شرط الإرهاق في تطبيق نظرية الظروف الطارئة في القانون العراقي

الملخص EN

The exhaustion condition is the most important condition to implement the theory of unexpected circumstances.

In case of having exceptional circumstances, it is possible for the parties in a contract to face a situation that makes implementing the contract obligations impermissible.

Nevertheless, having the difficulty in implementing the obligations in a contract is not enough to request the application of this theory.

It is also required that the difficulty must cause the debtor a colossal damage if he/she has done their obligations under these circumstances.

Hence, it is not allowed to request the application of this theory in accordance to the expected loss at the beginning of concluding a contract, because the contract always will be held on the basis of loss or profit.

However, in the case of inferring the adherence to this condition and the subject is raised to the respective judge concerned.

The authority assigned to him is optional, but it is not olute, since the exercise of his authority is subject to the control of a higher authority.

In the case of inferring this condition, the judge shall consider the personal and objective criteria, so that neither can be taken into consideration without the other for the proper application of this theory.

The onerous condition can be raised as an objective protestation at any stage in the proceedings, but the court cannot raise it by itself automatically, since the proceedings in the civil judiciary as known means the demands of any action is carried out upon request.

The judge shall make sure that the onerous condition is satisfied after it is raised by the litigants, and will start the procedures, and the execution of the contractual obligations is suspended in the case that the occurrence of such situation is temporary.

Otherwise, it will continue to be implemented if the circumstances persist for a long time for the life of the contract, or to restore the contract onerous to a reasonable extent, and that is the distribution of the loss between the contractors evenly, even if they it is not equally distributed between the contractors.

In order for the debtor not to bear a huge loss of any significant damage, based on the principles of justice and equity, which is the basis for the construction of the theory of emergency conditions, and this is in order to support the debtor.