AL- Mouhaqiq Al-Hilly Journal for legal and political science

The research on defining the nature of reality and law and distinguishing between them is characterized by special intellectual and philosophical connotations due to the legal importance of the subject and its great impact on formulating a theory that removes the ambiguity between the concept of (reality) and the concept of (law) and determines the jurisdiction of the subject courts and the courts of appeal. The distinction between what is reality and what is law is difficult, as it is inconceivable that there is a dividing line between them and they can only be viewed as two sides of the same coin and that every attempt to differentiate between them collides with the great practical overlap and the reason for that is due to the inability of the opponents in the judicial dispute to present a reality separate from the law as they often try to reach the best adaptation of the facts presented to the court. They add legal descriptions to them - even if they are not binding on the judge - as he is burdened with the obligation to apply the legal effect found in the legal rule as a result of its complete conformity with the sum of the realistic elements presented in the judicial dispute. Therefore, the abstract reality - not adapted - is unlikely to occur because it is contrary to sound legal logic, as this assumes the possibility of the existence of the abstract objective truth, and the objective truth is that which can be taken without regard to any consideration or external element from that truth, as it is self-sufficient.

Also, the mixing of reality with the law in judicial decisions is conceivable and is represented in the clarity of the side of the law or reality in it without the other side. Therefore, determining the distinction between reality and law is done by following the stages of issuing decisions by the judges of the subject matter, in which the issue of distinguishing between reality and law can be raised, between the stage of assessing the facts of the case and verifying them. Then the stage of legal adaptation of these facts. Then applying the results extracted from the legal rule to the facts of the case.
Despite that, the distinction between reality and law, despite its difficulty, is a necessary and vital matter from a theoretical and practical point of view due to its great and direct impact on the topics of the Code of Civil Procedure.
The research will attempt to present a legal study related to the procedural effect of reality and law in determining the description of the Court of Cassation, whether it is a court (of law) and thus a higher body for reviewing rulings, or a court (of reality and law) and thus a third degree of courts.

We will address the subject with a comparative study based on the legislative position of the Iraqi Civil Procedure Law and the Egyptian and French Civil Procedure Law. This will be done in two chapters, the first of which will be devoted to studying the scope of reality and law in the civil suit.

The second will be devoted to determining the degree of the Court of Cassation according to reality and law. If this is done, we will reach the conclusion of the subject

One of the most important effects of implementing the principle of contractual freedom is the release of the will in forming contracts and determining their effects. It was worthy, based on that, and in view of the supposed equality between the positions of the parties coming to the contract and the keenness of each of them to achieve his interests, that these contracts achieve their own balance, as an effect of the parties’ satisfaction with the contract and their acceptance of its terms. Even if there were any dangers, they were aware of them and their dimensions, and therefore they are limited in scope, and this is generally consistent with the advantage that each of them will obtain, meaning that the origin of concluding contracts is the principle of the authority of the will, which is based on two foundations: the first is that all obligations go back in their source to free will, and the second is that this will is not limited to being a source of obligations only, but it is also so for the effects that result from these obligations. Therefore, it can be said that the parties’ satisfaction is assumed to be valid as long as the contract was concluded in the context of discussion and negotiation between them, and thus its balance is assumed in this case. However, things do not always go this way, as with the beginning of the second half of the last century, the development of industrialization processes and economic capitalism led to the reversal of these data and the emergence of manifestations of the collapse of the factors of this equality, such that the existence of a degree of clear disparity in the components of economic, technical and legal capacity between the two parties to the contract in the field of transactions became a common matter, which led to the gradual fading of evidence of contractual equality. This clearly highlighted a problem in the contractual field represented by the emergence of two groups of contracting parties, the first of which is the group of professionals and the second is the group of consumers, as the owners of the first group “for the sake of speed and safety of transactions” have been accustomed to preparing in advance the contracts they conclude with consumers and including in them clauses and conditions that are in their interest, in an exaggerated manner, in most cases, which led to the increasing emergence of what are known as familiar conditions in contracts, which are the conditions that are commonly included in contracts of a single nature, such as the conditions that the merchant, for example, repeatedly follows in all the contracts that he concludes later with the contracting parties. With him, which even if it is characterized by its validity “not to mention the falsehood of it” makes the consumer a victim of the exploitation of this merchant through his arbitrariness in imposing it because it may carry a reduction in the burdens or obligations of the latter or increase without compensation the obligations of the contracting party, which makes these contracts unbalanced contracts such that the consumer cannot be a peer to the other party in the contract due to the economic and technical weakness of the former, which requires finding a type of legal force that protects him to restore the balance of the two scales between them. Accordingly, the issue of consumer protection has become one of the important issues, especially at the present time, and whatever the economic system that the state applies, whether it is a directed economy based on the state’s economic intervention and control, or a market economy, and even especially in the latter system, which relies on the private sector and other mechanisms specific to it in order to restore balance in the relationships of consumers with other professionals. The question that can be asked here is, how can we protect the consumer from the usual conditions in some contracts, specifically commercial ones, which the merchant is accustomed to including in them or taking their provisions even if they are not stipulated in these contracts, especially if it is inferred in this evidence that the two parties to any contractual relationship may include in their contracts whatever conditions they wish that in their essence confirm the content of these contracts or are appropriate to them or what has been established by custom and habit, or that the origin in determining the content of any contractual obligation is what is explicitly stated in the contract and what is also considered among its requirements according to the law, custom and justice even if it is not explicitly mentioned in it, according to the nature of each obligation separately, and what is assumed with it is that the usual conditions are considered a complementary and supplementary part of these contracts and fall within their scope even if they are not mentioned in them and then it is obligatory to follow and implement them by both parties even if the other party is the consumer who may be completely ignorant of them when concluding the contract with the merchant? To answer this question, we have decided to divide this research into four sections. We will hold the first section to clarify the concept of the usual conditions in commercial contracts. In the second section, we will define the concept of the person intended by this protection, which is the consumer. The third of these sections will be devoted to framing the scope of consumer protection from the usual conditions, while we will devote the fourth section to explaining the effects resulting from this protection. This will be followed by a conclusion in which we will show the most important results and conclusions that we will reach within the folds of this research.

