Cassation principles Pleadings — Part Two
Ministry of Justice — Court of Cassation — Technical Office · من 1/10/1972 حتى 31/12/2011 · 3,806 available principles
Search this collectionسلطتها حيال الدفاع في الدعوى
Principle 3614Invoking the application of foreign legislation. A material fact for which evidence must be adduced. - Requiring the parties to submit the provisions of the foreign law upon which they rely. Assessment thereof is a mattePleadings — Part Two · Source page ٦٨٢- Principle 3615Documents submitted by a litigant during the hearing of the action and the pursuit of its proceedings before the court or the expert. Their being regarded as papers of the action on which the court may rely in its judgmePleadings — Part Two · Source page ٦٨٢
- Principle 3616The defense to which the court of merits is obliged to respond. Its nature. - The court of merits. Not obliged to direct a party to submit evidence of his defense or draw his attention to the requirements of that defensePleadings — Part Two · Source page ٦٨٢
- Principle 3617The court of merits. It must address every material defence advanced by a party, examine it and pronounce upon it. Its failure to do so. Its effect. Its judgment is vitiated by deficient reasoning and infringement of thePleadings — Part Two · Source page ٦٨٣
- Principle 3618The court of merits is not obliged to respond to any defence or plea not presented to it in an unequivocal form that reaches the court's hearing and indicates its proponent's insistence upon it. An example.Pleadings — Part Two · Source page ٦٨٣
- Principle 3619A material defense. The court of merits must address it. Failure to do so taints the judgment with insufficient reasoning.Pleadings — Part Two · Source page ٦٨٣
- Principle 3620The trial court. Obliged to respond only to a defense founded on a valid basis.Pleadings — Part Two · Source page ٦٨٣
- Principle 3622The trial court. No fault attaches to it if it does not order documents or papers to be added to the record in response to a party's request.Pleadings — Part Two · Source page ٦٨٣
- Principle 3623Requiring the court of merits to rule on a defence for which no supporting document or evidence has been submitted to it. Impermissible.Pleadings — Part Two · Source page ٦٨٣
- Principle 3624The court's directing the parties to submit evidence supporting their defence or drawing their attention to its requirements. Not necessary.Pleadings — Part Two · Source page ٦٨٣
- Principle 3626Material defense. A defense for which the party asserting it presents evidence before the court and which, if valid, would change the view taken of the case. Effect: the court’s obligation to respond to it. Example concePleadings — Part Two · Source page ٦٨٤
- Principle 3627The court is not obliged to respond to a defense that does not rest on a valid legal basis. Example.Pleadings — Part Two · Source page ٦٨٤
- Principle 3628The trial court. It is not obliged to direct the litigants to provide evidence of their defence or draw their attention to the requirements of that defence.Pleadings — Part Two · Source page ٦٨٤
- Principle 3629Court of merits. Its obligation to address every defence maintained by a litigant whenever it is material. Its failure to do so. Renders its judgment deficient. - The appellant’s insistence in her defence that the medicaPleadings — Part Two · Source page ٦٨٤
- Principle 3630A party raising a material defense and substantiating it with documents. The court’s failure to scrutinize it in light of its significance. Deficiency in reasoning. - The appellant’s insistence that he had no knowledge oPleadings — Part Two · Source page ٦٨٤
- Principle 3631The material defense that the court of merits must address. It is a defense which, if valid, may change the view taken of the case, being founded on a fact established by evidence in accordance with the rules prescribed Pleadings — Part Two · Source page ٦٨٤
- Principle 3632A defense that does not rest on a sound legal basis. The court of merits is not obliged to respond to it. Example of a manifestly unfounded defense.Pleadings — Part Two · Source page ٦٨٥
سلطتها في استخلاص الصورية أو انتفائها
