Unfair contract terms under the Kuwaiti Civil Code - a critical analysis and suggestions for reform

Al-Anzy, Sami M. Al-Hathal (2014) Unfair contract terms under the Kuwaiti Civil Code - a critical analysis and suggestions for reform. PhD thesis, University of Glasgow.

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Abstract

The fundamental aim of this doctoral thesis is to appraise the protection model critically against unfair contract terms in Kuwait and propose solutions for its reform. The thesis examines the Kuwaiti Civil Code (KCC) provisions that regulate unfair terms in the context of the standard form of contracts (i.e., adhesion) and relevant case law. It primarily seeks to address two main issues: (i) why the Kuwaiti control model for the protection against unfair terms has failed and (ii) how it can be reformed. It argues that the existing control model has failed considerably in providing adhering parties with an adequate level of protection for two reasons. First, the regulation of unfair terms in the context of adhesion contracts is fraught with ambiguities and legal lacunae that render it flawed and ineffective. Second, the courts’ restrictive interpretation of what constitutes an adhesion has limited the protection to only a few types of contracts. The thesis explores how the protection model can be overhauled and, where relevant, uses European Union Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts as a normative framework to offer proposals for law reform. To achieve this end, the thesis is divided into an introduction, five chapters, and a conclusion. It starts with a brief introduction, focusing mainly on the statement of the problem, motivation for the research, research objectives and methodology. Chapter one seeks to explore whether, in the light of the statutory deficiency, the general principles of contract law can be employed to counter unfair terms. The aim is to confirm the main hypothesis of the thesis and explain why legislative intervention is needed. Chapter two deals with the scope of protection and discusses the notion of adhesion contracts, their regulation in the KCC and how they have been interpreted by the courts. Chapter three explores the connotations of the concept of unfair terms and seeks to determine whether the ambiguous concept of contractual unfairness can be explained with reference to the theory of abuse of rights. Chapter four assesses the court’s role in disputes involving unfair terms. Chapter five highlights the need to introduce a parallel enforcement mechanism and suggests the establishment of a public body entrusted with the task of eliminating unfair terms from the market. The final segment of the study presents concluding remarks and suggests recommendations for law reform.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Keywords: unfair terms, contract of adhesion, Kuwait, Kuwaiti Civil Code, law reform
Subjects: K Law > K Law (General)
Colleges/Schools: College of Social Sciences > School of Law
Funder's Name: UNSPECIFIED
Supervisor's Name: Rahmatian, Dr. Andreas
Date of Award: 2014
Depositing User: MR Sami Alanzy
Unique ID: glathesis:2014-5452
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 20 Aug 2014 11:10
Last Modified: 11 Aug 2017 13:09
URI: http://theses.gla.ac.uk/id/eprint/5452

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