Kuwait Court of Cassation principle number 192

Summary: - The coercive fine ordered by the judge. Its nature. An indirect means of threatening and compelling the debtor to perform in kind. It is not considered compensation for damage. The consequence thereof. In assessing the amount awarded, the judge does not consider proportionality to the damage but rather what he considers sufficient to threaten the debtor, and he may reconsider his award and order an increase in its amount. The condition for this. If he considers that his award has not deterred the debtor from persisting in non-performance. The judgment ordering it. Its nature. An interim judgment that is not enforceable. The reason for this. It does not conclusively establish the existence of the debt, and the matter must be resubmitted to the court to determine the amount of final compensation payable by the debtor as a result of non-performance or delay therein. Cessation of its rationale. Its condition. The debtor’s adoption of a final position, either by performing or by persisting in non-performance. The effect thereof. The judge reconsiders his judgment to decide the merits. Performance by the debtor. Its consequence. Only compensation for delay in performance is awarded against him. His—the debtor’s—persistence in non-performance. Compensation resulting therefrom must be awarded against him. In both cases, the judge must take account of the damage suffered by the creditor and any obstinacy displayed by the debtor. Article 292, Civil Code. - The papers contain nothing indicating that the appellant obtained a final judgment for the compensation due to him as a result of the first respondent’s failure to perform his obligation in kind adjudged against him by the irrevocable judgment delivered in the aforementioned action. Its consequence. Enforcement may not be levied against him under the coercive fine imposed upon him therein. The effect thereof. No weight is to be given to the appellant’s contention that the amount of that fine can be determined by the number of days of delay in performance. The reason for this. The judgment under which enforcement is undertaken is the judgment awarding final compensation for non-performance or delay therein, not the judgment imposing the coercive fine. The challenged judgment’s adherence to this view and its ruling that the coercive fine imposed by that judgment may not be enforced, on the basis that the judgment imposing it is interim and unenforceable. Correct. Rule: The provision in Article 292 of the Civil Code that “1- If performance of the obligation in kind is impossible or inappropriate unless undertaken by the debtor himself, the creditor may seek a judgment ordering the debtor to perform it and to pay a coercive fine if he refrains from doing so. 2- If the court considers the amount of the fine awarded insufficient to compel the debtor to perform, it may increase the fine whenever it considers there is reason for an increase. 3- If performance in kind is effected, or the debtor persists in non-performance, the court shall determine the amount of compensation payable by the debtor for non-performance or delay therein, taking account of the damage suffered by the creditor and the obstinacy displayed by the debtor,” indicates—as disclosed by the Explanatory Memorandum to the aforementioned Law—that the coercive fine ordered by the judge is not compensation for damage, but rather a means of threatening the debtor to compel him to perform. Accordingly, in assessing the amount awarded, the judge does not consider proportionality to the damage but rather what he considers sufficient to threaten the debtor. Therefore, if he considers that his award has not deterred the debtor from persisting in non-performance, he may reconsider and increase the amount of the fine. So long as the fine is merely a threat to the debtor, the judgment imposing it is an interim judgment and is not enforceable. Its rationale ceases if the debtor adopts a final position, either by performing or by persisting in non-performance, whereupon the judge reconsiders his judgment to decide the merits. If the debtor has performed, the judge awards against him only compensation for delay in performance; if the debtor persists in non-performance, the judge awards compensation for non-performance. In both cases the judge takes account of the damage suffered by the creditor, as well as any obstinacy displayed by the debtor. That being so, and since the coercive fine ordered by the judge is not compensation to the creditor for damage but rather an indirect means of compelling the debtor to perform in kind, the judgment imposing it is interim and unenforceable, as it does not conclusively establish the existence of the debt and the matter must be resubmitted to the court to determine the amount of final compensation payable by the debtor as a result of non-performance or delay therein. The papers contain nothing indicating that the appellant obtained the final judgment for compensation due to him for the first respondent’s failure to perform his obligation in kind adjudged against him by the irrevocable judgment delivered in Action No. 1679 of 2006, Plenary Civil. Consequently, enforcement may not be levied against him under the coercive fine imposed upon him therein. This is not altered by the appellant’s contention that the amount of that fine can be determined by the number of days of delay in performance, because it is the judgment awarding final compensation for non-performance or delay therein—not the judgment imposing the coercive fine, as previously explained—under which enforcement is undertaken. Since the challenged judgment adhered to this view and granted the first respondent the relief sought in the action, namely that the coercive fine imposed upon him by the aforementioned judgment may not be enforced, on the basis that the judgment imposing it is interim and unenforceable, it correctly applied the law. The challenge to it on the matters stated in the two grounds of challenge is without basis and merits rejection.