THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of Chapter of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the precontractual duty of disclosure. In this regard, this paper suggests


INTRODUCTION
There is no doubt that the negotiating party is always in favour of taking into account all the information, data, acquaintances and circumstances surrounding the negotiation process. Such is so in order for its will to be formed without any defects; thus, avoiding the nullity of the contract. Therefore, part of the jurisprudence says that the obligation of disclosure in the negotiations phase has a fundamental role in complementing the satisfaction defects theory, so as to achieve sufficient legal protection for the contracting parties in the negotiation phase. 1 Others, however, say it is necessary to admit the existence of a disclosure obligation in the negotiations phase to fill the legislative deficiencies in the negotiation phase. 2 However, the importance of the duty of disclosure is increasing over time. This came to be as a result of advanced knowledge, technological progress, the consequent spread of risk and the widening gap between the negotiating parties with respect to possession of knowledge. In addition to this, neoteric contracts are no longer simple immediate 1 Ismail, S. M. (2009). Legal protection methods for electronic commerce transactions. Damascus, Syria: Al-Halabi Legal Publications. 362. 2 Saleh, A. A. (2011). Negotiations in international commercialCcontracts. Algeria, Algeria: Dar Houma. 413. contracts, concluded by meeting an offer with an acceptance. They, rather contrastively, have become complicated contracts in terms of their conclusion and the circumstances surrounding them in terms of the contracting parties and the subjects of the contract. As such, these deals have come to be focused on very sophisticated techniques involving both professional and non-professional parties.
Thus, the duty of disclosure at the pre-contracting phase must be recognized as a major obligation imposed on all parties in order to avoid a situation of massive disparity in contractual relationships with regard to the necessary information to be provided for concluding the contract in the proper way. This requires us to study the concept of the duty of disclosure, its function in maintaining contractual balance between the contracting parties and its legal nature.

DEFINITION OF THE DUTY OF DISCLOSURE IN THE PRE-CONTRACTING PHASE
The duty of disclosure in the pre-contracting phase is rooted in ancient laws, such as Greek law and Roman law. In Greek law, Plato's literary texts were found enumerating the diseases that would give the buyer the right to terminate the contract if the seller conceals or does not inform the buyer about these diseases. Besides that, a special leaflet was found containing a text requiring the seller to provide some information that assists the buyer to make good use of the slaves by clarifying their qualities and stating their defects. However, Greek law distinguishes between the case of the seller's knowledge and that of his unawareness of these defects. Whenever the seller knew of these defects and concealed them, the seller was required to pay double the price paid by the buyer, and was only to refund the price when he was unaware of these defects. 3 Additionally, in a similar fashion, Roman law imposed a duty on the seller to inform the buyer of the status of the property, so that the seller is liable for the defects of the sold property in two cases: First, the seller deliberately conceals the defects from the buyer. Second, the seller offers the property and describes it with descriptions that are not 3 Ibid., 415.
actually existent. In both cases, the buyer has the right to sue the seller for damages caused by this sale. Furthermore, in the sale of slaves and animals, the provisions of the Law of the Twelve Tables included an obligation on the seller's part to inform the buyer and to reveal any defects in the slaves and animals, by demonstrating a sign indicating to the buyer what defects may be found in the slaves or animals. 4 As stated earlier, however, the duty of disclosure has recently become one of the matters of interest to jurists, although no one can deny the role of the judiciary in establishing the duty of disclosure. Therefore, the French jurist, Juglart, is one of the first jurists who mentioned the matter of the duty of disclosure in his book titled: The Obligation to Provide Information in Contracts, 5 through the extrapolation of legal texts and judicial decisions. 6 Thus, a part of the jurists has defined the duty of disclosure as: "a pre-contracting obligation concerning a party's obligation to provide the other contracting party during the negotiation phase with the necessary information to reach its complete satisfaction and full awareness of the contract's details owing to certain circumstances and conditions relating to the contract, its parties or the subject of the contract and any other factors which may render either of the contracting parties to a state of partial knowledge of the contract or force one of the parties to offer the other party its confidence which, based on such considerations, commits to providing the other party with the required information." 7 However, others defined it as: "a kind of obligation through which one of the contracting parties informs the other of the benefits and/or risks of a particular contract and exposes the conditions surrounding the contracting process so that the other party is fully aware of that contract". 8 Based on the above definitions we conclude that: 1. The duty of disclosure is a pre-contracting obligation, 9 which arises and is executed at a pre-contractual phase. 10 2.
The debtor of this obligation is not required to inform the creditor.of all the information he knows about the contract he intends to enter into, but he is obliged to provide substantial information that would benefit the creditor in concluding the contract, and which the creditor cannot obtain through his own sources. 11 3.
The debtor of this obligation must investigate the accuracy and truthfulness of the information provided to his creditor in connection with the contract he intends to conclude. Otherwise, he will be deemed to have violated this obligation in a manner that requires liability and compensation. 13 4.
The obligation of disclosure is a general pre-contracting obligation that covers all types of contracts when the conditions of disclosure exist. 14 They do not concern the type of contracts or a particular contract, but are imposed upon one of the parties of the intended contract to be concluded or both regardless of the type of contract as long as there is substantial information related to the contract, known to one of the parties while the other party's unawareness of this information is a legitimate unawareness. 15 5.
The term obligation of disclosure is a broad meaningful term, which includes in its meaning the data and information provided by the debtor, as well as the meaning of counselling or advice when the obligation of information and disclosure given to the creditor has a significant effect in directing it to a specific decision regarding the contract. 16 In addition, it also includes the meaning of warning or drawing attention when the obligation of disclosure contains some information about something that is risky. 17

