تــعـطـيل الـنـصوص فـي الـقـانـون الـمـدنـي (دراسة مقارنة)

Rp-Suspension of texts in civil law ( A Comparative Study ) .pdf

Abstract
Philosophical reflection in civil law is essential to understand the nature of legal rules and their mechanisms of operation in practice, as the mere existence of a statutory provision within the legal framework does not guarantee its effectiveness. A legal provision may shift from the domain of prohibition to that of permissibility, or vice versa, without being repealed or amended, when the legislator allows agreement to the contrary, grants the judge discretionary authority in its application, or refers it to flexible standards such as custom and good faith. In such cases, the rule remains formally in force but loses its practical effect, a phenomenon known as the invalidation of legal provisions.
The problematic issue of this study lies in the legislative incapacity to update civil law provisions in accordance with contemporary developments, leading to the practical suspension of legal provisions, whereby a provision remains formally valid yet ineffective in practice. This raises questions about the scope and sources of such invalidation, as well as the limits of judicial discretion in its application, ensuring a balance between the stability of legal rules and the requirements of legislative evolution, whether in supplementary or imperative provisions, including the impact of drafting flaws.
Study Objective
This research aims to analyze the phenomenon of legal provision invalidation in civil law, assess its effect on the effectiveness of legal rules and the stability of transactions, clarify its legal sources and the limits of judicial discretion, while enriching the legal literature by defining the concept, highlighting its consequences, and evaluating the extent to which legal provisions reflect practical reality.
The study adopts a comparative analytical methodology, examining Iraqi Civil Code provisions, analyzing judicial applications, and reviewing comparative jurisprudential trends to gain a comprehensive understanding of how legal provisions may become inoperative.
Findings
The study finds that invalidation is a legal effect generated within the provision itself, occurring in both supplementary and imperative provisions. It may result from individual actions, judicial discretion, or drafting flaws, leading the provision to remain formally valid without performing its regulatory function. This underscores the need for a comprehensive review and updating of civil law provisions to align with practical reality and contemporary developments.
Keywords: (Invalidation of legal provisions, Legal competence, Realization of legal provisions in practice, Contractual deviation, Judicial authority, Drafting flaws)