إشكالية الفسخ في الطبيعة القانونية للإقالة : دراسة مقارنة

Abstract EN

The contract is the most important type of legal action, which is based on the concurrence of two wills linked by mutual consent to have a legal effect.

Once concluded, this contract proves its binding force that prevents one of the contracting parties from retracting it or amending it at his own will.

With the concept of violation, the two contracting parties may withdraw from the contract by mutual consent under the dismissal; Which the Iraqi legislator stated in Article (183) of the Civil Code that it is an annulment against the contracting parties and a new contract against others, which raises the problem of annulment in determining the legal nature of the dismissal, as the termination of the contract is a penalty due to one of the contracting parties breaching his obligations, while the dismissal is an agreement.

Between the two contracting parties to retract the contract without stipulating the breach of one of the contracting parties, and dismissal with this description is a contract based on the consent of the two parties, so it is necessary to clarify the legislator's intention to include annulment in determining the legal nature of the dismissal and the extent to which it is considered a contract between them as well as for others.

Let us conclude from the review of the opinions of jurists and the legal texts regulating dismissal that the legislator's intention to consider the dismissal as an annulment of the contracting parties, but meant by this in terms of effect without intending equality and unity between them in terms of truth and subjectivity of the great discrepancy between them, so that the nature of the dismissal between the two contracting parties becomes clear that it is a contract based on the mutual consent of both parties.

affirmatively and accepted.