Kuwait Court of Cassation principle number 216

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 regarded as compensation for damage. The consequence: 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: if he considers that his award has not deterred the debtor from persisting in non-performance. The judgment imposing it. Its nature: an interim judgment, not enforceable. The reason: it does not conclusively establish the existence of the debt, and the matter must be submitted again to the court to determine the amount of final compensation owed by the debtor as a result of non-performance or delay in performance. Cessation of the reason for its existence. Its condition: the debtor adopts a definitive position, either by performing or by persisting in non-performance. The effect: the judge reconsiders his judgment to decide the merits. The debtor’s performance. Its consequence: he is ordered to pay compensation only for delay in performance. His—the debtor’s—persistence in non-performance. Compensation must be awarded against him as a result thereof. In both cases, the judge must take into account the damage sustained by the creditor and any obstinacy shown by the debtor. Article 292, Civil Code. - The absence from the papers of anything indicating that the appellant obtained a final judgment awarding the compensation due to him as a result of the first respondent’s failure to perform his obligation in kind as adjudged against him by the irrevocable judgment issued in the aforementioned action. Its consequence: execution may not be levied against him pursuant to the coercive fine imposed on him therein. Its effect: no regard is to be had to the appellant’s contention that the amount of that fine can be determined through the number of days of delay in performance. The reason: the judgment under which execution proceeds is that awarding final compensation for non-performance or delay in performance, 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 could not be enforced, on the basis that the judgment imposing it is interim and not enforceable. 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 carried out by the debtor himself, the creditor may request a judgment ordering the debtor to perform it and to pay a coercive fine if he refuses to do so. 2- If the court considers that the amount of the fine imposed is insufficient to induce the debtor to perform, it may increase the fine whenever it considers an increase warranted. 3- If performance in kind is effected, or the debtor persists in non-performance, the court shall determine the amount of compensation to be paid by the debtor for non-performance or delay in performance, taking into account the damage sustained by the creditor and the obstinacy shown by the debtor,” indicates—as disclosed by the explanatory memorandum to the aforementioned Law—that the coercive fine imposed by the judge is not compensation for damage, but rather a means of threatening the debtor to induce 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. As long as the fine is merely a threat to the debtor, the judgment imposing it is interim and not enforceable. The reason for its existence ceases if the debtor adopts a definitive 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 into account the damage sustained by the creditor, as well as any obstinacy shown by the debtor. That being so, the coercive fine imposed by the judge is not compensation to the creditor for damage but an indirect means of inducing the debtor to perform in kind. The judgment imposing it is interim and not enforceable, since it does not conclusively establish the existence of the debt, and the matter must be submitted again to the court to determine the amount of final compensation owed by the debtor as a result of non-performance or delay in performance. The papers contain nothing indicating that the appellant obtained the final judgment awarding the compensation due to him for the first respondent’s failure to perform his obligation in kind as adjudged against him by the irrevocable judgment issued in Case No. 1679 of 2006, Civil, Court of First Instance. Consequently, execution may not be levied against him pursuant to the coercive fine imposed on him therein. This is not altered by the appellant’s contention that the amount of that fine can be determined through the number of days of delay in performance, since the judgment awarding final compensation for non-performance or delay in performance—and not the judgment imposing the coercive fine, as explained above—is the one pursuant to which execution proceeds. Since the challenged judgment adhered to this view and granted the first respondent his claims in the action by ruling that the coercive fine imposed on him by the aforementioned judgment could not be enforced, on the basis that the judgment imposing it is interim and not enforceable, it correctly applied the law. The challenge to it on the matters stated in the two grounds of challenge is without foundation and warrants rejection.