Conditions of Agency in Contracting: A Comparative Study Between Iraqi Law, Iranian Law, and Imami Jurisprudence

Abstract

This article presents a comparative study of the conditions of agency in contracting under Iraqi law, Iranian law, and Imami jurisprudence, as the framework that ensures the effects of a contract are attributed to the principal’s estate despite the apparent issuance of offer and acceptance by the agent. The study shows that agency is no longer merely a subsidiary matter tied to the contract of mandate; rather, it has become a central regulatory tool for the stability of transactions and the protection of trust in dealings, especially given the multiplicity of forms of representation and the practical overlap between consensual agency and legal and judicial agency. The article begins with a theoretical grounding of the concept of agency in contracting, its types, and the position of mandate as a prominent legislative model in both the Iraqi and Iranian systems. It then addresses the need for a methodological distinction between agency in contracting and legal representation, given the resulting differences in the scope of application and in legal consequences, since a defect may relate either to the enforceability of the contract and its effects or to standing and procedural matters depending on the correct legal characterization. The study then focuses on analyzing the three essential conditions on which the validity of agency depends: first, the substitution of the agent’s will for the principal’s will on the basis of a valid authority, whether a contract, a statutory text, or a judicial ruling, clarifying that this substitution is the essence of agency because it transfers the locus of expressing consent to the agent while the locus of legal effect remains with the principal; second, the requirement that the agent contract in the name of the principal, not in the agent’s own name, as a criterion that reveals the identity of the true party to the contract and protects the other party from surprises in attribution, and as consistent with the rule that the default is contracting on one’s own account unless indications or express statement reveal the agency capacity; and finally, the requirement that the agent not exceed the limits of the agency, as the practical safeguard against agency turning into an absolute power, since exceeding the mandate or authority removes the act from the sphere of representation and renders it unenforceable against the principal unless ratified, or opens the door to liability as the case may be. In light of the comparison, the article shows that the core of these conditions is unified across the three systems even if the modes of expression and detailed criteria differ, and that regulating these conditions achieves a balance between protecting the principal’s true will and safeguarding the other party’s legitimate trust, while providing the judiciary with a practical standard to distinguish valid representative acts from acts that revert to personal conduct or unauthorized dealings, with the resulting effects on enforceability, obligation, and liability.