to 3 Rabi’ al-Thani 1406 H.
the Civil Transactions Law of the United Arab Emirates State
Law no. 1/1987 dated 14/2/1987
Decree-Law No. 30 dated 27/09/2020
Zayed Bin Sultan Al Nahyan President of the United Arab Emirates State,
to the perusal of the provisional
Law no. 1 of 1972 concerning the Jurisdictions of the Ministers and the Powers
of the Ministers and the amending laws thereof, and
upon the proposal of the Minister of Justice and the approval of the Council of
Ministers and the ratification of the Federal Supreme Council,
promulgated the following Law;
amended by Federal Law no.1 dated 14/2/1987:
civil Transactions in the United Arab Emirates State shall be subject to the
law, whereas the commercial transactions remain subject to the laws and
regulations applicable in their regard, pending the issuance of the Federal
amended by Federal Law no.1 dated 14/2/1987:
Law shall be published in the Official Gazette and shall come into force as of
29 of March 1986.
by Us at the Presidential
Palace in Abu Dhabi
On 3 Rabi; al-Thani
Corresponding to 15/12/1985
Zayed Bin Sultan
President of the
United Arab Emirates State
Federal Law was published in the Official Gazette, issue no.158, p. 11
TITLE GENERAL PROVISIONS
OF THE LAW AND ITS EFFECTIVENESS IN TIME AND SPACE
LAW AND ITS APPLICATION
provisions shall be applicable to all matters dealt therein, in letter and
context. In presence of an absolutely unambiguous text, there is no room for
personal interpretation. In the absence of a text in this Law, the judge shall
adjudicate according to the Islamic Shari'a taking into consideration the choice
of the most appropriate solutions in the schools of Imam Malek and Imam Ahmad
Ben Hanbal and, if not found there, then in the schools of Imam El Shafe'i and
Imam Abou Hanifa, as the interest so requires.
no such solution is found, the judge shall decide according to custom, provided
it is not incompatible with public policy and morals. In case the custom is
restricted to a specific Emirate, it shall be effective therein.
understanding, interpreting and construing the text, the rules and fundamentals
of Islamic doctrine shall be followed.
be considered of public policy, provisions relating to personal status, such as
marriage, inheritance, lineage, provisions relating to systems of governance,
freedom of trade, circulation of wealth, private ownership and other rules and
foundations on which the society is based, provided that these provisions are
not inconsistent with the imperative provisions and fundamental principles of
the Islamic Shari'a.
OF LAW AS TO TIME
A legislative provision may not be repealed or stopped except by a subsequent
law provision expressly so stating, or including a provision inconsistent with
the previous legislation, or regulating anew the matter formerly regulated by
Where a law provision repeals another provision and the former is later
repealed, this shall not entail reinstating the latter unless so expressly
Provisions concerning capacity shall be applicable to persons to whom the
conditions set forth in these provisions apply.
Where a person is capacitated under the old provisions and becomes incapacitated
under the new provisions, this shall not affect his previous acts.
The new provisions relating to limitation of time for lawsuits shall apply as of
their effective date on each unexpired period of limitation.
The old provisions shall, however, apply on matters concerning the commencement,
stay and interruption of limitation during the period preceding the effective
date of the new provisions.
Where the new provision sets forth a period of limitation shorter than that
presented in the old provision, the new period shall apply as of the effective
date of the new provision even though the old period had already started to run.
Should the remainder of the period presented by the old provision be shorter
than the period stated in the new provision, limitation shall operate upon the
expiry of the said remainder.
in support shall be governed by the provisions in force at the time they are, or
should have been prepared.
otherwise provided by law, periods of time shall be computed according to the
OF LAW AS TO PLACE
Law of the State of the United Arab Emirates shall authoritatively characterize
the relationships when it is required to determine their nature in a case
involving a conflict of laws in order to determine which of these laws is to be
the governing law.
status and capacity of persons are governed by the law of the State to which
they belong by nationality. However, in financial dealings transacted in the
State of the United Arab Emirates and producing their effects therein, should
one of the parties be an incapacitated alien and the reason of his incapacity is
not easily detected by the other party, this reason shall not affect his
legal system related to foreign juridical personalities, such as companies,
associations, institutions and others shall be governed by the law of the State
where such personalities have the actual headquarters thereof. Should such
personalities carry out an activity in the United Arab Emirates State, the
national Law shall prevail.
provisions of Clause (1) of Article (12) have been replaced by virtue of Article
1 of Federal Decree-Law no. 30 dated 27/09/2020, to read as follows:
the substantive conditions for the validity of marriage, the law of the country
where the marriage was concluded shall be referred to.
in the form, marriage between two foreigners, or between a foreigner and a
national shall be deemed valid should it be concluded in accordance with the
conditions of the State where it is concluded, or should it take meet the
conditions set forth by the law of each of the spouses.
provisions of Article 13 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 30 dated 27/09/2020, to read as follows:
The law of the State where the marriage was concluded shall govern the personal
and financial impacts resulting from the contract of marriage.
Divorce, repudiation and separation shall be governed by the law of the State
where the marriage was concluded.
cases referred to in the preceding two articles, should one of the spouses be a
national upon the conclusion of marriage, the law of the United Arab Emirates
alone shall apply, with the exception of the condition of capacity for
abidance by the alimony among relatives shall be governed by the law of the
person commissioned therewith.
objective matters related to guardianship, custody, tutelage and other objective
systems to protect persons lacking capacity shall be governed by the law of the
person whose protection is required.
provisions of Article 17 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 30 dated 27/09/2020, to read as follows:
Subject to the provisions of Paragraphs (3) and (4) of this Article, heritage
shall be governed by the law applicable in the state of testator at the time of
The financial rights present on the State’s territory and which belong to
a foreigner having no heirs shall be transferred to the State.
The substantive provisions of the will and all actions related to the
after-death stage shall be governed by the law of the State as specified by the
will or the alienation act, or the law of the state to which the person carrying
out such action belonged upon his death if no law is specified by the will or
the alienation act.
The form of the will and all alienations related to the after-death stage
shall be governed by the law of the State of the person carrying out such
alienations upon the issuance thereof, or the law of the State in which such
action took place.
Provided that the law of the United Arab Emirates prevails regarding the
will issued by a foreigner for the real-estates thereof in the State.
acquisition ownership and other in kind rights shall be governed by the law of
the location with regards to the real-estate, and the law of the party where the
moveable property is located upon the achievement of the reason entailing the
acquisition, ownership or other in kind rights, or the loss thereof, and such
with regards to such moveable property.
law of the State where the fund is located shall determine whether such fund is
a real-estate or a moveable property.
commitments in form and context shall be governed by the law of the State where
the common residence of the contracting parties is located. Should they have
different residences, the law of the State where the contract is made shall
apply, unless the parties agree otherwise, or the conditions show that another
law is to be applied.
the law on the location of the real-estate is the law to be applied on contracts
made in this regard.
commitments shall be governed by the law of the State where the incident causing
the commitment takes place.
provisions of the preceding paragraph shall not apply regarding commitments
arising from an illegal business, and such with regards to the incidents carried
out abroad and considered legal in the United Arab Emirates, even if they are
deemed illegal in the country where they take place.
rules of jurisdictions and all procedural matters shall be governed by the law
of the State where the case is filed or where procedures take place
provisions of the preceding articles shall not apply should there be a text in a
special law or an international treaty enforced in the country that contradicts
principles of the special international law shall apply with regards to matters
not mentioned in the preceding articles related to the conflict of laws.
law of the United Arab Emirates shall apply with regards to stateless persons,
or to persons having multiple nationalities. However, people proven to hold the
UAE nationality and the nationality of another State, the law of the United Arab
Emirates shall be applied.
in the provisions of the preceding Articles, the governing law is that of a
specific country that has a multi-legislative system, the domestic law in this
country shall indicate which law in this system should be applied. In the
absence of such indication, the prevailing law or the law of the domicile, as
the case may be, shall apply.
