سیدسینا سلیمی

Surprising terms are terms that have not been individually negotiated by the parties and do not come to the notice of the contracting party, and are drafted contrary to the legitimate, conventional and reasonable expectations of the contracting party; So that no ordinary person in the position of the accepting party can expect the existence of such conditions in the contract. Because the content, language, or the manner of presenting these terms, which may be ambiguous, or small font, printed behind the page in a hidden way, are generally overlooked by the other party of the contract. Therefore, the contracting party commits to all its provisions by signing the contract, while being unaware of the existence of surprising terms, and has no real intention to adhere to such provisions of the contract. This thesis, while explaining the nature, introducing examples and criteria for identifying surprising contractual terms, studies the judicial decisions issued in this regard and provides appropriate solutions to deal with these terms and aims to answer the following question by analyzing the legal status of these terms from the perspective of international commercial documents and Iranian statute law: Does the mere apparent acceptance and signing of the contract by the Obligor commits him to these terms? The findings of this study confirm the adoption of a similar approach in this regard in international commercial documents and Iranian law. According to UNIDROIT principles of international commercial contracts, any term contained in the standard terms which is of such character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by the other party and to determine whether a term has the mentioned feature or not, regard shall be had to its content, language and way of presenting the mentioned terms. Also, the principles of European contract law,   the principles of international commercial contracts of OHADAC, the DCFR document and the European common sales law stipulate that the terms of the contract which have not been individually negotiated can only be invoked against the party who was not aware of those terms that the party invoking these terms has taken reasonable steps to draw other party's attention to these terms before or at the time of the conclusion of the contract and the mere signing of the contract by the Obligor is not sufficient to bind the signatory to the unexpected terms of the contract. Although the Iranian civil law does not contain an explicit article regarding the identification of unexpected terms and the determination of its legal status, but based on fundamental legal principles and rules such as the principle of Good Faith, the principle of Autonomy, the rule of prohibition of detriment and also accepting the supremacy of the rule of Subjective Intentio   in the formation and creation of a contract, the surprising terms included in the contracts are considered to be legally invalid due to not being in the scope of the agreement of the parties in the world of proof. Although the proof of conditions and circumstances leading to the invalidation of these terms is the responsibility of signatory. In the new commercial code approved in ۲۰۲۴, the Iranian legislator considered the terms contained in the standard contract presented by one of the parties to be voidable if the condition is to the detriment of the other party and causes an unusual imbalance in the rights and obligations of the parties. The formation of the mentioned article and the wording used in the drafting of the last line of this article and the use of the phrase "model contract" in this clause all confirm that the Iranian legislator has considered the acceptance of the unexpected terms and terms with mentioned features are voidable according to the   latest Iranian commercial code.