Kuwait Court of Cassation principle number 181

Summary: - An action for the non-enforceability of a disposition. The knowledge that starts its three-year limitation period. Its nature. The creditor’s knowledge that the challenged disposition was made, of the debtor’s insolvency, and of the fraud committed by him. Article 317, Civil Code: establishing this knowledge. A factual matter within the trial court’s independent determination, without supervision by the Court of Cassation. The condition for this. Its finding must be reasonable. An example of the appellant bringing his action for the non-enforceability of the first respondent’s disposition of the properties in dispute within the legally prescribed period pursuant to Article 317 of the Civil Code. Rule: It is established—in this Court’s jurisprudence—that if a litigant raises a material defense capable of changing the outcome of the case and supports it with documents submitted to the trial court, that court must scrutinize the defense in light of what those documents indicate and pronounce upon it; otherwise, its judgment is vitiated by inadequate reasoning. The provision in Article 317 of the Civil Code that “An action for the non-enforceability of a disposition shall be time-barred upon the expiry of three years from the day on which the creditor became aware of the ground for the non-enforceability of the disposition against him....” indicates that the knowledge that starts the three-year limitation period for an action for the non-enforceability of a disposition is the creditor’s knowledge that the challenged disposition was made, of the debtor’s insolvency, and of the fraud committed by him. Establishing this knowledge is a matter of understanding the facts of the case, independently determined by the trial court without supervision by the Court of Cassation, provided its finding is reasonable. That being so, and since it is established from the papers that appellate judgment No. 1700 of 1998, Commercial, establishing the debt against the first respondent, was delivered on 22/3/2003; that the enforcement papers submitted by the appellant to the trial court establish that the enforcement file was opened on 31/3/2003 without there being anything against which enforcement could be levied; and that the date of issuance of copies of the registered instruments pursuant to which the first respondent disposed of his properties is 7/10/2009, the latter date is therefore the date on which the appellant became aware of the dispositions sought to be declared unenforceable against him. Since he brought the present action before the court of first instance on 12/1/2010, he brought it within the legally prescribed period under the aforementioned Article 317 of the Civil Code. Since the challenged judgment departed from this view and ruled that the appellant’s right to bring the action was time-barred because more than three years had elapsed from the date of knowledge of the ground for the non-enforceability of the dispositions, it is defective in a manner requiring its cassation.