Prepared by the researche
- 1-PH.D Iman Tariq Al-Shukri – College of Law University of Babylon, Private Law Branch
- 2-Waseem Jabbar Ibrahim AL-shammary Department of Community Health, Health and Medical Techniques College of Kufa, Al Furat Al_Awsat Technical University(31003), Al-Kufa, Iraq
Democratic Arabic Center
Journal of Iranian orbits : Twenty-Eighth Issue – June 2025
A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin
:To download the pdf version of the research papers, please visit the following link
ABSTRACT
While the legislator gave negotiable commercial papers and ordinary bonds executive power after them executive documents, the implementation of which does not require the implementation of them in the Execution Directorate to obtain a judgment on the fixed debt therein , it is in return within the right of the debtors therein, by allowing them to object to them within a certain period, before the Execution Directorate in which they were executed
Introduction .
The executive documents are those documents specified exclusively in Article 14 of the Execution Law, and include negotiable commercial papers and notarized documents, which are the bonds proving the right in rem that have fulfilled the legally required form, the guarantee located in front of the executor of justice, the document of the Real Estate Registration Department for what remains for the mortgagee on the mortgagor after the sale of the mortgaged and the legal arguments. It also includes ordinary debt securities, which contain a declaration of debt and bonds proving a personal right. The execution directorates may not execute any document that is not included in these documents unless there is a legal text that includes the permissibility of execution.
While the legislator gave negotiable commercial papers and ordinary bonds executive power after them executive documents, the implementation of which does not require the implementation of them in the Execution Directorate to obtain a judgment on the fixed debt therein [1], it is in return within the right of the debtors therein, by allowing them to object to them within a certain period, before the Execution Directorate in which they were executed, under the second paragraph of Article 25 of the Execution Law.
The objection shall be by denying the right contained in the editor in whole or in part, whether it is a commercial paper or a document that includes an acknowledgment of a debt or a document proving a personal right. Thus, the legislator has determined the scope of the debtor’s right to object before the executor of justice with commercial papers and ordinary bonds, and if the effect of the debtor’s exercise of his right to object is to stop the executive procedures, how to arrange this effect varies depending on whether the executed debt belongs to an ordinary individual or it belongs to the state or the public sector, the principle of objection to the implementation of executive documents before the executor of justice contained in the implementation law did not come at all, but was determined by certain documents and within a specific period varies according to the debtor’s side, and the effect of exercising the right to object did not come at all either but was restricted according to the creditor’s side. In light of the foregoing, the discussion of this subject requires a statement of what executive documents may be objected to, and this is what we will devote to the first section, and a statement of the impact of the objection to the executive procedures and this is what we dedicate to the second section and if we are discussed that we will reach a conclusion guaranteed the most important results of this paper.
The first topic
Executive documents to which the debtor has the right to object
The debtor may, under the second paragraph of Article 25 of the Execution Law, the object before the executor of justice to the implementation of the negotiable commercial paper and the bond containing an acknowledgment of a debt and the bond proving a personal right mentioned in Article 14 of the Execution Law, and the legislator did not allow the objection before the executor of justice in other types of bonds that are executive documents under this article, as the objection to it shall be according to the methods of appeal stipulated by law and according to their nature before the competent judicial authorities, and that What was also adopted by the Iraqi judiciary [2]. In order to indicate the nature of the documents that may be objected to before the executor, we will allocate the following two requirements to that.
First Requirement
Negotiable Commercial Papers
Commercial papers are formal documents in a certain form under which a person undertakes or orders another person to pay a specific amount of money at a certain time and place, and it is negotiable by endorsement or manual handling [3]. The most important form is the Saftja (transfer), the bond for the order (bill of exchange), the instrument, and the legislator allows the concerned parties to review the implementation directorates to obtain their amounts without the need to obtain a judgment on them. The reason for granting commercial papers the force of execution without the need to be accompanied by a court ruling is:
The legislator’s desire to reduce people’s crowding to the courts.
B- Saving in expenses and time for the stakeholders. [4]
If the rule stipulates that commercial papers may be executed without the need to obtain a court ruling, the following two cases are excluded from this rule:
The first case / in which the commercial paper loses its executive power.