Should the governing law be a foreign one, its domestic provisions shall be
applied, to the exclusion of the private international law provisions.
The Law of the United Arab Emirates State shall, however, be applied in case of
renvoi to its provisions from the governing law.
provisions of Article 27 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 30 dated 27/09/2020, to read as follows:
provisions of any law specified in Articles (10), (11), (18), (19), (20), (21),
(22), (23), (24), (25), (26) of this Law may not be applied in case they are
contrary to the Islamic Shari'a, public policy or morals in the United Arab
law of the United Arab State shall apply in case the existence of the governing
foreign law cannot be established or its context cannot be delimited.
DOCTRINAL PRINCIPLES AND ROLES OF INTERPRETATION
of the Shari'a provisions is no excuse.
may neither be applied by analogy not receive extended interpretation.
is established by a mandatory provision shall have precedence over obligation
prescribed by a condition.
without which an obligation cannot be fulfilled is in itself an
rule and its cause, go together in their existence or their negation.
are not perishable.
is not removed by doubt.
in principle, should remain as they were.
principle, a person’s financial is free from liability.
characteristics are considered, in principle, as non-existing.
is established to exist at a certain time shall remain in existence, unless
there is evidence to the contrary.
event should in principle be attributed to its nearest time of occurrence.
analogy may be made with what has proven to be contrary to analogy.
No prejudice caused and no harm inflicted.
Prejudice should be removed.
Prejudice is not removed by a similar one.
allow breaking prohibitions.
corruption is better than drawing benefits.
does not impair the right of third parties.
General or particular, usage is binding.
Usage, if constant or prevalent, shall be taken into consideration.
Truth shall remain unchanged if corroborated by usage.
by the public is evidence to be followed.
is impossible by usage is impossible in fact.
and notoriety shall be taken into account not rareness.
is known by usage amounts to a stipulated condition.
by usage is a designation by text.
an impediment conflicts with a requirement, the former shall have
is appurtenant and may not be individualized independently.
the principal is forfeited, the ancillary follows.
is forfeited, alike the inexistent, shall not come back to existence.
shall extend to the thing and its contents.
the principal is void the substitute shall be sought.
be effective against the public, a disposition is contingent on interest
reproduces the question.
is not taken into consideration.
consideration is to be given to a belief overtly incorrect.
is established by proof amounts to eye-witnessing.
person is bound by his acknowledgment.
auxiliary matter may be established by proof though the principal is not.
may stand as a proof for defense but not for claiming a right.
tax is due by the exploiter.
in consideration of profits.
order to dispose of someone else's property is void.
who accelerates the happening of a thing, before it is due, shall be deprived of
who challenges what has been done from his part his attempt shall turn against
Personality of a human being starts at his birth alive and ends upon its death.
The law shall determine the rights of a fetus.
Birth and death events are established through their recording in the ad hoc
Where the evidence is missing or if it appears that the data recorded are not
true, any legal means of proof is accepted.
concerning foundlings are regulated by a special law.
relating to missing persons or absentees are regulated by a special law.
Nationality of the State of the United Arab Emirates is regulated by law.
A citizen, wherever this expression appears in the Civil Transaction Law, means
the person who has the nationality of the Emirates State, the alien being the
person who has not such nationality.
The family of a person is composed of his wife and relatives.
Relatives are all those of common ancestry.
Direct kinship is the relation between ascendants and descendants.
Indirect kinship is the relation between persons of common ancestry, without
being an ascendant or descendant of the other, regardless of the degree of
calculating the degree of direct kinship, each descendant is a degree upward to
the ascendant not counting the latter.In calculating the degree of indirect
kinship, degrees are counted upwards from the descendant to the common ancestor
and then downwards from this latter to the other descendant, each descendant,
excluding the common ancestor, is counted a degree.
relative of one of the spouses is considered of the same degree of kinship in
relation to the other spouse.
person has a name and surname, the latter shall attach to his children's
special law shall regulate the mode of acquiring and changing names and
is the place where a person habitually resides.
person may have at the same time more than one domicile.
a person has no habitual residence, he shall be considered without
place where a person carries out a trade, a profession or a craft shall be
considered his domicile as concerns his activities relating to his trade,
profession or craft.
domicile of a minor, interdicted, missing or absent person shall be the domicile
of his legal representative.
minor authorized to carry out a trade shall have a special domicile as concerns
the acts and dealings to which he is considered by law apt to perform.
person may elect a domicile of choice to perform a specific legal act.
of a domicile must be established in writing.
domicile elected for the performance of a legal act shall be considered the
domicile for all matters relating to this act, including execution procedures,
unless it is expressly specified that this domicile is restricted to certain
acts to the exclusion of all others.
person attaining the legal age, enjoying full mental capacity and not
interdicted shall be considered of full capacity to exercise his rights provided
for in this Law and all laws deriving therefrom.
person shall be considered of full age if he completes twenty one lunar
is devoid of discernment because of age, imbecility or insanity shall not have
the capacity to exercise his civil rights.
child below the age of seven shall be considered devoid of discernment.
has attained the age of discernment but not the age of full capacity and whoever
has attained the legal age but is prodigal or simple-minded, shall be considered
lacking capacity as determined by law.
matters of tutorship, guardianship or curatorship, incapacitated persons and
those lacking capacity, as the case may be, shall be subject to the conditions
set forth in the law.
one may give up his personal freedom or capacity or modify the provisions
has been subject of an unlawful infringement to one of the rights intrinsic to
his personality may ask for the cessation of such infringement and payment of
damages for the prejudice sustained.
is unjustifiably disputed in the use of his name, surname or both or if his name
or surname, or both, are misappropriated, may ask the cessation of this
infringement and payment of damages for the prejudice sustained.
The State, the Emirates, the municipalities and other administrative units
within the conditions determined by law.
Public Administrations, Services establishments and institutions endowed, by
law, juristic personality.
Islamic organizations to which the State recognizes juristic personality.
Civil and commercial companies with the exception of those excluded by a special
Private associations and institutions established in accordance with the
Any group of persons or property that the law endows with juristic personality.
the limits set forth by law, a juristic person enjoys all rights except those
inherent to the natural characteristics of a human being.
An independent financial status.
Capacity within the limits specified in its constitution deed or as determined
An independent domicile. The domicile of a juristic person is the place where
its administration set-up is situated. The administration seat of juristic
persons that have their principal office abroad but carry out activities within
the State, shall, as regards the State Law, be the place where their local
administration is located.
must have a representative to express its will.
persons are governed by their specific law provisions.
is any object or right that has a negotiable value.
may or may not be outside the ambit of trade. Negotiable property is that which
a Moslem may legally enjoy and, non-negotiable, is that property which use is
prohibited by law.
that may be subject to physical or legal possession, may be exploited lawfully
and is not by nature or by law non-negotiable can constitute the subject-matter
or proprietary rights.
that are outside the ambit of trade by their nature are those which may not be
subject to exclusive possession. Things that are outside the ambit of trade by
law are those that the law forbids that they be the object of proprietary
are those things which units and parts are so close that one may customarily
stand for the other without any significant difference and which are estimated
in dealings by number, measure, volume and weight.
are those which units are significantly different in characteristics and value
or are rare in circulation.
are those things which specifications may not be effectively utilized only by
consumption or disposal.
things are those which usufruct is materialized only by repeated use without
affecting their existence.
which is settled and fixed in space and cannot be moved without deterioration or
alteration of its shape is an immovable property. Any other thing is
immovable property by destination is a movable put by its proprietor on a land
he owns, destined for its service or exploitation even though not permanently
fixed to stay.
property consists of all movable or immovable properties owned by the State and
public juristic persons destined for public utility in fact or by virtue of a
property may not, under all circumstances, be disposed of, seized or
appropriated by prescription.
OF EXERCISING A RIGHT
allowance negates warranties, so who utilizes his right legally does not warrant
remedying the prejudice resulting therefrom.
of private harm is justified in order to avoid public prejudice.
more severe prejudice is removed by sustaining a less severe one.
OF THE EXERCISE OF A RIGHT
is a must for whoever unlawfully uses his right.
of a right is unlawful when:
there is an intention to trespass;
the interests sought to be achieved by such use are contrary to the provisions
of the Islamic Shari'a, the law, public policy or morals ;
the expected interests are not commensurate with the prejudice sustained by
other persons ;
it exceeds what is usually accepted by custom and usage.
KINDS OF RIGHTS
are personal, real or moral.
personal right is a legal bond between a creditor and debtor where the former
asks the latter to transfer a real right, or the performance or forbearance of
real right is a direct authority over a specific thing given by the Law to a
real right may be principal or accessory.
real rights are ownership, disposal, usufruct, use, lodging, shared occupation,
easements, Wakf and all what is so considered by law.
real rights are surety mortgage, possessory mortgage and privilege.
rights are those exercised over intangible things.
rights of inventors, artists, trademarks and all other moral rights are subject
to special laws.
Eye-witnessing and expertise.
GENERAL RULES OF EVIDENCE
onus of proof lies on the creditor, in establishing his right and on the debtor,
in refuting it.
testimony, irrefutable presumptions, eye-witnessing are means of proof with
extensible effects, while avowal only binds the acknowledger.
testimony that includes drawing an advantage to the witness or repelling a
detriment away from him, shall be disregarded.
testimony of a dumb person and his oath, through his usual signs, shall be
accepted if he ignores writing.
of proof is on the claimant and oath on the denying.
is used to prove the contrary of what is apparent and oath to corroborate what
is accepted from the one who takes it in order to prove his innocence but not to
Do not take an oath except on request of the opponent.
The judge may on his own direct the oath to one of the parties in one of the
following instances :
Claim and prove that he has a right in an estate. He shall take oath that he
apparently did not recover his dues from the decedent and did not discharge him
or transfer his right to someone else and the decedent does not have a mortgage
in consideration of this right.
There is evidence that he is entitled to a property, he takes an oath that he
did not sell or donate it or that title thereto was not transferred by any means
Return of a defective property, he takes oath that he did not accept the defect,
in words or through a sign.
In case he is adjudged a preemptory right, he takes oath that he did not forfeit
his preemptory right by any means whatsoever.
statement of a translator registered in the ad hoc register shall, as regulated
by law, be accepted
argument is accepted in case of contradiction. It shall not affect the court
judgment if established thereafter. The interested party may revert for warranty
on the witness.
APPLICATION OF ROLES OF EVIDENCE
where it is in conflict with the foregoing provisions, rules specified in
relevant special laws shall be followed by the courts, as concerns rules and
procedures of evidence as well as the conditions of acceptance of evidence
confirming the right.
OBLIGATIONS AND RIGHTS
OF PERSONAL OBLIGATIONS AND RIGHTS
Personal obligations or rights derive from the legal acts of disposal and facts
and from the law. The sources of obligations are:
contract is the meeting of an offer issued by one of the contracting parties
with the acceptance made by the other party and their concordance in such a
manner as to produce their effect on the object of the contract and results in a
binding obligation on each party in consideration of the obligation of the other
meeting of more than two minds may agree to produce a legal effect.
object of a contract may consist of:
Property, movable or immovable, corporeal or incorporeal.
Usufruct of the property.
A specific act or service.
Any other thing that is not prohibited by law or violating public policy or
offense or violation may not constitute the object of a contract.
or innominate contracts are governed by the rules contained in this
exclusively applicable to certain contracts are specified in the specified in
the special provisions regulating same, whether in this law or any other.
VALIDITY AND IMPLEMENTATION OF CONTRACTS AND THE OPTIONS
FORMATION OF A CONTRACT
necessary elements for the formation of a contract are:
Meeting of minds of the contracting parties on the main elements.
object of the contract must be something possible, specified or specifiable, and
obligations arising out of the contract must have a licit cause.
contract is formed by the meeting of an offer with an acceptance, with due
observance of any special conditions provided for in the law for its
offer and acceptance are the expression of a will used for the formation of a
contract. The one expressed first is the offer and the second is the
of the will may be verbal or in writing, whether in the past or present tenses
or imperative mood, if intended for immediate observation, or by signs customary
followed, even from a non-dumb person, or by effective exchange proving mutual
assent or by taking any other attitude indicating beyond any doubt mutual
tense that denotes an absolute promise may form the contract as a binding
promise, if so intended by the contracting parties.
Display of goods and services showing the consideration thereto is considered an
Publication, advertising and lists of current prices as well as any other
statement concerning offers or requests addressed to the public or to
individuals shall not, in case of doubt, be considered an offer but an
invitation to contract.
No statement may be attributed to a silent person. However, circumstantial
silence shall constitute acceptance.
Silence shall amount to acceptance namely in case of previous dealings between
the contracting parties that are met by the offer made or where the offer is
made to the benefit or the offeree.
the offer and until the end of their meeting, the contracting parties have the
option to accept or reject it. The offer becomes invalid if withdrawn by the
offeror after the offer but prior to acceptance, or if one of the contracting
parties states or does an act indicating retraction of the offer. Any statement
made thereafter is irrelevant.
the contract meeting, giving consideration to what is not meant by the parties
is a relinquishment of what was intended.
of the offer prior to acceptance avoids the first offer. Only the second offer
shall be taken into consideration.
a time is fixed for acceptance, the offeror is bound to maintain his offer until
the expiry of the period fixed.
said time may be inferred from the surrounding circumstances, or from the nature
of the transaction.
must be concordant with the offer.
the acceptance includes additions, restrictions or modifications to the offer,
it shall be considered a rejection that includes a new offer.
A contract is not formed except through the agreement of the parties on the
essential elements of the obligation and on all the other legitimate conditions
which the parties consider them to be essential.
