المحامي فهد أنور الحداد — LAWYER FAHAD AL-HADDAD
Judicial collection

Cassation principles Commercial and Labour — Volume 9

Ministry of Justice — Court of Cassation — Technical Office · من 1/10/1972 حتى 31/12/2011 · 4,069 available principles

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  1. - الدفع بعدم التنفيذ والحق في الحبس

    Principle 2348A disposition for consideration made by the bankrupt after the date of cessation of payments and before the judgment declaring bankruptcy. It may be adjudged enforceable against the body of creditors. Condition therefor.Commercial and Labour — Volume 9 · Source page ٤٠٦
  2. Principle 2349One contracting party's failure to perform his obligation in accordance with the terms agreed upon in the contract. The other contracting party may suspend his own obligation toward his debtor. The debtor on the oppositeCommercial and Labour — Volume 9 · Source page ٤٠٦

  3. - نظرية الظروف الطارئة

    Principle 2350The defence of non-performance of an obligation. Its condition. The other contracting party’s default in a reciprocal obligation connected with it, whether the connection arises from a statutory provision or a contractuaCommercial and Labour — Volume 9 · Source page ٤٠٦
  4. Principle 2351An unforeseen circumstance capable of disturbing the economics of the contract. What suffices for its existence.Commercial and Labour — Volume 9 · Source page ٤٠٦
  5. Principle 2352The doctrine of unforeseen circumstances. The condition for its application. The occurrence of an exorbitant loss to the contracting party exceeding ordinary limits, such as to seriously disrupt the economics of the contCommercial and Labour — Volume 9 · Source page ٤٠٦
  6. Principle 2353The doctrine of supervening circumstances. Conditions for its application. The necessity that performance of the debtor's obligation be onerous because of the supervening event, such that it causes him grave loss. The crCommercial and Labour — Volume 9 · Source page ٤٠٦
  7. Principle 2354An increase or decrease in the costs of the work has no effect on the extent of the obligations created by the contract for works. The contractor may not, when costs increase, demand an increase in the consideration, norCommercial and Labour — Volume 9 · Source page ٤٠٧
  8. Principle 2355Force majeure occurring during the period specified for performance of the obligation. Regarded as a supervening circumstance rendering performance impossible and extinguishing the debtor's obligation without his bearingCommercial and Labour — Volume 9 · Source page ٤٠٧
  9. Principle 2357The basis of the doctrine of circumstances circumstances of hardship is that, during performance of the contract, circumstances or events arise that were unforeseeable when it was concluded, making performance of the debCommercial and Labour — Volume 9 · Source page ٤٠٧
  10. Principle 2358Force majeure occurring during the term of the contract and making performance of the obligation impossible throughout the time. Temporary impossibility. Its effect.Commercial and Labour — Volume 9 · Source page ٤٠٧
  11. Principle 2359Force majeure. Its nature and effect on the extinction of the obligation. - Temporary impossibility that ceases after the time for performance has fallen due. Its effect. Suspension of performance. - 407 - Commercial - TCommercial and Labour — Volume 9 · Source page ٤٠٧
  12. Principle 2360The prerequisite for applying the doctrine of unforeseen circumstances is that the delay in performance of the obligation until after the unforeseen event occurred must not be attributable to the debtor's fault. The reasCommercial and Labour — Volume 9 · Source page ٤٠٨
  13. Principle 2361The provisions and rules relating to collection of purchased debts. Their nature and purpose. Law 41 of 1993. - The bank acting on behalf of the State demanding the debt installments from the debtor and taking enforcemenCommercial and Labour — Volume 9 · Source page ٤٠٨
  14. Principle 2362Assessing whether the exceptional event was foreseeable or not, the extent of its impact on the disputed transaction, and whether performance of the obligation has become onerous. Within the trial court's authority. ImplCommercial and Labour — Volume 9 · Source page ٤٠٨

  15. - تعديل العقد

    Principle 2363The doctrine of unforeseen circumstances. The condition for its application: performance of the debtor's obligation must, as a result of the unforeseen event, become severely onerous beyond capacity and cause him an unusCommercial and Labour — Volume 9 · Source page ٤٠٨

