PROF. DR. HADI HUSSEIN AL KAABI,NAMEER HISAB NOOR
DOI: https://doi.org/This research aims to study the legal regulation of common error as an element of the apparent situations theory, tracing its historical development, the stages it has passed through, and the legislative, jurisprudential, and judicial positions on it. The research methodology is represented by the comparative analytical approach, through analyzing the legislative, jurisprudential, and judicial positions on common error in Iraq, Egypt, and France. The importance of the research emerges from the practical significance of the apparent situations theory. However, this is countered by the scarcity of recent studies on the element of common error. These studies do not match the practical importance of this vital topic, most of whose rulings have been formulated by the judiciary and jurisprudence in France. Therefore, we will conduct an in-depth study on the concept of common error and the mechanism of its application. The research concluded that common error is one of the elements of the apparent situations theory, and its basis is the Roman rule “communis error facit jus". Common error is an element of control, balance, and preference between conflicting interests: the interest of the right holder in not having his property expropriated, and the interest of third party in correcting their behavior with the apparent person, and the priority is given to the interest that is most taken care of, which is the interest whose owner has adhered to the limits of the law. The research recommends that the Iraqi legislator regulate the element of common error with precise, detailed provisions within the civil law, so that the path to its application is clear, and the judiciary will not find any difficulty in applying it directly.
