Research and development in private law

Research and development in private law

A Legal Study of Unequal Preliminary Negotiations in International Trade Contracts

Articles in Press

Document Type : Original Article

Authors
Habib Talebahmadi 1
Zahra Sadat Miriyan 2
1 Department of private and Islamic law, Faculty of law and political sciences, Shiraz University, Shiraz, Iran.
2 Ph.D. Student in Private Law, Department of Private and Islamic Law, Faculty of Law and Political Sciences, University of Shiraz, Shiraz, Iran.
10.22034/jpl.2026.2087190.1307
Abstract
The principle of contractual freedom, as one of the fundamental principles of contract law, despite its positive functions in facilitating commercial transactions, cannot alone guarantee justice and balance in the pre-contractual stage. This inadequacy becomes a serious challenge, especially in international commercial contracts where inequalities in information, economic power, and bargaining leverage between the parties are prevalent. Therefore, reconsidering existing legal mechanisms to protect the weaker party during preliminary negotiations appears essential. In the legal systems of many countries, particularly European jurisdictions, the initial responses to the phenomenon of inequality in pre-contractual discussions emerged mainly through judicial interventions, employing interpretive tools and general rules of contract law. Judicial practice, relying on concepts such as good faith, fairness, prohibition of abuse of a dominant economic position, and the duty of proper and timely disclosure of information, has sought to prevent the imposition of unfair terms during pre-contractual negotiations. At the transnational level, unified international instruments of contract law, by restricting the scope of contractual freedom and establishing mandatory rules, have provided mechanisms to control imposed terms and protect the weaker party. However, the effectiveness and coherence of these tools in practice require critical assessment. The present study, adopting an analytical-comparative approach, examines inequality in the preliminary negotiations of cross-border commercial transactions and seeks to address this challenge within the framework of international trade contracts law. In this regard, not only are the structural causes and concrete manifestations of inequality in the pre-contractual stage identified and classified, but the main objective of the research is to systematize and critically evaluate the effectiveness of the legal tools and conditions established by unified instruments such as the UNIDROIT Principles of International Commercial Contracts (PICC), the Principles of European Contract Law (PECL), the Draft Common Frame of Reference (DCFR), and the United Nations Convention on Contracts for the International Sale of Goods (CISG) to reduce or eliminate this inequality. The findings of this research may pave the way for proposing amendments to existing regulations and enhancing the protection of the weaker party in the preliminary negotiations of international contracts.
Keywords
Freedom of Contract
Good Faith
International Trade Contracts
Pre-Contractual Liability
Preliminary Negotiations
Fairness
Subjects
 
