THE POWER OF THE JUDGE IN THE WORK OF THE EXPRESS AVOIDANCE CLAUSE - A COMPARATIVE STUDY
Keywords:
Authority of the judge, Revoke clause, ExplicitAbstract
An express avoidance clause is a contractual advantage in the hands of the creditor in whose interest the clause was formulated, but at the same time it is a tool with which it fears the possibility of its abuse and endangerment of the interests of the debtor, and if this clause, the validity and legality of which the legislator has acknowledged, is mainly aimed at excluding the role of the judge in the avoidance of the contract, it is nevertheless subject to judicial control, where the latter remains an important role in imposing subsequent control over this clause from the point of view of verifying the conditions of its actions and determining its nature, for the purpose of achieving balance. Between the creditor's interest in ensuring the effectiveness of the clause on the one hand, and the debtor's interest in confronting the creditor's misuse of the clause and the disruption of its use
References
Quoting: Dr. Omar Ali Al-Shamsi, Termination of the Contract, 1st Edition, National Center for Legal Publications, Egypt, 2010, p. 61.
Quoting: Dr. Fawaz Saleh, Civil Law, Voluntary Sources of Commitment, Damascus University Press, Syria, 2021, p. 485.
Quoting: Dr. Mohamed Hussein Ahmed Mansour, The Explicit Null and Void Clause, New University House for Publishing and Distribution, Egypt, Alexandria, 2003, p. 16.
See: Article (245) of the Jordanian Civil Law No. (43) of 1976 in force, as for the position of the Vienna Convention on the International Sale of Goods, which prohibited the avoidance of the Convention, narrowed the judicial avoidance and expanded other penalties such as reducing the price and the right of the buyer to refuse the goods.
Article (1184) stipulates that "the cancelled clause shall always be assumed in mutual contracts, in the event that one of the parties refrains from performing its undertaking, in which case the contract is not cancelled by judgment, but it is up to the party in respect of which the undertaking has not been executed to choose either to force the other party to implement the agreement when the implementation of the agreement is possible, or to request its cancellation with compensation for malfunction and damage, and the cancellation must be requested from the judiciary, and the defendant may be granted a period of time depending on the Citing Dallowes, French Civil Law in Arabic, Saint Joseph University, Lebanon, Beirut, 2009, p. 1179
See: Dr. Mohammed Hussein Ahmed Mansour, The Explicit Repudiation Clause, op. cit., p. 53. As well as Dr. Mohamed Hassan Qassem, Civil Law of Obligations (Contract), Volume II, Al-Halabi Human Rights Publications, Lebanon, Beirut, 2018, p. 353.
See: Dr. Ismail Ghanem, In the General Theory of Obligation, Sources of Commitment, Abdullah Wahba Library, Egypt, 1966, p. 330. As well as the text of Article (150) of the Law on the Organization of Restructuring, Protective Reconciliation and Bankruptcy of Egypt No. (11) of 2018 as amended on April 28, 2021, which stipulates that "If the buyer goes bankrupt before paying the price and after the goods enter his warehouses or the warehouses of his agent in charge of selling them, the seller may not request the termination of the sale or the recovery of the goods." However, Article (148) of the same law stipulates (If, however, the contract of sale is avoided by virtue of or under a clause in the contract before the judgement is rendered in the month of the buyer's bankruptcy, the seller may recover all or part of the goods in bankruptcy provided that they exist in kind). It should be noted that the Iraqi Civil Law has been unique from both the Egyptian and French Civil Law in giving the contractor or bankruptcy agent the possibility of requesting the avoidance of the contract if he publicizes the bankruptcy of the employer, as stipulated in article (890) thereof (If the bankruptcy of the employer is famous, the contractor or the bankruptcy agent may terminate the contract without either of them having the right to claim compensation for the termination), and this case differs from the case of bankruptcy of the contractor contained in article (65/1/a, b, c) of the General Conditions. For civil engineering works contracting issued by the Ministry of Planning for the year 1975 for contracts (government contracting), if the employer is authorized to withdraw the work once the contractor goes bankrupt or is declared bankrupt or when submitting a bankruptcy application, the withdrawal of the work is different from the termination as it is considered an administrative penalty expected by the administration without resorting to the judiciary and is a penalty related to public order and benefits the in-kind execution of the work. Dr. Mohammed Al-Mamouri, Administrative Contracts, Syrian Virtual University Publications, Syria, 2018, pp. 97 ff. In this regard, the Federal Court of Cassation ruled in a decision that “the withdrawal in all cases shall not be considered a termination of the contract or an exemption for the contractor from his contractual obligations, but shall be considered as an execution in kind of the contract", Decision No. (1790/Appellate Body Transferred) issued on 4/9/2014 (unpublished).
