Legislative Examples of Risks in Contractor Agreements: A Comparative Study of the Contractor's Deficit and Employer’s bankruptcy

Section: RESEARCH
Issue
Vol. 22 No. 70 (2020): Volume 22 Issue 70
Published
Aug 4, 2025
Pages
39-111

Abstract

A contractor may be unable to complete the execution of a contractor agreement after starting to perform the contract. Many civil laws have addressed the issue, and they generally allow the second party to terminating the contract provided certain requirements are met. This study argues that the contractor entitlement to the expenses or the value of the benefit accruing to the employer is illicit enrichment and not based on contract liability. Hence the contractual agreement is brought to an end . The contractor cannot also make a tort liability claim against the employer as long as no negligence can be attributed to the employer. Thus, the study recommends amending Article 890 of the Iraqi Civil Transaction Code under study and adding a new rule in this regard.

References

  1. <http://bib.univ-oeb.dz:8080/jspui/bitstream. pdf> (Last visited 09.07.2019).
  2. <http://bib.univ-oeb.dz:8080/jspui/bitstream/123456789/5118. pdf (Last visited 05.07.2019).
  3. (Last visited 02.07.2019).
  4. <http://www.laweg.net/Default.aspx?action=Office> (Last visited 07.04.2019).
  5. Ahmed Mahmoud Khalil, Commercial Bankruptcy and Civil Insolvency Provisions, University Press House, Alexandria, 2004.
  6. Dr. Israa Muhammad Ali Salem and Ahhood Taha Yassin, Crimes of the Bankrupt, A Comparative Study, Research Published in the Journal of (Al-Mohaqiq Al-Hali for Legal and Political Sciences) Published by the University of Babylon, No. 3, Volume VIII, 2016.
  7. Egyptian Civil Law No. (131) of 1948.
  8. Hisham Boualsalam, The Crime of Commercial Bankruptcy, A supplementary memo to obtain a master''s degree, Arab University bin Mahdi Umm Al-Baqi, College of Law and Political Science, 2014. Available at the following email address:
  9. Iraqi Official Gazette, No. (3015), issued on (8/9/1951).
  10. Judicial Bulletin Issued by the Technical Office of the Court of Cassation of Iraq, No. 1, fourth year, 1973.
  11. Rebaar Hussain Yusef, The Legal Regulation to Save a Merchant from Bankruptcy, A Comparative Analytical Study, PhD Thesis, College of Law and Political Science, University of Duhok, 2019.
  12. Dr. Tariq Kazem Ajil, The Mediator in the Contracting Contract, first edition, Al-Sinhouri Library, Lebanon - Beirut, Baghdad, 2016.
  13. The Executive Regulations of the Egyptian Tenders and Auctions Regulation Law No. (89) for the year 1998 issued by Minister of Finance Resolution No. (1367) for the year 1998.
  14. Dr. Abdel-Hamid El-Shawarby, Bankruptcy, El-Maaref Establishment, Alexandria, 1988.
  15. Oman Civil Transaction Law No. (29) of 2013.
  16. Contracting conditions for Civil Engineering Works in Iraq.
  17. Dr. Abdul-Razzaq Ahmed Al-Sanhouri, Mediator in Explaining the New Civil Law, Part Seven, Volume One, Contracts on Labor, New Third Edition, Al-Halabi Human Rights Publications, Beirut - Lebanon, 2009.
  18. Dr. Abdul-Razzaq Ahmed Al-Sanhouri, Mediator in Explaining the New Civil Law, Part Seven, Volume Two, Contracts on Work, New Third Edition, Al-Halabi Human Rights Publications, Beirut - Lebanon, 2009.
  19. Dr. Adnan Ibrahim Al-Sarhan, Civil Law Explanation, Contracts Named "Contract - Agency - Warranty", Fifth Edition, Dar Al-Thaqafa for Publishing and Distribution, Amman, 2013.
  20. D. Aziz Al-Okaili, The Brief in Explaining the New Trade Law, Rulings of Bankruptcy, First Edition, Dar Al-Salam Press, Baghdad, 1973.
  21. Dr. Esmat Abdel-Majid Bakr, the Brief in Named Civil Contracts Contracting and Agency, First Edition, Zain Human Rights Publications, Beirut - Lebanon, 2015.
  22. Ali Muzaffar Hafiz, Explanation of the Implementation Law, Al-Ani Press, Baghdad, 1971.
  23. Fatiha Qurra, Contracting Provisions, Al-Maaref Establishment, Alexandria, 1987.
  24. d. Qadri Abdel-Fattah El-Shahawi, Contracting in Egyptian and Comparative Legislation, Monsha`at Al-Maarif, Alexandria, 2004.
  25. Dr. Adam Wahib Al-Nadawi, Provisions of the Implementation Law, First Edition, Baghdad University Press, 1984.
  26. Hussam Salhi, The Crime of Bankruptcy, A supplementary note to obtain a masters degree, Arab University bin Mahidi Umm Al-Baqi, College of Law and Political Science, 2015. Available at the following email address:
  27. Iraqi Civil Law No. (40) of 1951.
  28. Iraqi Official Gazette, No. (1778), issued on (15/12/1969).
  29. Khawla Kazem Muhammad, The Contractor''s Inability to Implement the Contract, Research Published in the Journal (Humanities) issued by the University of Babylon, the twenty-first issue, first volume, 2014.
  30. The Set of Judicial Rulings Issued by the Legal Information Department of the Ministry of Justice in Iraq, first issue, sixth year, 1975.
