The Effect of the Death of the Principal or the Agent on the Agency Contract: An Analytical Comparative Study between Islamic Jurisprudence and Iraqi Civil Law

Abstract

This research deals with a comparative analytical study of the impact of the death of one of the parties to a power of attorney contract (the principal or the agent) in both Islamic jurisprudence and the Iraqi Civil Code No. (40) of 1951. The research aims to clarify the general rule that a power of attorney contract expires upon the death of either party, based on the legal and legitimate nature of the contract, which is founded on personal consideration and mutual trust.

The research also sheds light on the congruence between Islamic jurisprudence and civil law regarding this principle. It further analyzes the exceptions approved by the Iraqi legislator concerning the continuation of the power of attorney after the death of the principal, particularly in cases where the agent or a third party has acquired a related right under the contract, in order to ensure the stability of transactions. The study compares these legal provisions with jurisprudential opinions, especially the differences among jurists regarding the validity of the agent’s actions before becoming aware of the death of the principal.

The research concludes that the Iraqi Civil Code derives its general rules from Islamic jurisprudence; however, it provides more detailed legal provisions to address the complexities of modern transactions and to regulate precisely the obligations of the agent’s heirs in a manner that preserves rights and legal stability.