التعويض عن ضياع فرصة الانتفاع - دراسة مقارنة

Abstract

      The damage for which compensation is due and liability is established must be verified, and potential damage is not sufficient to establish liability or claim compensation. However, this theoretically clear standard for compensating for damage may raise some difficulties from a practical standpoint when it is difficult to distinguish between what is considered actual damage and what is considered potential damage, and of this type is the damage of depriving a person of an opportunity that was likely to bring him gain, such as missing the opportunity to appeal a judicial ruling due to a delay. The lawyer submits the appeal within the legal time limit, where there is a potential gain that may or may not have been achieved, and the defendant’s action has eliminated the possibility of its realization. In such a case, should this lost gain be viewed as potential damage for which no compensation is due? Deprivation of the same opportunity is seen as a real harm. And determining the appropriate compensation mechanism in estimating the value of the damage for the loss of the opportunity to benefit, which the Iraqi legislator did not address within the provisions of the Iraqi Civil Law No. (40) of 1951, in terms of clarifying the basis of compensation upon which the court issues its ruling to the injured party due to the loss of a likely gain for the injured party or due to the occurrence of The injured party suffers an avoidable loss, and also in terms of clarifying the elements of damage related to missing the opportunity, the existence of which the court takes into account before issuing a ruling to the injured party to compensate him for the damages of missing the opportunity to benefit.