Kuwait Court of Cassation principle number 2219

The seller's nonperformance of his contractual obligation to transfer ownership of the sold real property to the buyer where he does not own it or part of it. Breach of a contractual obligation. Its effect. The buyer's right to rescission and compensation. A personal right. The action thereon shall not be heard upon denial of that right after the lapse of fifteen years, where the defendant invokes this. The period begins from the date on which the seller's lack of ownership of the sold property is established and the buyer learns of this. This is not altered by the possibility that ownership of the sold property may subsequently devolve upon the seller or that the true owner may ratify the sale, with the resulting possibility of applying the provisions governing the sale of another's property. The basis for this: the application of the provisions of the 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. Relates to the ruler's authority to delimit judicial jurisdiction by time, place, and dispute. Its implication. The passage of time does not result in invalidity of the right. The implication of this: a litigant's acknowledgment of the claimed right despite the passage of time is binding upon him. - The acknowledgment of a right that precludes a plea barring the hearing. Is the acknowledgment that includes the continued existence of the claimed right as a present liability. The implication of this: admitting the original right while claiming 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 sold property—capable of division—to the buyer because he does not own that part. Is the right to partial rescission of the contract - 429 - Obligation and the right to compensation arising from breach of that obligation. Its implication. The acknowledgment that precludes the defendant from pleading a bar to the hearing of that action 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 barred from hearing the action where the conditions for its application are satisfied. This is not altered by whether the denying party is correct or mistaken in his acknowledgment. The basis for this. - Prohibiting the judge from hearing the action owing to the passage of time. Is based on mere denial without examining whether it is correct or mistaken. The reason for this. - The denial requiring that the action not be heard. Applies to all personal rights, whatever their type, so long as the period barring the hearing of the action thereon has elapsed. Its effect. Its application to an action for rescission for breach of the obligation to transfer ownership of the sold property to the seller. Article 438, Civil Code.