The decline of the role of will in the Contract for the transportation of goods (A comparative analytical legal study)

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Published: Feb 10, 2026
Keywords:
Will, Contract of Carriage, Objects, Liability

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Ahmed Abdul Salam Kazem

Abstract

The legislator intervenes in how contracts are organized, and this organization is focused on the person of the contracting party. The contracting party is not free to choose whom he wants to contract with; rather, he must contract with the person appointed by the public authority, such as those who exercise a legal or de facto monopoly. Most jurisprudence believes that the carrier's liability is contractual. However, does this view hold up against the legislator's approach to establishing rules regulating the transport contract with the aim of achieving a fair balance between the obligations of the two parties to the transport contract and prioritizing the legal relationship over the contractual relationship, based on the belief in the state's duty to protect the weaker party in the contractual relationship and to oversee legal relationships?


Hence, some jurisprudence believes that the carrier's liability in a contract for the transport of goods is tortious liability based on the concept of damage. However, this argument cannot be relied upon because the carrier's obligation to guarantee safety arose due to the conclusion of the transport contract, making it impossible to apply it independently of it, especially since the current Iraqi Transport Law has defined the time frame. Hence, some jurisprudence considers that the carrier’s liability in a contract for the carriage of goods is a tortious liability based on the concept of damage. However, this statement cannot be relied upon because the carrier’s obligation to guarantee safety arose due to the conclusion of the contract for carriage, so it is impossible to apply it independently of it, especially since the current Iraqi transport law has specified time range, in addition to the fact that there is no justification for considering the carrier’s liability a tortious liability even if it is based on his fraud or gross error, because compensation for damage according to the general rules in the cases of fraud and gross error includes what was expected or unexpected, as it is not limited to the expected damage only, and thus does not necessarily entail a change in the nature of the contractual liability to become a tortious liability.


It is evident from the above that the carrier’s liability is presumed, as contractual error is established even if the carrier’s failure to fulfil his obligation arises from an external cause. However, the existence of the external cause severs the causal relationship between the error and the damage, so liability is not established

Article Details

How to Cite
Abdul Salam Kazem ا. (2026). The decline of the role of will in the Contract for the transportation of goods (A comparative analytical legal study). MIsan Journal of Comparative Legal Studies, 14(1-2), 47–74. Retrieved from https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/524
Issue
Vol. 14 No. 1-2 (2026): Misan Journal for Comparative Legal Studies
Section
Articles

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