The theory of force majeure in Iraqi civil law, Iranian civil law, and Islamic jurisprudence

Abstract

The origin of the theory of force majeure is linked to the origin and emergence of contracts since ancient times. It was mentioned in the ancient laws of Mesopotamia, specifically in Article (48) of Hammurabi's Code. Thus, force majeure is an inseparable part of the contract, as every contract is subject to exceptional circumstances that occur suddenly, preventing the contracting parties from completing or even amending the contract. It occurs unexpectedly, beyond the control of the contracting parties. Force majeure is defined as the impossibility of performance resulting from an unforeseeable event, and also as an unforeseeable and unavoidable event. Not every unforeseeable circumstance can be described as force majeure; only those that meet the following conditions must be met: the event must be caused by an external factor. If the event is attributed to the contracting parties, it cannot be considered force majeure. Furthermore, it must be unforeseeable. If the event was foreseeable for the contracting party, then the responsibility lies with that party, and the event is not considered force majeure. These conditions lead us to the condition of impossibility of performance, meaning that it is ultimately impossible for the contracting party to fulfill their obligation to perform the contract. With these three conditions, we can describe... The event is considered a force majeure. However, if any of these conditions are absent, the event is not termed a force majeure because one of the necessary conditions is no longer met. Its effects are divided into permanent effects, which refer to the debtor's inability to fulfill the obligation due to a sudden and external force majeure event, and the inability of the contracting party to perform the contract due to the impossibility of preventing it. An example is a flood that occurs on farms before the contract is concluded, destroying the crops. Consequently, this leads to the contract's non-performance because the crops have been damaged. There are also temporary effects, which occur when the impossibility of performing the contractual obligation is temporary, not permanent. An example is a lease agreement, which is performed for a specific period, after which something arises that prevents the continuation of the obligation for a further period. When distinguishing between the theory of unforeseen circumstances and force majeure, we find that both share the characteristic that the event is unexpected, occurs due to an external cause beyond the control of the contracting parties, and is unforeseeable and unavoidable. However, they do not differ in that the theory of unforeseen circumstances does not render the performance of the contractual obligation impossible, but rather burdensome. Despite this... His difficulty makes them able to commit to concluding the contract, unlike the force majeure theory which makes the execution of the contract impossible, leading to the termination of the contract.