  16. - الشرط الجزائي

    Principle 2364The freedom of contracting parties to amend the provisions of contractual liability created by their free will within the limits of the law and rules of public policy. - 408 - Commercial - The inclusion in the insurance Commercial and Labour — Volume 9 · Source page ٤٠٨
  17. Principle 2365Agreed compensation is a penalty clause if the subject matter of the obligation is not a sum of money. - A plea of nullity of the penalty clause because the debtor accepted it for fear of incurring criminal liability forCommercial and Labour — Volume 9 · Source page ٤٠٩
  18. Principle 2366Delay penalty. Not payable if the debtor proves that he committed no fault or that the creditor suffered no damage. The reason is that it is in the nature of a penalty clause or agreed compensation.Commercial and Labour — Volume 9 · Source page ٤٠٩
  19. Principle 2367Penalty clause. An obligation accessory to a principal obligation. The effect of its lapse. Disregarding the compensation assessed pursuant thereto. The effect of its fulfilment. Compensation arises for the creditor, to Commercial and Labour — Volume 9 · Source page ٤٠٩
  20. Principle 2368Restriction of a penalty clause to an obligation whose subject matter is not a sum of money. Reason therefor.Commercial and Labour — Volume 9 · Source page ٤٠٩
  21. Principle 2369The existence of a penalty clause in the contract requires the judge to give effect to it. If the debtor proves that the creditor suffered no damage. No compensation is due. Proof that the agreed compensation is excessivCommercial and Labour — Volume 9 · Source page ٤٠٩
  22. Principle 2370Not being bound, in assessing compensation, by the amount of the penalty clause agreed upon in the contract. The criterion thereof.Commercial and Labour — Volume 9 · Source page ٤٠٩
  23. Principle 2371Penalty clause. Its meaning: an agreement on the compensation due upon the occurrence of a breach. Its occurrence: a rebuttable legal presumption that damage has occurred. When the judge intervenes in its application andCommercial and Labour — Volume 9 · Source page ٤٠٩
  24. Principle 2372The contracting parties may agree in advance on the amount of contractual compensation upon either party's breach of his obligation. Their agreement on this. Its necessary consequence is that the judge may not increase iCommercial and Labour — Volume 9 · Source page ٤٠٩
  25. Principle 2373The financial sanction imposed by the contracting parties to ensure performance of their agreement is considered agreed compensation. Implication thereof. - The judge's authority to reduce agreed compensation. Its criterCommercial and Labour — Volume 9 · Source page ٤١٠
  26. Principle 2375A claim for compensation for delay in performing the works within the agreed period, pursuant to the agreed penalty clause. Its incompatibility with a claim for interest for delay in paying the compensation awarded by thCommercial and Labour — Volume 9 · Source page ٤١٠
  27. Principle 2376Delay penalties in contracts for work. Considered a form of penalty clause or agreed compensation. The implication thereof. Their subjection to the control of the court of fact as to entitlement and assessment.Commercial and Labour — Volume 9 · Source page ٤١٠
  28. Principle 2377The penalty clause lapses when the principal obligation lapses. Reason for this: it is an obligation accessory to the latter. - The debtor's failure to perform his contractual obligation. A fault giving rise to his liabiCommercial and Labour — Volume 9 · Source page ٤١٠
  29. Principle 2378Penalty clause or agreed compensation. It is an advance agreement assessing the compensation due upon the debtor’s breach of his obligation. Existence of this clause. Its effect: a presumption that the assessment of compCommercial and Labour — Volume 9 · Source page ٤١٠

  30. - التقايل عن العقد

    Principle 2379Penalty clause. Its nature. An agreement on the sanction for breach of the principal obligation. Implication thereof. Extinction of the principal obligation. Its effect. Extinction of the penalty clause, so that the compCommercial and Labour — Volume 9 · Source page ٤١١
  31. Principle 2380Mutual cancellation by the contracting parties. Has the effect of rescission. Its effect. Dissolution of the contract retroactively. Impossibility thereof. Compensation may be awarded.Commercial and Labour — Volume 9 · Source page ٤١١

