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Research -41- ILIC 2022
مستلزمات العقد في القانون المدني الفرنسي المعدل (1)
Keywords: Contract supplied. Contract Requirements Standards. Contract rule. Contract rights. Original obligations. Ancillary obligations
Journal of college of law
For legal and political sciences
Volume (11) ISSN: 2226-4582 AIF: 08
Faculty of Law / Tishk International University
Date: 22-23, December 2022
Venue: Kurdistan Region- Erbil
Asst. Prof. Dr. Hozan Abdel-Mohsen
College of Law/University of Salahaddin
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Abstract
The content of the contract is determined according to the new amendment to the French Civil Code No. 131-2016 with the provisions of the law, the terms of the contract and the requirements of the contract. The requirements of the contract mean the ancillary obligations (contract rights) that the judge adds in the process of supplementing the deficiency in the contract to implement the original effect of the contract (the contract ruling) in accordance with the peremptory rules, peremptory provisions, custom or justice. The French legislator was influenced by Islamic jurisprudence in its regulation of contract requirements, depriving to some extent of the judge’s discretionary authority with regard to adding an obligation to what is considered to be contract requirements, taking into account the sequence contained in Article (1198) of the French Civil Code, unlike the Iraqi legislator who expanded the judge’s authority in that matter, It became clear the superiority of Islamic jurisprudence over the law in terms of distinguishing between the original effect of the contract and its consequential effect, unlike the Iraqi legislator, who got confused between the two issues. In his new amendment, the French legislator avoided this confusion. Accordingly, we reached several conclusions, including the accuracy of Islamic jurisprudence in choosing the interests and organizing the provisions of the requirements of the contract in a manner that serves justice, unlike the law, which has not yet been able to reach the high legislative level that Islamic jurisprudence has reached. As a result, we proposed to the Iraqi legislator to amend paragraph 2 of Article (150) and canceling the consent of the contract requirements due to the nature of the obligation because it is self-evident.
قائمة المصادر
القرآن الكريم
أولا: الكتب
ثانيا: الأطاريح والرسائل والبحوث
ثالثا: المجلات
رابعا: القوانين والقرارات
سادسا: المصادر الفرنسية