The Evolution of the Concept of Public Order in Protecting the Weaker Party in Contracts: Applications in Yemeni Law: A Comparative Study

Abstract

Since the inception of legislative rules, their existence has been intertwined with individual freedom, expressed legally through the principle of the autonomy of will. This principle asserts that individuals are bound only by their own will, and what they willingly accept is deemed just. Therefore, neither legislators nor judges have the authority to modify contracts, as the individual’s will is both the source of their obligation and the means of achieving justice. However, economic developments have led to an imbalance in contractual relationships. Economically powerful parties often exploit weaker parties by imposing their terms, which the latter accept out of necessity. As a result, contracts can appear to reflect the will of only one party rather than the mutual consent of equal parties. This development has posed a challenge to legal professionals, who must reconcile respect for contractual freedom with the need for justice in maintaining contractual balance and protecting weaker party. To address this, they turned to the concept of public order, which legislators used to limit contractual freedom through mandatory rules. These rules render any unfair contract clause void, even if accepted by the weaker party. This study explores the topic in three sections: the concept and criteria of public order, legal protection during contract formation, and protection for weaker parties during contract execution.