JUSTIFICATIONS FOR ENACTING THE DUTY OF DISCLOSURE AT THE PRE-CONTRACTING PHASE
Lacking parity in knowledge between the parties to the negotiations is considered the main justification for obliging the negotiating parties to a general duty of disclosure, given the differences in the standards of knowledge and experience among the negotiators. Therefore, enacting the duty of disclosure in a legal article is the best way to re-equate knowledge between the negotiators and to ensure the equilibrium of contractual relations from their inception.

Re-equating the Knowledge between the Negotiators
Economic, industrial and commercial developments have led to a noteworthy increase in the knowledge disparity between the parties to the negotiations, proving it difficult for the ordinary person to know of the accurate technical details of the goods becoming subjects of contracts. Therefore, the negotiator is incapable of identifying the circumstances surrounding contracting and negotiations, especially in terms of the appropriateness of the goods to their legitimate desires or in terms of the dangers of the commodities in use. For example, scientific progress has been credited with creating mechanisms and 17 See Mohamed, B. (2005). methods of production and distribution, diversifying exchanges and products and their different usages, and even developing services in an unprecedented manner, which make the ordinary person accept the purchase without having knowledge of the products that he acquired, not differentiating between what is necessary or suitable for his desires and what is not. 18 Another example is that the rapidity of the conclusion of contracts and transactions leads to an opportunity being missed by the simple negotiator in taking the time needed to know all the substantial information before concluding the contract, especially as transactions are made now by means of modern communications. 19 In addition, the legislature's intervention in regulating commercial relations in a manner consistent with the rapid development of the economic and industrial fields has led to the large number of legislative interventions of amendments and cancellations that prevent the knowledge of what they are or knowledge of their contents for the ordinary person. 20 All of the above have led to the existence of a kind of inequality between negotiators in the field of information related to the contract, which led some to say that the adhesion took a new form for a new subject, which is the subordination of the unaware negotiator to the other knowledgeable negotiator. 21 Regarding these, the Palestinian legislature has imposed the duty of disclosure in many statutes. For example, the sixth paragraph of Article 3 of Law No. (21) of 2005 concerning consumer protection states: "the consumer shall enjoy the following rights: … 6-to access correct information about the products which he purchases or uses so that he can exercise his right to a free and informed choice from among all the goods and services supplied in the market". 22  In the same context, Article 9 and Article 12 of the Palestinian Law No. (21) of 2005 concerning consumer protection state respectively: "each product, the use of which entails any risk, must be labelled or be enclosed the Palestinian legislature imposed on the insured party the duty of disclosure. 23 However, if the insured party breaches this duty, the insurer may request annulment of the contract. 24 However, the proponents of the principle of will autonomy still believe that the nature of dealing states that the party is entirely freed of any obligation, 25 in the absence of any special provision in the law or of an agreement by the parties to the contrary. 26 In this sense, a person with a warning which states the facet of risk and the best method of use, as well as the manner of treatment in the event a damage arises from use", "each person who promotes and advertises products must observe that his advertisements are congruent with the real specifications of the advertised products. Such advertisements may not entail a mischief or deception of the consumer". See also Article 12, 17 and 21 of the Palestinian Law No. "the Insured shall adhere to: 1-pay the amounts agreed upon on the date defined as such in the contract. 2-declare at the time of the conclusion of the contract all of the information which the insurer requests to know in order to assess the risks which it assumes. 3-notify the insurer of necessary matters which lead to the increase of such risks during the period of the contract", (hereinafter 'PIL'). 24 The first paragraph of Article 16 of the PIL, states: "in the event the insured conceals under an ill intention a matter or submits an incorrect statement in a manner that reduces the relevance of the risk insured against or leads to the change of its subject matter or in the event he or she violates by means of fraud of the satisfaction of what he or she has pledged to do, the insurer shall be entitled to request the annulment of the contract. It may also demand the payment of the due premiums prior to such request". cannot be compelled to disclose information concerning a contract that has not yet been concluded since the contract, as a general rule, is also binding on its parties only after their agreement. 27 Moreover, a lot of legislations and regulations have not imposed any obligation to disclose to one of the parties or both of them. 28 In addition, they believe that the negotiator has the right to remain silent in the pre-contracting phase, and at this phase it is not permissible to oblige the negotiator to submit any information related to the contract; however, the only responsibility that may be taken in this regard is no more than a moral responsibility that does not amount to the legal rules which are considered binding. 29 Nonetheless, the party who wants to contract with others can inquire about the information that concerns it by its own means. Nevertheless, if its own means could not provide this, it may request annulment of the contract if its will was defected -by one of the will defects, 30 or it can request for the guaranteeing of concealed defects. 31 In response to these beliefs, we can say that the international trend to affirm the duty of disclosure in many legislations and regulations such as the laws of consumer protection, insurance, banks, trade, and labour did not originate out of a vacuum, but came to address an urgent need and to provide legal protection for these parties. 32 It is clear from this that the justifications for enacting the duty of disclosure in the practical aspect are unassailable to the attempts to refute them, as they are based on realistic considerations which can be summed up in the cognitive imbalance in owning the substantial details of the contract and the interests in completing the contract.

