Kuwait Court of Cassation principle number 302

Summary: - Transfer of debt. Its nature. Its effect. Discharge of the original debtor's liability. 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. Falls upon the original debtor. - The two respondents' agreement, as the original debtor party, to transfer their debt to the appellant, and their inability to prove that transfer despite their being served notice by the enforcement officer, their personal appearance before the trial court at both levels, and the creditor bank's approval for them. Its implication. Their inability to do so is established. The challenged judgment's rejection of the appellant's—the transferee's—request to refer the case for evidentiary investigation to prove that his failure to pay the bank debt was due to the two 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 case for evidentiary investigation to prove this was unproductive, although it was a substantive defence which, if correct, could change the outcome of the case. A defect requiring its cassation. Rule: It is established in the jurisprudence of this Court that a litigant's request to be enabled to prove or disprove a substantive defence by a legally permissible means of proof is a right which the trial court must grant whenever that means is productive in the dispute and the case papers and other evidence before 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 the liability of a new debtor who replaces him, thereby discharging the original debtor's liability. This agreement may be concluded between the creditor and the transferee, or between the original debtor and the transferee and subsequently approved by the creditor so as to become effective against him. This is provided for in Article 378 of the Civil Code and the articles following it. The burden of proving the transfer or the creditor's approval thereof falls upon the original debtor. That being so, and since the two respondents were the original debtor party and had agreed to transfer their debt to the appellant, but, despite being served notice by the enforcement officer and appearing personally before the trial court at both levels, did not prove that transfer or the creditor bank's approval thereof, they had failed to do so. The appellant (the transferee) requested referral of the case for evidentiary investigation to prove that his failure to pay the bank debt was attributable to the two respondents' default in not notifying the bank of the transfer. However, the challenged judgment rejected his request on the ground that he was obliged to pay the debt and that his request for referral of the case for evidentiary investigation to prove this was unproductive, although it was a substantive defence which, if correct, could change the outcome of the case. It is therefore defective in a manner requiring its cassation.