This situation is realized: if the debtor in the commercial paper is an appearance, it is not permissible to execute against him because the right of recourse against him depends on legal periods and decrees that give rise to disputes and defenses, each of which is suitable for objection and suspension of execution, which causes the lack of interest in its implementation against him. [5]
The second case / delays the implementation of the commercial paper.
This situation is realized:
If the debtor objects within the legal period, whenever the debt or enforced right belongs to an ordinary person.
However, if the debt or enforced right belongs to the state or the public sector, the debtor’s objection does not delay the enforcement procedures, and the court may issue a decision to delay the enforcement, which we will explain in the second section.
The Iraqi legislator has allowed the creation of electronic commercial papers under Article 22 of the Electronic Signature and Transactions Law No. 78 of 2012, if the conditions and data required by law are met [6], and if it is possible to issue electronic commercial papers, but it is difficult to implement these papers in the execution directorates due to the lack of instructions to facilitate the implementation of the provisions of this law to date [7].
Second requirement
Ordinary bonds
Ordinary bonds are the writing signed by a person regarding a legal transaction without the intervention of a public employee in its preparation. The ordinary bond is considered issued by the person who signed it unless he explicitly denies what is attributed to him in terms of writing, signature, or thumbprint [8]. Ordinary bonds include bonds that include an acknowledgment of debt and bonds that establish a personal right. Paragraph 1 of Article 14 of the Enforcement Law considered these two types of bonds to be executive documents.
As for the bonds containing an acknowledgment of a debt, they include any document that includes the occupancy of the signatory’s liability by a certain obligation, whether with a sum of money, delivery of goods, or otherwise[9]. The Execution Law stipulates that the person required to be executed shall not be a non-joint guarantor, and the reason for this is that the non-joint guarantor[10], if first requested by the creditor, may demand the latter to have recourse against the original debtor, as it is not permissible to recourse against the non-joint guarantor if it is found that the original debtor has sufficient funds to be established to meet the debt. [11]
However, if the execution is requested as a joint guarantor, it may be executed with the obligation to notify the debtor to submit objections within seven days from the day following the date of notification. [12]
The latter may have paid the debt in whole or in part, or he has reconciled with the creditor, or that the latter has been discharged in whole or in part, or that the debt has expired by prescription and all this was done without the knowledge of the guarantor. [13]
As for the bonds proving a personal right, the personal right is a legal bond between two persons, a creditor and a debtor, under which the debtor-creditor is required to transfer a right in kind or to do an action or refrain from acting, and it is a personal right the obligation to transfer property, whatever its place in cash, lesbians or values, and it is also a personal aright the obligation to deliver a certain thing. [14]
Every editor that includes this association accepts execution, provided that the person who is required to be executed against him is not the non-joint guarantor, what was mentioned about the inadmissibility of executing bonds containing an acknowledgment of a debt on the non-joint guarantor is ratified on bonds proving a personal right[15], because the expression of the word debt performs the same meaning as the expression of the word personal right under paragraph III of Article 69 of the Civil Code.
The legislator also requires under paragraph IV of Article 14 of the Implementation Law for the implementation of ordinary bonds, whether they include an acknowledgment of a debt or prove a personal right, that the debtor is not outside Iraq or an unknown place of residence or died during the period of notification of execution. [16]
The second topic
The effect of the debtor’s objection to the execution of the executive documents.
The Directorate of Execution does not initiate implementation except at the request of the execution applicant, and for the executor to issue a decision to accept the execution, the bond must be one of the executive bonds. The legally required conditions are met in the right subject of execution, and the applicant for execution has the capacity and interest to request execution. If all this is achieved, the executor of justice decides to accept the request for execution, and in that case, the debtor must be notified of the notice of execution. [17]
Notification of the news note to the debtor entails several possibilities: The debtor may perform consensual execution during the news period, and thus the executive transaction ends for the creditor to obtain his right[18],or the debtor acknowledges during the period of objection all or part of the debt before the executor of justice, and he shall execute on him what he acknowledged. If the debtor acknowledges all or part of the debt and does not perform the execution by consent or does not object within the legal period, the Directorate of Execution shall take compulsory execution measures against the debtor. [19].The silence of the debtor after being notified of the news memorandum shall be considered an acknowledgment of the debt. The debtor may object to the negotiable commercial paper or the bond containing an acknowledgment of a debt or the bond proving a personal right during the news period, and if the debtor has the right to object to the implementation of these bonds, the effect of the debtor’s objection is not the same in all cases, but varies depending on whether the debt belongs to an ordinary individual and this objection requires the suspension of implementation according to the original by the executor of justice when its conditions are met or according to whether the executed debt it belongs to the state or the public sector, and this objection does not stop the executive procedures according to the original, but requires stopping them by a decision from the competent court[20], all of which we will clarify in the following two requirements.
