An error in legal jurisprudence is the breach of a legal duty; whether it is an obligation in its precise sense – which concerns us in the field of contractual liability – or a general legal duty, which results in tort liability for breaching it, and contractual fault is the debtor’s failure to fulfill his obligation whether this results from intent or negligence, and the professional fault of the treating advisor is the error committed by the treating advisor (which is the bank here) while practicing his profession; which results in violating laws and regulations or ignorance thereof, and any breach of the duties, ethics, traditions, and binding codes of professional conduct, and this professional error causes material or moral harm to the project, and the professional fault of the treating advisor is a shortcoming in his conduct that a prudent advisor would not fall into if he were in the same circumstances that surrounded the erring advisor the judiciary has established the liability of the treating advisor in case of committing a professional fault whenever such error occurs, regardless of its degree whether it is serious or minor, as long as this professional error is proven and clear, and among the professional faults is "any conduct that deviates from what is familiar among professionals in exercising the care required by the principles and rules of the profession, art, experience, and prevailing banking customs, thus the professional error is every mistake committed by the treating advisor and constitutes a deviation from what is customary in his banking profession; and in exercising the care required by the rules, principles, and customs of his banking profession the criterion of the professional fault of the advisor is an objective criterion represented in the usual conduct of another average advisor without considering his personal circumstances and includes the following:
1- Every violation of laws and regulations or ignorance thereof if such resulted in material or moral harm to the project.
2- Every breach of the duties, ethics, traditions of the profession, and binding codes of conduct.
3- Every violation of integrity, transparency, and honesty.
Proof of professional fault:
First / In case of an obligation of diligence:
According to the general rule of evidence, the project owner must prove the agency contract or consultation contract in which the treating advisor failed to exercise the required diligence in performing his obligation and that he neglected or deviated from the rules, regulations, principles, and customs followed in his banking profession and that the project owner suffered damage as a result, and the extent of that damage, and the treating advisor may deny his responsibility by proving that he exercised the required diligence in accordance with his professional principles or that the failure to perform his obligation was due to a foreign cause beyond his control or due to the fault of the principal (project owner) however, the principal or project owner often cannot prove that the treating advisor did not exercise the required diligence, therefore, some commercial law jurists propose that the error here be presumed by law on the part of the treating advisor, but it is subject to rebuttal, so the treating advisor can deny the presumed fault by proving that he exercised the required diligence, such as proving the adequacy of his legal defense or the correctness of the advice he provided to the project owner
Second / In the case of an obligation to achieve a result:
Failure of the treating advisor to fulfill his obligation is considered a presumed fault not subject to rebuttal, and the project owner (principal) bears the burden of proving the non-achievement of the result that the treating advisor was obligated to achieve, and the damage resulting from the failure to achieve the expected result, and the burden of proof shifts to the treating advisor to prove either that he fulfilled his obligation or that the failure to do so was due to a foreign cause beyond his control, and the most important applications of professional fault of the treating advisor include:
1- Disclosing client confidentiality: not disclosing professional secrecy is a legal obligation stipulated in comparative laws and regulations.
2- Giving testimony against his client (project owner) or disclosing a secret entrusted to him or known through his profession related to the secrets of clients before the judiciary under various circumstances even after the end of the consultation contract.
3- Failure to provide competent or specialized persons to perform the duties of the electronic processing contract of securities properly.
Damage:
Damage is a mandatory condition for liability and awarding compensation, as the purpose of liability is to remedy the damage, and damage is the fundamental pillar of liability because it determines its existence in order to compensate it and there is no liability without it, and this damage may be material affecting the body or financial liability of the project owner, and the damage must be certain, whether it is current or expected to occur in the future, and if it is certainly going to occur in the future, the judge may estimate it based on the elements of the case, and if it cannot be estimated immediately, the judge may award compensation for the actual damage with reserving the right of the injured party to claim additional compensation upon occurrence of the remaining damage, and no compensation is awarded for potential damage unless it is actually realized, and the damage must be direct, i.e. resulting directly from the professional fault of the treating advisor, and a natural result of non-fulfillment or delay in fulfillment of the obligation, if the liability of the treating advisor is contractual, compensation is limited to direct foreseeable damage only, except in cases of fraud or gross fault, where he is also liable for unforeseeable damage, but if the liability is tortious, compensation includes both foreseeable and unforeseeable direct damage
Loss of opportunity:
Loss of opportunity means depriving the project owner of a chance that could potentially have resulted in profit, and most jurisprudence and courts consider that mere loss of opportunity by the treating advisor is in itself actual damage requiring compensation for the lost opportunity not for its hypothetical result, thus the treating advisor is considered liable for loss of opportunity to the project owner or his representative due to delay in taking legal action on time, such as filing a lawsuit after the legal period, or appealing a judgment after the legal deadline, and he is liable for compensating the injured party because the loss of opportunity in itself constitutes actual damage requiring compensation
We conclude the following:
1- The liability of the bank, which is the treating advisor here, may be contractual based on the electronic securities processing contract, or tortious resulting from breach of a legally imposed duty.
2- The obligation of the treating advisor may be an obligation to achieve a result if he fails to perform a technical act required for the benefit of the project owner, or an obligation of means if it relates to any advice or expertise provided to the principal.
3- Occurrence of damage to the project owner is a main reason for awarding compensation because compensation is associated with damage in existence and validity.
4- Mere loss of opportunity constitutes actual damage upon which the treating advisor’s liability is based and necessitates compensation.

Legal Expert Dr. Thamer Abdul-Jabbar Abdul-Abbas Al-Saeedi
Ph.D. in Private Law Philosophy / Commercial Law / E-Commerce
Senior Chief Inspector – Ministry of Communications / Administrative and Financial Department
Lecturer at Al-Mustaqbal University / College of Law

Al-Mustaqbal University – The top-ranked university among public and private universities in Iraq