Prof. Mohammad S. Al Ahmad
Professor of Civil Law – University of Al Sulaymaniyah – Iraq
and Visiting Professor of Civil Law – University of Sharjah – UAE
Dr. Ahcene Rabhi
Associate Professor of Public Law – College of Law – University of Sharjah – UAE
Dr. Hasseb Saleh Ismael
Civil law teacher – Ministry of Higher Education – Kurdistan, Iraq

Abstract:

The essence of our research is to study the ability of administrative decision to establish obligation within the meaning of the jurisprudence of civil law. This research deals with the ability of both the law and the administrative decision to establish the obligation. We found that the obligation arises from both of the law and the administrative decision. The law may be a direct source of obligation when the provisions of this obligation are sufficiently defined by the text of the law concerning its origin and effects. This issue is of great importance represented in its study of the impact of the administrative decision within the scope of private law, as there is a reluctance to address this topic adequately. The importance of this topic is clarified through explaining the extent of the administrative decision’s ability to create an obligation as an independent source of obligation, and not limiting its role to be an application of law.
The problem of our research is the lack of clarity of the legal vision surrounding the position of the administrative decision that establishes obligation as clarified in the civil law, and the lack of resources that analyzed and studied this topic. The study aims at answering several questions that may arise: What is the role of both law and the administrative decision in establishing obligation according to its meaning as established in the jurisprudence of civil law? What is the share of the administrative decision in making this effect? Is the law considering a source of obligation in all cases, and the role of the administrative decision is that it is merely an obligation decision that is regulated by law? Does the dependence on legal texts in issuing decision by the administration establish the law as a source of obligation in all cases, and makes the administrative decision an application of the law? Therefore, our research tried to answer the aforementioned questions that collectively constitute the research problem, by studying the role of both law and administrative decision in establishing obligation in the meaning prescribed in the jurisprudence of civil law, and thus explaining the source of the administration’s commitment to its administrative decisions.
Therefore, through a comparative legal analytical study, we will follow the analytical method by studying the legal texts mentioned in the Iraqi civil law that dealt with the topic of our research and find out the contents of these texts and analyze them and devise provisions from them to serve the topic of the research. We will also hold a comparison between the texts of the Iraqi civil law and equivalent or similar texts in the Egyptian civil law, the Jordanian civil law, and the UAE civil transaction law. As for the comparison with the French civil law, we will conduct it considering the available texts and references.
In the conclusion, we mentioned several results and recommendations that were submitted to the Iraqi legislator. The most important of these results is that the administrative decision may be a disclosure of the obligation, and here its role is limited to the determination of a pre-existing case that does not achieve any legal implications. Also, the administrative decision may be a direct source of obligation and not only an application of the law even if issue in accordance with it. This is applicable when the administration has broad powers in exceptional circumstances that allow it to make administrative decisions that impose obligations on individuals that are originally from the jurisdiction of the legislature. Among the most important recommendations that we made to the Iraqi legislator is to add a text to the civil law that addresses the role of the administrative decision in establishing the obligation.

Keywords: the principle of legality, legal obligations, restricted jurisdiction, exceptional powers of administration, temporary appropriation, the prince’s act.

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