The Law aims at organizing the community through clarifying rights and obligations of legal positions. Therefore, legislator has interfered – in several issues – to protect the weaker party in the contractual relation. An example of such protection is legislative intervention against abusive conditions by making it subject to amendment or nullification. As a result of the independence of one party in writing down the contract conditions, the legislator has stipulated, frankly, that every abusive condition can be nullified unless it has not infringed the insured risk.
However, legislative ideologies have diverged in determining abusive conditions/clauses. Some legal systems have established a committee with oversight over abusive conditions, while others have adopted a list of abusive conditions whereas other systems have preferred to define abusive conditions. The Kuwaiti legislator has not followed any of the previous trends. As a result, the role of jurisprudence and judiciary has become more significant in defining abusive conditions.
As a result of our exclusion of the definition of abusive condition as a condition which is incompatible with the governing legal rule because it is considered null and void or by qualifying it as contrary to rationality since it might be reasonable but – in the same time – it can be considered abusive through its utilization. In conclusion, this review has concluded that an abusive condition is the one which prejudices balance in the contract as it is imposed by one party against the other as a result of the strength of his/her position
Al-Rashidi, Hussein Muheisen
"Determining the Abusive Clause in Insurance Contracts under the Kuwaiti Law: A Comparative Study,"
Journal Sharia and Law: Vol. 2015:
61, Article 1.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2015/iss61/1