The effects of partial sale due to non-delivery of some of the sold items in Iraqi civil law

Abstract

This study addresses a situation that arises when the sold item, which represents the core of the sale and the most important obligation of the seller, is not delivered according to the quantity, size, and weight agreed upon with the buyer. The buyer, who had previously arranged the item, finds himself facing critical choices that threaten the entire transaction with total invalidation, or the option of dividing the transaction due to an increase or decrease. This is achieved by clarifying the provisions for dividing the sale through a comparative study between Islamic jurisprudence and Iraqi civil law. The study reviews the effects of the provisions for dividing the sale from the perspective of Islamic jurisprudence and Imami jurisprudence, which is considered the founder of the rules of dividing. These provisions are explicitly derived from the Iraqi civil law, specifically from the Ottoman Civil Code (Majalla al-Ahkam al-Adliya), which itself was influenced by Hanafi jurisprudence. The aim is to provide solutions to disputes in a category of sales contracts that face (the seller's inability to deliver part of the sold item) or (the invalidation of the sale in part). This necessitates research into finding solutions that must be based on the sources of Islamic law. The study then examines whether the provisions for dividing the sale have been able to keep pace with the developments we are witnessing, especially since its provisions were legislated in Civil Law No. (40) of 1951, as amended. Islamic jurisprudence seeks to establish rules and regulations that serve the economic sphere, particularly in sales. Most scholars of the four major schools of Islamic jurisprudence have dedicated a specific section to sales, addressing the rules governing the division of a transaction as a component of the sale. This study aims to highlight the role of Islamic jurisprudence, across its four schools, in developing rulings for cases of partial sales, thereby resolving disputes that may arise between contracting parties regarding the rules governing such transactions. These agreements have become part of binding legal rules that reflect practical realities and absolve the seller of liability in cases of excess or deficiency in the goods sold, without any exploitation or deception.

Our study employs a comparative approach, examining the rulings according to Islamic law (the four schools of thought) and Imami jurisprudence with the rules governing partial sales in the Iraqi Civil Code No. 40 of 1951, as amended.