The Judge's Authority to Achieve Contractual Balance Through the Theory of Unforeseen Circumstances in Egyptian and Saudi Civil Law

After concluding the contract and before its full implementation, if exceptional general incidents occur that could not have been anticipated and the occurrence of which results in the implementation of the contractual obligation, even if it is not impossible, becoming so burdensome for the debtor that it threatens him with a huge loss, the judge may, depending on the circumstances and after balancing the interests of the creditor and the debtor, restore the burdensome obligation to a reasonable extent. Under the theory and in accordance with the conditions, the judge goes beyond the limits of his traditional task, which is limited to interpreting the contract, by intervening to amend it. This is particularly true in the case of contracts with lax implementation, or so-called term contracts. If exceptional, unforeseen circumstances arise that make the performance of an obligation burdensome for the debtor and threatens him with significant loss without reaching the level of force majeure that makes the performance of the obligation impossible, the judge may intervene to balance the interests of both parties and amend the obligations arising from this contract to reduce the burden without causing significant loss. If the basic principle is that when the contract is concluded and its pillars and conditions for its validity are met, it has a binding force that prevents one of its parties from becoming independent or the judge from annulling or amending it. However, unexpected circumstances may arise during the implementation of the contract that disturb the contractual balance as a result of one of its parties being exposed to severe fatigue in implementing its obligation, which threatens it with a huge loss that goes beyond the usual limit in transactions. Here the question arises: Will the contract continue to be implemented in light of these circumstances? Or is it terminated? Or is there a possibility to restore the lost balance to it? This is what the theory of contingent conditions answers. The research aims to explain the role played by the theory of emergency circumstances in restoring contractual balance, clarifying the role of contractual negotiation, and explaining its importance in returning a burdensome obligation to a reasonable extent. Highlighting the role of the judge without harming the creditor. In this study, the researcher relied on the descriptive, analytical, and comparative approach by analyzing the legal texts in the Egyptian Civil Code or the Saudi Civil Transactions Law.