Kuwait Court of Cassation principle number 256

Summary: - Transfer of debt. Its nature. Its effect: discharge of the original debtor. Its condition: the creditor's consent for it to be effective against him. Article 378, Civil Code. - The burden of proving the transfer and the creditor's approval thereof rests on the original debtor. - The 2 respondents' agreement, in their capacity as the original debtor party, to transfer their debt to the appellant, and their inability to prove that transfer despite being served with notice by the enforcement officer and appearing personally before the trial court at both levels, and the creditor bank's approval for them. Its consequence: their inability to do so is established. The challenged judgment's rejection of the appellant's—the transferee debtor's—request to refer the action for evidentiary investigation to establish that his failure to discharge the bank debt was attributable to the 2 respondents' default in not notifying the bank of the transfer, on the ground that he was obliged to pay the debt and that his request to refer the action for evidentiary investigation to establish this was unproductive, although it was a material defence which, if correct, could change the outcome of the action. A defect requiring its cassation. Rule: It is established in the case law of this Court that a litigant's request to be enabled to prove or disprove a material defence by a legally permissible means of proof is a right that the trial court must grant whenever that means is productive in the dispute and the case papers and other evidence submitted to it are insufficient to form its conviction. A transfer of debt is an agreement to transfer a debt from the liability of the original debtor to that of a new debtor replacing him, whereby the original debtor is discharged. This agreement may be concluded between the creditor and the transferee debtor, or between the original debtor and the transferee debtor and then approved by the creditor so as to be effective against him. This is stipulated in Article 378 of the Civil Code and the articles following it. The burden of proving the transfer or the creditor's approval thereof rests on the original debtor. Accordingly, the 2 respondents were the original debtor party and agreed to transfer their debt to the appellant. However, despite being served with notice by the enforcement officer and appearing personally before the trial court at both levels, they did not prove that transfer or the creditor bank's approval thereof, and thus failed to do so. The appellant (the transferee debtor) requested that the action be referred for evidentiary investigation to establish that his failure to discharge the bank debt was attributable to the 2 respondents' default in not notifying the bank of the transfer. However, the challenged judgment rejected his request on the assertion that he was obliged to pay the debt and that his request to refer the action for evidentiary investigation to establish this was unproductive, although it was a material defence which, if correct, could change the outcome of the action. It is therefore defective in a manner requiring its cassation.