Legal Framework for Mixed Transactions

Abstract

"Mixed transactions are transactions that are commercial in nature for one party and civil in nature for the other party. These transactions are one of the most common types of legal dealings concluded in daily life, compared to commercial or civil transactions separately, whether these dealings are carried out by individuals who have acquired a commercial status or by ordinary individuals. However, despite their prevalence, the Iraqi Commercial Code does not explicitly address mixed transactions or provide specific legal rules to govern them, which could facilitate their implementation and provide legislative solutions in the event of a dispute.

The significance of mixed transactions stems from their unique legal nature and the parties involved. Therefore, these transactions must be treated in a special manner and in accordance with legal rules that distinguish them from other transactions. Given that the parties involved are a mix of a merchant and a non-merchant, and the transaction is considered commercial for one party and civil for the other, it is not possible to apply commercial law absolutely or civil law in the same manner. This would lead to the application of legal rules that would be unfair and unfamiliar to one party, particularly the party for whom the transaction is non-commercial. Therefore, a balance must be struck between the application of the appropriate and correct law and the interests of the parties to the mixed transaction. This requires the application of one law exclusively in certain cases, i.e., the predominance of one legal system over another, such as in matters of interest and possessory pledge, or the concurrent application of both laws, known as dual application, in matters such as capacity or applicable law. In both cases, specific legal effects arise, consistent with the applicable legal framework.