نطاق تطبيق قاعدة التظهير من الدفوع في التظهير التوثيقي للحوالة التجارية في القانون العراقي : بحث تحليلي مقارن

Abstract EN

The endorsement considers as most important legal instruments for exchanging the commercial instruments, whether for transforming its ownership or for mortgaging as a guarantee of debt or for authorization the others for its management and receiving its value on due date.

This research deals fundamental problem, which is that the Iraqi Commerce Law, contrary to Egyptian Commerce Law, might equate in the effect from where applying the rule "Disinfection from the defenses", between both transforming and mortgaging endorsements, and thus the Iraqi Law giving the holder of commercial instrument "the mortgagee endorsee" a right more than the mortgaging endorsement getting it, consequently the law forbid the obligors by commercial instruments – unless he not acting with intent to damaging to debtor when he getting the commercial instruments- to holding facing the holder "the mortgagee endorsee" on what they have from personal defenses facing the endorser in all the amount of commercial instruments event its value passing the debt's amount which guarantees by the mortgaging.

The most important conclusions of this research is that the Iraqi Commercial Law not consideration the rights of obligators by commercial instruments to holding on what they have from personal defenses facing to the endorser, when the "the mortgagee endorsee" returning on them by the amount which passing the limit of his guarantees debt, therefore the researcher recommend to modify the Article (59/Second) from Iraqi Commerce Code as a form which protecting the holder of commercial instrument ''mortgagee endorsee" from the personal defenses only in the limit of his guarantees debt not in all the commercial instrument's amount for protecting the rights of other obligators by it in the limit of what passing the debt which guarantee by the mortgage.