Kuwait Court of Cassation principle number 2734

The seller's failure to perform his contractual obligation to transfer ownership of the immovable property sold to the purchaser where he does not own it or part of it. Breach of a contractual obligation. Its effect. The purchaser's right to rescission and compensation. A personal right. An action asserting it shall not be heard, when it is denied, upon the expiry of fifteen years, provided the defendant invokes this. The period begins to run from the date on which the seller's lack of ownership of the property sold is established and the purchaser becomes aware thereof. This is not altered by the possibility that ownership of the property sold may subsequently devolve upon the seller or that the true owner may ratify the sale, with the ensuing possibility of applying the provisions governing sale of another's property. The basis: application of the provisions of law is determined by existing legal positions, not hoped-for and anticipated positions. - The right asserted in an action for partial rescission and compensation for the seller's breach of his obligation to transfer ownership of part of the divisible property sold to a purchaser because he does not own that part. It is the right to partial rescission of the contract and the right to compensation arising from breach of that obligation. Its consequence. The acknowledgment that precludes the defendant from pleading that such an action may not be heard is his acknowledgment of the claimant's right to rescission and compensation. His failure to acknowledge the right in that manner. Its effect. The judge is precluded from hearing the action whenever the conditions for applying the bar are met. This is not altered by whether the denying party is correct or mistaken in his acknowledgment. The basis thereof. - 504 - Obligation - The denial requiring that the action not be heard. It applies to all personal rights, whatever their nature, so long as the period barring actions concerning them has elapsed. Its effect. Its application to an action for rescission for breach of the obligation to transfer ownership of the property sold to the seller. Article 438, Civil Code.