Surprising contractual terms: Definition, criteria and legal status (a comparative study of international documents, the common law system, and Iranian law)

Document Type : Academicm and Research

Authors

1 University of Judicial Sciences and Administrative Services, Tehran. Iran

2 Department of Private law, Faculty of Law & Political Sciences , Allameh Tabataba'i University, Tehran, Iran

10.22091/csiw.2025.12119.2623

Abstract

This article examines the concept, identification criteria, and legal status of 'Surprising Terms' through a comparative study of international documents, the common law system, and Iranian law. This research provides a clear definition and criteria for identifying and proving surprising term and to explain it's legal status in terms of validity and enforceability by answering this fundamental question: what is the approach of international documents, common law judicial practices and Iranian law regarding surprising terms? After a comparative study of international documents and an analysis of judicial decisions, it was concluded that surprising terms are those that are not individually negotiated by the parties and are drafted contrary to the reasonable expectations of the contracting party. The content, language, or manner of presenting these terms, which may be ambiguous, written in small print, or placed on the back of a document, is such that is generally overlooked by the other party to the contract and its existence in the contract is surprising to any reasonable person. Therefore, the obligor signs the contract while being unaware of them and has no actual intention to be bound by such terms. Based on this reasoning, international documents do not recognize these terms as effective and binding, unless the party invoking them has taken reasonable steps to draw the other party's attention to these terms. Similarly, in Iranian law, the principle of the supremacy of subjective intention over objective intention necessitates the acceptance of same solution, although the Iranian courts have issued conflicting decisions.

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Comparative Studies on Islamic and Western Law

Articles in Press, Accepted Manuscript
Available Online from 16 July 2025

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