Legal Problems in Normal Price A Commentary on the Judicial Decision No. 324/2019 Issued by the Civil Expanded Commission of the Federal Cassation Court – Iraq, December 23rd, 2019 by Bashar Adnan Malkawi in Open Access Journal of Biogeneric Science and Research
The Extended Commission of the of the Federal Cassation Court issued its decision No. 324/2019 on December 23rd, 2019 about the action of normal price which concluded that “The majority of this Commission considers that the claimant’s action and the inheritance of their heirs to claim normal price is not based on a valid legal basis. Normal price in its content and truth is unspecified potential compensation resulting from the loss of the utility of real and one of its most important reasons is the act of constraint and one of its forms are aggression on the immovable of the others and the right to claim the normal price even it is a financial right.
However, the personal aspect of exercising or not exercising this right by the person who owns the immovable i.e. the claiming is initially relied upon on its existence and arise. Therefore, the owner’s option not to claim or not to establish normal price for his/her constrained immovable during his/her lifetime entails the non-entry of undefined potential compensation (which is a price such as the constrained real in the owner's inheritance after his death, where he/she refrained from claiming the normal price during his/her lifetime because it is not permissible to inherit the undefined eventual right of the heirs because it is linked fatefully to the owner personally, and his/her choice not to claim where the personal option is not inherited to heirs because the owner's (inherited) about the claim during his lifetime of the normal price is considered to be permissible, donation and acceptance made by him/her with satisfaction. This silence is considered judicial presumption that is irrebuttable and cannot be contrary proved, as inferred from it that deceased premises or donates to claim normal price because the judicial presumption is to proof of an unknown fact from a known fact, and because normal price is a potential compensation, time element forms and establish this right which is past. In addition to demanding it as a personal right by the owner during his lifetime. And because it is more likely that the deceased will not be required during his lifetime to normal price such his/her constrained immovable is considered donation or permission, and in both of these two assumptions, the deceased is not entitled to the normal price because he/she agreed that others possess hand immovables.
Because the claimants’ inherited during her lifetime did not claim normal price for her immovables, which was possessed by the defendant in addition to her job, thus she was satisfied not to claim normal price for the period claimed by the plaintiffs' heirs, so that their action of the normal price the inheritance of their inherited is not substantiated by the law and therefore, the action would be dismissed...”. This decision was passed by the majority and based on multiple conclusions including
A. Not prosecuting normal price of the constrained immovable is considered either permission or donation.
B. Claim for the normal price is a potential compensation right.
I concluded from this introduction the following facts:
a) This right is not inherited.
b) The owner's silence to prosecute during his lifetime is acceptance and satisfaction of the reality of the situation.
c) That there is no legal basis for the action of normal price by offering two elements, time which is the past and demand on justice.
These conclusions on which the majority of the distinguished members of the above commission have concluded that this silence is judicial presumption that is an irrebuttable and cannot be contrary proved which has led the commission to reach a decision to dismiss the action. And we find that we are faced with more than one legal question raised by this decision, including: is potential right no inherited? Does filing a lawsuit is deemed permission or donation? To discuss this decision, we will examine terms from the above conclusions which they are judicial presumption, action demand of normal price and to what extent a personal option can be inherited.
First: Judicial Presumption
The above decision states that “the judicial presumption is to proof of an unknown fact from a known fact”, and it considers silence as a judicial presumption that is irrebuttable and cannot be contrary proved. And therefore, we believe that the Iraqi Legislative Authority in the Law of Proof No. (107) of 1979 differentiates between legal presumption and judicial presumption where legal presumption is defined in article 98-I as “legislative authority inference of an uncertain fact from a certain fact”, while it defines the judicial presumption in article (102-I) it “the judge's inference of an uncertain fact from a certain fact in in prosecution actions”. In general, French Legislative Authority defines presumptions in article (1349) of the Civil Code as “presumption is findings that are obtained via using a known fact to conclude an unknown fact by law or by judge's discretion.”
Some jurists believe that the judicial presumptions are distinguished by its diversity and not being restricted, because it varies as much as the multiplicity of facts [1], and the indication of the certain facts on the uncertain facts is not binding for the judge, so the antagonist can present the judge those certain facts that he/she wants to make them the basis to inferring what he/she claims [2]. One of the jurists considers that the judge's job in inferring the judicial presumptions is a mental act in which he/she uses his intelligence and logic. He concludes that this job should depend on inference in order to establish certain facts [3].
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