Investment is of great importance to the state and individuals, and it is a subject of interest for lawyers, economists and politicians because it extends to legal, economic and political aspects, affecting them and being affected by them. Improving internal laws, providing economic opportunities and the political openness of the state to the world are factors that attract investments from within and outside the state. Since the flow of foreign capital into the state’s environment leads to a concentrated feeding of the national economy, foreign investment is superior in this respect to domestic investment, which requires providing the necessary guarantees to encourage foreign investment. A reading of Investment Law No. 13 of 2006 shows that it provided some of these guarantees, but it did not improve in defining the scope of their application. Here we must first ask what characterizes investment as foreign and then enjoys guarantees and privileges.

International law scholars believe that war is a relationship between warring states, not individuals belonging to these states. In this regard, Portales says, “War is a relationship between one state and another, and not a conflict between the citizens of these two states, because the state of hostility exists between the two warring states in the first place, and does not exist between their citizens except in an incidental manner and in their capacity as defenders of the opposing state, not as its citizens.” The German jurist Plutschke formulated this general rule in his code of international law more than a century ago with the following phrase: “War is a relationship between states, not between individuals.” The warring states are hostile in the exact sense of the word, but the citizens of these states are not enemies, neither among themselves nor with regard to the opposing state. Based on this special concept of the relationship of hostility, the two warring parties must try not to cause harm to the citizens of the opponent, whether they are prisoners, wounded, drowned, or civilians, except within the narrowest limits, and in what cannot be avoided. According to the above and in order to achieve what was mentioned, the warring states, based on the concept of not extending hostility to their citizens, and reducing damage to the greatest possible extent, can agree to appoint a neutral state or states that guarantee the protection of the citizens of each of them in the presence of the other party. This is what is known as the protecting state system, which is regulated in some international humanitarian law charters.

The last decades of the last century witnessed a revolution in the field of information and communications, which led to the emergence of the World Wide Web, called the Internet, which was credited with exchanging information in various parts of the world, leading to fundamental changes in society in all aspects, including legal aspects. The rapid development of electronic data exchange through this network had a fundamental impact on the way in which transactions and commercial deals are concluded, as electronic data exchange through electronic documents began to replace ordinary paper documents. Thanks to this and through the use of this network, people were able to conduct many transactions remotely without being in one place through contracts called electronic contracts, as these contracts are concluded through electronic means, most notably contracts concluded using a computer, whether completed through commercial sites on the Internet or via e-mail. These contracts initially faced several challenges, including the difficulty of identifying the identity of the contracting parties and verifying the existence and integrity of the will of the contracting parties, the seriousness of this contract, the truth of its content, and how to prove it. As a result of these problems and the frequent occurrence of electronic contracting, many countries were prompted to develop legislation that addressed the process of electronic contracting in its content. The United Nations issued the UNCITRAL Model Law on Electronic Commerce in 1996, and America, Britain, Germany, Canada and other countries issued legislation related to electronic commerce, and a number of Arab countries issued legislation in this field, as happened in Tunisia, Jordan, the United Arab Emirates, Bahrain, Egypt and Sudan. Given the importance of electronic contracting at the present time and the lack of studies on this topic in Iraq in particular, we chose this topic for our research, and most aspects of this contract will be studied in this research, starting from standing on the nature of this contract by defining it, standing on its nature and explaining its characteristics, stating its pillars, place and time of its conclusion and how to prove it, in three topics as follows: -

