Examining the Conditions for the Divisibility of Real Security and Its Effects in Iraqi Positive Law

Abstract

Real security and collateral security constitute some of the most important legal institutions in the Iraqi civil law system, playing a fundamental role in ensuring the performance of financial obligations, preserving trust in commercial transactions, and protecting the rights of creditors. In this form of security, a specific asset—particularly in the form of a mortgage—is designated as collateral for the payment of a debt, and the creditor may, in the event of non-performance, satisfy the claim directly from that asset without the need to have recourse to the debtor’s personal liability. The Iraqi Civil Code has expressly recognized this institution, particularly in Articles 1285 et seq. The main issue of the present study is to examine the possibility or impossibility of the divisibility of real and collateral security under Iraqi law; that is, whether the mortgaged property may be divided into parts, each securing a portion of the debt, or whether the principle of indivisibility prevails such that the entire property always guarantees the whole debt. This issue produces significant legal consequences in several practical situations, including partial payment of the debt, sale of part of the mortgaged property, plurality of secured assets, or the creation of a mortgage over jointly owned property. The objective of this research is to clarify the legal foundations, limits, and conditions of the divisibility of real and collateral security within the framework of Iraqi civil law and to analyze its practical effects on the legal relationship between creditor and debtor. The research method is descriptive–analytical and is based on library research of statutory texts, legal doctrine, and judicial decisions in Iraq. The findings indicate that the Iraqi Civil Code, in Article 1294, adopts the principle of indivisibility with respect to the registered mortgage; however, the law remains silent regarding other forms of real security, and judicial practice has interpreted the statutory provisions restrictively. It appears that, in certain cases, the question of divisibility of security warrants reconsideration.