Retaining Economic Contractual Equilibrium
The inequality between the contracting parties or the negotiators is an existing matter and is necessarily present by virtue of the inevitable difference between persons in mental abilities and natural capacities, but this variance has increased and widened in a manner that has created a different reality in most aspects from the reality when the old regulations were enacted. 33 Therefore, the sense of inadequacy of the general rules in the contract's theory for the regulation of the new reality is what led to the legislature's intervention in some special legislations, as mentioned above, for enacting the duty of disclosure as a legal obligation, aiming to rebalance the inequality of knowledge between the parties. 34 Hence, the pre-contractual duty of disclosure is the preferable and fundamental means to be followed in restoring the equality of knowledge equilibrium within the general theory of contracts in general. 35

LEGAL BASIS FOR THE DUTY OF DISCLOSURE AT THE PHASE OF PRE-CONTRACTING
The positions of the comparative legislations on the existence of the duty of disclosure in the pre-contracting phase vary according to the differences between them regarding the recognition of the principle of good faith at this phase. Although the English legislature did not recognise the duty of disclosure as a general principle binding the parties to the contract, this rule has some exceptions. For example, 33  article 28 of the Partnership Act of 1890 states: "partners are bound to render true accounts and full information of all things affecting the partnership to any partner or his/her legal representatives". 36 Furthermore, the English legislature imposes the obligation of disclosure through legal articles in many acts, such as the Consumer Protection Act and the Insurance Act. 37 The French legislature has regulated the duty of disclosure in many special laws such as the consumer protection law, 38 the labour law, 39 and the trade law; 40 however, the duty of disclosure has only been enacted as a general rule recently in article 1112-1 of the new French Civil Code, which was created by Decree N 131-2016 of 10 February 2016 (NFCC). Article 1112-1 states: "the party who knows information which is of decisive importance for the consent of the other, must inform him of it where the latter legitimately does not know the information or relies on the contracting party...". 41 Nevertheless, the reason for the imposition of the duty of disclosure under the new text is that the French legislature seeks to establish balanced contractual relations, since the contractual imbalance is primarily due to an imbalance of knowledge between the parties which requires that the party possessing fundamental information affecting the consent of the other party be obliged to disclose such information so that that party is fully aware of that contract. 42 Although the French judiciary has established the duty of disclosure previously in the contracts theory, the explicit provision of this obligation in the law is important in several respects. First, the unification of the legal bases for the duty of disclosure, without referring to many legal theories and principles, raises many difficulties. Second, the imposition of the duty of disclosure by a legal article in the general theory of contracts extends the scope of application of this duty to all contracts without distinction. 43 Third, is standardising the penalty to be imposed in case of violation of the duty of disclosure. 44 Fourth, the duty of disclosure in the new article of the NFCC is considered a public order rule, which the parties cannot restrict, exclude or breach. 45 However, in the same context, states and international legal jurists are trying to unify their efforts to enforce the duty of disclosure in the pre-contracting phase through concluding international conventions or establishing international principles; for example the United Nations Convention on Contracts for the International Sale of Goods of 1980 did not include an explicit legal provision implying a duty of disclosure which raised a legal debate about the existence of such a duty. 46 Nevertheless, part of the jurisprudence considers that the duty of disclosure is one of the obligations imposed by the Convention on the parties, since it is a practice to which they are accustomed. The provisions of the PDCC is devoid of any provisions governing the contractual negotiation phase or any provisions imposing the duty of disclosure in this phase. In light of this, the jurisprudence is based on many other theories and legal principles to say that there is a duty of disclosure in the pre-contracting phase, the most important of which are the following:

Theory of Will Defects as a Legal Basis
Part of the jurisprudence based their opinion on the theory of the will defects, 50 especially the defect of fraud when the Palestinian legislature stated: "intentional concealment on the part of one of the parties as to a fact or as to the accompanying circumstances constitutes fraudulent misrepresentation if it can be shown that the contract would not have been concluded by the other party had he had knowledge thereof". 51 However, it is clear that the fact that the Palestinian legislature considered intentional concealment as a fraudulent misrepresentation is an explicit recognition by the legislature of the existence of the duty of disclosure.
Nevertheless, the Palestinian legislature has set out several conditions for the purpose of considering the intentional concealment as a fraudulent misrepresentation, which is, that this intentional concealment should substantially affect the will of the other party who is not aware of it, 52 and it must be intentional; 53 meaning, the party who committed intentional concealment meant to do so, and also intended the effects resulting from what he had done. 54 Besides that, the other party could not obtain what has been intentionally silenced by the first party's own sources. 55 Thus, if all of these conditions are met, the injured party may request the contract to be void and a compensation for the damage which he suffered as a result of this act. 56 Based on what we have stated above, intentional concealment is similar to the failure to provide substantial information in the duty of disclosure, but differs from the duty of disclosure in that the defendant of fraudulent misrepresentation is not obliged initially to seek for providing the information in order to disclose it to the other party unless he is a professional or unless such information is essentially related to the subject of the contract. 57 Further, it is not a prerequisite to prove the subjective element in order to confirm the breach of the duty of disclosure as required in intentional concealment to be a fraudulent misrepresentation. 58 Therefore, any intentional concealment could be regarded as a breach of the duty of disclosure, but otherwise cannot be said.

Theory of Guaranteeing Concealed Defects as a Legal Basis
Another part of the jurisprudence based their opinion on the theory of guaranteeing concealed defects as a foundation for admitting the legal existence of the duty of disclosure, where Article 468 of the PDCC states: "1-the vendor is liable under his warranty, when, at the time of delivery, the thing sold does not possess the qualities, the existence of which he guaranteed to the purchaser, or when the thing sold has defects diminishing its value or usefulness for the purpose for which it was intended, as shown by the contract or resulting from the nature or the destined use of the thing. The vendor is answerable for these defects, even if he was ignorant of their existence. 2-the vendor, however, is not answerable for the defects of which the purchaser was aware at the time of the sale or which he could have discovered himself had he examined the thing with the care of a reasonable person, unless the purchaser proves that the vendor has affirmed to him the absence of these defects or fraudulently concealed them from him". 59 Initially, Article 468 of the PDCC relates guaranteeing concealed defects with the delivery of goods, 60 while some jurists believe that guaranteeing concealed defects is related to the pre-contracting phase and the satisfaction of the parties in general, 61 since if the buyer knew at the outset that the goods were not valid for use given what they were prepared for, he would not conclude the contract. Accordingly, the French jurist, Ghestin, suggests addressing the provisions of the theory of guaranteeing concealed defects under the obligations that have an impact on the satisfaction of the contracting parties. 62 In response to these jurists, the failure of the negotiator to disclose substantial information that would affect the satisfaction of the other negotiator may constitute a concealed defect, which is considered eventually a breach of the duty of disclosure. However, legal logic requires that obliging the seller to guarantee the concealed defects of the sold goods means in contrast that the seller is obliged to 59 This article corresponds with Article 447 of the Egyptian Civil Code and Article 512 of the Jordanian Civil Code. 60 See the OEPDCC, unpublished manuscript, 495. 61 Ghestin, J. (1993). Traité de droit civil, Les obligations, La formation du contrat. Paris, France: Librairie L.G.D.J. 607. 62 Ibid., 607-608. disclose all substantial information which relate to the sold goods. It is also noticeable that the scope of the obligation to guarantee concealed defects is limited in comparison with the scope of the duty of disclosure; for example failure to provide information on how, or on warnings or inappropriate use for the buyer's purposes is not a concealed defect that must be guaranteed, but it constitutes a breach of the duty of disclosure. 63

Provisions of the Delivery of the Sales as a Legal Basis
Thirdly, part of the jurisprudence considers that the duty of disclosure finds its legal basis in the provisions for the delivery of the sale, and they base their opinion on the text of Article 452 of the PDCC which states: "the vendor is bound to deliver the thing sold to the purchaser in the state in which it was at the time of the sale". 64 In other words, a purchaser cannot use the thing sold without hindrances unless the vendor informs the buyer of all information and data concerning the use of the thing sold, as well as informing the purchaser of the risks of its use and how to avoid them. 65 Otherwise, the vendor is not considered an executor of the obligation to deliver in a sound and complete manner. 66 Therefore, the duty of disclosure is a subsidiary duty to the provisions of the delivery of the sale, which is inseparable from it.
However, this trend has been severely criticised, given the considerable differences between the duty of disclosure and the provisions of the delivery of the sale, since the duty of delivering the sold things emerges from the sales contract itself and relates to its implementation. 67 On the contrary, the duty of disclosure arises at the negotiation phase in order to conclude the contract. Therefore, saying that the duty of disclosure is a subsidiary duty to the provisions of the delivery of the sale and is inseparable from it is illogical, since the duty of disclosure in terms of time precedes the existence of the delivery of the sold thing. 68