First Requirement
Suspension of executive procedures by a decision of the executor of justice.
Consensual execution under the provisions of the Execution Law means the execution carried out by the debtor selected under the supervision of the execution directorates during the period of notification of the implementation[21], the news period varies according to whether the debtor is a private individual one of the state departments or the public sector. For the debtor if he is an ordinary individual[22], to be executed satisfaction within seven days from the day following the date of notification of the news memorandum of implementation, but if it is from the state departments or the public sector, the implementation shall be satisfied within sixty days from the day following the date of notification of the news memorandum of implementation. [23]
Execution shall remain consensual whether it is done by the debtor in discharge of his liability and interest severance, or by fear of being forced to perform by the execution directorates. [24]
The legislator, to encourage the debtor to pay, has approved some material incentives if he performs consensual implementation during the news period, which is exempted from the collection fee. [25],however, the debtor may refrain from execution and object to it within the period specified for execution by consent. The objection may include the denial of all or part of the debt, and the debtor’s right to object granted to him by the legislator under the second paragraph of Article 26 of the Execution Law, and if the debtor has the right to object before the executor of justice, for this objection to have its effect that the executor of justice issues a decision to suspend execution. [26], the executed bond must be one of the bonds in which the legislator has authorized the objection[27], and the executed debt belongs to an ordinary individual, and the objection must be from the debtor within the news period. [28]
The debtor who was unable to object to the execution within the prescribed period for force majeure, sudden accident, or emergency circumstances may submit his objection to the executor of justice until the day of collection of the debt, and the executor of justice may decide to accept or reject the objection. [29].
If the foregoing conditions are met, then the executor of justice shall suspend the execution, and the creditor shall be understood to refer to the competent court to prove the amount denied by the debtor, to prevent the debtor from using the right of objection as a means of procrastination and procrastination, the legislator imposed a financial penalty on the debtor if the creditor proved the debt was denied by the debtor and the judgment was issued in his favor. [30]
In this case, the legislator must order the debtor to an amount to the treasury not exceeding five times the lawsuit fee and not less than a double fee, and to notify the Ministry of Finance or the body it represents in the governorates, districts and suburbs. [31]
Just as the objection to all the debt is received, it is possible to respond to part of it, then the Directorate continues to implement what the creditor has acknowledged, and the execution is stopped in the part that he has denied. [32]
Second Requirement
Suspension of Executive Proceedings by a Court Decision
If the objection of the debtor before the executor of justice to the commercial papers and ordinary bonds shall have the effect of suspending the executive procedures by a decision of the executor whenever the executed debt belongs to an ordinary individual, this effect shall not result if the executed debt belongs to the state or the public sector, the debtor’s objection, in this case, shall not delay the execution procedures. The executor of justice in no way may issue a decision to suspend execution, but he must continue with the executive procedures[33], because the creditor here is an official body and its debt is fixed until the debtor can, through a lawsuit before the competent court, prove the contrary[34], it is not permissible to suspend the executive proceedings neither by the executor of justice nor even by the court reviewed by the debtor to prove his discharge of the debt executed in whole or in part unless one of the cases stipulated in the first paragraph of Article 26 of the Execution Law is realized, then the competent court may issue a decision to stop the executive procedures as an exception to the original.
The cases in which the court may issue a decision to suspend the executive proceedings if the debtor objects to the executed debt belonging to an official authority are:
(a) If the debtor deposits the amount of the debt and its expenses in trust in the court fund or the Execution Directorate for the benefit of the executing authority.
(b) If the debtor submits a bank guarantee or real estate as security for the debt and its expenses. [35].
