Dr. Yonis Salahalden
Department of Law
Cihan University - Erbil
The Iraqi Civil law No. 40 of 1951, notwithstanding its being an out-moded legislative act relatively, and a blend of the Egyptian civil law, profoundly affected by the French civil code, from the one hand. And the Islamic jurisprudence, represented by the rules of the so-called "Majella", the codification of the Hanafite school of jurisprudence, issued by the Ottoman Empire on the other hand. But it managed with explaining and solving the problems concerning the Extraneous cause and the fortuitous event and made a clear-cut distinction between them. And I want to take a close look at the legal qualification coronavirus pandemic. (COVID-19) disseminated nowadays, and affecting the legal execution of the contractual obligations. To begin with, and in conformity with the rules and texts of the Iraqi Civil law, the pandemic (COVID-19), can be qualified by both the Iraqi and Kurdistan region courts in keeping with a bilateral legal qualification or classification. The courts used to qualify epidemics and even pandemics like this one, as an Extraneous cause, particularly a force-majeure from one hand. And a fortuitous event on the other side. But what matters here is the stabilization of the execution of contractual obligations of our civil and commercial contracts and transactions. This requires from our court to use the method of the bilateral legal qualification of the pandemic (COVID-19), to adjust and adapt the execution of civil and commercial contracts in line with the ever-changing circumstances created by the epidemic (COVID-19), and surrounding our society. I should say and emphasize that if our courts in Kurdistan region qualify the pandemic (COVID-19) as an Extraneous cause, and in particular as a force-majeure, in this case, the consequence of this pandemic is the impossibility of the execution of contractual obligations. And this is an absolute impossibility, leading to the nullity of the contract, according to article No. (211) which provides that (If the person proves that the damage is created by an Extraneous cause, outside his or her control, such as a heavenly bane, a sudden event, a force-majeure, a third-party act, or the fault of the victim. He or she will not be obliged to the guarantee or compensation unless there is a text or agreement to the contrary). From the explanation of this text, we can reach to a conclusion that the pandemic (COVID-19), can be qualified legally as a "heavenly bane", the expression the Iraqi legislator borrowed from Islamic jurisprudence. Or even a force-majeure, in general. Therefore the occurrence of these types of events may lead to the extinction of contractual obligations because the Extraneous cause, mainly, the force-majeure, is an event that can neither be expected nor prevented, and it makes the execution of contractual obligations impossible. But if we take into consideration the other analysis of the bilateral qualification, to be adhered by Kurdistan region courts to solve the problem of the execution of contractual obligations impeded the pandemic (COVID-19), they can follow a facilitating method to execute some of the contracts concluded before the dissemination of the epidemic (COVID-19), Coronavirus. And this method can be embodied by a theory of the fortuitous events, provided for by the second section of the article No. (146) of the Iraqi civil law. Which ensures that ( If some worldwide exclusive or unusual events take place by accident, and they can neither be expected nor prevented, and their occurrence makes the execution of contractual obligations burdensome to the debtor, but not impossible, to the extent that this execution threatens the debtor with a gross loss, the court will be able to reduce the burdensome obligation to the reasonable level, if the justice requires, and any agreement to the contrary will be null and void). From this second qualification, it is obvious that pandemic (COVID-19) can be dealt with by Kurdistan region courts as a fortuitous event and not a force-majeure. This means that the contractual obligations will not be extinguished, notwithstanding it becomes burdensome to the debtor, but it must be reduced to a reasonable level. In summary, we can say that the pandemic (COVID-19), can sometimes be qualified as a force-majeure, and sometimes as a fortuitous event. Both of them are similar by neither being expected nor prevented. But the force-majeure makes the execution of contractual obligations impossible whereas the fortuitous event makes it burdensome to the debtor.
