Force Majeure: An Iraq perspective

4 min 51 sec

Written by

Jawad Khalaf

Partner, Head of Litigation - Iraq

j.khalaf@tamimi.com View LinkedIn Profile

Thomas Calvert

Partner, Head of Office – Al Khobar, Head of China Group

t.calvert@tamimi.com View LinkedIn Profile

Ali Al Dabbagh

Senior Associate

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This article covers the basis for claiming force majeure under Iraqi law. This includes its scope, requirements, and legal effects. The article also addresses the burden of proof and judicial interpretations under the law.

 Legal basis

The principal statutory provision governing force majeure is Article 168 of the Iraqi Civil Code, which provides: “If it is impossible for the obligee of a contract to perform his obligations specifically he will be adjudged to pay damages for non-performance of his obligation unless he establishes that the impossibility of the performance was due to a cause beyond his control; the adjudication will be the same if the obligee has delayed in the performance of his obligation”.

Related to but distinct from force majeure, the Iraqi Civil Code also recognises the doctrine of exceptional circumstances (hardship or imprévision), which permits courts to modify contractual obligations where performance becomes excessively onerous but not impossible due to unforeseen events of a general character.

Definition and elements

Under Iraqi law, force majeure is understood as an event that renders the performance of a contractual obligation absolutely impossible due to causes beyond the obligor’s control. A party seeking to invoke force majeure must generally establish the following elements.

 Impossibility of performance

The event must render performance of the obligation truly impossible, not merely difficult or economically burdensome. Impossibility must be objective, meaning it would prevent any person in the position of the obligor from performing the obligation, rather than being related solely to the debtor’s personal inability.

Examples of qualifying impossibility include the destruction of sold items before delivery, or a painter whose hand has been severed being unable to fulfil a painting commission.

 Unforeseeability

The event must have been unforeseeable at the time the contract was concluded. The Iraqi Civil Code, in line with other Arab civil codes modelled on the Egyptian code, requires that the supervening event could not have been reasonably anticipated by the parties when they entered into the contract.

 Externality (cause beyond the obligor’s control)

The impossibility must be due to a cause beyond the control of the party claiming relief, as expressly stated in Article 168. This may include natural events such as floods or earthquakes, or human acts such as revolution, war, government orders of attachment, compulsory expropriation, or a widespread disease outbreak.

Inability to overcome

The event must be irresistible in nature, meaning that the obligor could not have prevented or overcome it through reasonable measures.

 Legal effects

A valid force majeure event produces several legal consequences under Iraqi law, depending on the nature and duration of the impossibility.

 Extinguishment of obligations

 Where performance becomes permanently impossible due to force majeure, the obligation is extinguished by operation of law. The contract is considered automatically rescinded pursuant to Article 168 of the Iraqi Civil Code, releasing the debtor from fulfilling the obligation and releasing the other party from its corresponding obligations.

 Exemption from liability

 A party whose non-performance or delay in performance is attributable to a force majeure event is not liable to pay damages. The Iraqi Civil Code provides that the obligor will be adjudged to pay damages for non-performance unless the obligor establishes that the impossibility was due to a cause beyond his control.

 Suspension of obligations

If the force majeure event is of a temporary nature, the contract may be suspended until the event ceases, and the timeframe for performance is extended accordingly. This determination is generally made on a case-by-case basis.

In cases of temporary force majeure, while the debtor may be exempted from compensation for delayed performance, the creditor retains the right to claim performance once the impediment is removed.

 Scope and limitations

Several important limitations and qualifications apply to the invocation of force majeure under Iraqi law.

 Distinction from hardship (Imprévision)

Force majeure must be strictly distinguished from hardship. While force majeure requires impossibility of performance and results in the extinguishment of obligations, hardship addresses situations where performance remains possible but becomes excessively onerous.

In cases of hardship, Iraqi courts may reduce the onerous obligation to reasonable limits to restore the equilibrium of the contract, rather than terminating it entirely.

 Contractual freedom and allocation of risk

The Iraqi Civil Code adopts the principle of freedom of contract. Accordingly, parties are free to define the scope and effect of force majeure events in their contracts.

Notably, while the defence of hardship cannot be contractually excluded, Iraqi law permits an agreement whereby the debtor bears the consequences of a force majeure event. It is recommended that parties entering into commercial contracts include standard force majeure provisions.

 Partial impossibility

Where force majeure renders only part of the contractual obligations impossible, the affected obligation may be extinguished while the remainder of the contract continues in force. This approach, recognised across the civil law jurisdictions of the region, permits the severance of impossible obligations from those that remain capable of performance.

 Temporal requirement

The force majeure event must occur during the period specified for the implementation of the obligation. If the event occurs after the expiry of the performance period, the debtor may not rely on it to avoid the consequences of non-performance or delay.

 Case-by-case assessment

The applicability of force majeure cannot be presumed for all parties or all contracts in a blanket manner. Rather, each case must be determined separately to ascertain the extent and type of the event’s effect on the particular contract.

 Burden of proof

Under Article 168 of the Iraqi Civil Code, the burden of proof falls on the obligor (the party claiming force majeure) to establish that the impossibility of performance was due to a cause beyond its control.

The debtor must affirmatively demonstrate that the event was unforeseeable, unavoidable, and external, and that it rendered performance genuinely impossible. The standard applied is one of objective impossibility rather than subjective or personal inability to perform.