النظام القانوني للكفالة التجارية ( دراسة مقارنة )

Legal system of commercial guarantee (Comparison study)

Abstract

The commercial guarantee is a very important commercial banking contract; Because of the effective role it plays in managing and stimulating economic and banking activity in general, in addition to being one of the most prominent means that contribute to achieving credit in particular, all of this is done by enabling creditors to protect their right.
Since the commercial sponsorship contract has an important role in the economic reality of the country; The legislator dealt with it by regulating it by clarifying its scope and some of its provisions in Article (1016) of the Iraqi Civil Law No. (40) of 1951, the second paragraph of which stipulates that “the guarantee arising from guaranteeing reserve securities as a reserve guarantee or from endorsing these papers shall be permanent.” “Commercial guarantee,” and this is what gives the commercial guarantee a special legal form and nature that distinguishes it from other contracts, such as the civil guarantee contract and other banking contracts. Therefore, this contract is distinguished by being one of the consensual contracts in which the principle of the authority of will plays a major role from the moment of its creation until the moment of its expiration. Therefore, the legislator did not impose a specific form for it, but rather left the matter to the will of the two parties. Not to mention that the commercial guarantee is not a donation contract, as it is always for a fee. This is what makes it a binding contract for both sides, in which personal consideration has an important role in the life of this contract, since banks do not grant credit. To its clients only after it has undertaken several procedures through which it can verify their financial and personal worthiness.
The commercial guarantee creates legal relationships between its parties, extending its reach to those who are not a party to it. These relationships are represented by rights and obligations that permeate the receivables of the parties to this contract, so that the general rules stipulated in the Civil Code, as well as the principles that govern solidarity, have a major and influential role in being the general provisions that apply. on these relationships.
Solidarity plays a major role in commercial guarantees because of the benefits this system provides to its parties, such as credit support and representation in claiming rights for creditors. Sometimes solidarity is formal, deriving its strength from the rules stipulated in Iraqi Trade Law No. (30) of 1984, and at other times it is banking, because of the bank’s major role. In it, it only remains upon its expiration, so the commercial guarantee expires according to the same rules that terminate any other contract, such as fulfillment or what is equivalent to this fulfillment, or for special reasons that are outside of that fulfillment, such as the statute of limitations, discharge, and the creditor’s failure to adhere to the guarantees that the law provides for him.