Kuwait Court of Cassation principle number 15

Summary: - The supplementary oath. Its nature. A measure taken by the judge on his own initiative. The reason therefor. His desire to ascertain the truth so as to complete incomplete evidence in the case. The condition for administering it: the case must contain neither complete evidence nor be devoid of any evidence. A commencement of proof in writing is not complete evidence. - A document that may be considered a commencement of proof in writing: writing originating from the opposing party, not bearing that party’s signature, which makes the arrival of the legal transaction probable. - The judgment’s administering a supplementary oath without justification because its conditions were absent. Its reliance on it and on other presumptions in imposing an obligation. Defective inference requiring its cassation. An example. Rule: It is established in this Court’s case law that the supplementary oath is merely a measure taken by the judge on his own initiative out of a desire to ascertain the truth so as to complete incomplete evidence in the case. Administering it requires that the case contain neither complete evidence nor be devoid of any evidence, as where the case contains incomplete evidence, such as a commencement of proof in writing making the claimed right probable, although insufficient by itself to constitute complete evidence, thus requiring its completion by the supplementary oath. A document that may be considered a commencement of proof in writing is writing originating from the opposing party, not bearing that party’s signature, which makes the existence of the alleged legal transaction probable. That being so, the respondent relied, in respect of his indebtedness to the appellant for the amount claimed, upon 2 photocopies of 2 letters sent by fax attributed to a woman called (Umm Tariq). The appellant repudiated these 2 letters, denied her indebtedness to the respondent and requested that he produce their originals, which he did not produce, thereby depriving them of any evidentiary force. He also failed to bring his witnesses when the first-instance court referred the case for evidentiary investigation to prove his claim, whereupon it dismissed the claim because the record was devoid of evidence. That being so, and as the Court of Appeal administered the supplementary oath to the respondent in this state of affairs contrary to the requirements of the law because its conditions were absent, the challenged judgment’s reliance on the aforementioned presumptions and the supplementary oath in ordering the appellant to pay the disputed debt renders it tainted by defective inference that led it to an error in applying the law, requiring its cassation.