  32. - وقف العقد وانقضاؤه

    Principle 2381A contract of successive performance. Its unilateral termination by notice pursuant to its provisions puts an end only to future effects. Implication. Termination does not impair the contract itself or its existence and Commercial and Labour — Volume 9 · Source page ٤١١
  33. Principle 2382The guarantor's notice to the creditor, upon maturity of the debt, to take proceedings against the debtor within three months from the date of the notice. The creditor's failure to take proceedings. Its effect. ExtinctioCommercial and Labour — Volume 9 · Source page ٤١١
  34. Principle 2383A lease contract falling outside the provisions of Law 35/1985. Its implication is that the Civil Code applies to it. - A fixed-term contract ends upon expiry of its term. Unless its extension is agreed upon.Commercial and Labour — Volume 9 · Source page ٤١١
  35. Principle 2384The urgent judgment staying enforcement of the official contract, the debt instrument in respect of which the travel-ban order was issued, owing to a dispute between the contracting parties over the amount of the debt. ICommercial and Labour — Volume 9 · Source page ٤١١

  36. - فسخ العقد

    Principle 2385The Iraqi invasion. It is not considered force majeure. The implication thereof. The contract is not automatically rescinded because of it. The meaning thereof. Temporary suspension of the contract between its parties unCommercial and Labour — Volume 9 · Source page ٤١٢
  37. Principle 2386Rescission of contracts binding on both parties. Takes place only by a judicial ruling or by agreement of the parties. The judge may grant or reject the request for rescission according to what is apparent as to the fulfCommercial and Labour — Volume 9 · Source page ٤١٢
  38. Principle 2387The scope for recourse to the sale provisions of the Civil Code in respect of a contract for works is confined to cases where a defect exists in the work materials supplied by the contractor and the employer seeks rescisCommercial and Labour — Volume 9 · Source page ٤١٢
  39. Principle 2388Rescission of a contract binding on both parties. Its condition. The party seeking rescission must not be in default in performing his obligation, and the other party's failure must be attributable to his default and notCommercial and Labour — Volume 9 · Source page ٤١٢
  40. Principle 2389An express resolutory condition. It requires rescission and deprives the judge of discretion regarding it. It must be applied when its trigger occurs, and the debtor cannot avert it by performing his obligation. A judgmeCommercial and Labour — Volume 9 · Source page ٤١٢
  41. Principle 2390Documentary credit. Its nature. The independence of this contract from the contract on account of which the credit was opened. Opening a documentary credit may be a means of settling the price between the seller and the Commercial and Labour — Volume 9 · Source page ٤١٢
  42. Principle 2391Contractual rescission occurs by virtue of the agreement. An express resolutory condition necessarily produces rescission immediately upon breach of the obligation. An implied resolutory condition. Its effect. RescissionCommercial and Labour — Volume 9 · Source page ٤١٣
  43. Principle 2392Damage warranting compensation for rescission consists of the loss sustained by the injured party and the gain he missed. Although an opportunity is a matter of probability, its loss is a certainty, and the law does not Commercial and Labour — Volume 9 · Source page ٤١٣
  44. Principle 2393A contract, after its rescission, cannot serve as a basis for compensation. - A penalty clause is not confined to contractual liability. Example.Commercial and Labour — Volume 9 · Source page ٤١٣
  45. Principle 2394A silent partnership contract is a contract binding on both parties. Its effect. It is subject to the general rules on rescission and nullity. - The authority of the court of merits to rescind a silent partnership contraCommercial and Labour — Volume 9 · Source page
  46. Principle 2395Contractual rescission occurs by virtue of the agreement. An express resolutory condition brings about rescission automatically upon breach of the obligation. An implied resolutory condition. Its effect. Rescission is suCommercial and Labour — Volume 9 · Source page
  47. Principle 2396Rescission of the contract. Its effect. Restoration of the contracting parties to the position they occupied before contracting. The continuing contract is excepted from this. Dissolution is restricted to the future, notCommercial and Labour — Volume 9 · Source page
  48. Principle 2397Ascertaining the facts, assessing the evidence, accepting what is found reliable and discarding the rest. Within the authority of the court of merits. The condition thereof. It is not obliged to follow the litigants throCommercial and Labour — Volume 9 · Source page
  49. Principle 2399In bilateral contracts. Their being deemed rescinded for impossibility of performance. This does not preclude the debtor's liability for compensation if the impossibility resulted from his fault. Once the creditor provesCommercial and Labour — Volume 9 · Source page
  50. Principle 2400Total destruction of the leased property during the lease term for a cause in which neither contracting party had a hand. Its effect. Dissolution of the contract by operation of law. The reason therefor. The disappearancCommercial and Labour — Volume 9 · Source page
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