If the legislator has specified the cases in which the court may issue a decision to suspend execution, but the court may not issue this decision unless the legally required conditions are met, namely that the executed bond is one of the bonds in which the legislator has authorized the objection and that the executed debt belongs to the state or the public sector. [36], and that the objection from the debtor within the news period and this period varies according to the debtor[37].
The same provisions referred to in the preceding application relating to the submission of the objection by the debtor after the lapse of the legally specified period due to force majeure, sudden accident, or emergency circumstance, as well as concerning the imposition of a financial penalty shall also apply in this case if it is found that the debtor is not entitled to object. [38]
The objection can be answered on all or part of the debt, and whether the objection is on all or part of the debt, the court cannot stop the executive procedures in what has been objected to unless the conditions and cases required by law are met. [39]
Conclusion.
In conclusion of the paper, we reached several results, the most important of which are:
1- The Iraqi legislator defined the scope of objection to the debt executed before the bailiff with specific executive documents, which are negotiable commercial papers, bonds containing an acknowledgment of debt, and bonds proving a personal right.
2- The Iraqi legislator has arranged a different effect on the debtor’s objection to the executed debt depending on the creditor’s side. If the executed debt belongs to an ordinary person, the objection delays the execution procedures. The fair executor must issue a decision to delay the execution and inform the creditor to refer to the competent court to prove the amount denied by the debtor. However, if the debt belongs to the state or the public sector, the debtor’s objection does not delay the execution procedures, and the fair executor or the court to which the creditor refers may not issue a decision to delay the execution procedures. However, the legislator has only permitted the court, as an exception, to issue a decision to delay the execution of certain cases, namely:
A – If the debtor deposits the amount of the debt and its expenses in trust in the court fund or the execution directorate for the benefit of the executing party.
B – If the debtor provides a bank guarantee or real estate as security for the debt and its expenses.
3- The Iraqi legislator has set a specific period for accepting the objection that varies according to the debtor’s party, which is seven days from the day following the notification of the debtor with the memorandum of notification of execution if the debtor is an ordinary individual, and sixty days from the day following the notification of the debtor with the memorandum of notification of execution if the debt is a state or public sector.
4- The Iraqi legislator has granted the just executor the authority to accept the objection after the expiry of the legally specified period if the debtor does not object during it due to force majeure, a sudden accident, or emergency circumstances.
References.
First: – Legal books.
1- Dr. Adam Wahib Al-Nadawi – Provisions of the Enforcement Law – 1st ed. – Baghdad – Baghdad University Press – 1984.
2- Dr. Saeed Mubarak – Provisions of the Enforcement Law No. 45 of 1980 – 4th ed. – Baghdad – Legal Library – 2011
3- Dr. Abbas Al-Aboudi – Explanation of the Provisions of Electronic Signature – Beirut – Dar Al-Sanhouri – 2017 –
4- Dr. Abbas Al-Aboudi – Explanation of the Provisions of the Evidence Law – Beirut – Al-Sanhouri Library – 2017.
5- Dr. Abbas Al-Aboudi – Explanation of the Enforcement Law amended by Law No. 13 of 2019 – Beirut – Al-Sanhouri Library – 2022-
6- Ali Muzaffar Hafez – Explanation of the Enforcement Law – Baghdad – Al-Ani Press – 1974.
7- Madhat Al-Mahmoud – Explanation of the Enforcement Law – Baghdad Publications of the Ministry of Justice – Legal Department – 1992.
Second: Sources of judicial decisions:
1- Judicial Magazine, first issue – 1987
2- Website
https://iraqld.e-sjc-services.iq/VerdictsTextResults.aspx
Third: Laws
1- Civil Law No. 40 of 1951, as amended.
2- Enforcement Law No. 40 of 1980, as amended.
[1] Executive bonds in Iraqi law include: judgments, judicial decisions and executive documents, which are notarized bonds, commercial papers and ordinary debt securities. Thus, the Iraqi legislator has taken a broad trend in determining executive bonds. As for the narrow trend, it limits executive bonds to judicial rulings and decisions. While executive bonds according to the moderate trend include: judgments, judicial decisions, and notarized documents only.