Where the parties agree on the essential elements of the obligation and on all
the other legitimate conditions which the parties consider them to be essential,
reserving some detailed to be agreed upon at a later date and did not condition
the formation of the contract on the agreement on these matters, the contract is
considered formed. Should any difference arise as to these pending details, the
judge shall decide thereon according to the nature of the transaction and the
contract between absent persons shall be considered formed at the place and time
where and when the offeror has knowledge of the acceptance, unless there is an
agreement or a law provision to the contrary.
offeror is considered to have taken knowledge of the acceptance at the place and
time where and when this acceptance has reached him, unless evidence to the
contrary is established.
by telephone or any similar means shall, as to place be considered as made
between parties who are not present, in the same contract meeting, and, as to
time, it shall be considered as formed between parties present in the same
sales contracts are only formed by knocking down to the successful bidder. A bid
is foreclosed by a higher bid, even if invalid, and by closing the auction
without it being knocked down to any bidder.
in contracts of adhesion is confined to adhesion to standard conditions laid
down by the offeror to all his customers and which are not subject to
agreement by which both or one of the parties undertake to enter into a specific
contract in the future shall not be formed unless it specifies all the material
matters of the contract to be concluded and the period set for its
the law conditions the formation of a contract to a specific form, this form
should be observed in the agreement embodying a promise to enter into such a
a person promises to make a contract and then breaches his promise and is sued
by the other party claiming the fulfillment thereof, and where the conditions
required for the formation of the contract, namely those relating to form, are
satisfied, the judgment when it becomes res judicata shall be a substitute for
the absence of a clause to the contrary in the contract, the payment of earnest
money is evidence that the contract has become final and may not be
the parties agree that the earnest money paid is the sanction for withdrawal
from the contract, either party may withdraw. If the payor of the earnest money
is the one who withdraws he shall loose it and the person who has received the
earnest money and withdraws from the contract shall repay double the amount
REPRESENTATION IN CONTRACTING
the law otherwise provides, a contract may be made in person or through a
in contract may be conventional or legal.
proxy deed issued by the principal shall determine the authority of the proxy,
when conventional, and this authority shall be determined by the law, when
personally makes any contract for his own account he alone shall be bound by its
the contract is formed by way of representation, the person of the
representative and not the principal is taken into consideration when examining
lack of consent or the effect of actual or supposed knowledge of special
where the representative is an agent acting according to specific instructions
issued by his principal, the latter may not avail himself of the agent’s
ignorance of circumstances known or should have been known by him.
the representative, within the powers of his representation, conclude a contract
in the principal’s name, the provisions of this contract and all ensuing
rights and obligations shall accrue to the principal.
the contracting party does not disclose at the time of making the contract that
he acts in his representative capacity, the effect of the contract shall not
ascribe to the principal, be he a creditor or a debtor, unless it is supposed
beyond doubt that the third party with whom the representative contracted has
knowledge of the existing representation or it is indifferent to him to contract
with the principal or the representative.
both the representative and the other party who contracted with him ignore, at
the moment of making the contract, the expiry of the representation, the effect
of the contract made by the representative shall ascribe to the principal or his
where otherwise provided by law or by commercial rules, no one may contract with
himself in the name of his principal, whether the contract is for his own
account or for that of another person, without authorization from the principal.
However, the principal may, in this case, ratify the contract.
person has capacity to contract unless such capacity is withdrawn or limited by
minor below the age of discernment has no right to dispose of his property and
all his acts in this respect are deemed to be void.
dispositions of the discerning minor are valid, if totally beneficial to him,
and void if entirely detrimental.
acts of disposition that may vary between being profitable or detrimental depend
of the ratification of the tutor, within the limits he initially is allowed to
dispose of, or of the minor after attaining legal age.
age of discernment is seven full Hegira years.
tutor has to authorize the minor who has completed eighteen Hegira years of age
to take delivery for administration purposes, of all or part of his
court may, after hearing the guardian, authorize the minor who has completed
eighteen Hegira years of age to take delivery of all part of his property to
Law shall determine the governing provisions in this respect.
authorized minor, as concerns the acts falling within the authorization, shall
be considered as a person of full legal age.
minor whether under tutorship or guardianship, may not engage in trade unless he
completes eighteen Hegira years of age and has secured the full or restricted
authority of the court in his respect.
judge may grant authorization to the discerning minor, in case the tutor
withholds such authorization; and the latter may not thereafter claim
interdiction of the minor.
judge may, after authorization restore interdiction on the minor.
tutor on the minor is his father then the tutor of the latter, the paternal
grandfather, the judge or the guardian appointed by him.
law shall determine the capacity required from the tutor to perform the
tutorship rights on the property.
contracts made by the guardian on the minor's property are valid and effective
in accordance with the conditions and in the instances determined the law.
of disposition made by the guardian on the minor's property and which are not
considered as acts of administration are valid and effective in accordance with
the conditions and in the instances determined by law.
insane and mentally deficient persons are interdicted per se.
and irrational persons are interdicted by order of the judge. The interdiction
shall be removed according to the rules and procedures set forth in the
order of interdiction shall be notified to the interdicted and the reason
therefore shall be made public.
interdicted insane persons and those mentally deficient of full legal age shall
be treated as incapacitated minors.
Acts of disposition made by prodigals and irrational persons, pursuant to the
registration of the application or judgment of interdiction or to the
application for reinstatement of tutorship or to the order of imposing it anew,
shall be governed by the same provisions as the dispositions made by persons
Acts of disposition prior to registration shall not be void or voidable unless
they are made under exploitation or through connivance.
court may authorize the interdicted prodigal and irrational person to take
possession of, and administer, all or part of his properties.
law shall determine the relevant provisions in this respect.
laws shall determine the procedures to be followed for interdiction, the
administration of the interdict’s properties, their exploitation or
disposal thereof and all other matters related to tutorship, guardianship and
a person who is deaf/dumb, blind and deaf, or blind and mute, and for such
reason unable to express his will, the judge can appoint a judicial assistant to
help him in such disposition, according to the manner showed by the law.
performed by tutors, guardians and curators shall be valid within the limits set
forth in the law.
person who lacks capacity and resorts to fraudulent means to cover his
incapacity shall be liable to damages.
is a wrongful coercion by which a person is induced to do something without his
consent. Duress may be made by using violence or intimidation, physical or
is violent where it threatens to inflict a serious and imminent danger to the
person or to his property; otherwise, if of a lesser degree, it is duress by
Threat to inflict harm to a person's parents, children, spouse or sibling, as
well as the threat of a risk prejudicial to honor is considered duress that may,
according to circumstances, be violent or by intimidation.
by violence nullifies consent and invalidates choice and duress by intimidation
nullifies consent but does not invalidate the choice.
varies according to the difference between persons, their age, weakness, ranks
and the degree of their affection and affliction from duress and from any other
circumstance that may affect the seriousness thereof.
is conditioned upon the author’s ability to execute his threats and the
victim’s prevalent impression that the constraint shall immediately
materialize if he does not execute what he was forced to do.
the victim of one of the two kinds of duress is forced to make a contract is not
enforceable, but it becomes so if he or his heirs ratify it, expressly or
impliedly, after the cessation of duress.
the husband coerces his wife through beating her or forbidding her to see her
parents, or doing any similar act, in order to force her to assign to him one of
her rights or donate a property to him, her act shall be unenforceable.
the coercion is issued by non-contractants; the person forced to enter into the
contract must not insist on the invalidity of the contract, unless it is proven
that the other contractant had or was supposed to have knowledge of such
DECEIT AND UNDUE INFLUENCE
is the act by which one of the contracting parties deceives the other through
the use of fraudulent means, in words or other means, inducing him to assent to
what he would have never consented to do in the absence of such means.
silence on a fact or circumstance constitutes a deceit if it is established that
the victim of deceit would have not concluded the contract had he known of this
fact or circumstance.
one party, using undue influence, deceives the other party and it is established
that the contract has been made with an exorbitant hardship, the deceived party
may rescind the contract.
hardship in real or other property is the one that does not fall within
the property of the interdicted or the sick person on his death bed has been the
objects of a transaction tainted, even slightly, with undue influence and their
debt cover all their belongings, the contract is subject to removal of the
hardship or acceptance by the creditors, otherwise it is void.
the deceit is perpetrated by other than the contracting party and the victim of
such deceit establishes that the other contracting party had knowledge of such
deceit, he may rescind the contract.
contract made under exorbitant hardship but without deceit shall not be
rescinded except as concerns the property of the interdicted, the Wakf and the
right to rescind on grounds of deceit and exorbitant hardship shall be forfeited
by the death of the person entitled to ask for rescission, by disposing of the
contract’s object, wholly or partially, through an act indicating
acceptance, or by having it perish in his possession, by consumption, defection
or its increment.
is not taken into consideration except where it occurs in the text of the
contract or if revealed by the surrounding circumstances and conditions, the
nature of things and customs.
the mistake occurs in the nature of the contract or in one of its formation
conditions or in its object, the contract shall be void.
contracting party may rescind the contract if he commits a mistake in a matter
of substance such as the object of the contract or in the person of the other
contracting party or in one of his characteristics.
otherwise provided by law, a contracting party may rescind the contract if he
makes a mistake of law provided the conditions of mistake in facts are satisfied
in accordance with articles 193 and 195.
mistake in calculation or writing, shall not affect the contract, but must be
is under a mistake may not avail himself of it in a manner contradicting with
the requirements of good faith.