The administration must obtain funds to carry out its activities and achieve its objectives represented by the public interest, whether the funds are movable or real estate. Funds may be private and subject to the private law system to which individuals are subject within the framework of private law, or they may be public funds subject to the public law system in which the administration exercises the privileges of public authority in addition to the legal protection of public funds. The administration obtains funds in ways similar to those in which individuals obtain private funds, i.e. through sale, donation and will. The administration may resort to public law methods to obtain public funds as a public authority, so it forcibly expropriates the private real estate ownership of individuals from them or seizes the funds of individuals or private entities temporarily or permanently, even without their consent. The administration may also obtain funds by confiscating the private funds of individuals as a supplementary penalty or nationalizing private projects as a penalty for individuals or private companies. Thus, criminal law is a source for the administration to obtain funds in some of the stipulated cases, just as private law is a means in the hands of the administration to obtain funds. What concerns us in this research is how the administration obtains funds in administrative law. The modern view of the method of acquiring it is embodied in the expropriation for public benefit purposes as well as the seizure of real estate without including the research on the means of earning money in other laws such as criminal law and private law or earning public money through the legislative authority, i.e. acquiring public money through the nationalization of private projects, but we will address some of them for comparison to know the similarities and differences as far as the subject of the research is concerned. Therefore, we will learn about the nature of public money in terms of defining it in jurisprudence and law and modern trends in this field as well as what the judiciary has followed in adopting the modern trend and the one in effect in France, Egypt, Lebanon and Jordan. This nature of public money will be in the first section. As for the second section, we will make it for the means of acquiring public money, which we will divide into three demands. The first we will devote to expropriation for public benefit, while the second we will allocate to the seizure of real estate, while the third demand will be to the similarities and differences between expropriation for public benefit and the seizure of real estate on the one hand and some other legal provisions that provide public money to the state such as confiscation and nationalization on the other hand, with emphasis on how to expropriate for public benefit. ...and the seizure of real estate in Iraqi legislation, then we end with a conclusion that includes the results and proposals we have reached.

There is no doubt that the tremendous industrial and technological development and the resulting diversity of services, goods and products, and the accompanying multiplicity of contemporary marketing methods and various advertising methods, have had an effective impact on the development of contract formulas and the strengthening of the consumerist tendency among individuals and urging them to contract without discussion or negotiation. This is precisely what contributed to the expansion of the scope of contracting according to unified, general, abstract conditions prepared in advance by one of the contracting parties, which are called unilateral conditions. Conditions in this sense do not derive their binding force from themselves because they only represent the will of their drafter, but rather require the will of the other contracting party to adopt them and abide by their content. However, the difficulty arises in knowing the extent to which the will of the contracting party - the recipient of them - is devoted to adopting them and abiding by them in the event that he claims not to be aware of these conditions or some of them, whether they are included in the contract document signed by him or in the additional documents referred to explicitly or implicitly, arguing with the way they are formulated or the absence of contractual negotiation regarding them and accepting them without realizing it. For its content or knowledge of its harmful effects on his contractual position, especially since the one who sets these conditions is usually the party enjoying contractual power (1) whether that is from the legal, economic or technical aspects, which allows him to impose conditions that would harm the position of the other contracting party, whether that is by limiting his guarantees or rights, such as conditions exempting him from the legal guarantee or that waive his right to claim compensation or cancellation, or those that exempt or reduce the responsibility of the one who sets them in the event of delay in implementing contractual obligations or implementing them with defective implementation... and similar conditions.

