Formation of electronic contracts of sale and its impact on Iraqi traditional commercial contracts

  • Mohanad Hamad Ahmed AHMED

Student thesis: Doctoral Thesis

Abstract

The internet has become a tool for performing contracts in commerce and accordingly, the contract formation process has experienced some significant developments. Generally, these electronic contracting practices have not yet received appropriate treatment in Iraqi law. Consequently, this thesis argues that some traditional contract rules, especially those in the Iraqi Civil Code (ICC) and the Iraqi E-signature and Transactions Act (IESTA), are currently insufficient for regulating legal agreements resulting from new contracts. Although not wholly comparative research, the analysis of the Iraqi law herein will however be accompanied by analysis of Sharia doctrines. Consequently, this thesis fundamentally considers the ICC, the IESTA and Sharia law, but also considers other jurisdictions to a limited degree. The rationale for this is to weigh how other jurisdictions have been successfully dealing with electronic contract formation. The primary objective is to scrutinise the likelihood of embracing appropriate foreign laws for adaptation as suitable amendments of Iraqi law. Sharia law dates back over 1400 years and some of its rules are nowadays inapplicable. The most appropriate example is the Maliki’s view, which makes it mandatory for the offeree to accept or reject the offer instantly when the offer reaches him, this view is now in applicable. However, the majority of these rules are still in force. In Iraq, applying the traditional rules of contract formation is out-of-date and such rules are inappropriate for adjudicating disputes arising from the electronic contracting process. This thesis recommends that the Iraqi law must become more efficient and more easily applicable to regulate electronic contracts. In particular, the Iraqi legislature should revise the ICC and IESTA as regards contract formation rules to provide legal certainty in electronic contracting.Accordingly, ICC articles 82, 87 and 88 should be updated to take into consideration the unique nature of contracts formed over the internet. It should also treat new means of communication independently, taking into consideration the different nature of each means, for instance, the postal rule fits to contracts conducted by email, but it does not fit to those conducted by phone calls.
Date of Award1 Oct 2017
LanguageEnglish
Awarding Institution
  • University Of Strathclyde
SupervisorBryan Clark (Supervisor) & (Supervisor)

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