Legal Evidence for Guaranteeing Hand in Iraqi Law (Comparative Study)

Abstract

Abstract: Civil laws have stated that the sources of obligation are represented by the contract, tort liability, unjustified gain, and the text of the law. Some laws, including the Iraqi Civil Law, the Jordanian Civil Law, and the UAE Civil Transactions Law, have added the unilateral will to these sources, so that there are five sources, so that there are five sources through which obligations arise.There is no doubt that the civil laws mentioned above took another source, which is the guarantee of possession from Islamic jurisprudence arising from the possession of another. These laws have organized the rule of guarantee of possession in every case in which the owned property is found in the possession of someone other than its owner, Such as guardianship, trusteeship, deposit, loan, sale, usurpation, theft, breach of trust, lost property, kinship, and partnership. Therefore, we can say that these laws have been influenced by what Islamic jurisprudence has established.

The Iraqi legislator in the Civil Code is the only one of the Arab legislators who has defined the guarantee of possession in the first paragraph of Article (427), then added in Article (428) of the same law that: “If the ownership of a thing is transferred by a contract, the hand of the old owner before delivery is a guarantee hand, ...”, and thus he dealt with the case of the transfer of a thing from the hand of its owner to the hand of someone other than the owner, whether this was done by a contract or without a contract; as he formulated a precise concept of the guarantee of possession and possession of trust, and the cases that affect the guarantee, such as the impossibility of implementing the obligation due to a foreign cause, relying on the standard of guarantee in Islamic jurisprudence.