Kuwait Court of Cassation principle number 565

Summary: - An action claiming engineers’ fees. It shall not be heard, upon denial, after 5 years. The period begins when 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 this Court’s jurisprudence that the provision in Article 440 of the Civil Code that an action shall not be heard, upon denial, after 5 years where it concerns a right of doctors ... lawyers and engineers .. and other practitioners of liberal professions, provided that these rights are due to them in return for professional work performed or expenses incurred; and the provision in Article 1 of the same Code that the period prescribed for barring the hearing of actions concerning the rights stipulated in Articles 440, 442 begins when the creditors complete their expenses, even if they continue to incur other expenses, indicate that where the right concerns (engineers’) fees, the action shall not be heard, upon denial, after 5 years. This period begins when the engineer completes his work, even if he continues to perform other services or work for his client. Determining the event from which limitation begins is a matter assessed by the trial judge and is not subject to review so long as that determination is reasonable. Although the trial court may ascertain the true relationship connecting the parties to the dispute from its facts and the evidence submitted therein, ascertain 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, this is conditional upon its ascertainment being supported by the wording of those agreements and not departing from their apparent meaning. Furthermore, the characterization of contracts depends on what the contracting parties truly intended by them. Ascertaining this lies within the trial court’s authority where it identifies the contracting parties’ intention and relates it to indications and grounds logically leading to it, then correctly characterizes the contract consistently with the apparent meaning of its wording and applies the correct rule of law to it. It is also established that a contract of agency is a contract relating to a material act and can only be for remuneration, and that the contractor provides at his own expense the expenditures he requires because they are considered part of the expenses he took into account in calculating his remuneration. That being so, and as it appears 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 an action against Kuwait Municipality to claim compensation for the heirs of the late/........ for the remainder of the land under Deed No. 3813/59, Plan No. (20491), situated in Al-Jahra, after the Municipality claimed that the greater part thereof lay outside the planning boundary and compensated them for it with an amount of 450 dinars—relates to the latter’s being an engineer specialized in preparing plans and survey maps and having the ability to identify the heirs’ land that was the subject of the aforementioned agreement, for the purpose of proving that it lies within the general planning boundary, his work accordingly does not constitute legal acts but rather material work and technical expertise. The legal procedures he undertook, such as issuing powers of attorney and others, were merely a means to serve this purpose. The right claimed therefore falls under Article (440) of the Civil Code and is subject to 5-year limitation from the date it became due, when the judgment issued in Compensation Action No. 1206 of 1983, Plenary Civil, Government, became final and irrevocable upon issuance of the judgment in Civil Cassation Appeal No. 22 of 1994 on 14/11/1994. As he brought his present action on 8/5/2008, the first respondent’s right—the subject of the action—had been extinguished by 5-year limitation. As the challenged judgment departed from this view and rejected the appellant’s plea that the action should not be heard, having characterized the agreement at issue as a contract of agency, it is defective in a manner requiring its quashing.