The Effects of Restricting the Transfer of Ownership in a Sale Contract: A Comparative Study

When the Iraqi legislator in the Civil Code granted both parties to a contract the right to restrict the transfer of their ownership under a specific condition, the subject of restricting the transfer of ownership was devoid of the scientific interest that constitutes the primary purpose of its research. It did not produce legal effects encompassing the reciprocal rights and obligations between the two parties, let alone the legal effects that the restriction entails vis-à-vis third parties. This could involve acquiring a right over the sold item or being a creditor. Delaying payment of the price, which is one of the main obligations owed by the buyer, would lead to this situation, fraught with risks, including the buyer's inability to pay the price on the specified date agreed upon in the agreement concluded between him and the seller. This forces the seller to resort to restricting the transfer of ownership. During the period between concluding the contract and paying the price on the agreed date, the legal positions of the parties may change dramatically. The buyer may be a merchant and stop paying his debts, thus exposing him to bankruptcy. The buyer may dispose of the restricted movable property to a third party in good faith, who may adhere to the rule of possession in movable property as a title deed. The property may perish. The sale occurs during the same period between the seller's execution of the contract by delivery and the buyer's receipt.