Kuwait Court of Cassation principle number 102

Summary: - Acts emanating from public authorities, including decisions resulting in depriving the lessee of enjoyment of the leased premises or impairing such enjoyment. Regarded as force majeure. Effect. The lessor is not obliged to warrant against them but bears their consequences. Implication. The lessee may, depending upon the gravity of the impairment of enjoyment, request rescission of the contract or reduction of the rent. Condition: the authority's act must not arise from an act attributable to the lessee, and there must be a substantial diminution of enjoyment, unless otherwise agreed between the parties. The appealed judgment's departure from this view vitiates it and requires its cassation. Rule: It is established—in the jurisprudence of this Court—that the provision in Article 581 of the Civil Code that 1- "If an act emanating from a public authority within the bounds of the law results in a substantial diminution of the lessee's enjoyment, he may request rescission of the contract or reduction of the rent, unless the authority's act was for a reason attributable to him, and all the foregoing unless the agreement provides otherwise" means—as disclosed by the Explanatory Memorandum to the same Law—that acts emanating from public authorities, such as decisions issued by the administrative authority that result in depriving the lessee of enjoyment of the leased premises or impairing such enjoyment, are regarded as force majeure against which the lessor is not obliged to warrant, but whose consequences he bears. The lessee may therefore, depending upon the gravity of the impairment of enjoyment, request rescission of the lease or reduction of the rent, but provided that the authority's act does not arise from an act attributable to the lessee and that there is a substantial diminution of enjoyment, all unless otherwise agreed between the parties. That being so, and the appellant having maintained in his defence memorandum submitted before the Court of First Instance at the hearing of 14/6/2014 that he had not enjoyed the leased premises because the administrative authority refused to issue a licence for them for the activity agreed upon in the lease forming the subject matter of the case (restaurant and café), and requested rescission of the lease forming the subject matter of the case for this reason, substantiating this by submitting a certificate issued by Kuwait Municipality stating that the leased premises could not be licensed for this activity, which the first respondent did not dispute, and it being established from the papers that the competent administrative authority refused to issue a licence for the premises forming the subject matter of the case and decided to close them, making it impossible for the appellant to conduct his activity therein, he is entitled to request rescission. Since the appealed judgment departed from this view and rejected the request for rescission, it is vitiated in a manner requiring its cassation on this ground without examining the remaining grounds.