  31. Dr. Kamal Qasim Tharwat, the Brief in Explaining the Provisions of the Contracting, First Edition, Part Two, Offset Al-Wissam Press, Baghdad, 1976.
  32. Dr. Muhammad Sayyid al-Fiqi, Commercial Law, Bankruptcy - Commercial Contracts - Banking Operations, First Edition, Al-Halabi Human Rights Publications, 2005.
  33. Muhammad Azmi Al-Bakri, Contracting in the Light of Jurisprudence and the Judiciary, First Edition, Dar Al-Mahmoud, Cairo, 2016-2017.
  34. Dr. Muhammad Labib Shanab, Explaining the Provisions of the Contracting, First Edition, Al-Wafa Legal Library, Alexandria, 2015.
  35. Medhat Al-Mahmoud, Explanation of the Implementation Law, Al-Aqlam Press, Baghdad, without publication year.
  36. Dr. Mostafa Kamal Taha and Wael Anwar Bondak, Fundamentals of Bankruptcy, Dar Al-Fikr Al-Jami''a, Alexandria, 2005.
  37. Dr. Naeem Mughbaghb, Private Building Contracting, "Building Contracts and Their Effects, Public Safety in Lifts and Buildings," A Study in Comparative Law, Fourth Edition, Al-Halabi Human Rights Publications, Lebanon, 2009.
  38. A Set of Judicial Rulings Issued by the Legal Information Department of the Ministry of Justice in Iraq, No. 3, seventh year, 1976.
  39. Dr. Ali AdIl Muhammed, The Urgent Excuse in the Tenancy Contract and the Nature of its Relationship with the Theory of Urgent Conditions "A Comparative Study", research published in the Journal of (Sharia and Law) issued by the Faculty of Law at the United Arab Emirates University, the sixty-fifth issue, thirty year, January 2016.
  40. Elias Nassif, The Complete Law of Commerce, Part Four, Bankruptcy, First Edition, Aouidat Publications, Beirut - Paris, 1986.
  41. Iraqi Official Gazette, No. (2576) issued on (14/14/1977).
  42. Iraqi Penal Code No. (111) of 1969.
  43. Saad bin Muhammad Shaya Al-Qahtani, Corporate Criminal Bankruptcy in the Saudi Regime, Comparative Research. Available at the following email address:
  44. A Set of Judicial Rulings Issued by the Legal Information Department of the Ministry of Justice in Iraq, fourth edition, seventh year, 1976.
  45. Decision of the Egyptian Court of Cassation (Appeal No. 243 of 37, 1972). Available at the following email address:
  46. Dr. Imad Khudair Allawi, Mistake in the Contracting, research published in the (College of Law) magazine issued by Al-Nahrain University, volume twelfth, first issue, 2010.
  47. Dr. Jaafar Al-Fadhli, The Brief in Civil Contracts, "Sale - Rent - Contracting", Fourth Edition, Al-Atak for Book Production, Cairo, 2009.
  48. Iraqi Official Gazette, No. (2762) issued on (3/17/1980).
  49. Repealed Iraqi Trade Law No. (149) for the year 1970 (amended bankruptcy provisions under the decision of the dissolved Coalition Provisional Authority No. (78) for the year 2004 regarding developing judicial procedures related to debt disputes).
  50. A Set of Judicial Rulings Issued by the Legal Information Department of the Ministry of Justice in Iraq, first issue, 1977.
  51. D. Ja`far al-Fadhli, The Brief in the Contracting, Zain Jurid Publications, 2013.
  52. D. Wahba Mustafa Al-Zuhaili, New Contracts, "Contracting, Sale of a Commercial Name, License and a Waiver of Benefit in Exchange for Free Allowance", research published in the Journal of (Sharia and Law) issued by the United Arab Emirates University, the second issue, May (May), 1988.
  53. Iraqi Official Gazette, No. (2987) issued on (2/4/1984).
  54. Jordanian Civil Law No. (43) of 1976.
  55. Iraqi Legal System Reform Law No. (35) of 1977.
  56. Iraqi Official Gazette, No. (3983) issued on (1/6/2004).
  57. Jamal Madghamish and Yahya Dahman, Encyclopedia of Explaining Civil Law, Part Thirteen, Legal Consultative Center, 2004.
  58. Marwan Haji Al-Zibari, Legal Principles for Decisions of the Courts of Cassation of the Kurdistan Region, Interpretation Office for Publication, Erbil, 2017.
  59. Dr. Hassan Abdullah Hassan, Business Contracting Contracts, New University House, Alexandria, 2015
  60. Iraqi Implementation Law No. (45) of 1980.
  61. D. Hussein Al-Nouri, Bankruptcy System, Ain Shams Library, Al-Jeel Printing House, Cairo, without the year of printing.
  62. Kuwaiti Civil Law No. (67) of 1980.
  63. Iraqi Trade Law No. (30) of 1984.
  64. Saeed Abdul Karim Mubarak, The Responsibility of the Secondary Contractor in Accordance with the Provisions of the Civil Code and the General Conditions for Civil Engineering Works Contracting, Dar Al-Hekma for Printing and Publishing, Baghdad, 1990
  65. Fifth: Iraqi Official Gazette
  66. First: Books
  67. Fourth: References of Judicial Decisions
  68. References
  69. Second: Researches
  70. Seventh: Electronic References
  71. Sixth: Legislations
  72. Third: University Theses

Authors

payam kareem

- College of Law - Salahaddin University- Erbil- Iraq

ORCID
Ali Mohammed

College of law- Salahaddin University- Erbil

ORCID

Identifiers

https://doi.org/10.33899/alaw.2020.165262
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