AND CAUSE OF CONTRACT
OBJECT OF THE CONTRACT
contract must have an object to be added to it.
pecuniary transactions, the object must be appraisable.
may consist of a bare property, usufruct as it may consist of an act or
abstention there from.
the object be impossible in itself shall be impossible in itself, at the time of
the contract, the contract shall be void.
the absence of deceit, the object of financial transaction may be a future
is prohibited to deal with the inheritance of an alive person, even if with his
own consent, unless in the circumstances stipulated by the law.
designated object must be provided for financial compensation and negating
flagrant ignorance, by indicating its special location, if it is already
existing by the time of the contract or the statement of its and characteristic
features, while mentioning its magnitude, if being an appraised thing or
anything of the sort which deny flagrant ignorance.
the object is known to the contractants, then no need to describe it or define
the object shall not be designated according to the above, the contract shall be
null and void.
If the object to be disposed of or its consideration is an amount of money, its
quantity and kind must be determined. The currency fluctuation at the time of
payment is immaterial.
object must be a thing that can be disposed of according to the terms of the
the law forbid negotiating anything or should it be contrary to public policy or
morals, the contract is void.
contract may include a suitable condition which confirms it terms, admitted by
custom or usage, beneficial to one of the contracting parties or others unless
it is prohibited by the legislator or contrary to public policy or morals, in
which case the condition is void but the contract remains valid except where the
condition is the prime motive of contracting and, in this case, the contract
shall also be void.
cause shall be the direct intended purpose of the contract.
must be existing, valid, lawful, and not inconsistent with public policy or
contract is not valid unless it provides a lawful benefit to the contracting
contracts, the existence of such lawful benefit is supposed unless there is
proof to the contrary.
VALID, VOID AND VOIDABLE CONTRACTS
contract is valid if licit in its essence and characterization, issued by a
qualified person, having an object that can be governed by the contract and an
existing, valid and licit cause, validly specified and not subject to a void
void contract is the illicit one, by origin and description, due to a defect in
one of its constitutive elements, its object, purpose or the form imposed by law
for its valid formation. This contract shall have no effect and cannot be
interested party is entitled to invoke the invalidity, and the judge to decide
it ex officio.
is nullity may not be heard after the lapse of fifteen years as of conclusion of
the contract, but every interested person may, at any time, raise a plea in
voidance of the contract.
a contract is partially void, the whole contract shall be void unless the share
of each part is determined, then the contract shall be void in that part and
shall remain valid for the rest.
2-If the contract, in part of it, is suspended, this part shall remain so
subject to its being authorized and, when accepted, the whole contract shall be
enforced, otherwise it shall be void in the suspended part alone to the extent
of its share in the consideration and shall be enforced in the other part to the
extent of its share.
voidable contract is licit in its essence but not in its characterization. It
shall be valid once the cause of its voidableness has ceased to exist.
of the object of the contract is not established unless upon receiving its
shall have no effect except within the limits specified by law.
of the contracting parties or their heirs shall have the right to rescind the
contract after notifying the other party.
THE SUSPENDED CONTRACT AND NON-BINDING CONTRACT
THE SUSPENDED CONTRACT
implementation of a transaction shall be suspended until authorized, in case the
author of the transaction is a trespasser of another person’s property; or
if he is the owner disposing of his property but subject to a lien in favor of a
third party; or where the author of the transaction is a minor disposing of his
property but his act is at the same time profitable and detrimental to him; or
done by a person under duress; or if the law so provides.
of a contract shall be given to the owner, the owner of a right on the object of
the contract, the tutor or guardian or the minor himself when completing his
capacity, the person under duress after disappearance of coerxion, or the person
specified by law.
shall be by any act or words so indicating expressly or impliedly.
shall be considered approval if customarily indicating assent.
order to be valid the authorization must concern a transaction that can be
authorized, both at its performance and at the moment of giving the
authorization. Moreover, the beneficiary of this authorization, the contracting
parties and the object of the transaction must exist at the moment of granting
it, in addition to the consideration thereof in case it is in kind.
authorized, the suspended act of disposition shall be enforced as at its
inception and the subsequent authorization shall be considered as a prior power
authorization be withheld, the transaction is void.
THE NON-BINDING CONTRACT
contract shall be non binding with respect to one, or both, contracting parties,
despite its validity and enforceability, if the right of rescission is given
without need to secure the approval of the other party or resort to court.
2-Any of the two contracting parties has independently the right to rescind such
contract if, by nature, it is not binding to him or if he retained for himself
the right to rescind it.
OPTIONS THAT IMPAIR THE BINDING EFFECT OF THE CONTRACT
binding contracts but subject to rescission, the contracting parties may, both
or one of them, stipulate upon conclusion of the contract or subsequent thereto,
a condition option for himself or for a third party fixing the period within
which the parties have to reach an agreement. Should they fail to fix such
period, the judge may fix it in accordance to custom.
financial transactions, if the condition option is stipulated in favor of both
contracting parties, the two considerations shall remain their respective
property. In case the option condition is in favor of one of them, his
consideration shall remain his property and the consideration of the other party
shall not accrue to him.
beneficiary of the option provision shall have the right to rescind the
contract or approve it.
If he opts for approval, the contract shall be binding as of the time of its
formation and if he opts for rescission, the contract shall be rescinded, and
considered as if it never existed.
the option is stipulated in favor of each of the contracting parties and one of
them opts for rescission, the contract shall be rescinded, even if the other
party approves it, but if he opts for approval, the other party’s option
shall remain in effect during the option period.
or approval shall be effective by any act or statement indicating any of them,
explicitly or implicitly.
the period shall end, without electing approval or rescission, the contract
validity of rescission is conditioned upon electing it within the option period
and the knowledge thereof by the other party, if the rescission is verbal and is
not conditioned by mutual assent or resorting to court.
approval, however, is not conditioned upon knowledge thereof by the other
option shall be forfeited by the death of the beneficiary thereof within the
option period and the contract shall be binding to his heirs, but the option of
the other party shall remain open to him until the expiry of the option period,
provided he was given this option.
viewing option is given, in contracts that may be rescinded, to the party in
favor of whom the act was performed, even if he does not condition the contract
upon such option, and if he did not see the object of the contract which was
only specified by description.
viewing option shall remain until viewing is achieved, within the agreed period,
viewing option shall not prevent the enforcement of the contract, but shall
render it non binding with respect to the party in favor of whom the option is
viewing option may not be forfeited by surrender.
shall be forfeited by viewing the object of contract, its express or implied
acceptance, by the death of the party having the option, total or by disposing
of it by the beneficiary of the option in a way that does not allow rescission
or that gives right to others.
by viewing option, shall be accomplished by any action or statement that
explicitly or implicitly indicates it, provided that the other contracting party
has had knowledge of it.
may be agreed that the object of contract would be one of two or three things,
giving any of the contracting parties to opt for one of these provided that the
consideration for each and the option period are stated.
both contracting parties do not fix the option period, or the period fixed for
either party has elapsed without exercising his option, the other party may ask
the judge to fix the option period or the object of the transaction.
contract shall not be binding to the party having the option until he exercises
it. Once the express or implied choice is made, the contract becomes enforceable
and binding in accordance thereto.
effect of exercising the designation option goes back to the date of formation
of the contract.
the designation option is given to the purchaser and one of the two things
perishes in the hands of the seller, the buyer, at his discretion, may take the
other thing at its price or leave it. Should however the two things perish, the
sale is null and void.
one of the two things under option perishes in the hands of the buyer, the
perished thing is designated for sale and the buyer is bound to pay its price
and the other thing shall be held in trust.
both things perish one after the other, the first one shall perish as a sold
object, and the other as an object under trust. If they perish simultaneously,
the buyer is liable for half the price of each.
the designation option is for the seller and one of the things under options
perishes prior or after receiving payment, the seller shall have the choice to
bind the buyer to purchase the other thing or to rescind the contract. However,
if the two things perish before payment, the contract is void.
If both things perish successively, the first one shall perish in trust, and the
second in sale. If both things perish simultaneously, the buyer shall be liable
for half the price of each.
case of death of the person for whom the option was given within the option
period, his right shall devolve to his heirs.
right for rescission of the contract, under the option of defect, shall be
operative in contracts, where rescission is likely to occur, without stipulating
it in the contract.
defect which makes the option operative must be old, affecting the value of the
contract’s object, unknown to the buyer and provided the seller did not
specify the discharge thereof as a condition in the contract.
the defect fulfills the conditions mentioned in the previous article, the
contract shall not be binding to the option holder before payment, and
of the contract prior to receiving payment, with all what it entails, without
need for consent or court action provided that the other contracting party has
knowledge thereof. After payment rescission shall take place only by consent or
by court action.
of the contract on grounds of defect shall result in returning the object of the
contract to its owner and recovering what was paid.
defect option shall be forfeited by accepting the defect after knowledge of it,
by disposing of the contract’s object even before knowledge thereof, by
its perishing or diminishing after payment or its increment prior to payment in
an uninterrupted manner but not generated from it due to an act of the purchaser
and, after payment if due to an act of the purchaser and, after payment if due
to an independent cause generated by it.
defect option shall not be forfeited by the death of its holder, and shall be
fixed for his heirs.
defect option holder shall have a possessory lien against the object of the
contract, and a plea for reduction of price.
BETWEEN CONTRACTING PARTIES
the law provides otherwise, the contract’s provisions apply on the object
of the contract and its consideration immediately upon its formation without
making them dependant on payment or anything else.
regards the contract's rights (obligations), each of the contracting parties
shall fulfill what the contract has bound him to do.
contract against consideration, concerning the usufruct of properties, once
fulfilling the conditions of its validity, shall establish the right of each of
the contracting parties to the consideration received and shall bind each one of
them to deliver his property, object of the contract, to the other.
contract against consideration, concerning the usufruct of properties, once
fulfilling the conditions of its validity, binds the party disposing of the
property to deliver it to the beneficiary of the usufruct and binds the latter
to hand over the usufruct consideration to the owner of the property.
contract shall be implemented, according to the provisions contained therein and
in a manner consistent with the requirements of good faith.
contract is not restricted to what is contained therein but shall extend to its
essentials in accordance with the law, custom and the nature of the transaction.
bilateral contracts, where the reciprocal obligations are due, each of the
contracting parties shall have the right to abstain from executing his
obligation in case the other party does not honor his obligation.
the contract is one of adhesion, and includes arbitrary conditions, the judge
may modify such conditions or exempt the adherent, from it, according to the
requirements of justice. Any agreement to the contrary shall be void.
public exceptional unpredictable circumstances shall arise, and their happening
has resulted in making the execution of the contracted obligation, if not
impossible, has become burdensome to the debtor in such a manner as to
threatening him with heavy loss, the judge may, according to circumstances and
by comparing the interests of both parties, reduce the burdensome obligation to
reasonable limits, if justice so requires. Any agreement to the contrary is
AS CONCERNS THIRD PARTIES
to the rules relating to successions, the effects of a contract shall apply to
the contracting parties and to their universal successors in title, unless it
follows from the contract, the nature of the transaction or a law provision that
such effect shall not apply to the universal successors in title.
rights created by the contract relating to a property that has subsequently been
transferred to a particular successor, shall devolve to this successor at the
same time as the transfer of title to the property, if it is an essential
element thereto and if the particular successor in title had knowledge of these
rights at the time of the transfer of the property to him.
contract does not impose any obligation on third parties, but may establish a
right in their favor.
person who binds himself to procure the performance of an obligation by a third
party does not in so doing bind the third party. If the third party refuses to
perform the obligation, the person who engaged himself to obtain such
performance shall be liable to pay damages to the other contracting
may avoid paying damages by performing himself the obligation he undertook to
the third party consents to perform the obligation, his consent is effective
only from the time that it is given, unless it is indicated that he intended
expressly or impliedly that the consent is retrospective as from the time of
issuing the undertaking.
person may contract in his own name rights for the benefit of a third party if
he has a personal interest, material or moral, in its performance.
a result of such stipulation and in the absence of an agreement to the contrary,
the third party acquires a direct right against the person who undertook to
perform such stipulation, and may call upon him to do so. The person who gave
the undertaking may set up against the beneficiary the defences arising out of
stipulator may also claim the performance of the stipulation made in favor of
the beneficiary, unless it appears from the contract that the beneficiary alone
has the right to do so.
stipulator himself, but not his creditors or heirs, may revoke the stipulation,
provided that the revocation is made before the beneficiary notifies the author
of the undertaking or the stipulator of his wish to benefit from it, unless this
is contrary to the requirements of the contract.
the absence of any express or implied agreement to the contrary, the revocation
does not liberate the author of the undertaking vis-à-vis the
stipulator may substitute a new beneficiary in place of the former beneficiary
or may retain for himself the benefit of the stipulation.
a stipulation made in favor of a third party, the beneficiary may be a future
person or body, as he may be a person or body who is not identified at the time
of contracting, provided that he can be identified at the time when the effects
of the contract come into operation in accordance with the stipulation.
principle in contracts is the assent of the parties and the contractual
obligations they are bound to perform.
contracts, purposes and meanings are decisive, not the wording or construction
meaning is the basis of words. A word shall not bear a metaphor unless it is
impossible to construe them according to their true meaning.
indications shall not have no bearing vis-à-vis express statements.
effect to uttered words is prevalent over neglecting them, but if this is
impossible then they should be neglected.
part of what is indivisible is like stating the whole.
absolute shall be given effect without limitation unless it is limited by an
express provision or tacitly.
of what is present is futile and of what is absent is to be considered.
merchants, known practices are alike agreed conditions.
the wording of a contract is clear, it cannot be deviated from in order to
ascertain by means of interpretation the intention of the contracting
Where the contract has to be construed, it is necessary to ascertain the common
intention of the contracting parties and to go beyond the literal meaning of the
words, taking into account the nature of the transaction as well as that loyalty
and confidence which should exist between the parties in accordance with
cases of doubt, the construction shall be in favor of the debtor.
