مكافحة الشروط التعسفية في التشريع الجزائري بين القواعد العامة والخاصة

Abstract

In principle, contracts are governed by the doctrine of freedom of contract (autonomy of will). However, individuals are sometimes compelled to enter into certain contracts in order to meet their personal or familial needs, such as consumer contracts. These contracts are typically characterized by an imbalance between the contracting parties, due to the professional party occupying a dominant position—leveraging their economic power and industry expertise. These advantages enable professionals to incorporate into the contract a number

of clauses that serve their own interests to the detriment of the other party. Such clauses are referred to as unfair terms. In response to this phenomenon, the legislature initially intervened through general legal provisions aimed at combating unfair terms. However, these measures soon proved insufficient and incapable of effectively addressing the issue. It therefore became necessary to introduce specific legal texts targeting unfair contractual terms. This led to the enactment of Law No. 04-02, which sets forth the rules governing commercial practices, as well as Executive Decree No. 06-306, which regulates the essential elements of contracts and unfair terms. These legislative instruments aim to protect the consumer—as the weaker party in the contractual relationship—and to restore a fair balance between the contracting parties.