil Judge to Modify the Contract. Research for a Bachelor’s degree from the Higher School of Magistracy. Algeria: Ministry of Justice.
- Boukamish Muhammad, The Power of the Judge to Modify the Contract in Algerian Civil Law and Islamic Jurisprudence, Doctoral Thesis, Faculty of Letters, Social Sciences and Islamic Sciences, Hajj Lakhdar University, Batna, 2012
- Saadoun Yssine, The Impact of Economic Conditions on the Contract, Doctoral Thesis Specializing in Private Law, Mouloud Mammeri University of Tizi Ouzou, 2017-2018.
- Dali Bashir, The Role of the Judiciary in Protecting the Weak Party in the Contract, (A Comparative Study), Thesis for a Doctorate in Private Law, Abu Bakr Belkaid University, Tlemcen, 2015-2016.
- Obaid Najat, The power of the judge to modify the contract in Algerian civil law, Master’s thesis, Faculty of Law and Political Science, Abou Bakr Belkaid University of Tlemcen 2016,
[1] Bashir Hadfi, Al-Wajeez fi Explanation of Labor Law and Individual Labor Relations, Jusoor Publishing and Distribution, Algeria, third edition. 2015 p.56
[2] – Law No. 78,-12 of August 5, 1978, establishing the fundamental law for workers.
[3]– Law No. 90-11 of April 21, 1990 relating to labor relations, Official Journal No. 17.
[4] – Official Journal, number 14, of March 7, 2016.
[5] – Bashir Hadfi, Al-Wajeez fi Sharh Labor Law, Individual labor relations, op. cit., p62.
[6] – Ali Fellali, The General Theory of Contracts and Obligations, National Foundation of Printing Arts, Algeria, 2010, p391.
[8] – Saadoun Yassin, The impact of economic conditions on the contract, doctoral thesis specializing in private law, Mouloud Mammeri University of Tizi Ouzou, 2017-2018, p.23
[9] – Dali Bashir, The role of the judiciary in the protection of the weak party in the contract, (A comparative study), Thesis for obtaining a doctorate in private law, Abu Bakr Belkaid University, Tlemcen, 2015-2016, p. 31.
[10] – Ali Ali Suleiman, The need to reconsider the law, op. cit., p.53
[11] – Ordinance No. 95-07 of January 25, 1995 relating to insurance, c.r., No. 13, of January 25, 1995, p. 06, modified and supplemented by Law No. 06-04 of February 20, 2006.
[12]– Abdel Hakam Fouda, Interpretation of the contract in Egyptian and comparative civil law, Alexandria Knowledge establishment, Egypt, ed. 2002, p. 154
[13] – Fathi Abdul Rahim Abdullah, Explanation of the general theory of obligations, sources of obligation (without mentioning the publishing house and the place), 03rd edition, 2000-2001, p.26
[14] – Article 281 of the Algerian Civil Code
[15] – Abd al-Razzaq Ahmed al-Sanhouri, Al-Muwasit fi Sharh al-Civil Law, The theory of commitment in general, Descriptions – Transfer – Expiration, third part, Dar Ihya Al-Turath Al-Arabi 1958, Egypt, p . 13
[16] – Tartag Nouria, The power of the judge to grant discretionary power, article published in the journal Al-Ijtihad of legal and economic studies, published by the University Center of Tamanrasset, Algeria, number 5, 2014, p.129
[17]– Nuzhat, Swasi, the power of a civil judge to modify a contract. Research to obtain a baccalaureate from the École Supérieure de la Magistrature. Algeria: Ministry of Justice 2008.
[18]– Obaid Najat, The power of the judge to modify the contract in Algerian civil law, Master’s thesis, Faculty of Law and Political Science, Abi Bakr Belkaid University of Tlemcen 2016, p.164
[19]– Boukamish Muhammad, The power of the judge to modify the contract in Algerian civil law and Islamic jurisprudence, doctoral thesis, Faculty of Letters, Social Sciences and Islamic Sciences, Hajj Lakhdar University, Batna, 2012, p.128
[20]– Rabia Nasiri, Real Estate and Environmental Law Review, Volume 9/Number: 01 (2021), The power of the judge to modify the contract in the Algerian Civil Code p.127
[21] – Saadoun Yassin, a forementioned reference, p.72
[22] – Yahya Sharif, The need to abandon the general condition of emergency in Algerian civil law, A comparative study with Islamic jurisprudence, Journal of the Academy of Social and Human Studies, 2010, p.52.
