Research – 64 – ILIC 9

https://doi.org/10.23918/ilic9.64

Keywords: Civil Liability, Vicarious Liability, Operator, Management Company, Management Contract, Operational Decisions.

Download the PDF document

PROCEEDINGS OF 9th INTERNATIONAL LEGAL ISSUES CONFERENCE

Faculty of Law, Tishk International University

Date:27-28. February 2025

Venue: Kurdistan Region- Erbil, Iraq

ISBN: 979-8-9890269-3-7

———————————————————————–———————————————————————–——————————–

Younes Salahaldein Ali

Faculty of Law and International Relations – Cihan University-Erbil

———————————————————————–———————————————————————–——————————–

Abstract

Management companies play a considerable role in managing and operating various types of hospitality services, such as hotels, restaurants, tourist resorts, as well as managing medical serviced and institutions, in front of which come hospitals. The significance of these companies playing the role of the operator emerges clearly in the field of the hospitality industry, owing to their big experience or expertise in managing and operating their projects, which the hospitality business owner may not have. In that the success and prosperity of his project depend upon the expertise of the management company in operating his project. Particularly such huge and giant hospitality as hotels, restaurants and vast hospitals. The management company does not usually transfer its expertise in the field of management directly to the hospitality business owner, but it manages and operates the project and the services it provides on its behalf, by the so-called management contract. According to which the managerial powers hospitality business owner will be transferred to the management company which assumes the management by making operational decisions and concluding secondary or subordinate contracts, in the light of the main and complex management contract, subject to the private law rules. Therefore the civil liability of this type of companies is originally a contractual one arising from the breach of the duties generated by the main management contract, concluded between the operator and the business owner. or by other secondary or subordinate contracts which the operator concludes to guarantee the good management of the hospitality projects. Furthermore the non-contractual tort liability of the management company may also arise, either as a liability for the personal acts of the business manager, based on the wrongful or illegal act committed towards any one including the business owner, with whom the company contracted. Or as a vicarious liability of the acts of the employees and servants, with whom the management company as a master is connected by other contracts than the management contract. Neither the Iraqi civil code regulated the maxims of this contract within the chapter of nominate contracts, nor does the Iraqi law of companies No. (21) of 1997 regulate the rules of the management company.

References

First: The Books

Abdul Majeed Al Hakim. The concise of the explanation of the general theory of obligations. Part one, sources of a comparison with Islamic Jurisprudence. Baghdad. 1963.
Abdul Majeed Al Hakim. The Medium Commentary on the theory of contract, with the comparison and balancing between the theories of the western jurisprudence and their equivalent theories in the Islamic Jurisprudence and the Iraqi civil law. . Part one. Conclusion of the contract. Al-Ahliyyah company for printing and publishing. 1967.
Abdul Majeed Al-Hakkim, Abdul-Baki Al-Bakri, & Mohammed Taha Al-Basheer, The concise of the general theory of obligations in the Iraqi civil law. Part one, the source of Obligations, Baghdad, 1980.
Abdul Razaq Al Sanhouri. The Medium Commentary on the elucidation of the New Civil Code (Al Wasit in the Explanation of New Civil Law). part One. The theory of obligations in general. Sources of obligations. Contract-illegal act-Unjust enrichment-law. Al-Ma’arif Publishing house. Alexandria.2004.
Ahmed Salaman Shuhaib Al-Sa’adawi and Jawad Kadhum Jawad Sumaisem. The sources of Obligations, A comparative study with civil laws and Islamic jurisprudence. Second Edition. Zein juridique library. Beirut. 2017.
Bob Brotherton. The International Hospitality Industry, Structure Characteristics and Issues. Butterworth-Heinemann . Oxford. 2003.
Clayton W.Barrows, Tom Powers and Dennis Reynolds. Introduction to Management in the Hospitality Industry. Tenth Edition. John Wiley & Sons, Inc New Jersey. 2012.
Dara’a Hammad. The general theory of obligations. Part one sources of Al-Sanhouri Publishing house Beirut. 2016.
Hasan Ali Al-Thannon .The extensive commentary on the explanation of the Civil Code. Third part on the causal link. First Edition. Dar Wael for printing and publishing. 2006.
Hasan Ali Al-Thannon .The extensive commentary on the explanation of the Civil Code. Second part on the Fault. First Edition. Dar Wael for printing and publishing. 2006.
Hasan Ali Al-Thannon .The extensive commentary on the explanation of the Civil Code. First part on the damage. First Edition. Dar Wael for printing and publishing. 2006.
Hasan Ali Al-Thannon, sources of Obligations, Baghdad, 1970.
Ismat Abdul Majeed The general theory of obligations. Part one. in Arab civil laws. Al-Thakira Publishing house. Baghdad. 2011.
Jagmohan Negi and Gaurav anoher. Hospitality Management Current Trends and Practices. University Science Press New Delhi. 2009.
Munther Al-Fadhel, The Medium Commentary on the explanation of the civil law, A comparative study between Islamic Jurisprudence and Arab and foreign laws, A study reinforced by opinions of both the jurisprudence and judiciary. Aras Publishing house, Erbil, 2006.
Sabri Hamad Khater, The general theory of the obligation, the sources of the obligation A comparative study, Second Edition, Hat-trick for distribution and publishing Erbil, 2024.
Samir Abd Al-Sayyed Tanaghou. Sources of obligations, Contract, Unilateral Will, Illegal Act, Enrichment without Cause, law and Two New Sources of obligations: Judgment and Administrative Decision. First Edition. Al-Wafa’a Legal Bookshop for Publishing Alexandria. 2009.
Stephen Barth, David K. Hayes. Hospitality Law .Managing Legal Issues in the Hospitality Industry. Third Edition. John Wiley & Sons, Inc. 2009.
Stephen Barth, David K. Hayes. Hospitality Law .Managing Legal Issues in the Hospitality Industry. Second Edition. John Wiley & Sons, Inc. 2006.
Suleiman Morcos. A thorough commentary on the explanation of the civil law, on the obligations, the harmful act, and the civil liability. Part One. The general rules. Fifth Edition. Cairo university press. 1992.

Second: The Laws

The Egyptian civil law No 131 of 1948.
The Iraqi civil law No 40 of 1951.

Third: The Legal Studies & Reports

– Dan E. Stigall. Iraqi Civil Law: Its Sources, Substance, and Sundering. Journal of Transnational Law & Policy. Volume 16. Number 1.2006.