A claim between persons in the civil court
The Law Office of Ali Barakat in Baghdad follows civil claims between persons: a claim arising from a contract, from a harmful act, or from a real or personal right in which a judgment or an order to perform is sought. The ordinary path is a statement of claim filed in the Court of First Instance (محكمة البداءة). The text here marks the bounds of the subject.
This field rests on three principal texts reviewed from the Iraqi Legislation Database: Civil Code No. 40 of 1951, published in the Official Gazette, issue 3015, on 8/9/1951; Civil Procedure Law No. 83 of 1969, published in issue 1766 on 10/11/1969; and Evidence Law No. 107 of 1979, published in issue 2728 on 3/9/1979, and in force from 3/10/1979 according to the Database.
When is a claim civil, and before which court?
Article 2 of the Civil Procedure Law defines an action as a person's demand of a right from another before the courts. If what is sought is an order to pay a sum, to perform a contract, to compensate harm, or to declare a civil right, the claim is in principle brought before the Court of First Instance, the court of first degree in the ordinary judiciary, organised under the Supreme Judicial Council. In Baghdad, cases are distributed between the Courts of First Instance of Al-Rusafa and Al-Karkh under the rules of territorial jurisdiction.
A civil claim is not to be confused with a criminal complaint, even though in some offences a civil right may be claimed before the criminal court as an accessory to the criminal case. It is not a personal-status case heard by the Personal Status Court, nor a labour case heard by the Court of Labor, nor a dispute over the execution of a judgment, which proceeds in the Enforcement Department (دائرة التنفيذ) once an enforceable instrument exists.
What does the Civil Code govern in the substance of the right?
The Civil Code is the substantive source for obligations, contracts, real rights, and compensation for an unlawful act, within the limits not assigned to another statute. Article 1 provides that legislative texts apply to the matters they address in their wording or their purport. If no legislative text can be applied, the court decides according to custom, then according to the principles of Islamic Sharia most consistent with the provisions of the Code without being bound to a particular school, then according to the rules of equity, guided by the rulings established by the judiciary and legal scholarship in Iraq and then in countries whose laws are close to Iraqi law.
The useful question when a file is opened is not a request for an opinion on the particular facts, but: what is the source of the obligation? Is it a written or oral contract, a harmful act, unjust enrichment, or a real right that has or has not been registered? And on the basis of which article is the judgment sought? Characterisation is built on the papers, and is not answered from a general paragraph.
Questions of sale, lease, and the recording of a right at the Real Estate Registration Department have a practice area of their own, and the recovery of a debt after an instrument or a judgment has another. This page keeps the general civil framework: how the action is instituted, how the right is proved, when it lapses by the passage of time, and within which periods a judgment may be challenged.
Proof, limitation, and challenges: a short map
Proof of a right in a civil action is governed by Evidence Law No. 107 of 1979, together with the modes of proof in the Civil Code. Writing, testimony, presumptions, admission, and oath, and the evidential weight of messages and electronic instruments, are treated separately in How a right is proved, and the weight of electronic messages.
The lapse of a claim by the passage of time (limitation) is organised in the Civil Code by periods that differ according to the nature of the right. A single period does not apply to every action. When a civil claim lapses is set out in When a civil claim lapses by the passage of time.
After judgment, the Civil Procedure Law draws the means of challenge listed in Article 168: objection to a judgment in absentia, appeal, retrial, cassation, correction of a cassation decision, and third-party objection. The periods are mandatory under Article 171: exceeding them causes the right of challenge to lapse, and the court rejects the petition of its own motion. Time starts to run from the day after the judgment is served or is deemed served, and the parties may use the means of challenge before service, under Article 172.
Among the periods set out in the text: objection to a judgment in absentia is made within ten days (Article 177); the period for appeal is fifteen days (Article 187); the period for cassation is thirty days in respect of judgments of the Courts of First Instance, of personal status, and of appeal, subject to Articles 172 and 216 and to special statutes (Article 204); and an application to correct a cassation decision is made within seven days beginning the day after the decision is served, and the period ends in all cases six months after the decision was issued (Article 221). Certain decisions that do not dispose of the merits, including expedited proceedings and precautionary attachment, may be challenged in cassation within seven days under Article 216. These periods, together with notarial warnings and limitation, are collected in Time limits for appeals, warnings, and limitation.
Service is essential to the start of the periods and to the regularity of the proceedings. If the opponent cannot be served, the statute draws fallback methods that are not reduced to a single sentence, and they are examined in the light of the papers of each case.
What does the office follow?
From its office in Baghdad, the office explains the nature of a civil action before the Court of First Instance, the ordering of proof, a plea of limitation when it arises, objection, appeal, cassation and correction of a cassation decision, service, and what follows when a judgment becomes enforceable.
Legal basis and sources
- Civil Code No. 40 of 1951 (Official Gazette, issue 3015 of 8/9/1951)
- Civil Procedure Law No. 83 of 1969 (Official Gazette, issue 1766 of 10/11/1969)
- Evidence Law No. 107 of 1979 (Official Gazette, issue 2728 of 3/9/1979)
Frequently asked questions
Is every claim for a sum brought before the Court of First Instance?
In principle, yes, unless the law assigns the matter to another court, such as the Court of Labor for a dispute arising from an employment contract, or the Personal Status Court for maintenance or dower, or the Court of Personal Materials in the sphere the law draws for non-Muslims in their personal status.
When does the time for a challenge start?
From the day after the judgment is served or is deemed served, under Article 172, and a challenge may be filed before service. Payment of the fee is treated as the start of the challenge under Article 173.
May new evidence be offered before the Federal Court of Cassation?
Article 209 forbids raising a new defence or offering new evidence on a cassation review, except a plea of lack of standing, jurisdiction, or a previous judgment in the same case.
Topics in this area
- 01How is a civil right proved, and what force do electronic messages have?Proving a civil right under Evidence Law 107/1979, and the legal force of signed letters and electronic documents under Electronic Signature Law 78/2012.
- 02When is a civil claim no longer heard because of the passage of time?Civil Code 40/1951 bars hearing a civil claim after time has passed: periods, suspension and interruption; the right itself does not fall.
- 03Time-limits for appeals, warnings and the passage of time in IraqPeriods for objection, appeal, retrial, cassation and correction under Civil Procedure Law 83/1969, unlike a warning or a Civil Code time bar.
- 04Where to file a claim in Baghdad: the Rusafa courts or the Karkh courts?How to choose where to bring a civil claim in Baghdad, between courts attached to the Rusafa appeal presidency and those attached to the Karkh appeal presidency, under the territorial-jurisdiction rules of the Civil Procedure Law and the decree that split the Baghdad appeal region.