Kuwait Court of Cassation principle number 509

Summary: - An action claiming engineers’ fees. It shall not be heard upon denial after the lapse of 5 years. The period begins to run from the time the engineer completes his work, even if he continues to perform other services or work for his client. Article 440, Civil Code. Rule: It is established in the jurisprudence of this Court that the provision in Article 440 of the Civil Code that an action shall not be heard upon denial after 5 years if it concerns a right of physicians ... lawyers and engineers ... and others practising liberal professions, provided that these rights are due to them in consideration of the professional work they performed or the expenses they incurred, and the provision in Article 1 of the same Code that the period prescribed for barring the hearing of actions concerning the rights specified in Articles 440 and 442 begins to run from the time the creditors complete their expenditures, even if they continue to perform other expenditures, indicate that, where the right relates to fees of (engineers), the action shall not be heard upon denial after the lapse of 5 years. This period begins to run from the time the engineer completes his work, even if he continues to perform other services or work for his client. Establishing the event from which prescription begins is a matter assessed by the trial judge and is not subject to review so long as his determination is sound. Although the trial court may ascertain the true relationship binding the parties to the litigation from its facts and the evidence submitted therein, discern the meaning of agreements, and investigate the parties’ common intention by any means it considers appropriate, as this falls within understanding the facts of the action, the condition is that its ascertainment must be supported by the wording of those agreements and must not depart from their apparent meaning. What matters in characterizing contracts is what the contracting parties actually intended by them. Ascertaining that falls within the trial court’s authority where it identifies the contracting parties’ intention and traces it to indications and grounds that rationally lead to it, then correctly characterizes the contract in conformity with the apparent meaning of its wording and applies the correct rule of law to it. It is also established that an agency contract is a contract concerning a material act and can only be for remuneration, and that the contractor provides at his own expense the expenditures he needs because they are considered part of the expenses he took into account when calculating his remuneration. That being so, and whereas it is apparent from the documents that the letter of the late /..... No. M/11/83/B/5 dated 22/2/1983, in which he entrusted the first respondent with bringing a judicial action against Kuwait Municipality to claim compensation for the heirs of the late /...... for the remainder of the land under Document No. 3813/59, Plan No. (20491), situated in Al-Jahra, after the Municipality claimed that most of it lay outside the planning boundary and compensated them for it in the amount of 450 dinars, concerns the latter’s being an engineer specialized in preparing plans and survey maps and possessing the ability to identify the heirs’ land—the subject of the aforementioned agreement—for the purpose of proving that it lies within the general planning boundary. His work accordingly is not in the nature of legal acts but rather material work and technical expertise, and the legal procedures he undertook, such as issuing powers of attorney and others, were merely a means of serving that purpose. The right claimed therefore falls within Article (440) of the Civil Code and is subject to 5-year prescription from the date it became due, when the judgment issued in compensation Action No. 1206 of 1983, Plenary Civil, Government, became irrevocable upon issuance of the judgment in Civil Cassation Appeal No. 22 of 1994 on 14/11/1994. Since he brought his present action on 8/5/2008, the first respondent’s right—the subject of the action—had lapsed by 5-year prescription. Since the challenged judgment departed from this view and rejected the appellant’s plea that the action should not be heard, after characterizing the agreement forming the subject of the action as an agency contract, it is defective in a manner requiring its cassation.