Principle 3634Material defense. Its nature. The court of merits must address it, scrutinize it, and express its opinion on it. Its disregard of a request relating to proof is conditional upon its finding sufficient material in the casPleadings — Part Two · Source page ٦٨٥- Principle 3635Regulating the offering of company shares for subscription in a manner safeguarding the interests of investors and companies. Its condition. That the subscription be genuine. This relates to public order. Prohibition of Pleadings — Part Two · Source page ٦٨٥
استخلاص صورية العقد
Principle 3636Assessment of the existence or absence of simulation, inference of presumptions, and examination of evidence and documents fall within the authority of the court of fact. The condition therefor. Example concerning sound Pleadings — Part Two · Source page ٦٨٥سلطتها في استخلاص القوة القاهرة
Principle 3637Ascertaining the facts, assessing and weighing the evidence, and inferring the genuineness or fictitiousness of the plea of simulation. Within the trial court’s authority, without review by the Court of Cassation, so lonPleadings — Part Two · Source page ٦٨٦سلطتها في تحديد الدين الأشد كلفة على المدين
Principle 3638Treating the incident as force majeure. Its condition: that it be impossible to foresee and impossible to avert. - Assessment of the existence of proof that force majeure is present. A substantive matter. 31- Its authoriPleadings — Part Two · Source page ٦٨٦منح المدين أجلاً للوفاء (نظرة الميسرة)
Principle 3639Assessment of evidence of collusion between the debtor and the transferee and of the latter's knowledge of the debtor's insolvency. Within the authority of the court of merits. 32- Granting the debtor a period for paymenPleadings — Part Two · Source page ٦٨٦- Principle 3640The debtor's making his obligation subject to a term. Its implication. The creditor's right to request that an appropriate date for performance be fixed. Its effect. The court fixes that date, taking into account the debPleadings — Part Two · Source page ٦٨٦
سلطتها في تقدير توافر التقصير أو التأخير في التقرير بما في الذمة
Principle 3641A period of grace. The condition for granting it. Article 410 of the Civil Code. - The judge may—unless prohibited by a provision of law—grant the debtor a period of grace to discharge his debt if its conditions are satiPleadings — Part Two · Source page ٦٨٦توقيع الجزاء بإلزام المحجوز لديه بدين المحجوز عليه
Principle 3642Exempting the garnishee from the sanction prescribed in Article 237/1 of the Civil Procedure Law. Does not preclude ordering the garnishee to pay the costs of the action brought against it because it committed one of thePleadings — Part Two · Source page ٦٨٧سلطتها في تقدير الشروط اللازمة لإصدار أمر الحجز وتوقيعه
Principle 3643Imposition of the sanction prescribed in Article 237 of the Code of Procedure, requiring the garnishee to pay the attaching creditor’s debt for committing one of the acts exhaustively specified therein. Discretionary forPleadings — Part Two · Source page ٦٨٧- Principle 3644Attachment of the debtor’s property held by third parties. Condition for authorizing it. The attachment applicant’s right must be established by an apparent basis indicating its existence. Assessment thereof and of the gPleadings — Part Two · Source page ٦٨٧
- Principle 3645Assessment of the existence of the attachment applicant’s right and its conditions. A matter of fact independently assessed by the court of merits without review by the Court of Cassation. The condition therefor. ExamplePleadings — Part Two · Source page ٦٨٨
- Principle 3646Attachment of the debtor's property held by a third party. The condition for imposing it. Assessment of the grounds for issuing an order imposing attachment. A matter for the court of merits, so long as it is reasonable.Pleadings — Part Two · Source page ٦٨٨
- Principle 3647Ordering a precautionary attachment and assessing its grounds and the grounds of a grievance against it. Within the authority of the issuing judge and, thereafter, the court hearing the grievance. - Addressing the meritsPleadings — Part Two · Source page ٦٨٨
- Principle 3648Attachment of the debtor’s property held by third parties. Conditions of the debt. Certainty of existence and establishment on an apparent basis. Apparent circumstances indicating the absence of the applicant’s right, orPleadings — Part Two · Source page ٦٨٨
- Principle 3649Attachment of the debtor’s assets held by a third party. Its condition. The attachment applicant’s right must be established by an apparent basis indicating its existence. Assessing the existence of the right in this senPleadings — Part Two · Source page ٦٨٨