Principle of Good Faith as a Legal Basis
Part of the jurisprudence based their opinion on the theory of the principle of good faith as a legal basis for the duty of disclosure. In light of this, the French jurist Galais Onloy believes that the precontractual duty of disclosure is based on the principle of good faith, which is the basis and source of all the obligations of every negotiator willing to conclude contracts to disclose to the other negotiator all necessary information that he or she knew or should have known. 69 This opinion is based on Article 1134 of the French Civil Code of 1804, which states: "1-agreements lawfully entered into have the force of law for those who have made them. 2-they may be revoked only by their mutual consent, or for causes allowed by law. 3-they must be performed in good faith". 70 Thus, a concealment of information is considered as a violation of the principle of good faith.
This part of the jurisprudence believes that the application of the principle of good faith is not limited to the implementation of the contract phase, but also extends to the pre-contracting phase of the contract based on the tortious liability and, in particular, the provisions of Articles 1382  Article 179 of the PDCC states: "anyone who has committed an act that caused damage to others is obliged to compensate for it". 74 Article 180 of the PDCC states: "1-a person is responsible for his/her harmful actions as long as he/she is in full possession of their senses. 2-if harm is inflicted upon another by a person who is not in full possession of their faculties, and there is no one who is responsible for him, or it has proved difficult to get a compensation from the person responsible for the inflicted damage, then the judge is at will to force the person who inflicted the damage to pay a fair compensation, keeping in mind the standing of each opponent".
In this regard, the Paris Court of Appeal decided to revoke the contract for the sale of computers between Logabax company (supplier) and Savie company (client) on the basis that the supplier company concealed operating defects in the computers and did not inform Savie about them, which if they had been known to Savie, it would have not concluded the contract. Thus, the court ruled that Logabax company, in its concealment of such information, violated the principle of good faith. 75 In another case, the Paris Court of Appeal ruled that: "in addition to the legal articles, the duty of good faith in contracting entails the existence of a complementary duty of sincerity, which requires that each party to the contract provides the other party with all matters that are under negotiation". 76 In fact, the above-mentioned judicial decisions were achieved by the French judiciary after a long time of realising the deficiency of legislation in enacting a legal provision on the contracting parties the duty of disclosure, until the French legislature enacted the duty of disclosure in the general rules of the contracts theory. 77 Referring back to the provision of the PDCC, it is devoid of any provisions governing the contractual negotiation phase or any provisions imposing the obligation of behaving in good faith at this phase, where the Palestinian legislature made the first paragraph of Article 148 of the PDCC clearly limited to obligating the contracting parties to implement the contract in good faith. 78  out that relying on the theory of error in the provisions of Articles 179 79 and 180 80 of the PDCC cannot address the legislative shortcomings in the legislative remedy for the subject of good faith in preliminary negotiations. Therefore, we cannot establish the legal basis for the duty of disclosure on the principle of good faith in the PDCC.
In view of the foregoing, most jurists tended to regard the duty of disclosure as an independent duty which has its special nature, 81 which plays a major role in supplementing the provisions of the general rules in the contracts theory. In addition, it is a legal means that contributes to the strengthening of the legality of the contractual relations, rather than being a subsidiary duty to other duties. Moreover, the duty of disclosure is necessary to give discretionary authority to the judiciary in order to achieve contractual equilibrium. 82 Therefore, this duty cannot have more than a legal basis, as this is contrary to logic. Furthermore, changing the legal basis and its multiplicity leads to a change in the essence of the duty itself. 83 However, accelerated scientific and technological expansions and the developments in concluding contracts models and techniques have shown a clear deficiency in legal articles addressing the pre-contracting phase, and the inability of conventional rules in the general theory of contracts to accommodate these developments and provide adequate protection to the parties to the negotiation. This, therefore, demands the intervention of legal jurists and the judiciary to figure out legal solutions to counter these developments by developing the duty of disclosure.

SUGGESTED ORIENTATIONS FOR THE FORMULATION OF THE DUTY OF DISCLOSURE TERMS AND PROVISIONS IN THE PDCC
The intended purpose of imposing a duty of disclosure in the precontracting phase is to inform the negotiator of all the substantial 79 Article 179 of the PDCC states: "anyone who has committed an act that caused damage to others is obliged to compensate for it". information and data related to the contract to be concluded, so that the other party is fully aware of that contract, in order to take the appropriate decision as required by his own interests. To this end, there is considerable difficulty in establishing a boundary between the roles of the parties in achieving the purpose of imposing the duty of disclosure, which necessitates the determination of the conditions of this duty in a legal provision under the text of the legal article which imposed the duty of disclosure obligation as follows.

