Contractual capacity under the Iraqi civil code and islamic law : a comparative study

Abstract

This study examines the concept of contractual capacity of contracting parties which is an essential condition for the validity of contracts in both the Iraqi Civil Code and Islamic law. The Iraqi Civil Code No.40 of 1951 (as amended) deduces some of its provisions from the Egyptian Civil Code. This derivation has negative consequences on the stability of the field of contracts in Iraq. Due to that, there are some differences between the Iraqi Civil Code and Islamic law with respect to the provisions which rule the capacity to contract of parties. The study relies on inductive method in analysing the opinions of Muslim jurists on contractual capacity, and uses comparative method to compare these opinions with relevant provisions of the Iraqi Civil Code. Furthermore, the findings of this study reveal that there is significant impact of the French and Egyptian Civil Codes on the Iraqi Civil Code and there are some original Islamic legal rules with regard to contractual capacity that are missing in the Iraqi Civil Code. To address this, the study proposes the need to harmonise the Iraqi Civil Code with Islamic law provisions on contractual capacity. The study therefore concludes that the Iraqi Civil Code should be amended as soon as possible to be in line with the provision of Islamic law in order to modernise the Iraqi contracts law to meet the yearnings and aspirations of the large Muslim population and satisfy the needs of modern contractual transactions.