construction, however, of obscure expressions in adhesion contracts must be
detrimental to the adhering party.
a contract is valid and binding, none of the contracting parties may revoke,
modify or rescind it except by mutual consent, order of the court or a law
to the formation of the contract, the contracting parties may dissolve the
contract by mutual agreement.
as concerns the rights of contracting parties, amounts to rescission and, as
concerns third parties’ rights, a new contract.
shall occur between present persons through offer and acceptance and by
negotiating provided that the object of the contract does exist and is in the
hands of the concerned party at the moment of dissolution. If this object has
partially perished, dissolution applies proportionately on the other part.
parties may agree that in case of non-performance of the obligations deriving
from the contract, the contract will be deemed to have been “ipso
facto” without need to obtain a court order. Such an agreement does not
release the parties from the obligation of serving a formal notification, unless
the parties agree that such notification is dispensed with.
bilateral contracts, if one of the parties does not perform his contractual
obligations, the other party may, after serving a formal notification to the
debtor, demand the performance of the contract or its rescission.
judge may order the debtor immediate performance of the contract or grant him
specified additional time, as he may order rescission with damages, in any case,
if deemed justified.
bilateral contracts, if a force majeure arises that makes the performance of the
obligation impossible, the corresponding obligation shall, be extinguished and
the contract ipso facto rescinded.
the impossibility is partial, the consideration for the impossible part shall be
extinguished. This shall also apply on the provisional impossibility in
continuous contracts. In both instances the creditor may rescind the contract
provided the debtor has knowledge thereof.
EFFECTS OF CONTRACT'S DISSOLUTION
a contract is or shall be rescinded, the two contracting parties shall be
reinstated to their former position, prior to contracting, and in case this is
impossible, the Court may award damages.
the contract is dissolved on grounds of nullity, rescission or for any other
reason, and both contracting parties have to return what they have taken
possession of, each one of them may retain what he has received, as long as the
other party did not restitute what he has received from him, or did not submit a
guarantee for its restitution.
ACT OF DISPOSITION
otherwise provided by law, the act of disposition may be unilateral, without
being dependant on the acceptance of the beneficiary of such act, unless it
contains an obligation to third parties under the law.
otherwise provided by law, the unilateral act of disposition shall be governed
by the provisions applicable to contracts except those pertaining to the meeting
of two minds required for the formation of the contract.
the constitutive element of a unilateral act of disposition is present and it
has fulfilled its conditions, the author of the act may not withdraw there from,
unless otherwise provided by law.
the unilateral act of disposition is an act of proprietorship it shall be
binding to the alienee unless he accepts it.
the act is a forfeiture embodying owenership or a discharge of a debt it shall
be binding upon the alienee but it may be revoked within the meeting.
it is a mere forfeiture, it shall be binding upon the alienee and may not be
the above shall be effective unless otherwise provided by law.
promise is what the promisor imposes on himself in future for the benefit of
others, not as a pecuniary obligation but its object may be a contract or an
promise binds the promisor except in case or his death bankruptcy.
person who makes a promise to the public of a reward in exchange for a specified
service and fixes a specific period of time, is bound to give the reward to the
person who performs the service, even if he acted without giving consideration
to the promise of reward.
the promisor does not fix a period of time for the performance of the service he
may withdraw his promise through a notice to the public provided that his notice
does not affect the rights of a person who has already performed the service
prior to such withdrawal. The right of action for the reward will be forfeited,
if such action is not lodged within three months from the date of publication
of the notice of withdrawal.
author of any tort, even if not discerning, shall be bound to repair the
shall be committed by perpetration or by causation.
committed by perpetration, he is unconditionally bound to repair the prejudice
and, if by causation, it is conditional upon transgression premeditation or if
the act caused the prejudice.
the perpetration and the causation are both present, the act shall be considered
as committed by perpetration.
any person shall mislead another, he shall be liable for reparation of the
prejudice resulting from misleading.
had his property damaged by someone else, shall not damage the property of the
latter, otherwise each shall be liable to make good what he had damaged.
the absence of a provision in the law or an agreement to the contrary, a person
is not liable for reparation if he proves that the prejudice resulted from a
cause beyond his control such as a heavenly blight, unforeseen circumstances,
force majeure, the fault of others or of the victim.
causes an injury to another in legitimate defense of his person, honor or
property or, of the person, honor or property of others, is not responsible,
provided that he does not exceed the measures necessary for his defense, as
otherwise he will be liable to damages for this excess.
act is the responsibility of the doer and not of the one who ordered it, unless
the doer was compelled to act. Compulsion that is taken into consideration must
amount to imminent duress.
the above, a public servant is not responsible of his acts that injured third
persons if he acted in compliance to an order given by his superior whenever he
was under duty to comply with, or if he believed so and establishes that his
belief of the legality of his act is based on reasonable grounds and that he
observed the precautionary measures in performing his act.
judge may reduce the amount of damages, or not allow any, if the injured has
contributed, by his action, in the happening of such injury or in its
several persons are responsible for a prejudicial act, each one of them is
responsible for his share in it and the judge may decide to allot the liability
equally between them or consider them jointly and severally responsible.
shall, under all circumstances, be assessed to cover the prejudice sustained and
the lost profit provided it is a natural consequence of the prejudicial
shall include moral damages. Shall be considered moral damages, trespassing
against others in their freedom, honor, dignity reputation social standing or
and closet relatives of the family may be adjudged damages for the moral
prejudice sustained by them as a result of the death of the injured.
of moral damages is not transferable to others unless its amount is fixed by
agreement or a final court judgment.
may be paid by installments, as it may consist of a regular periodical payment
and, in either cases, the debtor may be ordered to provide a deposit in
guarantee assessed by the judge, or an acceptable security.
will consist of a money payment. Upon request of the victim, however, the judge
may, in accordance with the circumstances, order that the damage be made good by
restoring the parties to their original status, or by performing, in
compensation, a specific matter connected with the prejudicial act.
condition exonerating from tort liability shall be deemed null and void.
liability, once its conditions fulfilled, shall not impair criminal
responsibility, and the criminal penalty shall have no bearing on determining
the scope of civil liability and the assessment of damages.
action for damages arising from an unlawful act is prescribed after three years
from the date upon which the victim knew of the injury and the identity of the
person who was responsible.
a claim arises out of a criminal offense and the hearing of the penal action is
still pending after the lapse of the periods above-mentioned in the preceding
clause, the action for damages may still be heard.
action for damages is prescribed in any case after fifteen years from the date
on which the prejudicial act was committed.
ARISING FROM PERSONAL ACTS
are compulsory due for prejudice to the person.
otherwise agreed between the parties, either blood money or compensation for
defect of sold value, in cases they are due, may not be added to damages.
prejudice to the general provisions on damages, whoever damages or destroys the
property of another, shall be liable to replace it, if fungible, or pay its
value, if ad valorem.
prejudice to the general provisions on damages, in case the damage is partial,
the perpetrator shall be liable to compensate the loss in value and in case it
is a gross damage, the property owner may opt either to receive the value of the
damaged part or abandon the property and take its value.
one destroys the property of others pretending that it is his own, shall be
liable to damages for what he has destroyed.
he destroy the property of another, with his permission, he shall not be liable
an infant, whether discerning or not, or the like, shall destroy the property of
others, he shall be responsible in his personal funds.
EXTORTION AND TRANSGRESSION
hand that has taken is liable until it gives it back.
