Kuwait Court of Cassation principle number 210

Summary: - An action claiming engineers' fees. It shall not be heard, upon denial, after 5 years. The period begins to run from the time the engineer completes his work, even if he continues to perform other services or work for his client. Article 440, Civil Code. Rule: It is established in the case law of this Court that the provision in Article 440 of the Civil Code that an action shall not be heard, upon denial, after 5 years if it concerns a right of doctors ... lawyers and engineers .. and others practising liberal professions, provided that these rights are due to them in return for professional work performed or expenses incurred, and the provision in Article 1 of the same Code that the period prescribed for barring the hearing of actions concerning the rights stipulated in Articles 440, 442 begins to run from the time the creditors complete their expenditures, even if they continue to perform other expenditures, indicate that, where the right concerns (engineers') fees, the action shall not be heard, upon denial, after 5 years. This period begins to run from the time the engineer completes his work, even if he continues to perform other services or work for his client. Establishing the event from which prescription begins is a matter assessed by the trial judge and is not subject to review so long as his finding is reasonable. Although the trial court may ascertain the true relationship linking the parties to the dispute from its facts and the evidence submitted therein, discern the meaning of agreements, and investigate the parties' common intention by any means it considers appropriate, as this falls within understanding the facts of the case, this is conditional upon its ascertainment being supported by the wording of those agreements and not departing from their apparent meaning. The decisive consideration in characterizing contracts is what the contracting parties truly intended by them. Ascertaining this falls within the trial court's authority, provided that it identifies the contracting parties' intention and traces it to indications and grounds that rationally lead to it, then correctly characterizes the contract in a manner consistent with the apparent meaning of its wording and applies the correct rule of law thereto. It is also established that a contract of agency is a contract concerning a material act and is only for remuneration, and that the contractor provides at his own expense the expenditures he needs because they are considered part of the expenses he took into account when calculating his remuneration. Accordingly, and since it is apparent from the papers that the letter of the late /..... No. M/11/83/B/5 dated 22/2/1983, in which he entrusted the first respondent with bringing a judicial action against Kuwait Municipality to claim compensation for the heirs of the late /...... for the remainder of the land under Deed No. 3813/59, Plan No. (20491), situated in Jahra, after the Municipality claimed that the greater part of it lay outside the planning boundary and compensated them for it in the amount of 450 dinars, concerns the latter's status as an engineer specializing in preparing plans and survey maps and having the ability to identify the heirs' land that is the subject of the aforementioned agreement, for the purpose of establishing that it falls within the general planning boundary, his work accordingly does not constitute legal acts but rather material work and technical expertise. The legal procedures he undertook, such as issuing powers of attorney and others, were merely a means of serving that purpose. The right claimed therefore falls under Article No. (440) of the Civil Code and is subject to 5-year prescription from the date it became due, when the judgment rendered in Compensation Action No. 1206 of 1983, Plenary Civil—Government, became irrevocable upon issuance of the judgment in Civil Cassation Appeal No. 22 of 1994 on 14/11/1994. Since he brought his present action on 8/5/2008, the first respondent's right—the subject of the action—had lapsed by 5-year prescription. Since the challenged judgment departed from this view and rejected the appellant's plea that the action should not be heard, after characterizing the agreement at issue as a contract of agency, it is defective in a manner requiring its cassation.