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The Nature of Defects: Between Description and Value – A Comparative Study Between Islamic Jurisprudence and Iraqi Civil Law – A Contemporary Applied Perspective | ||
| AL-Qadisiya Journal For Law and Political Sciences | ||
| Article 27, Volume 17, Issue: 1 part 2, June 2026, Pages 609-628 PDF (555.6 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.63677/jqlap.2026.171861.1614 | ||
| Author | ||
| Nawfal Mushrif Hardan* | ||
| University of Anbar / College of Law | ||
| Abstract | ||
| This study examines the nature of defects in contracts of sale between the criteria of description and value, through a comparative analytical approach between Islamic jurisprudence, the Iraqi Civil Code, and French civil law before and after the 2016 reform of contract law. The study highlights the challenges posed by the contemporary digital environment, where contractual objects increasingly include software, smart products, digital assets, and downloadable digital content. It concludes that the concept of defect in Islamic jurisprudence is based on two main criteria: diminution in value and failure of the intended purpose of the sold item. While the Iraqi Civil Code adopts this conceptual approach, the criterion of failure of purpose appears capable of accommodating defects in digital products through a flexible legal interpretation. The research concluded that Islamic jurisprudence established a flexible concept of defect based on the criteria of diminished value and loss of the intended purpose of the contract. While the Iraqi legislator adopted this concept, it restricted the buyer's right to rescind the contract or retain the goods at the agreed price. Furthermore, the research revealed that the new French Contract Code of 2016 restructured the means of protecting the buyer without fundamentally altering the concept of latent defect. The research concludes that the criterion of loss of purpose in Iraqi civil law can accommodate defects in digital products, but requires a flexible interpretation of certain legislative provisions to keep pace with contemporary technological advancements. | ||
| Keywords | ||
| Nature of defect; description; value; Islamic jurisprudence; Iraqi civil law | ||
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