Kuwait Court of Cassation principle number 2169

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 a part thereof. A breach of a contractual obligation. Its effect. The purchaser’s right to rescission and compensation. A personal right. The action in respect thereof is not heard, upon its denial, after fifteen years have elapsed, whenever the defendant invokes this. The period begins to run from the date when the seller’s lack of ownership of the thing sold is established and the purchaser learns thereof. This is not altered by the possibility that ownership of the thing sold may subsequently devolve upon the seller or that the true owner may ratify the sale, with the consequent possibility of applying the provisions governing sale of another’s property. The basis thereof: application of the provisions of the law is determined by existing legal positions, not hoped-for and anticipated positions. - 419 - Obligation - The prohibition on the judge hearing the action merely upon expiry of the prescribed period for hearing it. It relates to the ruler’s authority to delimit adjudication by time, place, and litigation. Its consequence. The passage of time does not invalidate the right. The consequence thereof: a party’s acknowledgment of the right claimed, notwithstanding the passage of time, is binding upon him. - The acknowledgment of the right in the presence of which a plea of non-hearing is inadmissible. It is the acknowledgment that includes the continued existence of the right claimed as a present liability. The consequence thereof: admission of the original right while claiming discharge of liability constitutes 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 thing sold—which is divisible—to the 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 in the presence of which the defendant’s plea of non-hearing in that action 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 its application are met. This is not altered by whether the denying party is correct or mistaken in his acknowledgment. The basis thereof. - Preventing the judge from hearing the action owing to the passage of time. It rests on mere denial without examining whether it is correct or mistaken. The reason therefor. - The denial requiring non-hearing of the action. It extends to all personal rights, whatever their type, so long as the period for non-hearing of the action in respect thereof has elapsed. Its effect. Its application to an action for rescission for breach of the obligation to transfer ownership of the thing sold to the seller. Art. 438, Civil Code. Limitation of a travel-ban order: