Dr. Yonis Salahalden
Department of Law
Cihan University - Erbil
An important legal question has been put forward recently concerning the legality of reducing the rent in the contract of lease of land, owing to the obligatory persistent curfew, resulting from the pandemic coronavirus COVID-19 crisis. In order to explain and analyze this problem, we take a close look on the contract of lease in general, and the contract of lease of land particularly. To begin with, we should say that it is common ground or common knowledge in the civil law that the consensual contract is made up of three basic elements. That is to say the consent (offer and acceptance), the object of the contract and the cause of the contract. The formal contract also contains these three basic elements, as well as the element of form or formality. As far as the contract of lease of land is concerned, the consent is the agreement reached between the offeror and the offeree, the object of the contract is bilateral in this type of contracts, that is to say, the rent delivered by the lessee or tenant, in return for enabling him or her to enjoy the leased premises or property by the lessor or the landlord. And the cause of the contract, represented by the motive to contract. It is to be noted that the Iraqi civil law No. 40 of 1951 takes into account the bilateral characteristic of the contract of lease in the article (722) which defines the lease, and provides that ( A lease is the alienation of a definite advantage ( benefit) in return for a defined consideration for a certain specified period by (pursuant to ) which the lessor will be bound to enable the lessee to enjoy the leased premises). If the basic elements of the contract are available, it gains its obligatory force, and neither can the Lessee nor the lessor rescind or revoke the contract of lease of land unilaterally, I accordance with obligatory force of the contract, embodied by the universal legal rule "Pacta sunt servanda". In other words "pacts or agreements concluded legally, must be respected or abided by". This legal rule, notwithstanding its wide-spread utilization in both the civil law and the international law, but it goes or dates as far back as to the verse in the holy Quran saying that (O you who believe, fulfil your contacts. Lawful to you are all beasts of cattle) (Al-Maaida 1). The Iraqi civil law No. 40 of 1951 also adopted this universal legal rule in the first section of the article (146), which provides that ( Where the contract has been performed, it is legally binding and neither party may revoke or amend it, except pursuant to a provision in the law or by mutual consent). And the first section of article (150) of the afore-mentioned law, which obliges the debtor to perform his or her obligations in good faith, and provides that ( the contract must be performed according to its content, and in a manner which conforms to the norms or requirements of good faith). After this brief presentation we can say that reduction of the rent in the contract of lease of land can not be executed, as long as the contract has gained its obligatory force, in conformity with the rule "Pacta sunt servanda". Even though the curfew resulting from pandemic coronavirus COVID-19 crisis, prevented a lot of people from working and gaining their daily wages. There the lessee or tenant should continue to deliver the rent of the leased property or premises. It is also worth-bearing in mind that Islamic jurisprudence studied the effect of the "heavenly fortuitous event" on the contract of lease, and the Hanbali school of doctrine permitted the reduction of the rent in the contract of lease of land, if the "heavenly fortuitous event" affected the land, and caused a parallel reduction in the benefits enjoyed by the lessee or tenant. Whereas the Shafi'ite school of doctrine allowed the lessor to take the full rent, or to rescind or revoke the contract of lease, without reducing the rent in consideration for the reduction of the enjoyment of the benefits of the leased property or premises. In summary we can say that although the reduction of the rent is illegal, as long as the lessee or tenant is still enjoying the benefits of the property according to the contract of lease of land, and even though the dissemination of the pandemic coronavirus COVID-19. But we can recommend that the rent be reduced for two reasons: The first is that the contract of lease of land can be classified or qualified as a time or temporal contract, highly affected by "heavenly fortuitous events" in conformity with the second section of the article No. (146) of the Iraqi civil law, we have already explained in our previous articles. The second is the optional reduction of the rent because of the purposes of the social solidarity, by the mutual agreement between the lessor and the lessee.
