Kuwait Court of Cassation principle number 2048

The seller’s failure to perform his contractual obligation to transfer ownership of the real property sold to the purchaser where he does not own it or a part thereof. A breach of a contractual obligation. Its effect. The purchaser’s right to rescission and compensation. A personal right. An action thereon is not heard upon denial after fifteen years have elapsed, whenever the defendant invokes that. Commencement of the period from the date 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 of ownership of the property sold devolving upon the seller at a later time or the true owner’s ratification of the sale, and the consequent possibility of applying the provisions governing sale of another’s property. The basis thereof: application of the provisions of law is determined by existing legal positions, not hoped-for and anticipated positions. - Prohibiting the judge from hearing the action merely upon expiry of the prescribed period for hearing it. This relates to the ruler’s authority to delimit adjudication by time, place and dispute. Its implication. The passage of time does not invalidate the right. The implication thereof: a litigant’s acknowledgment of the right claimed, despite the passage of time, binds him. - The acknowledgment of a right with which a plea that the action may not be heard is inadmissible. It is the acknowledgment that includes the continued existence, at present, of the right claimed as a liability. Its implication: admitting the original right while asserting discharge of liability is an acknowledgment of the right. - The right claimed 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 the breach of that obligation. Its implication. The acknowledgment with which the defendant’s plea that such action may not be heard is inadmissible 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 it are satisfied. This is not altered by whether the denying party is correct or mistaken in his acknowledgment. The basis thereof. - 391 - Obligation - Prohibiting the judge from hearing the action because of the passage of time. It rests on mere denial without examining whether it is correct or mistaken. The rationale therefor. - The denial requiring that the action not be heard. It applies to all personal rights, whatever their kind, so long as the period barring the hearing of an action thereon 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. Types of extinctive prescription: - Limitation of taxes, fees and telephone subscriptions: