Kuwait Court of Cassation principle number 13

Summary: - A private instrument under Article 13 of the Evidence Law. It is considered to emanate from the person who signed it unless he expressly denies the signature, seal, or fingerprint attributed to him. Consequence: It constitutes proof of the correctness of its contents against the person whose signature upon it is attributed to him, irrespective of whether the body of the instrument is written in his handwriting or that of another. Loss of the instrument's evidentiary force. Condition: An express denial of the signature itself or the seal affixed to it. Denial of all or part of the contents of the instrument. Effect: This is not considered denial of the private instrument within the meaning of the aforementioned article. Its full evidentiary force remains. An example concerning a cheque. Rule: Article (13) of the Evidence Law—as established in the jurisprudence of the Court of Cassation—in providing that a private instrument is considered to emanate from the person who signed it unless he expressly denies the signature, seal, or fingerprint attributed to him, makes the private instrument proof of the correctness of its contents against the person whose signature upon it is attributed to him, irrespective of whether the body of the instrument is written in his handwriting or that of another. The instrument loses its evidentiary force only if he denies the signature itself or the seal affixed to it and his denial is express. If he confines himself to denying all or part of the contents of the instrument, he has not denied the private instrument within the meaning intended by the article, and the instrument retains its full evidentiary force.... There is nothing in the law requiring the particulars of a cheque to be written in the drawer's handwriting; it is only necessary that the cheque bear the drawer's signature, because if it lacks that signature it is a paper of no value and is disregarded in dealings. The drawer's signature on a blank cheque without entering the amount which the payee is entitled to receive from the drawee, or without recording a date on it, signifies that its issuer authorized the payee to insert those particulars before presenting it to the drawee. The burden of proving the existence, nature, and extent of that authorization necessarily falls away from the payee and shifts to the person alleging the contrary of what is apparent. The court of merits has full authority to ascertain and understand the facts of the action, identify its true nature and the evidence presented to it, examine the indications and documents submitted therein, weigh them against each other, prefer those in which it has confidence and discard the rest, and draw the conclusions it considers consistent with the facts of the case. It cannot be faulted for accepting any evidence of which it is convinced and basing its judgment on sound reasons leading to the conclusion it reached and having an established basis in the case papers. It is not required to follow the litigants through their various assertions and lines of defense and respond independently to every argument, statement, or request they have raised, because the establishment of the truth of which it is convinced, and for which it cites evidence, constitutes an implicit response defeating all else. Article (32/2) of Decree-Law No. 39 of 1980 concerning Evidence in Civil and Commercial Matters provides: "If the challenge is material to the dispute, the facts and documents of the case are insufficient to convince the court of the instrument's authenticity or forgery, and it considers that the investigation requested by the challenger is productive and permissible, it shall order investigation by comparison, witness testimony, or both." This means that, when deciding a challenge alleging forgery, the court of merits is not obliged to grant the challenger's request for investigation and to direct the opposing party to produce documents in his possession, as a request relating to means of proof, where it finds in the case papers and other elements sufficient material to form its conviction for deciding the challenge. Its assessment in this regard is not subject to review by the Court of Cassation, as it is established that it has absolute authority to assess the evidence it accepts in establishing or negating forgery of the challenged instrument, so long as it relies upon sound reasons. That being so, the challenged judgment based its decision to uphold the first-instance judgment, insofar as it rejected the grievance of the appellant in his representative capacity against the payment order issued against him, on its conclusion that he remained liable to the respondent for the debt evidenced by the cheque underlying the order challenged by the grievance, and that a cheque is an instrument of payment under which the debtor (drawer) is not discharged except by payment of its value. The appellant in his representative capacity did not submit proof that he had paid its value or had been discharged from the debt evidenced by it, although he bore that burden. His liability for the amount claimed was therefore established, and the judgment consequently ordered him to pay that amount, disregarding his request for referral to an expert to investigate his allegation of forgery of the cheque evidencing the indebtedness. It stated that the forgery challenge against the cheque underlying the action was unproductive because the signature affixed to the cheque was attributed to the legal representative of the appellant in his representative capacity, not personally, particularly since the drawee bank's statement did not establish that the signature affixed to the cheque in dispute differed from the signature approved by the bank. It consequently ordered the appellant in his representative capacity to pay the adjudged amount. The conclusion reached by the challenged judgment was sound, had its established source in the case papers, and was sufficient to support its ruling in this regard. It contained an implicit response defeating all the arguments of the appellant in his representative capacity. The criticism on these grounds thus amounts to factual argument concerning the court of merits' discretionary authority to assess the evidence presented to it, which may not be raised before the Court of Cassation. The criticism is therefore without basis.