E-mail: [email protected]
Mobile: +964(0)7504731854
Research -45- ILIC 2022
موقف القضاء العراقي من شكلية عقد المساطحة
Keywords: Musataha contract, registration, formality, session, documentation, court of cassation.
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
Assist. Prof. Dr. Dhahir Majeed Qadir
College of Law, Salahaddin University – Erbil, Iraq
Assist. Prof. Dr. Hewa Ibrahim Qadir
College of Law, Salahaddin University – Erbil, Iraq
—————————————————————————————————————-
Abstract
The article (1266/2) of the Iraqi Civil Code stipulates that ((the right of Musataha must be registered in the Real Estate Registration Department)), but the aforementioned article did not state whether the registration is to be held? or for proof? What is the penalty for not registering a Musataha right in the Real Estate Registration Department? Proceeding from the provision of this aforementioned article, the Iraqi and Kurdistan courts hesitated in their decisions regarding the effect of not registering the Musataha contract in the competent real estate registration department. The obligation to register the Musataha right is for documentation and not for a meeting. Therefore, this research aims to shed light on the hesitation of the Iraqi and Kurdistan judiciary in this matter and its division on two opinions, the arguments on which each opinion was based, and the reason behind its lack of consistency on a particular position, by presenting and analyzing a set of decisions of the Iraqi Court of Cassation and the Court of Cassation of the Kurdistan Region – Iraq And expressing our opinion on the subject of the research in terms of giving preference to one of the two opinions over the other with sound legal arguments, leading to the suggestion of legal texts to solve the problem of the topic of research, all based on the analytical approach to the texts of the relevant laws, and the critical approach to judicial decisions issued regarding the formality of the Musataha contract in Iraqi law . We have reached within the research that the most correct opinion is to consider the Musataha registration for the meeting based on the justifications we presented and in the light of which we proposed to the Iraqi legislator to amend the text of Article (1266/2) of the Iraqi Civil Code to address the problem of research.
JURIS – CLAASEURFISCAL 201
JURIS CLAASEURFISCAL–DOLMIESETKERTAN 1/14 33