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التنظيم القانوني لعقد الدلالة في التشريع العراقي : دراسة مقارنة في ضوء قرارات محكمة التمييز الاتحادية == Legal Regulation Of Brokerage Contract In Iraqi Legislation A Comparative Study In The Light Of Decisions Of The Federal Court Of Cassation
Author name:
احمد عكار نزال
Supervisor name:
ظافر حبيب جبارة
General topic:
Law
Specific topic:
Civil Law
Degree:
Master
University:
University of Thi-Qar - Faculty Of Law - Department Of Private Law
Language:
Arabic
University location:
Dhi Qar
First pages:
13T1662 - p.pdf
Abstract:
Brokerage works have a distinct position in economic life, given the need of people, from traders and others, to who is looking for someone be a party to a particular contract, and he shall intervene, as appropriate, in the negotiations necessary for its conclusion, and this is the essence of a broker's work.The broker in this case is doing just a physical act, so he do not conclude the contract which he has mediated on behalf of his client, neither in his name, nor in the name of his client, which is a work exercised by the broker freely, and independently, for his own account, without being subordinate to his client. The Broker's undertaking to work on facilitating the conclusion of the transaction that the Client wishes to complete creates a legal relationship, regulated by a contract, called the brokering contract, it is one of the specific consensual bilateral contracts, which gained a commercial character and entered in to the scope of nominated contracts after the legislator assigned out to regulate its provisions in a special law, namely the Brokerage Act 1987.Although the general rule, is the liberty of will to conclude the contracts, but the Iraqi legislator, preferred to restriction this will to a large extent, whether in the liberty to choose the person who take over the task of mediation of, or in the liberty of arrangement of obligations arising from the contract, as the brokerage is not permissible for all those who wish to practice it, because the law restricts its practice to people of integrity from Iraqis, who have completed the twenty - fifth year of age, and must be fulltime to practice in a commercial place, after getting a commercial name, and obtaining a permit from the competent authority. These conditions of public order, violation of them shall result in invalidity of the contract, and depriving the party pledged in brokering of any right to commission or indemnity resulting from the impossibility of returning the situation to what it was as a result of nullity. In spite of the ordinary terms of brokerage contract which imposes parallel obligations on the contracting parties, the Iraqi legislator obliged the broker to perform the transaction faithfully, as well as the Iraqi legislator obliged him to keep maintain the documents relating to the transaction. The breach of theses duties involve the broker's criminal and civil responsibility.,On the other hand, the Iraqi legislator determined a fixed amount for the remuneration of broker, which the contracting parties can not be agree to the contrary, and he restricts its entitlement by two conditions : concluding of contract which mediated by the broker, and the existence of a link of causality between this conclusion and the broker's efforts, in which, without these efforts, the contract would not have been concluded. But the practical application of the rules governing the remuneration of broker, showed two problems, led to the prejudice towards broker, to the extent that his rights were wasted.The first problem, Relating to broker's remuneration in scope of formal contracts, however he deprive of his remuneration for just undoing completion the formality required by law by one of the parties, the Courts embed this prejudice, by depriving the broker of any compensation for his efforts to conclude the contract, without a legal justification.The second problem relates to the official tariff, which is no longer compatible with the value of transactions that broker mediates in their conclusion, due to the devaluation of the Iraqi currency, compared to its value at the time of the enactment of the law, who as appointed the ratios, on the basis of which the broker's remuneration, and must not exceed one thousand and five hundred dinars, exceeding the commission of the broker, the maximum limit of the remuneration, is considered a criminal offense and administrative, resulting in a fine and the withdrawalof this permit.However, the Iraqi judiciary has subjected the broker's remuneration to its discretionary power, based on a general principle that decides the possibility of changing the provisions, which based on custom or interest, if that custom or interest changes in view of the requirements and variables of life. Undoubtedly, the texts that organized the broker's remuneration, were put in the interest represented by, the reducing the overvaluation, this interest has changed by changing the value of the currency, thus, the Official tariff became an inappropriate standard to exaggeration, on the contrary, it has become a trivial amount, not commensurate with the transactions that are determined according to their value.
