Kuwait Court of Cassation principle number 106

Summary: - Tender and deposit where the subject is money or another thing that can readily be delivered without hardship to the creditor at the creditor's principal domicile or workplace. The manner: following the steps prescribed in Articles 299 and 300 of the Civil and Commercial Procedure Law, namely actual tender through a process server, who must record the substance of the creditor's response to the tender. The creditor's acceptance of the tender. Its effect: the deposit stage is not undertaken. An example concerning tender and deposit standing in place of valid payment discharging the purchaser's liability. Rule: The general rule concerning a contract of sale—as established in this Court's jurisprudence—is that it is a consensual contract concluded merely by the parties' agreement and requiring no particular form for its conclusion. It is concluded merely through the exchange of 2 corresponding expressions of intent, whether in writing, orally, or by gesture. Once agreement is reached on the sale, the thing sold, and the price, the sale is concluded, provided that its subject matter is not contrary to law, public order, or good morals. The determining consideration in characterizing contracts is what the contracting parties intended by them, and determining this falls within the trial court's authority. If it ascertains the contracting parties' intent, traces it to indications and grounds that rationally support it, and applies the correct rule of law to it, that intent may not be discussed anew before the Court of Cassation in an attempt to establish that the judgment erred in characterizing the contract. An action for the validity and enforceability of a sale contract is an action on the merits in which the court's authority extends to examining the contract's subject matter, scope, and enforceability. It requires that the subject matter of the contract be capable of transferring ownership, which necessitates the court's deciding the validity of the sale and verifying that it satisfies the conditions necessary for its conclusion and validity. Accordingly, that action encompasses every ground raised therein relating to the contract's existence or nonexistence, validity or nullity. Likewise, inferring an acknowledgment of a right from the documents, or negating it, is a matter for the trial judge according to the circumstances of each action, provided that the judge bases the decision in that regard on sufficient grounds. The import of Articles 299 and 300 of the Civil and Commercial Procedure Law—as the general procedural law where no differing provision appears in a special law—and as stated in the Explanatory Memorandum, is that, if the debt consists of money or another thing that can readily be delivered without hardship to the creditor at the creditor's principal domicile or workplace, the debtor must make a real, actual tender to the creditor through a process server. The notice must state the conditions of the tender and identify the thing tendered. The process server then records the substance of the creditor's response to that tender, whether acceptance or refusal. If the preceding stage—the actual tender stage—ends with the creditor's acceptance of the tender, there is no need to proceed to the second stage, namely deposit. If, however, the creditor refuses the actual tender, the second stage, deposit, must then be undertaken. This means that, for tender and deposit to produce their effect as a means of payment, they must be effected in accordance with these 2 Articles. That being so, the challenged judgment based its ruling on the validity and enforceability of the sale contract dated 28/2/2011 on its stated reasons that the elements of its conclusion and the conditions of its validity and enforceability were present, consisting of express offer and acceptance and a subject matter capable of being dealt in, in exchange for a monetary price of a specified amount. The 2 appellants and the remaining sellers had refused to undertake the procedures necessary to transfer ownership of the property sold to the first respondent and to sign the final sale contract, against which they raised no challenge impairing its evidentiary force, validity, or enforceability. The purchaser formally recorded their default when they refused, without acceptable justification, to appear before the Real Estate Registration Department to register the final contract, by serving notice on them on 20/11/2012 and depositing the agreed price on the same date for their account with the treasury of the Enforcement Department after they refused to receive it. That deposit stands in place of valid payment discharging the purchaser's liability. The challenged judgment therefore applied the law correctly, and the criticism directed against it in the grounds of appeal is unfounded. For the foregoing reasons, the appeal must be dismissed.