Administrative guarantees in imposing a delay fine on the contractor in the administrative contract (a comparative analytical study)

Abstract

  This study deals with the management guarantees regarding imposing one of the most common financial penalties imposed by the management authority on the contracting party due to the latter's delay in implementing his contractual obligations. The importance of the delay fine lies not only in its direct effect of urging the contractor to abide by the deadlines agreed upon in the contract and the need to expedite the implementation of his contractual obligations, but rather in its effective and serious contribution to ensure the functioning of public facilities and the achievement of the public good. This is what distinguishes the late fine from other similar legal situations.

The administration's guarantees are represented in the delay fine in the presence of an amount of money or equivalent in the hands of the administration and its disposal, without the contracting party or third party having the right to dispose of it for any reason as long as the contract is in its implementation stages. The contractual error was realized as a result of the contractor's delay in fulfilling his contractual obligations.

The dispersion, lack and imprecision of Iraqi legislation related to the guarantees of the imposition of the delay fine played a prominent role in our selection of the subject of our study, trying to highlight the points of defects and shortcomings in those legislation through comparative analysis, as well as stating the position of the judiciary and comparative jurisprudence in this field.

This study focuses on the guarantees that the administration enjoys regarding imposing the delay fine within the scope of administrative contracts, relying on the Iraqi legal system and comparing it to the French and Egyptian systems. The study also included an analysis of some legislations when required, which were issued in Arab countries related to administrative contracts in general. And the delay fine in particular, trying to compare this legislation with what is the case in both Iraq and the Kurdistan Region to show the similarities and differences in this regard, and then highlight the legislative and realistic gaps and shortcomings in this area and put forward the appropriate treatments for them. It is a serious attempt to clarify the gaps in Iraqi Legislation and the Kurdistan Region in preparation for dealing with it and indicating appropriate and appropriate proposals to reduce it.