The Assignment of the Contract in the New French Contract Law of 2016/ an Analytical Comparative Study with the Iraqi Civil Law
A Comparative Study
DOI:
https://doi.org/10.35246/1rfjkm47Keywords:
assignment of the Contract, assigner, assignee, the debtor of the assignment (assigned), non-assignability, enforceabilityAbstract
This research is concerned with studying and investigating the assignment of the contract, regulated by the new French law of the contract, issued according to the ordinance n° 2016-131 dated February 10, 2016, concerning reforms of the law of contract, general regime and proof of obligations. This assignment is as an agreement by which a party to a contract, the assignor, may assign his or her status, quality or contractual position as party to the contract to a third party of the original contract, the assignee, with the agreement of his own contractual partner, the debtor of the assignment (the assigned). And the study compared it with the assignment of the right, regulated by the Iraqi civil code No. (40) of 1951. The problematization of the research lies in the shortage and insufficiency of the Iraqi civil code, as a result of the lack of both the principle of the assigner's co-obligations or joint obligations with the assignee, as well as the principle of the legal assignment of the contract, authorized by the law in some particular cases. This study has adopted to the analytical comparative methodology of the legal research, and the main finding of this study is the importance of both of the above-mentioned principles in the Iraqi civil law. The researcher suggests some relevant recommendations to the Iraqi legislator, the most important of which is the advisable enactment of these two principles in the Iraqi law.
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References
First: The Legal Books in Arabic
i. Abdul Majeed Al Hakim. The concise of the explanation of the general theory of obligations. Part two, The Rules and Effects of Obligations. a comparison with Islamic Jurisprudence. Baghdad Al-Ahliyah company for publishing and distribution. 1965.
ii. Abdul Majeed Al-Hakkim, Abdul-Baki Al-Bakri, & Mohammed Taha Al-Basheer, The concise of the general theory of obligations in the Iraqi Civil Law. Part one, The Source of Obligations, Ministry of Higher Education and Scientific research. Baghdad University, 1980.
iii. Abdul Majeed Al Hakim. The Medium Commentary (Al Wasit) on the theory of contract, with the comparison and balancing between the theories of the western jurisprudence and their equivalent theories in the Islamic Jurisprudence and the Iraqi civil law. Part one. Conclusion of the contract. Al-Ahliyyah company for printing and publishing. Baghdad. 1967.
iv. Abdul Razaq Al Sanhouri. The Medium Commentary on the elucidation of the New Civil Code (Al Wasit in the Explanation of New Civil Law). part Three. The theory of obligations in general. Qualifications, Assignment, Extinction. Al-Ma'arif Publishing house. Alexandria.2004.
v. Ahmed Salaman Shuhaib Al-Sa'adawi and Jawad Kadhum Jawad Sumaisem. The sources of Obligations, A comparative study with civil laws and Islamic jurisprudence. Second Edition. Zein juridique library. Beirut. 2017.
vi. Anwar Sultan, The Rules and Effects of the Obligation, The concise of the General Theory of Obligation, A Comparative Study With Both the Egyptian and Lebanese laws, Arab Rennaissance Publishing House, 2002.
vii. Dara'a Hammad, The general theory of obligations, Part Two, The Rules and effects of Obligations, Al-sanhouri Publishing house, Beirut, 2016.
viii. Hasan Ali Al-Thannon, The Explanation of the Iraqi civil Law The Rules and Effects of the Obligations, Legal Library Baghdad, 2007.
ix. Ismat Abdul Majeed Baker. The general theory of obligations. Part Two, The rules and Effects of Obligations. Al-Thakira Publishing house. Baghdad. 2012.
x. Ja'afar Al-fadhli, The concise of the civil contracts Sale-Lease- Contract of Enterprise (independent contractor agreement), legal Bookshop publishing house Baghdad, 2007.
xi. Munther Al-Fadhel, The Medium Commentary on the explanation of the civil law, A comparative study between Islamic Jurisprudence and Arab and foreign laws, A study reinforced by opinions of both the jurisprudence and judiciary. Aras Publishing house, Erbil, 2006.
Second : The Legal Books in English
i. John Cartwright & Simon Whittaker. The Code Napoléon rewritten, French contract law after the 2016 reforms. Hart Publishing Oxford. 2017.
ii. John Cartwright, Stefan Vogenauer & Simon Whittaker. Reforming the French law of Obligations, Comparative Reflections on the Avant-Projet de Reforme du Droit des Obligations et de la Prescription (the Avant-projet catala) . Hart Publishing Oxford. 2009.
third: The Legal Books in French
i. Alain Bénabent. Droid Civil Les Obligations. Troisième edition. Montchrestien Paris. 1991.
ii. Annick Batteur. Droit Civil Des Obligations, Les Annales Du Droit. DALLOZ. . 2017.
iii. Boris starck, Henri Roland et Laurent Boyer. Obligations 2. Contrat. Quatrième edition. Litec, Libraire de la cour de cassation. Paris.1993.
iv. Corinne Renault-Brahinsky. Droit des Obligations. 16e édition. Gualino. 2020.
v. Francois Collart Dutilleul et Philippe Delebecque. Contrats Civils et Commerciaux . 6e edition. Dalloz. 2002.
vi. François Terré, Philippe Simler, Yves Lequette, François Chénedé. Droit Civil. Les Obligations. 12e édition. DALLOZ. 2019.
vii. Gérard Légier. Droit Civil Les Obligations. Treizième édition. Dalloz-Sirey.1992.
viii. Jean-Luc Aubert, Éric Savaux, Introduction Au Droit et thème Fondamentaux Du Droit Civil, 14e edition, SIREY, 2012.
ix. Philippe Malaurie et Laurent Aynès. Droit Civil. Les contrats spécieux. DEFRENOIS, Edition juridique associées. 2003.
x. Stephanie Porchy-Simon. Droit Civil. 2e anée .Les Obligations. Hypercours & Travaux dirigés. Dalloz. 2018.
Fourth: The Laws
i. The French law of Contract amended by the ordinance n° 2016-131 dated February 10, 2016, concerning reforms of the law of contract, general regime and proof of obligations.
ii. The Iraqi civil law No 40 of 1951.
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