[2] In that decision No. 469/Execution/2014 on 11/26/2014/Presidency of the Baghdad-Karkh Federal Court of Appeal: (After scrutiny and deliberation, it was found that the appeal was submitted within its legal period and included its reasons, it was decided to accept it in form, and upon looking at the appealed decision dated 11/16/2014, it was found to be correct and in accordance with the law, because the executed document that is the subject of the executive file is the marriage contract document, which is considered one of the enforceable documents stipulated in Article 14/First – Z of the Enforcement Law No. 45 of 1980 as amended, and the Personal Status Law No. 188 of 1959 as amended, and in accordance with the provisions of Paragraph Four of Article Ten thereof, it has given it the force of execution with regard to the dowry, and the aforementioned Enforcement Law did not allow the debtor to object to it before the Enforcement Directorate, since the documents that the Enforcement Law allowed the debtor to object to before the Enforcement Directorate and in accordance with the provisions of Article (25) thereof are the negotiable commercial paper. The document containing an acknowledgment of debt and the document proving a personal right mentioned in Article 14 thereof, and therefore, if the debtor wants to object to the implementation of the marriage contract deed, he must refer to the competent court to prove his objection based on the provisions of Article 10/Fourth of the Personal Status Law mentioned above, especially since the creditor’s demand for her deferred dowry valued in gold is based on the provisions of Resolution 127 of 1999, and the deadline for claiming it has come and it has become due after the divorce between the creditor and her husband, the debtor, has occurred pursuant to the ruling issued by the Personal Status Court in Karada No. 2901/Sh/2012 on 11/12/2012, which has acquired finality. Accordingly, it was decided to ratify the decision, reject the appeal, and charge the appellant with the appeal fee. The decision was issued by agreement on 30/Muharram/1436 AH corresponding to 26/11/2014 AD.) Published on the website: https://iraqld.e-sjc-services.iq/VerdictsTextResults.aspx . Also in this sense, Decision No. 505/Implementation/2014 on 12-15-2014/Presidency of the Baghdad Court of Appeal/Karkh Federal/Cassation Body is published on the aforementioned website.
3-Article 39 of the Commercial Law No. 30 of 1984.
4-Dr. Saeed Mubarak – Provisions of Enforcement Law No. 45 of 1980 – 4th ed. – Baghdad – Legal Library – 2011 – p. 64. Dr. Abbas Al-Aboudi – Explanation of the Enforcement Law amended by Law No. 13 of 2019 – Beirut – Al-Sanhouri Library – 2022 – p. 66.
[5] Dr. Adam Wahib Al-Naddawi – Provisions of the Enforcement Law – 1st ed. – Baghdad – Baghdad University Press – 1984 – pp. 46-47.
[6] Article 22 – First – Commercial and financial papers may be created electronically in accordance with the following: A – That they meet the same conditions and data that must be met in paper commercial and financial papers stipulated by law. B – That the information processing system is capable of proving the right to them and verifying that the electronic signature belongs to the parties concerned. Second – The information processing system is capable of proving the right to the commercial paper if it meets the following conditions: A – Ensuring the secure trading of the commercial paper through it. B – Ensuring the trading of the commercial paper in a manner that cannot be changed. C – Displaying the names of the parties concerned in the commercial paper.
[7] See Dr. Abbas Zoboon – Explanation of the Provisions of Electronic Signature – Beirut – Dar Al-Sanhouri – 2017 – p. 149.
[8] See Dr. Abbas Zoboon – Explanation of the Provisions of the Evidence Law – Beirut – Al-Sanhouri Library – 2017.
[9] Medhat Al-Mahmoud – Explanation of the Execution Law – Baghdad Publications of the Ministry of Justice – Legal Department – 1992 – p 47
[10] Article 1021/1 of the Civil Code stipulates that 🙁 The guarantee shall be imposed that it is held pending on the condition that the debtor does not pay the debt, unless the guarantor has waived this condition or has joined the debtor.
[11] See Dr. Saeed Mubarak – previous source – p. 65.
[12] See Article 14, paragraph III, of the Execution Law.
[13] Dr. Adam Wahib Al-Nadawi, Ibid., p. 50.
[14] See Article 69/F1-F2 of the Iraqi Civil Code.
