The Effect Of Professionalism On The Legal Nature Of The Professional’s Obligations (Comparative Legal Study)

Abstract

Obligations are generally divided in terms of their legal nature into obligations to achieve a result and obligations to exert care. This division has fruits that we find in several places in the contractual bond, starting from the burden of proof and ending with responsibility.

The obligations incurred by the professional contractor are supposed to be different from the obligations borne by the ordinary (non-professional) contractor in terms of severity, and this is a manifestation of the legal effects of the character of professionalism. Originally it was just an obligation to pay attention. This result is the result of the legal provisions that are supposed to undertake this aspect of regulation, for legislation is the effective way to protect the contractor with the professional, due to the lack of other means such as the joint will of the contractors and the discretionary power of the judge, due to the inability of the contractor with the professional to impose his contractual conditions on the professional party in the first, and the absence The legal basis for the second.

As for the obligations whose nature cannot be changed, it is certain that they differ from the obligations of other contractors in terms of the care that must be exerted by the professional contractor. The prevailing standard in jurisprudence and the judiciary is the objective standard, and it is the standard of the usual man in the framework of ordinary contracts in which the two contracting parties are equal in terms of contractual status, but in the framework of contracts that link between a professional contractor and another ordinary, it is not possible to measure the amount of the professional contractor’s care in it with the same standard. The ordinary contractor is measured by the amount of his care in a normal person, while the professional contractor is to measure the amount of his due diligence with a professional like him, and if the objective criterion is inadequate and does not lead to the results that the personal standard of professionals leads to. What is required by the usual professional, in application of the idea of ​​professional gradient