Future Property Mortgage in Iraqi Civil Law: From the Permissibility of Undertakings Concerning Future Property to the Invalidity of Security Rights Under the Principle of Mortgage Specificity

Abstract

A future property mortgage refers to the creation of a security interest over property that does not yet exist at the time of the conclusion of the mortgage contract or has not yet become the property of the mortgagor, but whose existence or acquisition is expected in the future. Due to its relationship with the general rules of obligations, the principle of freedom of contract, and the specific regulations governing real rights, this type of mortgage constitutes an important issue in Iraqi civil law. The principal research question is whether, despite the recognition of obligations concerning future property under the general provisions of the Iraqi Civil Code, such property may validly serve as the subject matter of a security mortgage. The fundamental ambiguity lies in the extent to which a mortgage over future property is compatible with requirements such as the determinability of the mortgaged property, the mortgagor’s ownership, registrability, and the possibility of judicial sale through public auction. The objective of this study is to examine the legal and juristic foundations of future property mortgages, analyze the validity requirements of mortgaged property, and clarify the legal consequences of a mortgage created over property that does not yet exist or is not owned by the mortgagor at the time of contracting. Furthermore, this study seeks to elucidate the position of the Iraqi legislature, legal doctrine, and judicial practice regarding the validity or invalidity of mortgages over future property. The research adopts a descriptive-analytical methodology and is conducted through the examination of library sources, Iraqi civil and registration laws, the opinions of legal scholars, and relevant judicial decisions. The findings indicate that although obligations concerning future property are generally permissible under the rules governing obligations, mortgages over future property are, in principle, invalid under Iraqi law. This is because they conflict with the principle of mortgage specificity, the requirement of the mortgagor’s ownership, the determinability of the mortgaged property, registrability requirements, and the enforceability of the mortgage. Accordingly, it is necessary for the Iraqi legislature to provide an explicit legal provision concerning the invalidity of future property mortgages or to establish exceptional conditions under which such mortgages may be permitted.