Kuwait Court of Cassation principle number 3077

The seller's failure to perform the contractual obligation to transfer ownership of the real property sold to the buyer where the seller 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. An action asserting it is not heard, upon its denial, after the passage of 15 years, whenever the defendant invokes this. The period begins running from the date the seller's lack of ownership of the thing sold is established and the buyer becomes aware of it. This is not altered by the possibility of ownership of the thing sold subsequently devolving upon the seller or of the true owner ratifying the sale, and the resulting possibility of applying the provisions of - 600 - Sale Sale of another's property. Basis thereof: the application of the provisions of law depends on 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 the obligation to transfer ownership of part of the divisible thing sold to a buyer because the seller 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 import. The acknowledgment that precludes acceptance of the defendant's plea barring the hearing of that action is the defendant's acknowledgment of the claimant's right to rescission and compensation. 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 satisfied. This is not altered by whether the denying party is correct or mistaken in the acknowledgment. Basis thereof. - Denial entailing the barring of the hearing of an action. It applies to all personal rights, whatever their type, so long as the period barring the hearing of an action asserting them 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 of the Civil Code.