Civil contracts have witnessed great development with the spread of electronic means and modern communications, which necessitated a study of the nature of the contract council and electronic contracting in Iraqi civil law. Understanding the nature of the meeting between the parties when concluding a contract helps determine whether the contract is considered a contract between those present or between those absent, which has a direct impact on the effects of the contract and its implementation dates. First: The concept of the contract council Before knowing the nature of the contract council in electronic contracting, we must know what is meant by the concept of the contract council, which is the meeting of the parties wishing to contract while they are busy concluding the contract, so that the offer is valid for completion by acceptance. The contract council varies depending on the status of the contractors: Real council: If the parties physically meet in one place. Governing Council: If the parties do not meet physically, as happens when using electronic means. Accordingly:If the parties meet in one session without a time interval between the offer and acceptance, the contract is a contract between those present. If they do not meet, and there is a time interval between their will to contract, the contract is considered a contract between absentees. Second: Electronic contracting and its nature With the development of technology, online contracting has become common, raising the question about its legal nature: Is the contract between those present or absent? Article (88) of the Iraqi Civil Code indicates that “the contract (by telephone) or by any similar means shall be considered as if it had been concluded between those present with regard to time, and between those absent with respect to place.” By analyzing this article, it appears that the Iraqi legislator established a general rule for contracting via wireless means, such that:  The contract is made via telephone or any similar means between those present in terms of time.  The contract is considered between the absentees in terms of location. This includes contracts concluded through: Voice Call Video Call Instant written messaging (Chat) Any electronic means in which there is no time interval between the offer and acceptance.In the case of e-mail or other means in which the offer or acceptance takes time to arrive, the contract is considered between absentees because there is a time interval between the offer and acceptance. The Iraqi Federal Court of Cassation, in Resolution No. 5896 of 2023 - General Assembly dated 9/12/2023, addressed the subject of the contract, its conditions, and the impact of its provisions on the rights of the contractors. The court emphasized that “the parties’ commitment to the terms of the contract and the timing in which the offer and acceptance are made has a direct impact on the enforcement of the contract, whether the contract is concluded between those present or absent, and the texts of the contract must be interpreted in accordance with Article 88 of the Iraqi Civil Code.” This decision enhances the practical application of the legal article, and clarifies how to deal with both electronic and traditional contracts, especially with regard to determining the contract council and its nature. Third: The effects of the nature of the contract council on electronic contracting Determining the nature of the contract council has important legal implications for:1. Time of completion of the contract: In contracts between those present, the contract is considered complete when acceptance is given, while in contracts between absentees, the contract is considered complete when acceptance reaches the other party. 2. Responsibility of the parties: The nature of the council affects the obligations of the parties and the duration of their implementation. 3. The possibility of resorting to the judiciary: Determining the type of contract between those present or absent helps the judiciary decide the obligation or annul the contract in the event of a dispute. Conclusion The spread of modern means of communication has led to a reconsideration of the concept of the contract council and its impact on electronic contracting. The Iraqi legislator stipulated in Article (88) of the Civil Code a general rule clarifying how to classify electronic contracts, which ensures the protection of the rights of the parties and accurately determines the effects of the contract. Resolution No. 5896 of 2023 also supports this interpretation, stressing that the nature of the contract council has a direct impact on the enforceability of the contract and the rights of the parties, which is essential in light of the expansion of electronic commerce and distance contracting. Al-Mustaqbal University – the first university in Iraq.
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