Quoting: Dr. Abdel Fattah Abdel Baqi, The Theory of Contract and Individual Will, An In-depth and Comparative Study of Islamic Jurisprudence, vol. 2, Don Publishing House, Egypt, 1984, p. 630.
Quoting: Dr. Suleiman Marks, Al-Wafi in the Commentary on Civil Law, in Obligations, The Theory of Contract and the Individual Will, 5th Edition, Human Rights Publications, Al-Sadr Library, Lebanon, Beirut, 2019, p. 381.
See: Dr. Abdel Hay Hijazi, The Extent of the Creditor's Choice Between Execution and Avoidance, Journal of Legal and Economic Sciences, Volume 2, Issue 1, Ain Shams University, Faculty of Law, 1960, pp. 116 ff.
Article (178) of the Iraqi Civil Law stipulates that "it may be agreed that the contract shall be deemed to be terminated on its own initiative without the need for a judicial ruling upon non-fulfilment of the obligations arising therefrom, and this agreement shall not exempt from excuses unless the two contractors expressly agree that it is not necessary”, corresponding to the text of Article (158) of the Egyptian Civil Law.
See: Dr. Mohamed Hassan Qassem, Civil Law Obligations (Contract), op. cit., p. 452.
See: Dr. Abdel Majid Al-Hakim, Abdel Baqir Al-Bakri and Mohamed Taha Al-Bashir, Civil Law and Provisions of Obligation, vol. 2, Al-Atek Book Industry, Cairo, without a year of publication, p. 162. As well as Dr. Mohammed Hussein Ahmed Mansour, The Explicit Repudiation Clause, op. cit., pp. 16-19.
See: Dr. Abdel Hay Hijazi, The Extent of the Creditor's Choice Between Execution and Avoidance, Journal of Legal and Economic Sciences, Volume 1, Issue 2, Ain Shams University, Faculty of Law, 1959, p. 70. As well as Dr. Fawaz Saleh, Civil Law, op. cit., p. 485.
In this regard, the Egyptian Court of Cassation ruled that "limiting the avoidance of the agreement to certain obligations does not make it extend to other obligations contained in the contract, and if, first of all, the existence of the express avoidance clause in a contract as such a contract is automatically avoided upon breach of the obligations arising from it does not serve its work in the event of a breach by the debtor of the obligations arising from another contract, even if it is related to the former, unless the intention of the intending parties when the contract is written on acts thereafter The Clause on this Contract and the Obligations Arising from it", Appeal No. (13815 for the year 82 judicial) issued on 26/6/2013, published in the Novelty of the Principles Approved by the Rental Departments, Technical Office, 2013, Egypt, p. 16. It should be noted that the French legislator required the contractors to specify the obligations that would result from the breach of the contract and if this was not done, we would not be faced with an explicit avoidance clause Malaurie (P.) Aynes (L.), Droit des obligations. 8 editions. L G D J. A Jour au 1 aout 2016. N 886. P 481.
See: Article (150) Iraqi civilian, corresponding to Article (147) Egyptian civilian, and Article (1193) French civilian, as amended.
See: Dr. Mohammed Hussein Ahmed Mansour, The Explicit Avoidance Clause, op. cit., p. 42. As well as Dr. Abdul Majeed Al-Hakim, Summary in the Commentary on Civil Law, Sources of Commitment with Comparison with Islamic Jurisprudence, vol. 1, vol. 2, Al-Ahlia Publishing Company, Iraq, Baghdad, 1963, p. 374.
Cassation No. (October 27, 1953) quoting Dr. Abdelhay Hijazi, The Extent of the Creditor's Choice Between Execution and Avoidance, Journal of Legal and Economic Sciences, Vol. 2, No. 1, Ibid., p. 119.
See: Dr. Mohamed Sabri Said, Clearly Explained Civil Law, General Theory of Obligations, Sources of Obligation (Contract - Single Will), Dar El Hoda, Algeria, without year of publication, p. 297.
See: Dr. Abdel Razzaq Al-Sanhouri, Mediator in the Commentary on Civil Law, vol. 1, Arab Heritage Revival House, Lebanon, Beirut, without a year of publication, p. 716. As well as Dr. Samir Abdel Salam Tanago, Sources of Commitment, vol. 1, Al-Wafa Legal Library, Egypt, Alexandria, 2009, p. 194. and d. Said Saad Abdel Salam, Sources of Civil Commitment, 1st Edition, Arab Renaissance House, Egypt, Cairo, 2003, p. 289. Dr. Nabil Ibrahim Saad, The General Theory of Obligations Sources of Commitment with the Novelty in the 2016 Amendments to the French Civil Law, New University House, Egypt, Alexandria, 2020, p. 314. Affection. Hamid Mohammed Shabib Al-Jubouri, The Importance of Commitment to Contracts and their Guarantees of Contractual Rights in accordance with Arab Civil Laws, 1st Edition, Academics House for Publishing and Distribution, Amman, Jordan, 2015, p. 188.
