Kuwait Court of Cassation principle number 303

Summary: - Tender and deposit where the subject is money or another thing which can readily be delivered without difficulty to the creditor at his original domicile or workplace. Method: following the steps provided for in Articles 299 and 300 of the Code of Procedure, namely actual tender through a process server, who must record the substance of the creditor’s response to the tender. The creditor’s acceptance of the tender. Its effect. The deposit stage is not undertaken. Example concerning tender and deposit standing in place of valid performance discharging the purchaser’s liability. Rule: The basic principle concerning a contract of sale—as established in this Court’s case law—is that it is a consensual contract concluded merely by agreement between the two parties, requiring no special form for its conclusion. It is concluded merely by the exchange of two corresponding expressions of intent, whether in writing, orally or by signs. Once agreement is reached on the sale, the thing sold and the price, the sale is concluded, provided that its subject matter is not contrary to law, public policy or good morals. What matters in characterising contracts is what the contracting parties intended by them, and ascertaining that falls within the trial court’s authority. If it identifies the contracting parties’ intention, attributes it to indications and grounds which rationally support it, and applies the correct rule of law to it, that intention may not be discussed anew before the Court of Cassation in an attempt to attribute error to the judgment in characterising the contract. An action for the validity and enforceability of a sale contract is an action on the merits in which the court’s authority extends to examining the contract’s subject matter, scope and enforceability. It requires that the subject matter of the contract be capable of transferring ownership, which requires the court to determine the validity of the sale and verify that it satisfies the conditions necessary for its conclusion and validity. Accordingly, that action encompasses every ground raised therein relating to the contract’s existence or non-existence, or its validity or invalidity. Inferring an acknowledgment of a right from the papers, or negating it, also falls within the trial judge’s remit according to the circumstances of each case, provided that his decision in that respect rests on justifiable grounds. The effect of Articles 299 and 300 of the Code of Procedure—as the general procedural law in matters for which no differing provision appears in a special law—and as stated in the Explanatory Memorandum, is that, where the debt is money or another thing which can readily be delivered without difficulty to the creditor at his original domicile or workplace, the debtor must make an actual, effective tender to his creditor through a process server. The notice must include a statement of the terms of the tender and identification of the thing tendered. The process server then records the substance of the creditor’s response to this tender, whether acceptance or refusal. If the preceding stage—the actual tender stage—ends with the creditor’s acceptance of the tender, there is no need to proceed to the second stage, namely deposit. If the creditor refuses the actual tender, however, the second stage, deposit, must then be undertaken. This means that, for tender and deposit to produce their effect as a means of performance, they must be completed in accordance with these two Articles. That being so, and whereas the challenged judgment based its ruling declaring the validity and enforceability of the sale contract dated 28/2/2011 on its stated reasons that the elements of its conclusion and the conditions of its validity and enforceability were satisfied through express offer and acceptance and a subject matter capable of being dealt in for a monetary price of a specified amount, and because the two appellants and the remaining sellers refrained from undertaking the procedures necessary to transfer ownership of the thing sold to the first respondent and from signing the final sale contract, against which they raised no challenge affecting its probative force, validity or enforceability, and the purchaser formally recorded their default when they refused, without acceptable justification, to appear before the Real Estate Registration Department to register the final contract, by serving notice on them on 20/11/2012 and depositing the agreed price on the same date for their account in the treasury of the Enforcement Department after they refused to receive it, and that deposit stood in place of valid performance discharging the purchaser’s liability, the challenged judgment correctly applied the law. The complaint against it on the grounds of appeal is unfounded, and, for the foregoing reasons, the appeal must be dismissed.