- Principle 3650Imposing a precautionary attachment on the debtor's assets held by third parties. Its conditions. Their absence. Its effect. - Assessment of whether its conditions are satisfied is within the authority of the court heariPleadings — Part Two · Source page ٦٨٨
- Principle 3651Imposition of the sanction on the garnishee in the event of his refusal to declare what is owed, alteration of the truth, or concealment of the papers required to be deposited in support of the declaration. DiscretionaryPleadings — Part Two · Source page ٦٨٨
- Principle 3652Assessing the existence of the attachment applicant’s right and its conditions. A matter of fact. The trial court alone assesses it, without review. The condition therefor.Pleadings — Part Two · Source page ٦٨٩
في توقيع عقوبة الحبس أو اتخاذ التدابير العلاجية
Principle 3653Basing the judgment on an understanding contrary to what is established in the documents or on something having no established basis therein. Its effect. Nullity of the judgment. - A debt concerning which a judicial dispPleadings — Part Two · Source page ٦٨٩سلطتها في تفسير الأحكام
Principle 3654The right to impose a sentence of imprisonment or adopt the therapeutic measure of placement in a treatment facility where addiction is established, as prescribed in Article 33/1, 2 of Law 4 of 1983 concerning the combatPleadings — Part Two · Source page ٦٨٩- Principle 3656Interpreting judgments submitted in the action as documents is within the power of the court of merits, provided that the interpretation is reasonable. Where the judgment is clear. And conveys a specific meaning. No depaPleadings — Part Two · Source page ٦٨٩
- Principle 3657The trial court’s authority to interpret judgments invoked before it. It is like its authority to interpret documents.Pleadings — Part Two · Source page ٦٩٠
- Principle 3658The court of merits has authority to interpret judgments just as it has authority to interpret documents. The condition thereof.Pleadings — Part Two · Source page ٦٩٠
- Principle 3659The court of merits has authority to interpret judgments invoked before it and all other documents submitted by the litigants in the action.Pleadings — Part Two · Source page
- Principle 3660Criminal judgment of acquittal. It has binding effect if it negates attribution of the incident to the accused. The court merely doubting the evidence because it is not satisfied with it. It has no binding effect in thisPleadings — Part Two · Source page
- Principle 3661Interpreting judgments relied upon before the court, like other documents submitted in the action. Within the authority of the trial court. It may adopt the interpretation it considers intended, without being confined toPleadings — Part Two · Source page
- Principle 3662Understanding judgments invoked before the trial court. This is akin to its authority to interpret documents submitted to it, and it may adopt what it considers intended by them and consistent with the contents of their Pleadings — Part Two · Source page
- Principle 3663The court of merits has authority to interpret judgments relied upon before it, just as it has authority to interpret documents. The condition therefor. - 690 - ProcedurePleadings — Part Two · Source page
- Principle 3664Recourse to the court that rendered the judgment for its interpretation. Its prerequisite: ambiguity or obscurity in the operative part of the judgment. Its clarity. Does not permit recourse to that court. The reason: soPleadings — Part Two · Source page
- Principle 3665Considering the action ready for determination. Falls within the trial court’s authority. It is not at fault if it does not respond to a defense unsupported by evidence. 39- Its authority to permit litigants to submit mePleadings — Part Two · Source page
- Principle 3666Presentation of grounds of defense. A matter for the litigants alone. - The court’s permission to litigants to submit memoranda when reserving the case for judgment. Not necessary. 40- Its power to infer what constitutesPleadings — Part Two · Source page
- Principle 3667Inferring what constitutes ratification by the principal of his agent's act exceeding the limits of the agency. Within the authority of the court of merits. The condition for this. 41- Its authority to determine the remuPleadings — Part Two · Source page