Legal controls on in-kind guarantees: A comparative study

Abstract

Abstract: This study addresses real guarantee surety (kafala ‘ayniya) as a particular form of real securities, whereby the surety provides property he owns as collateral for the debtor’s obligation. The research highlights the distinction between real surety and personal surety: while the latter entails liability over the guarantor’s entire assets, the former limits liability strictly to the pledged property. The study also demonstrates that the Iraqi Civil Code has not provided a comprehensive regulation of real surety, mentioning it only in a few scattered provisions, unlike comparative legislations, particularly French law. The study concludes with a recommendation that Iraqi legislation adopt specific provisions to regulate real surety, balancing creditors’ interests with the protection of sureties, thus promoting greater stability in civil and commercial transactions.