Knowledge of the Debtor of the Duty of Disclosure of this Information
It is obvious that the debtor of the duty of disclosure in the precontracting phase should know the information and data related to the contract to be concluded. In this regard, the French Court of Cassation affirmed that: "it is a necessity that the debtor of the duty of disclosure should be aware of this information, in order to be bound by the duty of disclosure". 84 In the same context, the French legislature ruled in Article 1112-1 of the NFCC that "the party who knows information...", as a condition to be imposed by the duty of disclosure.
However, Article 1112-1 of the NFCC limits the debtor's obligation to inform the information that he already knows, in contrast to Article 1129 of the previous Decree Draft of March 2015, which states: "the party who knows or ought to know information...". 85 84 "d'autre part, celle des parties qui connaît une information dont l'importance est déterminante pour le consentement de l'autre a l'obligation de l'en informer...". Légifrance, le service public de la diffusion du droit, Thus, the debtor's duty to disclosure does not oblige him to inform as long as he is unaware of this information even if it is substantial and has a fundamental effect on the satisfaction of the other party, since article 1112-1 is explicit in its limitation to the debtor's actual knowledge. Therefore, Article 1112-1 changes the trend of the French judiciary, which was a conclusive presumption of the knowledge of the professional seller who contracts in his specialisation. 86 In addition, the debtor's duty to disclosure is not obliged by Article 1112-1 regarding the provision to inquire for information in order to provide appropriate information to the other party, in contrast to the previous French judicial decisions; for example the French Court of Cassation has determined a general principle, which is: "the party which has accepted to give information, has an obligation to inquire for information in order to implement its obligation to inform as required". 87 Nevertheless, part of the French jurisprudence sought to 86 "Attendu qu'il résulte de ce texte une présomption irréfragable de connaissance par le vendeur professionnel du vice de la chose vendue qui l'obligé à réparer l'intégralité de tous les dommages en résultant". See légifrance, le service public de la diffusion du droit, French Court of Cassation, civil room 1, public sitting of Thursday say that although the new Article 1112-1 does not impose a general obligation to inquire in order to fulfil the duty of disclosure, such a duty of inquiry for information can be imposed in certain circumstances such as the debtor's commitment of enlightenment which involves clarifying to the other party and not merely informing him; it is estimated in each case independently. 88 Ultimately, as evidenced by Article 1112-1, professionalism and experience are not taken into account when assessing the extent to which the duty of disclosure is applied, since the article does not distinguish awareness between the professional and the ordinary; rather, it applies to all persons irrespective of their status as ordinary or professional. This is contrary to the motive of jurisprudence, the judiciary and special laws, such as the Therefore, the Palestinian legislature should follow what has been settled in the French judiciary and jurisprudence in enacting this term.

Creditor of the Duty of Disclosure must be Unaware of this Information
The duty of disclosure in the pre-contracting phase requires that the creditor of this duty to be unaware of this information concerning the subject of the contract to be concluded. Further, this unawareness must be legitimate. 90 In this regard, Article 1112-1 of the NFCC defines the creditor of the duty of disclosure as the one who is legitimately unaware of this information, or depends on the other contracting party. 91 This means that the creditor of the duty of disclosure has a duty to inquire for information himself, even if he is a consumer. 92 The creditor of the duty of disclosure should be curious to investigate the substantial matters affecting his or her satisfaction, not just waiting to have this information from the other party. 93 Subsequently, the debtor of the duty of disclosure is not required to inform the creditor use, Articles 9 & 10 of the PCPL state respectively: "each product, the use of which entails any risk, must be labelled or be enclosed with a warning which states the facet of risk and the best method of use, as well as the manner of treatment in the event a damage arises from use", "the ultimate supplier shall be responsible for the damage resulting from the use or consumption of the local or imported product, which does not meet the conditions of safety or health for the consumer, or for non-compliance with the safeguards declared or agreed upon, unless he demonstrates the identity of those who supplied him with the product and proves his irresponsibility for the resulting damage as well". of the information that the creditor is able to obtain easily 94 or the information that is known to all. 95 In many cases, the French Court of Cassation refused to revoke the contract on the basis of intentional concealment, since the creditor of the duty of disclosure could have inquired but he did not, 96 or that the creditor did not take the necessary caution. 97 In this regard, if the creditor of the duty of disclosure is a professional or vocational, it is presumed that he is well acquainted with the information of the intended contract to be concluded, especially if the transaction is within the scope of his or her profession or vocation; then, unawareness is not legitimate here. 98  However, in the case of the legitimate trust that a party relies on the other party with regard to the information; 100 this reliance is assessed by the nature of the relationship to be achieved or the nature of the relationship between the parties, 101 as in company and agency contracts, and all contracts in which the parties have common interests 102 which impose a duty of cooperation and transparency. 103 Moreover, although referring back to Article 1112-1 of the NFCC which states: "the party who knows information which is of decisive importance for the consent of the other, must inform him of it where the latter legitimately does not know the information or relies on the contracting party", it would seem clear that the first part of the article "the party who knows information which is of decisive importance for the consent of the other, must inform him of it...", is inconsistent with the second part of the article "...where the latter legitimately does not know the information or relies on the contracting party", which required the debtor to inform the creditor of the duty of disclosure as long as the creditor was reliant on him even if he or she was aware of this information. Besides that, the second part manifests that reliance on the other party exempts the creditor of the duty of disclosure from inquiring about substantial matters affecting his or her satisfaction by himself. While this provision is only limited to legitimate reliance in order to invoke the breach of the duty of disclosure; nevertheless, this is what the Palestinian legislature should avoid when formulating the legislative article of the duty of disclosure.

