THE POWER OF THE JUDGE IN THE WORK OF THE EXPRESS AVOIDANCE CLAUSE - A COMPARATIVE STUDY

Abstract

An express avoidance clause is a contractual advantage in the hands of the creditor in whose interest the clause was formulated, but at the same time it is a tool with which it fears the possibility of its abuse and endangerment of the interests of the debtor, and if this clause, the validity and legality of which the legislator has acknowledged, is mainly aimed at excluding the role of the judge in the avoidance of the contract, it is nevertheless subject to judicial control, where the latter remains an important role in imposing subsequent control over this clause from the point of view of verifying the conditions of its actions and determining its nature, for the purpose of achieving balance. Between the creditor's interest in ensuring the effectiveness of the clause on the one hand, and the debtor's interest in confronting the creditor's misuse of the clause and the disruption of its use