journal of sustainable studies joss
The formality of disposition between the requirements of the legal text and the requirements of reality – a study in Iraqi law in the light of recent trends of the civil judiciary in the Kurdistan Region – Iraq
Dr.. Iman Youssef Nouri
Assistant Professor of Civil Law, College of Law / University of Dohuk
Abstract:
It is known that the principle is in consensual legal actions, and that the contracting parties are free to create whatever contracts they want based on the principle of the authority of the will. The addition of the arcana to the contract is formal or in kind, intended to increase the obligatory strength of the nodal bond. The amended Iraqi Civil Code No. (40) for the year 1951 showed those provisions, and made consensualness the original, and excluded some of the actions to make them formal, including on a property, where Article (90) of the aforementioned law stipulates that (1) If the law imposes a specific form of the contract It does not take place unless this form is completed, unless there is a text to the contrary. And in the desire of the legislator to protect real estate dealers, he made the actions received by him formal, as Article (508) stipulates that (the sale of real estate does not take place unless it is registered in the competent department and fulfills the form stipulated by the law.) The Real Estate Registration Law No. (43) also dealt with For the amended 1971 year, the issue of formality, as Article (3) stipulates that (2- The real estate disposal shall not take place without registration in the Real Estate Registration Department.) Or the legislator may impose formality on the movable as stated in Traffic Law No. (86) for the year 2004 that ( Article (Section 5) / 7- The sale of the vehicle does not take place unless it is registered with the competent registration department and the form stipulated in paragraph 3 three of this section is fulfilled, except for what is excluded by law.). So the rules of formality are characterized as strict, that is, they do not recognize the validity of the disposition unless it satisfies the form stipulated by the law, otherwise the disposition is void, and by virtue of the development of life and the emergence of new patterns of sales as is the case in selling real estate on the map or design, or for the ease of conducting the disposal and away from the Registration rules that may constitute an obstacle or a problem for the contracting parties, and when the matter escalates into a dispute that is presented to the judiciary to resolve the matter, then the problem arises for the judge to have two matters, the first matter is to adhere to the explicit legal texts, the second matter is the use of all sources of law to reach a solution to the conflict in a way that achieves justice . Accordingly, the issue of the formality of disposition was chosen between the requirements of the legal text and the requirements of reality and its needs to reconsider it in a way that suits reality, with the presence of judicial rulings issued in this regard that clarify the judiciary’s attempt to mitigate the severity of the formality despite the instability of the Court of Cassation in a certain direction.
Keywords: (formality of conduct, requirements of the legal text, requirements of the reality of Iraqi law).