The Buyer’s Right to Claim Remedy for Non-Conformity While Maintaining the Contract under Iraqi and Iranian Law and the Vienna Convention

Abstract

The contract of sale is considered one of the most common contracts in daily life, whether in its traditional form or its modern form related to consumer contracts and electronic commerce, which necessitates the provision of effective legal protection for all parties, especially the buyer who is often the weaker party. One of the most prominent obligations imposed upon the seller in the contract of sale is the necessity of delivering the sold item in conformity with what has been agreed upon in terms of description, quantity, quality, and essential characteristics. The importance of this study is manifested in several aspects, most notably highlighting the protective role undertaken by the legislator toward the buyer in the contract of sale, in addition to clarifying the legal framework of the buyer’s right to claim remedy for non-conformity without prejudice to the existence of the contract.

This study aims to achieve a number of objectives, most importantly determining the concept of non-conformity and distinguishing it from latent defect, and clarifying the legal basis of the buyer’s right to claim repair while maintaining the contract. The problem of this study revolves around the following main question: To what extent has the legislator guaranteed the buyer’s right to claim remedy for non-conformity while maintaining the contract of sale, and what are the legal conditions and effects resulting from the exercise of this right? This study relies on the descriptive analytical method.

The study reached several results, namely that non-conformity constitutes a fundamental breach of the seller’s obligation, which grants the buyer multiple legal remedies, including the right to claim repair while maintaining the contract. It was also found that the buyer’s right to repair non-conformity represents a legislative trend aimed at preserving the contract and not rescinding it except as a last solution. Furthermore, this right is based on a legal foundation connected to the principle of good faith and achieving balance between the interests of the parties to the contract of sale.

The study recommends the necessity of legislative intervention to clarify the concept of non-conformity and explicitly distinguish it from latent defect in order to avoid confusion in application. It also recommends strengthening legal provisions that grant the buyer the priority right to claim repair before resorting to rescission or replacement, in addition to unifying the legal provisions related to the right of repair in civil legislation and consumer protection legislation in order to ensure their consistency.