Examination of the Parties’ Freedom of Will in Determining the Time of Ownership Transfer in Sales Contracts under Iranian and Iraqi Law

Abstract

Determining the time of ownership transfer in sales contracts is one of the fundamental and complex issues in civil law, influenced by the parties’ will and the contractual conditions. In the legal systems of Iran and Iraq, the principle of freedom of will plays an important role in this regard, although its scope and limitations differ in each system. Under Iranian law, the parties may freely determine the time of ownership transfer, provided that such agreement does not conflict with public order or good morals. In the absence of an explicit stipulation in the contract, the legislator presumes the time of delivery of the goods or performance of obligations as the moment of ownership transfer. In contrast, under Iraqi law, the parties’ intention is also recognized; however, specific statutory provisions and judicial interpretations can restrict this freedom, particularly when the lack of a clearly defined transfer time may lead to the infringement of one party’s rights or a breach of fairness. In such circumstances, courts may determine the time of ownership transfer based on the contractual terms and the prevailing circumstances. The main difference between these two legal systems lies in their approach to cases where the transfer time is not explicitly determined: Iranian law defaults to the time of delivery or fulfillment of obligations, whereas Iraqi law may leave the determination of this time to judicial interpretation.