Doubt about the Common Will of Contracting Parties as a Path to Judicial Jurisprudence in Iraqi and Tunisian Legislation: A Comparative Study

Abstract

The contract is a tool for exchanging interests between the parties, and when it is concluded between them, each party is obligated to implement the obligations contained in it without increase or decrease in accordance with the principle of the contract, the law of the contracting parties, which is considered one of the results of the principle of the authority of the will, and that this will is the source of the binding force of the contract, so the basis in The issue of contract formation is that the contracting parties have complete freedom to determine the subject of the rights and obligations between them as long as it does not violate public order, public morals, and peremptory rules in the law, in addition to not affecting the interest of one of the contracting parties at the expense of the other contracting party. It is not fair for the content of the contract to be determined based on The will of one party over another, as the idea of contracting must express the common will of the contracting parties, which must be free from any defect of will, which in turn leads to no disparity in the rights and privileges of one party at the expense of another, and then the contract has been taken into account. A manifestation of contractual balance through contractual balance through balance and equality between the contracting parties in terms of the rights and obligations that the contract assigned to its parties.
Under the title of interpretation of the contract and the semantic disclosure of the contractual content, it was mentioned under the title of Chapter (513) of the Tunisian Journal of Obligations and Contracts, in which it was stated: “If the words of the books are clear, then the meaning does not matter.” Chapter (515) of the magazine also stated that: “The lesson is in Expression through purposes, not apparent words and structures.” Likewise, what is stated with the same meaning in the text of Article (155) of the Iraqi Civil Code, which states: “1- What matters in contracts is the purposes and meanings, not the words and buildings. 2- The principle in speech is the truth, but if the truth is not possible, it becomes metaphorical.” However, ambiguity may occur in the contract when the phrases used do not express the common will of the contracting parties. This is in the event that the phrases of the contract are unclear and surrounded by ambiguity and contradiction. This case shows the need to interpret the contract with the aim of arriving at the common will of the contracting parties. If this is not possible, the general rule is It indicates that doubt is interpreted in the interest of the debtor, and we will discuss this rule with all its terms and conditions in this research.