نوع مقاله : مقاله های برگرفته از رساله و پایان نامه
عنوان مقاله English
نویسندگان English
This research aims to diagnose the shortcomings of the Iraqi Civil Law (Law No. 40 of 1951) regarding digital service contracts and to propose appropriate strategies. The core problem is that this law was formulated in a pre-digital historical context, and its fundamental concepts—including consent, subject matter, consideration, liability, and dispute resolution mechanisms—are not fully compatible with the characteristics of digital service contracts. These contracts, due to their platform-based nature, standardized and adhesive terms, data-driven economic value, multi-actor service provision, and cross-border disputes, require distinct substantive and procedural rules. Employing a descriptive-analytical method with a critical approach, the research reveals that consent in digital environments is often reduced to a mere "formal click," and Iraqi law lacks adequate tools to ensure informed consent and transparency of terms. The subject matter and consideration in digital services are often intangible and data-centric, and the failure to explicitly recognize data as economic value/consideration creates ambiguity in analyzing obligations and compensation. Fault-based liability and the bilateral model prove inefficient against systemic/algorithmic errors and multi-actor structures. Furthermore, the role of platforms and contractual power imbalances necessitate protection for weaker parties. Traditional dispute resolution and judgment enforcement mechanisms are costly and ineffective for digital disputes. Accordingly, the proposed strategies include: independently recognizing digital service contracts within civil law or a special law; redefining electronic consent and transparency requirements; formally recognizing data and its processing as an economic element of contracts; shifting toward risk-based/objective liability for certain services; regulating platform liability and roles.
کلیدواژهها English