In order for the life of societies to be organized, states resort to two means: the first is a legislative means that addresses everyone and is expressed in laws, while the second is a judicial means that aims to resolve disputes that arise between specific individuals and is expressed in judicial rulings. Since the social and economic life of the state is no longer limited to its political borders, but has become beyond these borders to connect with the lives of other groups, the mere issuance of these judicial rulings means nothing if that issuance is not accompanied by the possibility of application in another state or before the courts of another state. If this is the case, then we will be faced with a state of mutual interaction between laws. This is the aim of this law, which attempts to stop between two considerations: the need for international transactions and the preservation of the international private interests of individuals across borders on the one hand, and the sovereignty of the state over its territory on the other hand. In order to reconcile these two considerations, the Iraqi legislator did not want to recognize the foreign judgment absolutely and treat it as a national judgment, nor to deny it any value. Rather, he mediated the matter, allowing it to be implemented while subjecting it to oversight by the Iraqi judiciary under a set of conditions. These conditions are (external) and touch upon the external framework of the foreign judgment. All of this is dedicated to the interest of the judgment issued by those foreign courts to verify that they have taken into account the necessary standards in issuing those judicial rulings. In other words, the legislator stipulated that in order to implement foreign judgments, a decision must be obtained from the national courts. In our opinion, this matter represents a general principle and, at the same time, a sovereign requirement, since there are judgments that cannot have their effects unless they are verified and presented to the national judiciary, as they may require certain executive procedures (which may, for example, require resorting to the use of force) in order to implement them. This represents a fundamental violation of the sovereignty of the state. Therefore, in order to mitigate this, the national legislator has enabled the foreign judgment to enter the national domain, but this is linked to obtaining permission for implementation from the national judiciary. In addition to this, there is another group of effects that foreign judicial judgments produce that do not necessarily require obtaining an order for implementation, as they create direct legal positions for their owners. An example of this are legal judgments issued on the subjects of (status and capacity), such as registering (a birth or death), registering (a marriage or divorce contract). These rulings or groups of rulings create direct legal positions for their owners, but this is also linked to the necessity of the presence of a group of conditions that can be classified into two types: general and special.

The study of private international law is of great importance, due to its effective role in opening up to other laws and coordination and interaction between various contemporary laws. It is a law that is not based on individualism and isolation, but on openness between countries, as people and money move across borders from one country to another. This law was created to deal with this type of legal relations, as it aims by its nature to find appropriate solutions for private legal relations that cross borders. Perhaps this characteristic is what justified the absence of a codification of this law similar to other legal codifications, such as civil law, commercial law, and criminal law. It is noted in this law that the legislator rarely intervenes, and if he does intervene, it is through scattered and dispersed texts. Perhaps this diversity and dispersion in the texts places all its weight on the judiciary to play an important role in this law. The judiciary, as the last resort for the disputants, must rule fairly between them and cannot use the excuse or refrain from doing so under the pretext of the lack of clarity of the text or its non-existence. This reality (the decline of the role of the legislator) has resulted in giving the judiciary a large space to innovate and create and try to create solutions in cases where there is no text. Even with the assumption of the existence of the text, in some cases, it must complete and strengthen this textual presence and begin to fill in the gaps. The legislator and the judge, according to this concept and according to the nature of this law, both work according to the theory of extension and integration. The first ensured the necessity of keeping his role limited to general guidelines due to his inability to grasp all the details and facts with their branches and complexities that constantly change with the changing needs of man. The legislator, through this endeavor, wanted to grant the judiciary the possibility of this confrontation. This role of the judiciary has increased and grown more and more, especially in countries with legislative and judicial pluralism. This timid intervention by the legislator revealed a legislative deficiency, which opened the way for the judiciary to play a constructive role at times and a reinforcing role at other times for the rules and solutions approved by the legislator in the field of private international law in order to reconcile the realities of life and the requirements of private international relations. According to this idea, we will try to prove in this modest study that the legislator and the judiciary work according to the theory of extension and integration, and although these terms have a great impact, I preferred to use them because of my belief in the great role played by each of them. Sometimes, as we said previously, the judiciary replaces the legislator to create legal provisions, and other times it completes the work of the legislator, when the legislator sets a general principle, from which the judge tries to derive legal solutions and provisions. The latter was represented in a form known as the discretionary power, which is the flexibility that occurs by implicit agreement between the legislator and the judiciary, and which the legislator seeks to establish or add a character of harmony between the moving reality and the rigidity of the text in order to keep pace with new developments within the framework of the reality of life. I can call this role, without hesitation, the complementary role of the legislator’s work, and in our humble estimation, this latter role is represented in the form of the discretionary power inherent in the work of the judge. Accordingly, this modest study will be concerned with studying the features of the constructive role of the judiciary within the framework of private international law, and this is what the first section will concern, although we will try to follow it up by explaining the complementary role in a second section.

The theory of emergency circumstances assumes that economic conditions change when executing the contract due to an unexpected event such that executing the contract, even if not impossible, becomes burdensome for the debtor to the point of threatening him with a huge loss that exceeds the usual limit. For example: if a person undertakes to supply a commodity at a certain price, then before the date of supply arrives, the price of this commodity rises to several times what it was due to a war that prevented its import from abroad, for example. Then executing the contract threatens the debtor with a huge loss that exceeds the usual limit. It is clear that justice requires reducing the burden of the obligation on the debtor by distributing the consequences of the emergency incident between the two parties. The theory of emergency circumstances addresses the imbalance between the obligations of the two parties when executing the contract and performs the function performed by the theory of independence and submission when forming the contract.