Payment for non-performance of administrative contracts A comparative study (Iraq، Egypt and Algeria)

At a time when government departments and administrative bodies are forced to run public utilities by contracting with certain persons from the law on administrative contracts، completely different from the well-known civil contracts in their essence and one of the parties to them، since the administrative bodies are a public moral person and the applicable law is public law Also، these contracts may be implemented by different means and certain methods، and they contain conditions that may be unusual in civil contracts، The contractor with the administrative bodies cooperates، deals and contracts with the management of the public utility to run his affairs in order to exploit the expertise and technical knowledge that the contractor has، and this service is for the benefit and not For limited individual interests، and the conditions that are included in the contract are a fact that may be expressly stipulated or by giving the contractor a space of rights that have no equivalent in special laws or may be stipulated in laws and regulations،

With regard to internal administrative contracts، they are subject to a legal system different from the legal system recognized in civil contracts، and it is based on two basic principles، the first is the priority of the public interest over the private interest of individuals، which requires the administration in these contracts to enjoy many powers and privileges that the contractor does not have، The second is to ensure the regular and steady functioning of the public facility، which requires the contractor with the administration to carry out his obligations with it even if the administration fails to implement its obligations،

 Although it is assumed that the principle of the regular and steady functioning of public utilities will stand as an obstacle to the application of the non-implementation payment within the scope of internal administrative contracts، However، the Egyptian and Algerian administrative judges، as well as the Iraqi، approved its application within the scope of these contracts in specific cases and under certain conditions،

For these contracts، the administration can compel the contracting party to forcibly fulfill his obligation without the need to go to the courts and bring the judiciary into a party to the dispute، in return that the contractor is not able to possess this authority or even something similar، because he is not able to compel the administration and confront it in the event of its failure and breach the obligations assumed by him towards this contractor، but he may be forced to carry out all his obligations or the most important part of them in return for his inability to refrain، as he does not even have the right to refrain from implementation،

   When applying the general legal rules، we find in them what is called the payment of non-implementation، and from here we have the idea of ​​a scientific study of this topic and its problematic and importance as well، so what is the possibility of applying the payment of non-implementation to administrative contracts compared between Iraqi، Egyptian and Algerian law in a legal and comprehensive comparative study، The importance of scientific، legal and academic study is also embodied in shedding light on administrative contracts that are characterized by scarcity and lack of studies in them، which will make this study one of the legal research that presented modern provisions and accurate comparisons in a topic that is less addressed،