What does the Civil Code govern in a contract?
This page is a general view of what Civil Code No. 40 of 1951 governs in the formation of a contract and in its binding force. It is not a repetition of the main page, and it is not a substitute for the related pages on rescission, agreed compensation or installment sales.
Offer and acceptance, and the subject-matter of the contract
Under article 73, a contract is formed when one party's offer meets the other party's acceptance, with an effect on the subject-matter. Article 77 treats as offer and acceptance any two expressions that custom ordinarily uses to create a contract. Article 74 allows the bargain to concern property, movable or immovable — transferred for value, as in a sale, or without value, as in a gift, or placed on deposit or consumed as a loan — or the use of property, as in hire or a loan for use, or a defined piece of work or a service. Article 75 then opens the same door to any other subject, provided the obligation is not prohibited by statute and does not conflict with public order or morals.
Article 76 extends those general rules to contracts that the Code names and to those it does not. Rules peculiar to certain civil contracts are laid down in their own chapters, and the commercial legislation lays down the special rules for commercial contracts. The drafting of a commercial contract is not therefore reduced to these general rules alone if the Commercial Law, or another special statute, applies.
The binding force of the contract once it is formed
After the contract is carried out, each side is bound by it. Article 146, first paragraph, does not allow a party to withdraw or to vary it except where a legal provision or the parties' joint consent permits. A provision that allows amendment or termination is read in the law itself or in the parties' agreement. The rule on exceptional general events, in the second paragraph of the same article, is set out on the page about hardship and rescission.
The office follows a reading of these rules from Baghdad, al-Yarmouk.
Legal basis and sources
Frequently asked questions
Is an oral agreement enough to form a contract under the Civil Code?
Article 73 ties formation to offer and acceptance. The Civil Code does not make writing an element of every contract. Where a special statute requires a written form, that form is reviewed in its own text.
Do the general rules apply to unnamed contracts?
Yes, under article 76, together with any rules peculiar to a particular contract, or with what the commercial legislation provides if the contract is commercial.
Related topics and articles
- 01Points to review in a contract before signingMatters to review before signing: parties and authority, subject-matter, time, rescission, compensation and language.
- 02Unforeseen hardship and rescission of a contractExceptional general events in article 146, and rescission of two-sided contracts in articles 177 and 178 of the Civil Code.
- 03Drafting a contract when dealing in BasraDrafting a contract when dealing in Basra under the federal Civil Code, followed from Baghdad.
- 04A consultancy contract, and how it differs from a contract of employmentConsultancy and employment contracts under Labour Law No. 37 of 2015, including article 37 on the written contract.
- 05Drafting a commercial franchise contractA franchise contract is read from the Civil Code, a trademark licence and the 2020 agency instructions, with no published standalone statute or templates.