Information must be Substantial and has an Impact on the Satisfaction of the Other Party
The debtor of the duty of disclosure is not required to inform his creditor of all the information he knows about the contract to be concluded; rather, he is required to inform his creditor of the substantial information that affects his satisfaction. 104 Here, the first part of Article 1112-1 of the NFCC states: "the party who knows information, which is of decisive importance for the consent of the other…". In this regard, the third paragraph of Article 1112-1 specifies the information that has an impact on the other party's satisfaction as: "the information the importance of which is decisive if it has a direct and necessary relationship with the content of the contract or the status of the parties". 105 Accordingly, any information useful to the other party and is related to the content of the contract or to the parties can be regarded as influential, 106 such as the subject of the contract, the financial equivalent of the contract subject, 107 the characteristics related to the parties, such as years of experience and reputation, and any substantial characteristics of the contract's subject agreed upon explicitly or implicitly. 108 The purpose of this influential information is to make the other party fully aware of the contract to reach his/her complete satisfaction and be able to ascertain the totality of his/her obligation while, the secondary or the non-influential information is not required. With respect to these considerations, the French Court of Cassation ruled that: "the intended purpose of providing a lot of ineffective and non-influencing information was to distract the attention of the other, the creditor of the duty of disclosure, from certain substantial information". 109 Although Article 1112-1 requires the debtor of the duty of disclosure to inform the other party of the substantial information that affects his satisfaction, it exempts from it the disclosure of the price. Here, the second paragraph of Article 1112-1 states: "this duty to inform does not apply to an assessment of the value of the act of performance". Consequently, the debtor of the duty of disclosure does not have to inform the creditor of the price or the value of the contract's subject, even if this information is substantial and has an impact on his/her satisfaction. 106  The above provision is an entrenchment settled by the French Court of Cassation, where it ruled in the Baldus case: "there is no obligation to inform the purchaser, and he is not obliged to disclose to the seller the true price of these paintings or pictures, even if he bought them cheaply". 110 In another case, the French Court of Cassation settled that: "the possessor, even if he is a professional, has no obligation to inform the seller about the value of the subject of the contract". 111 These provisions correspond with the new French legislator's intention to reject lesion as one of the will defects, 112 while the Palestinian legislature considers lesion as one of the will defects which allows the lesioned party to ask for annulment of the contract. entered into the contract only as a result of the other party exploiting his obvious levity of character or his unbridled passion, the judge may, at the request of the party so prejudiced, annul the contract or reduce the obligations of such party". 113 However, the problem is evident in the attempt to reconcile the text of Article 1112-1 -its second paragraph-with Article 1137 of the NFCC -relating to intentional concealment, where this article authorises the nullification of the contract if a contracting party conceals substantial information affecting the consent of the other party. 114 Nevertheless, without a doubt, the value of the act of performance is an essential element affecting the decision of the other party. Thus, the contradiction is obvious between the texts of the two articles. In this regard and from the perspective of the researcher, the general principle of the duty to disclosure lies in the text of Article 1112-1 of the NFCC, while Article 1137 paragraph 2 is based on the commitment of the parties to the principle of good faith and integrity in dealings, not on the basis of the duty to disclosure 115 and; therefore, the matter is still existent until it is settled by the French judiciary. 113 Depending on this article the Palestinian legislature states in Article 447 of the PDCC that: "1-when an immovable belonging to a person who is legally incapable, has been sold with a lesion of more than one fifth of its value, the vendor will have a right of action with a view to making up the price to the price of a similar immovable belonging. 2-in order to ascertain whether the lesion was more than one fifth, the value of the immovable at the time of the sale should be ascertained. 3-a fundamental lesion is more than one fifth of its value". 114 Article 1137 and 1139 of the NFCC state respectively: "1-fraud is an act of a party in obtaining the consent of the other by scheming or lies. 2-the intentional concealment by one party of information, where he knows its decisive character for the other party, is also fraud", "a mistake induced by fraud is always excusable. It is a ground for nullity even if it bears on the value of the act of performance or on a party's mere motive". 115 This opinion is based on an exception to the rule in Article 1112-1, paragraph two. In the matter of the sale of shares in the company, the French Court of Cassation ruled: "the manager of the company shall bear the liability for violating the duty of integrity towards his partners on the basis of intentional concealment, as it is the responsibility of the company manager to inform the seller partner of the value of his shares in the company". See Légifrance, le service public de la diffusion du droit, Eventually, the Palestinian legislature should avoid the French legislative contradiction between the legal texts of Article 1112-1 and 1137 by ignoring the provision of the second paragraph of Article 1112-1, and leaving the verdict matter to the Palestinian judiciary according to the circumstances of each case.