1. Abdipour, E. (2009). Misuse of the Dominant Economic Situation. Islamic Law Journal, 6(21): 125-155. (in Persian)
2. Akhlaghi, Behrooz & Emam, Farhad. (2018). Unidroit Principles of International Commercial Contracts, Tehran: The SD Institute of Law Research and Study. (in Persian)
3. Barnhizer, D. (2005).  Inequality of Bargaining Power, University of Colorado Law Review, 76(1): 140-241.
4. Bonell. M. J. (2018). The Law Governing International Commercial Contracts and the Actual Role of the UNIDROIT Principles, Uniform Law Review. 23(1): 15–41.
5. Boyarskiy. D.A. (2022). Civil law regulation of negotiations on the conclusion of an entrepreneurial contract, Ekaterinburg, Ural State University of Law.
6. Carrigan, F. (2013). The trivial nature of strict legalism. Oxford University Commonwealth Law Journal, 13(1): 1–7.
7. Choi, Albert H. and Triantis, G. (2013). The Effect of Bargaining Power on Contract Design, Virginia Law Review, 98(8): 1665-1744.
8. Collins, H. (2003). Discrimination, Equality and Social Inclusion, The Modern Law Review, 66(1): 16-43.
9. Craswell, R. and Schwartz, A. (1994). Foundations of Contract Law, England: Foundation Press.
10. Fonotova, O.V. and Belyaeva, L.E. (2023). Bargaining inequality: ways to overcome it in international commercial law and in private international law, RUDN Journal of Law. 27(4): 1043-1064.
11. Gava, J. (2013). Contract law and inequality – a response to Frank Carrigan. Oxford University Commonwealth Law Journal, 13(1): 9–15.
12. Ghasemi Hamed, A. and Talebahmadi, H., Pre-contractual Disclosure, Journal of Legal Studies, 3(1): 157-191. (in persian)
13. Gnitsevich, K.V. (2009). Pre-contractual liability in Russian civil law, Bulletin of the Supreme Arbitration Court. (3). 31–41.
14. Hage-Chahine, N. (2012). Culpa in Contrahendo in European Private International Law: Another Look at Article 12 of the Rome II Regulation, Northwestern Journal of International Law & Business, 32(3): 451–540.
15. Harati, M. (2025). The conflict between the principle of freedom of contract and the requirements of public order in private and Government Contracts in French and Iranian law, Journal of Research and Development in Private Law, 2(4): 351-381. Doi: 10.22034/jpl.2025.2070694.1238 (in Persian)
16. Ihering, R. (2013). Culpa in contrahendo or compensation for losses in case of invalidity or nonconclusion of contracts, Civil law Review, (3). 190–266.
17. Kotz, H. (1935). European Contract Law, Translatd by: Valiollah Ahmadvand & Others, Tehran: Jamejam Publishing Co. (in Persian)
18. Mazur, O.V. (2012). Pre-contractual liability: analysis of certain features of behaviour in bad faith, Zakon. (5), 197–205.
19. McKendrick, E. (2019). Contract Law. Macmillan Law Masters, 13th Edition, London: Red Globe Press.
20. Mohammadi, P. and Sadeghi, M. and Zolghadr, M.J. (2025). Comparative Study of the Impact of Contractual Assignment on Third Parties in Iranian and American Law, Journal of Research and Development in Private Law, 2(4): 212-240 doi: 10.22034/jpl.2025.2067233.1224. (in Persian)
21. Moura Dário, V. (2003). Precontractual Liability in Private International Law: A Portuguese Perspective, The Rabel Journal     of     Comparative     and     International     Private     Law,   67(4): 699–725.
22. Muratova, O.V. (2015). Pre-contractual relations in international commercial turnover: from substantive to conflict of laws regulation, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Journal of Foreign Legislation and Comparative Law, (3): 69-76.
23. Safai, S.H. and Adel, M. and Kazemi, M. and Mirzanejad, A. (2005). the Law of International Sale of Goods A Comparative Study, Tehran: University of Tehran Press. (in persian)
24. Schaefer, H.B. and Leyens, P.C. (2009). Judicial Control of Standard Terms and European Private Law – A Law & Economics Perspective on the Draft Common Frame of Reference for a European Private Law, Available at SSRN: https://ssrn.com/abstract=1520457 or http://dx.doi.org/10.2139/ssrn.1520457
25. Schwenzer, I. (2016). Global Unification of Contract Law, Uniform Law Review, 21(1): 60–74.
26. Shiravi, A. (2023). International Trade Law, Tehran: The Organization for Researching and Composing University Textbooks in the Humanities(samt). (in persian)
27. Stepanisheva, A.M. (2015). Legal regulation and qualification of pre-contractual relations in private international law, Moscow state legal acad.
28. Talebahmadi, H. (2010). The Element of Fault in Preliminary Negotiations (Culpa in Contrahendo), Journal of Legal Studies, 1(3): 153-181. (in persian)
29. Talebahmadi, H. (2013), Pre-Contractual Liability, 1st edition, Tehran: Mizan Legal Foundation. (in Persian)
30. Talebahmadi, H. (2017), Returning the Offer in Iranian Law and in Convention on Contracts for the International Sale of Goods, Journal of Legal Studies, 8(4): 163-188. (in persian)
31. Von Bar, Ch. and Clive, E. (2009). Principles, Definitions and Model Rules of European Private Law, Draft of Common Frame of Reference, Vol. 4, München: Sellier European Law Publishers.
32. Zhou, C. Z. (2010). Implementation of Labor Contract Law under the Background of International Financial Crisis—Concurrently on the Role and Limitation of Judicial Activism in Labor Dispute Resolution. Tsinghua Law, (5): 16-24.
33. Zimmermann, R. (2009). The Present State of European Private Law, The American Journal of Comparative Law, 57(2): 479-512.