Second Scientific Conference
"Prospects for Iraqi legislation reforms"
"The binding force of the contract and expanded direction of the Department of injustice"
"A Comparative Study"
Dr. Riad Mr. Hussein Abu Saeeda - civil law teacher
After that labored jurisprudence and the judiciary to draw perspective legislator to this lack legislative coverage problem injustice to all contracts netting and not restricted to sales, which narrows the scope, was to understand a big role in trying to find the foundations underlying the judiciary in its provisions and to demand that the legislature blocked this Legislative shortage.
The legislature in response to many of the country to the appeal of the judiciary and jurisprudence, the text of the penalty for the injustice that made him a general theory includes all contracts. But not limited to exceptional cases, as in the French civil law or civil ancient Egyptian.
It will address research, stressing, that the idea of injustice in the traditional sense and narrow idea of exploitation in its modern meaning broad has merged in the country that provides its laws on the penalty to exploitation or injustice in all its forms and became exploitation one defects that could affect the contract, no longer injustice only appearance physical exploitation, which called for the legislator in Iraq's old law Orainmkina and law Eshnona, when select a price to benefit, after being denied the loan with interest, and select the worker's wage and taxi vehicles and the price of some cereals, putting a fair price and a fair wage, exploit the weaker party in the link nodal economically. It was expressed by Muslim legislator (the spirit that should prevail transactions between people).
Fortune Style study legislator German, who has already others in this field, in the text of Article (138) of the Act of 1896 m on the Champions decade because of the exploitation of one of the two contracting parties to the need of the other, or to his own temerity or the lack of experience, and was followed by many lawmakers in other countries.
Principle comparison in this study was adopted primarily on Islamic jurisprudence, as well as jurisprudence civil Comparative; to find the basis of what it takes legislator contemporary shortfall legislature, taking Belhaz account legislator in the old Iraq, as the first lawmaker on earth to work on the service of humanity, happiness and well-being people, a wizard rules of social behavior according to a look based on the theory of social personal without material away from thought Alqirdana, taking injustice will not defect in the contract
The research results and recommendations of the task, perhaps the most notable:
* Worthwhile delegated to the adoption of the standard physical document to custom and habit to determine the standard of injustice, which took jurists headlights, and was followed by the German civil law, in terms of making the standard followed by the judiciary in its identification of the standard group is a feeling of injustice.
* Restrict reporting and injustice to them and turning, it seems the preponderance adequacy obscene injustice to influence the will.
* Find the owners of the trend expanded, that justice requires the need to restore balance of the obligations between parties to the contract, based on social considerations to make ethics controls the contracts. And the need for jurisprudence French drew consider legislator to the need to get rid of the thought individualist and build thought social limits of contractual freedom and selfishness and ensures justice nodal best style trends legislative modern., which took its German Civil Code in Article (138) the second paragraph then the law of obligations Swiss (Article 21) and rationing new Italian (Article 1448), paragraph 2, and rationing civil Polish (Article 42) and rationing civil Austrian (m 879).
* Goes some scholars, and supports them in that label Sanhoori, to the theory that injustice is not confined to fixed-alone, Valacod probability it can be said, in the opinion of this group, the occurrence of injustice which, if disturbed tie between potential earnings and the possibility of loss time of contracting (the contract ), such as the sale of the property a great value in return for a regular payment over the life of a person pyramid patient is not likely to live only a short period of time.
* Search finds it improves delegated expand inequities to include all contracts, and to eliminate accept this expansion and provide protection for each contractor is needed, text of the legislature on some applications injustice does not preclude extending his rule to the rest of cases not otherwise provided for, especially as the philosophy of law, mainly is based on the need to achieve justice among all members of society.
As is injustice in the property located in the transferee; because vowel to veto the sale and one between them, which is raising the damage injustice who signed it, and not to enable people to assassinate each other as sales, as the damage is done in the injustice the seller is located on the buyer, and vowel raising harm aggrieved, be better, for the sake of justice, non-discrimination between the seller and the buyer in the passport aside their sales affected.
* Banned Islamic Sharia injustice in all its forms, and for all contracts netting which is contained on them, and this provision is one of the buildings of Islamic Sharia, which was built on the idea of justice in all affairs of life, and founded the transactions that bound to outlaw all kinds of consuming people's wealth unlawfully , it is an invitation to lawmakers, the need to establish a general principle of unfairness and its role in restoring the balance lumpy and to the importance of the inclusion of ethical rules in the regulation of civil control defects social life.
* Goes by Islamic jurisprudence to the height necessary entails a harm, does not mean that the necessary function, is the choice between termination or signature. If done injustice disparity was not the aggrieved annulment solving the contract and recover all costs, there is no evidence to say: that injustice requires option for aggrieved even take by firing, not only base damage and the latter is remedied to make disparities remain originality necessary in the decades earlier,, have no choice but after refraining from exert uneven, giving is not right for him in the annulment (option).
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