Proving the Duty of Disclosure
The fourth paragraph of Article 1112-1 of the NFCC states a general rule, which is: "a person who claims that information was due to him has the burden of proving that the other party had the duty to provide it, and that the other party has the burden of proving that he has provided it". 116 This rule distributes the burden of proof between the creditor and the debtor of the duty of disclosure. Therefore, the creditor of the duty of disclosure bears the burden of proving the existence of the obligation to disclosure to the debtor on behalf of the creditor, and the debtor bears the burden of proving his implementation of the obligation to inform.
What the French legislature came up with in the fourth paragraph of Article 1112-1 is only an entrenchment of the French judicial Precedents in this regard, where the French Court of Cassation ruled on the basis of Article 1315 of the French Civil Code of 1804 that: "the party who is obligated legally or by an agreement with a particular duty to inform must show the evidence that he has fulfilled his obligation". 117 Subsequently, the French Court of Cassation had settled on this trend in several cases. 118 However, here we notice that 116 "ll incombe à celui qui prétend qu'une information lui était due de prouver que l'autre partie la lui devait, à charge pour cette autre partie de prouver qu'elle là fournie". 117 "Attendu que celui qui est légalement ou contractuellement tenu d'une obligation particulière d'information doit rapporter la preuve de l'exécution de cette obligation. the French Court of Cassation has changed the burden of proof, 119 since it is difficult for the creditor of the duty of disclosure to prove a negative incident which is that he is not being informed, and this is what the Palestinian legislator should adopt as an additional legislative protection for the creditor of the duty of disclosure. Eventually, as a general rule, the fulfilment of the duty of disclosure can be proved by all means of evidence, unless the law provides for it in a special manner. 120 The Penalty for Violation of the Duty of Disclosure The French legislature settled in the sixth paragraph of Article 1112-1 of the NFCC that: "in addition to imposing liability on the party who had the duty to inform, his failure to fulfil the duty may lead to annulment of the contract under the conditions provided by Article 1130 and following". 121 Based on this provision, one or both of the following penalties may occur in case of breaching the duty of disclosure, namely the liability of the debtor of the duty of disclosure to compensate the damages caused by his breach of this duty, and the possibility of nullifying the contract.
Therefore, the liability arising from the violation of the duty of disclosure is a tort liability, since the duty of disclosure often comes The general principle in the rules of evidence is that: "the burden of proving an obligation lies on the creditor and that of proving its discharge on the debtor". See Article 2 of the PECCML. 120 See Article 1112-1 of the NFCC. 121 "outre la responsabilité de celui qui en était tenu, le manquement à ce devoir d'information peut entraîner l'annulation du contrat dans les conditions prévues aux articles 1130 et suivants".
in the pre-contracting phase. Besides that, the violation of this duty is a breach of a legal duty, not of a contractual obligation. Therefore, this new French approach has consolidated the legal basis of the litigation. 122 Moreover, the elements of tort liability, -namely the commission of an act that results in damage where there must be a causal relationship between the act and the damage, 123 must exist to claim compensation.
As for the second part of paragraph six of Article 1112-1, and whether the court ruled the compensation on the basis of tort liability or not, the court may verdict the annulment of the contract based on the will defects, 124 especially error 125 or fraud, 126 where in article 1132 of the NFCC the annulment of the contract may be ruled on the basis of an error in law or fact if two conditions are met: 127 firstly, the error is fundamentally related to a feature in the subject of the contract, or to the other contracting party; and secondly, the error is not justified.
Besides this, the second paragraph of Article 1137 of the NFCC considers "the intentional concealment by one party of information, where he knows its decisive character for the other party, is also a fraud". However, in order to nullify the contract on the basis of fraud by intentional concealment, three conditions must be met: concealment of substantial information from the other party; this concealment must be intentional; and the concealment of information must have a decisive impact on the satisfaction of the other party with the knowledge of the party who concealed the information. 128 For example, the French Court of Cassation ruled in 12/01/2010 that "the breach of the duty of disclosure in the pre-contracting phase is not sufficient to be considered as an intentional concealment, as long as the nature of the violation was not intentional, and there is not a decisive influence of this violation on the satisfaction of the other party". 129 The problem, however, is the attempt to reconcile Article 1137, paragraph 2, and Article 1139, where Article 1139 provides that: "the error which is induced by fraud is always excusable". 130  which resulted from a violation of the duty of disclosure is sufficient to adapt the existence of fraud based on intentional concealment, while if it was based on paragraph 2 of Article 1137, this would require that the error must be intentional. Consequently, the French judiciary must eliminate the conspicuous contradiction between the two articles.
The above conspicuous contradiction (between the text of Articles 1139 and 1137 paragraph 2) does not exist in the PDCC, as the Palestinian legislature does not provide a legal Article that states a provision as the provisions of Article 1139 of the NFCC. Therefore, the most important orientations for enacting a legal Article in the general theory of the contracts law, which obliges the parties to the duty of disclosure, become clear to the Palestinian legislature in general.

CONCLUSION
In light of the foregoing analyses and explanations of the concept, justification and legal basis for the duty of disclosure, it has become evident that the traditional theories of the will defects, guaranteeing concealed defects and the principle of good faith are not enough to restore contractual equilibrium, which necessarily entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty. Thus, it is clear that the significance of passing a legislative text obliging the contracting parties in the pre-contracting phase to commit to the duty of disclosure as a legal means through which the Palestinian legislature can solve the cognitive imbalance between the negotiating parties in the field of commercial and civil transactions, in order to reach a stage of ensuring contractual justice.
Therefore, in reviewing and analysing the terms and provisions of the duty of disclosure in the NFCC which is considered as one of the main sources of the PDCC, the Palestinian legislature must observe and avoid the errors and inconsistencies in the fourth part of this section which, in one way or another, diminish the efficiency of this legal means in ensuring contractual equilibrium between the contracting parties in the early phase of the contractual process.