[15] See Medhat al-Mahmoud, op. cit., 48
[16] Added by Law No. 32 of 1998.
[17] Article 25 / first of the Execution Law.
[18] See Articles 18 and 20 of the Execution Law.
[19] Article 26 / II – III of the Execution Law.
[20] See Article 25 / II and Article 26 / I – IV – V of the Execution Law.
[21] See Dr. Saeed Mubarak, previous source, p. 74.
[22] See Article 18 of the Execution Law.
[23] – Under the third article of the law amending the implementation law No. 19 of 2019, as this article stipulates that the text of Article 20 of the law shall be repealed and replaced by the following: Article -20- State departments and the public sector may implement with satisfaction within 60 sixty days from the day following the notification of the memorandum of notification of implementation and shall be exempted from the collection fee for debts that have been collected from the principal debt.
[24] See Dr. Adam Waheeb Al-Nadawi – previous source – p. 86.
[25] See Article 18 and Article 20 of the Execution Law.
[26] The Iraqi judiciary went in one of its decisions to: (… The Directorate of Execution, after the debtor objected to the occupancy of his liability to the creditor with the amount of the executed bill bond certified by the notary public, decided to stop the executive procedures and assign the creditor to review the competent court, based on the provisions of Article 26 of the Execution Law, and its direction is correct and in accordance with the law because delving into the validity of the indebtedness or not is not the competence of the Execution Directorate, but rather a competent court, so the Execution Law in Article 25 / II thereof allowed the debtor to object to the commercial paper This right does not restrict the attestation of the paper with the notary public … This does not preclude the objection of the debtor … As long as the fact of delivery of its amount is not proven by the notary public …….) Decision No. 489 / Execution / 1989 on 3/9/1989 / Baghdad Court of Appeal. Referred to by Medhat Al-Mahmoud – previous source – p. 61.
[27] – See from the search
[28] This period is a time limit for consensual execution and for objection, either the debtor executes it and avoids the measures of compulsory execution against it. Either he submits his objection and then verifies whether the debt is proven or not, and it is not possible to initiate compulsory execution procedures before their completion.
[29] Article 26 / V of the Execution Law. The Iraqi judiciary promised in one of its decisions (…. The debtor’s preoccupation with a death accident prevented him from objecting to the execution of the bond during the objection period…. Sudden accident ….. The acceptance of this objection by the executor of justice is consistent with the provisions of paragraph V of Article 26 of the Execution Law ……) Decision No. 166 / implementation of / 86 / 87 on 14/10/1986 / Baghdad Court of Appeal – published in the Judicial Magazine, first issue, 1987, p. 291. A promise in another decision :(…. The imprisonment of the debtor is a force majeure that prevents the submission of an objection within its legal period … The acceptance of the objection after its duration came in application of the provisions of Article 26/V of the Implementation Law …..)) Decision No. 681 / execution on 17/9/1990 Baghdad Court of Appeal. Mentioned by Medhat Al-Mahmoud, previous source, p. 62.
[30] See Ali Muzaffar Hafez – Explanation of the Execution Law – Baghdad – Al-Ani Press – 1974 – p. 120
[31] Article 26 / IV of the Execution Law.
32-See Dr. Saeed Mubarak, previous source, p. 81.
[33] See Dr. Adam Wahib Al-Nadawi, previous source, p. 121.
[34] Medhat Al-Mahmoud – previous source – p. 59
[35] If the execution is required is a negotiable commercial paper or a bond containing an acknowledgment of the debt mentioned in Article (14) of this Law, it shall be taken into account after the notification of the notice of execution: – First: If the debt or the executed right belongs to the state or the public sector, the debtor’s objection shall not delay the execution procedures, and the court reviewed by the debtor may not issue a decision to delay the execution except in one of the following cases: –
(a) If the debtor deposits the amount of the debt and its expenses in trust in the court fund or in the Execution Directorate for the benefit of the executing authority.
(b) If the debtor submits a bank guarantee or real estate as security for the debt and its expenses.
[36] See Article 26 / I of the Execution Law.
[37] See p of this paper.
[38] See p. of this paper.
[39] See Articles 18, 20, 25 and 26 of the Execution Law.
