The deposit is between the contracting parties


  • Thamer Abdul Hussein Ghafel University of Kufa - College of Agriculture
  • Assistant Professor Dr. Rudeina Mohamed Reda Majeed University of Kufa - College of Law



deposit, contractors, civil law, The option to withdraw, Penal clause


The down payment is a sum of money or another movable payment paid by one of the contracting parties to the other contracting party at the time of the conclusion of the contract to indicate that the contract has become irrevocable and irrevocable. Relinquishment of the contract and these ancient Latin laws, while others consider the down payment benefiting the confirmation of the contract and deciding on it, and these modern Germanic laws. As evidenced by the payment of the down payment when contracting as a penalty for abandoning the contract, if the contract is executed, the down payment is calculated from the original price agreed upon, and where the jurists are divided regarding the legal conditioning of the down payment, some of them see the down payment as dependent on a condition that is suspended or rescinding, and it is taken on this conditioning that it is not possible to specify the source of the obligation to pay the down payment. As long as the rescinding condition is fulfilled or the suspensive condition is not met, it leads to the cessation of the contract with all its effects retroactively, and then there is no legal basis for the obligation of the one who renounced the contract to pay it to the third party. The last equivalent to the value of the down payment, while some of them see that the legal qualification of the down payment is a substitutionary obligation for an original obligation, while some Iraqi law commentators distinguish between the requirement of the down payment as a means to nullify the contract and the requirement of it as a guarantee for its implementation. It is a kind of in-kind insurance that the creditor uses in order to obtain his right from his debtor, and what distinguishes the down payment from the penalty clause (consensual compensation) is the element of damage, as it is stipulated in the penalty clause and not required in the deposit, and the penalty clause is subject to increase and decrease according to the cases in which The law allows it, while the down payment is not. In addition to that, excuses are required in the penal condition without the down payment.


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How to Cite

Ghafel, Thamer, and Rudeina Majeed. “The Deposit Is Between the Contracting Parties”. Kufa Journal of Arts, vol. 1, no. 49, Oct. 2021, pp. 29-42, doi:10.36317/kaj/2021/v1.i49.1592.

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