Invalidity of the contract that violates the public law and decency The ancient Roman rule as a model

Abstract

The contract as a legal act is one of the most important means of civil interaction between persons, including the exchange of obligations, it is a legal system, and for this interaction it must be controlled by controls and preserve its social function, and that the draft Iraqi Civil Code adopted the invalidity of the contract contrary to public order and morals, " Article 130 paragraph 1 of the Iraqi Civil Code states (the place of obligation must be not legally prohibited and not contrary to public order or morals, otherwise the contract was invalid)", " as Article 132 paragraph 1 of the Iraqi Civil Code states (the contract invalid if the contractor commits for no reason or for a reason prohibited by law and contrary to public order or morals)", And that the Roman rule violates the logic of invalidity and even violates its effect, so how to talk about contracts, which, according to the origin, " violate public order and morality and are characterized by illegality ", as it makes no sense to raise in our courts the issue of reinstatement of contracts concluded for the purpose of immoral practices such as vice or gambling, as they do not conform to the trends of most Islamic legislation in Arab countries, which take Islamic texts as a source of legislation , and if a judge faces such contracts, it is not forbidden to request restitution, but when ruling on it, it is not in favor of the parties to the contract that is contrary to public order and morality, but restitution is in favor of the state , We consider it necessary to stipulate this provision in the Iraqi Civil Code and the laws in question in the texts dealing with the invalidity of a contract that violates public order and morals.