Kuwait Court of Cassation principle number 336

Summary: - A private instrument under Article 13 of the Evidence Law. It is considered to have emanated from the person who signed it unless that person expressly denies the signature, seal, or fingerprint attributed to him. The consequence: it is evidence of the correctness of its contents against the person to whom its signature is attributed, regardless of whether the body of the instrument is written in his handwriting or that of another. Loss of the instrument's evidentiary force. Its condition. Express denial of the signature itself or the seal with which it was signed. Denial of all or part of the contents of the instrument. Its effect. It is not considered denial of the private instrument within the meaning intended by the aforementioned article. Its full evidentiary force remains. An example involving a cheque. Rule: It is established in the jurisprudence of this Court that Article 1 of the Evidence Law provides that (the creditor must prove the obligation, and the debtor must prove discharge thereof). This is one of the accepted fundamental rules of evidence, placing upon the claimant the burden of adducing evidence of the legal fact he alleges. If he succeeds, the burden of proving the contrary shifts to the defendant. A cheque is, in principle, an instrument of payment that takes the place of money and embodies its own cause. The presumption is that its cause is payment of a debt due to the person in whose favor it was drawn or to whom it devolved, by operation of the presumption arising from its delivery to the beneficiary. If the drawer alleges otherwise, he bears the burden of proving what he alleges. Article (13) of the Evidence Law—as established in the jurisprudence of the Court of Cassation—by providing that a private instrument is considered to have emanated from the person who signed it unless he expressly denies the signature, seal, or fingerprint attributed to him, has made the private instrument evidence of the correctness of its contents against the person to whom its signature is attributed, regardless of whether the body of the instrument is written in his handwriting or that of another. The instrument does not lose its evidentiary force unless he denies the signature itself or the seal with which it was signed and his denial is express. If he merely denies all or part of the contents of the instrument, he has not denied the private instrument within the meaning intended by the article, and the instrument retains its full evidentiary force.... There is nothing in the law requiring the particulars of a cheque to be written in the drawer's handwriting. It is only necessary that the cheque bear the drawer's signature, because if it lacks this signature it is a worthless paper to which no regard is paid in dealings. The drawer's signing a blank cheque without inserting the amount that the beneficiary is entitled to receive from the drawee, or without entering a date on it, signifies that its issuer authorized the beneficiary to insert these particulars before presenting it to the drawee. The burden of proving the existence, nature, and extent of the authorization necessarily falls away from the beneficiary, and this burden shifts to whoever alleges what is contrary to the apparent position. The trial court has full authority to ascertain an understanding of the facts of the action, identify its truth and the evidence presented to it, examine the evidence and documents submitted therein, weigh them against one another, prefer those it finds reliable, reject the rest, and draw the conclusions it considers consistent with the facts of the action. It is not to be faulted for accepting any evidence of which it is convinced and basing its ruling on tenable grounds leading to the conclusion it reached and having their established basis in the documents. It need not follow the litigants through their various statements and aspects of defense and respond separately to every argument, statement, or request they raised, because the establishment of the truth of which it was convinced and for which it stated its evidence constitutes an implied response disposing of all else. The provision in Article (32/2) of Decree-Law No. 39 of 1980 concerning Evidence in Civil and Commercial Matters that (if the challenge is material to the dispute and the facts and documents of the action are insufficient to convince the court of the authenticity or forgery of the instrument, and it considers that the investigation requested by the challenger is material and permissible, it shall order investigation and comparison, or witness testimony, or both) means that the trial court, when deciding a forgery challenge, is not obliged to grant the challenger's request for investigation and to require the opposing party to produce documents in his possession, as a request relating to methods of proof, where it finds in the documents of the action and its other elements sufficient material to form its conviction for deciding the challenge. Its assessment thereof is not subject to review by the Court of Cassation, since it is established that it has absolute authority to assess the evidence it accepts in establishing or disproving forgery of the challenged instrument, so long as it relies on tenable grounds. That being so, and the challenged judgment having based its ruling affirming the first-instance judgment's dismissal of the grievance of (the appellant in his capacity) against the payment order issued against him on its conclusion that he was liable for the amount of the debt evidenced by the cheque underlying the order challenged by the grievance in favor of the respondent, and that a cheque is an instrument of payment under which the debtor (drawer) is not discharged except by payment of its amount, and the appellant in his capacity having produced no proof that he paid its amount or was discharged from the debt evidenced by it, given that he bore that burden, his liability for the amount claimed was therefore established. It consequently ordered him to pay that amount, disregarding his request for referral to an expert to investigate his forgery challenge to the cheque evidencing the indebtedness, on the basis of its statement that the forgery challenge to the cheque underlying the dispute was immaterial because the signature affixed to the cheque was attributed to the legal representative of the appellant in his capacity, not in his personal capacity, particularly since the drawee bank's statement did not establish any difference between the signature affixed to the cheque in dispute and the signature approved by the bank. It consequently ordered the appellant in his capacity to pay the amount awarded. The conclusion of the challenged judgment was tenable, had its established source in the documents, and was sufficient to support its ruling in this respect. It contained an implied response disposing of all the arguments of the appellant in his capacity. The complaint on these grounds thus amounts to a factual argument concerning the trial court's discretionary authority to assess the evidence presented to it, which may not be raised before the Court of Cassation, rendering the complaint unfounded.