Resolution No. (842/ Appellate Body Transferred) issued on 10/8/2009, (unpublished).
See: Dr. Mohammed Hussein Ahmed Mansour, The Explicit Avoidance Clause, op. cit., p. 33. This is Dr. Mohamed Hassan Qassem, Civil Law of Obligations (Contract), op. cit., p. 462. Dr. Said Saad Abdel Salam, Sources of Civil Obligation, op. cit., p. 289.
A declarative or revealing judgment is meant to determine a pre-existing status or legal status without including the obligation of one of the adversaries to perform a certain performance; it aims to demystify the rights and duties that arise as a result of the dispute over their existence or content; these centers exist and list all their consequences before the judgment and the judgment is limited to their affirmation. See: Dr. Abbas Al-Abboudi, Civil Procedure Law, Civil Procedure Law, 1st Edition, Dar Al-Sanhouri, Lebanon, Beirut, 2016, p. 252. - The judgement established is "the determination, establishment, amendment or termination of an objective legal status", an example of the establishment of a status legal status (declaration of bankruptcy), the modification of a legal status such as the provision to modify the obligation in the event of (emergency circumstances), and the termination of a legal status such as the judgment (avoidance of the contract). Whether the judgment is declarative or detective, it is effective in the direction of all. See: Dr. Wajdi Ragheb, The General Theory of Judicial Work in the Law of Procedure, Knowledge Establishment, Egypt, Alexandria, 1974, p. 282.
See: Dr. Abdul Razzaq Al-Sanhouri, Mediator in the Commentary on Civil Law, op. cit., p. 717. As well as Dr. Hassan Ali Al-Thanoun, The General Theory of Obligations, Sources of Obligation, Provisions of Obligation, Proof of Commitment, Freedom House Printing, Iraq, Baghdad, 1976, p. 194. Dr. Ismail Ghanem, In the General Theory of Obligation, op. cit., p. 329.
Appeal No. (7691 for the year 90 judicial), issued on 27/2/2021, published on the website of the Egyptian Court of Cassation, https://www.cc.gov.eg the date of the visit (27/2/2022 at 7:34 pm).
See: Dr. Abdul Razzaq Al-Sanhouri, Mediator in the Commentary on Civil Law, op. cit., p. 718. As well as Dr. Mohammed Hussein Ahmed Mansour, The Explicit Repudiation Clause, op. cit., p. 39.
Decision No. (602/Third Civil), issued on 15/9/1973, published in the Judicial Bulletin issued by the Technical Office of the Court of Cassation of Iraq, Issue III, Fourth Year, 1973, pp. 109-113.
See: Dr. Abdul Razzaq Al-Sanhouri, Mediator in the Commentary on Civil Law, op. cit., p. 719. As well as Dr. Daraa Hammad, The General Theory of Obligation, Section I, Sources of Commitment, Dar Al-Sanhouri, Lebanon, Beirut, 2016, p. 287.
Decision No. (834/ Civil Appeals Authority Transferred), issued on 16/5/2011, quoting: Lawyer Duraid Dawood Salman and Jassim Muhammad Ali, Miscellaneous Discriminatory Decisions, Part 1, Sabah Sadiq Haider Al-Anbari Library, Iraq, Baghdad, 2013, pp. 43 et seq.
The Egyptian Court of Cassation ruled that "if the agreement that the contract of sale shall be terminated on its own motion without notice or warning when the buyer fails to pay any of the installments of the rest of the price on time would take away all discretion in respect of avoidance, but this is entrusted to the court verifying the availability of the conditions of the termination of the agreement and the need to implement it, since the judge has full control to verify the applicability of the condition to the phrase of the contract and has the power to Verification of the fact that it has monitored the external circumstances that prevent its performance if it finds that the creditor has forfeited its right to seek avoidance by accepting performance in a manner contrary to the will to avoid the contract, or it was the creditor who caused its fault in the debtor's failure to perform its obligation, or the debtor's failure to perform was lawful based on the plea of non-performance in the event that its conditions were met, it must override the condition of avoidance of the agreement and the creditor is left with nothing but to invoke judicial avoidance in accordance with the article 157 Civil", Appeal No. (10335 of 89 judicial year), issued on 7/2/2020, date of visit (23/2/2022 at 3:24 am)
Boura (D.A.), Boura (D. A), le jug du contrat et la clause resolutoire.these de doctorat. Universite De Nantes.en droit prive. Le Frace. 2017.p4.
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