Research 62 ILIC 2019

Abstract:  Founding the theories of force majeure and emergency circumstances their origins in the civil law and withdrew their impact on the administrative contracts for the necessities of the public utility and the public interest. Based on this, we feel that the fingerprints of the special law keep pace with the administrative contract, and therefore necessities impose its condition and prove that the assets of the administrative contract remain linked to the civil ownership. Since the separation of administrative contract from the civil contract is due to political and ideological reasons, and is not due to legal reasons or necessities of life, and this is confirmed by the reality of the situation according to improvement legislation.
The contract, whether civil or administrative, should be balanced by the balance of obligations and rights of both parties at the stage of its formation. However, the implementation of the administrative contract, as in the civil contract, faces obstacles and difficulties during the execution of the contract, including force majeure and emergency conditions, Contract or contract tiring.
The force majeure that hinders the implementation of the contract, in general, either is permanent, or temporary. This division is based on determining the date of its demise. If, by its very nature, it is irreversible in the future, that is to say, it remains a permanent force of force, leading to a perpetual impossibility in carrying out the obligation. If, however, there are signs and indications that the force majeure will disappear after a period that may be prolonged or shortened, but in any case it will disappear before the feasibility of the implementation is completed, then a temporary force of force is defined in other words, it makes the implementation of the obligation impossible. . This is what distinguishes it from the theory of emergency circumstances provided for in article 146, paragraph 2, of the Civil Code, which does not permit the dissolution of the contract, but allows the amendment of the contract to reduce the obligation that is exhausting to a reasonable extent. The Iraqi courts have witnessed the application of the provisions of the theory of force majeure and the contingencies that it is hoped will expand in the future due to the crises and thus provides the possibility of economic rebalancing between the rights and obligations of the contracting for all sides.
The importance of the theories of force majeure and emergency conditions and their fair treatment in the restoration of economic balance between the parties to the contract, which reflects positively on the economic and commercial transactions where the contractor feels safe when the conclusion of contracts and implementation part.