Kuwait Court of Cassation principle number 130

Summary: Acts emanating from public authorities, including decisions resulting in depriving the lessee of enjoyment of the leased premises or impairing such enjoyment. Their classification as force majeure. Its effect: the lessor is not obliged to warrant against them, but bears their consequences. This means that the lessee may, according to the seriousness of the impairment of enjoyment, seek rescission of the contract or reduction of the rent. The condition: the authority’s act must not result from an act attributable to the lessee, and there must be a substantial reduction in enjoyment, unless the parties agree otherwise. The challenged judgment’s departure from this view renders it defective and requires its cassation. Rule: It is established—in this Court’s jurisprudence—that the provision in Article 581 of the Civil Code that 1- “If an act issued by a public authority within the limits of the law results in a substantial reduction in the lessee’s enjoyment, he may seek rescission of the contract or reduction of the rent, unless the authority’s act is for a reason attributable to him. 2-.......... 3-....... – All the foregoing applies unless the agreement provides otherwise” means—as disclosed by the Explanatory Memorandum to the same Code—that acts emanating from public authorities, and similarly decisions issued by the administrative authority that result in depriving the lessee of enjoyment of the leased premises or impairing such enjoyment, are considered force majeure against which the lessor is not obliged to warrant, but whose consequences he bears. The lessee may therefore, according to the seriousness of the impairment of enjoyment, seek rescission of the lease or reduction of the rent, provided, however, that the authority’s act does not result from an act attributable to the lessee and that there is a substantial reduction in enjoyment, all unless the parties agree otherwise. That being so, the appellant 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 contract forming the subject matter of the action (a restaurant and café). He sought rescission of the lease contract forming the subject matter of the action for this reason and substantiated that by submitting a certificate issued by Kuwait Municipality stating that the leased premises could not be licensed for that activity, which the first respondent did not dispute. It was established from the papers that the competent administrative authority refused to issue a licence for the premises forming the subject matter of the action and ordered their closure, making it impossible for the appellant to carry on his activity therein and entitling him to seek rescission. Since the challenged judgment departed from this view and rejected the request for rescission, it is defective in a manner requiring its cassation on this ground, without examining the remaining grounds.