Effects of Exercising Public Authority Privileges of Administration in Administrative Contracts: A Comparative Study between Iraq and Iran

Abstract

This study examines the effects of the administration’s exercise of public authority privileges in administrative contracts through a comparative analysis of Iraqi and Iranian law. These privileges constitute one of the most prominent features distinguishing administrative contracts from civil contracts. As the body responsible for ensuring the proper functioning of public services and protecting public funds, the administration enjoys exceptional powers in relation to its contracting party. These include the powers of supervision and direction, unilateral modification of contractual terms, imposition of administrative sanctions, withdrawal of work from the contractor, and unilateral termination or rescission of the contract whenever required by the public interest.

The research problem concerns the extent to which exercising these privileges affects the legal position of the contracting party and the financial equilibrium of the administrative contract, as well as the legal controls that prevent the abuse of such powers. The study also seeks to determine whether these privileges enhance the administration’s effectiveness in executing administrative contracts or may impose an undue burden on the contracting party when not accompanied by adequate legal safeguards.

The study adopts a comparative analytical approach by examining the relevant legal provisions and jurisprudential and judicial trends in Iraq and Iran. The comparative analysis shows that the Iraqi legal system emphasizes the effects of administrative privileges through direct execution, administrative sanctions, and the withdrawal of work from the contractor. In contrast, the Iranian system tends to focus on regulating pre-contractual procedures, financial and regulatory safeguards, and oversight of the legality of administrative actions.

The study concludes that the effects of public authority privileges in administrative contracts are not limited to enabling the administration to ensure contractual performance and achieve the public interest; they also extend to the contracting party’s rights and the contractual equilibrium. Accordingly, these privileges should not be understood as an expression of the administration’s absolute superiority but as functional powers restricted by the principles of legality, proportionality, transparency, good faith, and the restoration of the contract’s financial equilibrium whenever it is disrupted.

The study recommends that these privileges be regulated more clearly under Iraqi and Iranian law, with their effects precisely defined and adequate safeguards established for contracting parties. This would achieve an appropriate balance between protecting public services and strengthening confidence in contracting with the administration.