النطاق الزمني للالتزام بصيانة المأجور (( دراسة قانونية ))

الملخص

The rights of the lessor and lessee in specifying the lease’s term have been provided by the Iraqi Civil Law no. 40 for 1951. The term of the lease agreement is specified as agreed by the lessor and lessee and their agreement is deemed to be the governing law and dominant statute، since the lessee can fully benefit from the tenanted estate only after a period of time elapses.

The lease agreement، just like any other agreement، if properly worded، has its own obligations on the lessor and lessee with reciprocal rights for both during the term of the lease.

Therefore، both parties of lease agreement must، in good faith، execute it. Not only should its contents be executed، but all related requirements should also be covered. Among such requirements is the commitment of either party to ensure the safety of the other party from any damage that may occur during the execution of agreement.

Occupying the tenanted estate by the lessee، and the commitments of the lease agreement’s parties to maintain the tenanted estate against damages or destruction during the original or extended terms of the lease under the Iraqi Civil Law are performed with the wills of both the lessor and the lessee. Under this law، it is possible to keep a balance between the reciprocal obligations، i.e. a balance between the rental value gained by the lessor and his expenditure on maintenance. However، occupying the tenanted estate by the lessee and the commitments of both the lessor and lessee to maintenance within the framework of exceptional rent laws (Estate Rent Law – amended)are dependent and contingent on the will of the legislator once the lessee fulfills his obligation by paying the rent. After the Iraqi legislator had approved the legal extension of the lease following the expiry of the original term، it made the commitment between the lessor and the lessee start once the agreement is signed and the performance of offer and acceptance. Hence the agreement is turned from being contractual into legal. This means that the provision of the law has become a resource of survival that enabled the agreement to outlive its original expiry date. 

This led to an imbalance between the obligations of the lessor and those of the lessee. The imbalance is evident in the disproportionality of the maintenance costs with the rental proceeds، a case that proved to be a basic problem after the Iraqi legislator fixed the rents in accordance with an inviolable ratio system set forth in the Estate Rent Law no. 87 for 1979 (amended).