The one who extorts the property of another shall have to restore it back in the
same condition in which it was at the time of extortion, and at the same place
where extortion occurred.
he consume, destroy, lose it or if it has been destroyed due to his
transgression or without it, he shall have to replace it or pay its value, on
date, and at the place, of extortion.
He shall also bear liability of its profits and increments.
one shall destroy the extorted property while under the control of the
extortioner, the victim of extortion shall have, at discretion, the option to
recover the damages from the extortioner and this latter may go back on the
author of destruction, or recover damages from this latter who, in this case,
has no right to revert on the extortioner.
the extortioner has disposed of the extorted property, with or without
consideration, and such exorted property shall be destroyed, in whole or in
part, while under the control of the person in favor of whom the act of
disposition was made, the victim of extortion may opt either to claim damages
from either one. So, if he recovers damages from the first, the act of
disposition is valid, and if he recovers from the second, the latter may revert
on the extortioner in accordance with the law provisions.
extortioner of the extortioner shall be treated as extortioner.
the extortioner of the first extortioner shall return back the extorted property
to the first extortioner, he shall be alone discharged and if he returns it to
the victim of extortion he and the first extertioner shall be discharged.
the extorted property is damaged or has been destroyed while under the control
of the extortioner, the victim of extortion shall have the option to claim
compensation from the first extortioner, or if he so wishes, from the second
may also claim damages from the first for part of the damaged property and from
the second for the other part. So if he is compensated by the first extortioner,
this latter may revert back against the second extertioner and if compensated by
the second, the latter may not revert on the first.
all circumstances, the judge shall, if he deems it justified, condemn the
extortioner to pay damages as deemed adequate by him.
has under his custody an object and neglected its protection, transgressed it,
or unduly deprived its owner from it, denied it or died without declaring it,
shall be liable to replace it or pay its value, according to the circumstances.
has taken possession of money, by larceny or highway robbery and seized money,
shall have to restore to its owner, if still existing, replace it or pay its
value, if it has been consumed, and even if he has been sentenced.
the extorted object has undergone self change, the usurped person shall have an
option either to recover it or receive a similar object in replacement.
If the extorted object shall change, in such a way as to change its name, the
extortioner is liable to replace it.
the extorted property shall change by the addition made by the extortioner out
of his own money, the extorted person shall have the option either to pay the
added value and recover the extorted object in in kind, or hold the extortioner
liable to provide its substitute.
the extorted property shall change by reduction in its value as a result of its
utilization by the extortioner, he shall be liable to return the property back
and pay the reduction in value.
amounts to extortion shall be treated as such.
ARISING FROM THE ACTS OF OTHERS
No one is liable for the act of another person, however, upon request of the
victim, the judge, if he deems it justified, shall order any of the following
persons, as the case may be, to pay the damages to which the tort doer has been
person who is, by law or by agreement entrusted with the supervision of a person
who, on account of his minority or his mental or physical condition, requires
supervision, unless he proves that he has fulfilled his duty of supervision, or
if the prejudice would have been anyhow sustained even if he has fulfilled his
duty with the required care.
b- The one having actual authority to control and guide the tort doer, even if
he was not free in his choice, if the tort was perpetrated by a subordinate in
the exercise of his duty or because of it.
one who settled the damages is entitled to revert on the person sentenced for
payment thereof, in order to recover what he has paid.
ARISING FROM ANIMALS AND THINGS,
THE USE OF PUBLIC ROAD
felony caused by an animal is punishable, but the liability for the prejudice
caused is on the one having control over it, whether being its owner or not if
due to his negligence or transgression.
THE COLLAPSE OF BUILDINGS
injury to others caused by the collapse of a building, in whole or in part, is
the liability of its owner or the person in charge of it, unless he proves that
he is not a trespasser or negligent.
is in danger of damage from a building is entitled to call on the owner to take
the necessary precautions to prevent the danger, and if the owner fails to take
such precautions, to obtain an order from the court authorizing him to take the
necessary precautions himself at the cost of the owner.
is in charge of a thing whose supervision requires special care in order to
protect him from its danger, or of a machine, is liable for damage caused by
these things or machines except that which, without prejudice to any special
provisions in this respect.
use of a public right is limited by the safety of others.So, if the user of a
public right causes to third persons a prejudice which cannot be prevented, by
one is entitled, without cause, to enrich himself to the detriment of another
person, without just cause. If he does so, he is liable to restitute it.
otherwise provided by law, whoever enriches without just cause, is bound to
restitute what he obtained, if existing, or replacement thereof of its value, if
one, unintentionally, loses control over his property, which was merged by
accident with the property of somebody else, in such a manner as it cannot be
separated without prejudice to any of the owners, then the property of lesser
value shall follow the one with greater value, after settlement of its price. If
both are equal in value, they shall be sold for their account, and the price
thereof shall be equally divided and distributed among them, unless otherwise
stipulated by Law.
gives something, being under the belief that he is under duty to do so, but it
was later revealed that it is not due by him, he is entitled to recover it from
the one who received it, if existing, or a similar thing in replacement thereof
or its value, if not existing.
payment which was not due may be recovered, if it was made in the performance of
an obligation whose cause had not materialized or had ceased to exist.
may also be made of a payment effected in the performance of an obligation which
had not at the time matured, if the payor was not aware that payment was not
settlement has been made by other than the debtor and in consequence of this
payment the creditor, acting in good faith, has given up his document of title
or security obtained, or allowed his claim against the real debtor to be
prescribed, he is not bound to restitute what he has received and the real
debtor must indemnity the payor, if appropriate.
unduly receives that which is not due to him, he is bound to restitute it to the
payor together with the profits and interests. The judge may indemnify the right
owner of what he has failed by neglect to collect at that time.
does a beneficial act to a third person without being ordered by him, but
authorized by the judge, commanded by necessity or imposed by custom, he is
considered his agent and is governed by the following provisions.
rules of mandate apply, if the person whom the voluntary agent acts ratifies his
voluntary agent must continue work he has commenced until the person for whom he
acts is in a position to do so himself. He must also, as soon as he is able to
do so, inform the person for whom he acts of his intervention.
voluntary is responsible to indemnify the person for whom he acts for the
prejudice sustained by the latter and, if circumstances so justify, the judge
has to assess the amount of the indemnity.
the voluntary agent delegates to a third party the whole or part of the work, he
shall be responsible for the acts of his delegate, without prejudice to the
right of the person for whom he acts to have a direct recourse on this
voluntary is bound by the same obligations as a mandatory as regards the
restitution of that which he received as a result of the voluntary agency and
must submit an account for his acts.
person for whom the voluntary agent has acted will be bound to carry out the
obligations entered into on his behalf by the voluntary agent, to indemnify him
against all undertakings assumed by him, to reimburse him monies usefully or
necessarily expended by him which are justified by the circumstances, and to
indemnify him in respect of any loss he has suffered as a result of his
management. The voluntary agent is not entitled to any remuneration for his work
unless the work falls within the scope of his professional business.
the events of the death of a voluntary agent, his heirs are bound by the same
obligations as those of a mandatory upon his death.
the event of the death of the person for whom he acts, the voluntary agent is
bound by the same obligations to the heirs as he was to the person of whom they
were the successors in title.
OF THIRD PARTIES DEBTS
reimburses the debt of another, upon his order, is entitled to revert on the
person giving the order for what he has paid on his behalf and shall substitute
the original creditor in his claim of the debt from the debtor whether he the
right of reversion is specifically provided for or not.
fulfills the debt of another without his order is neither entitled to revert for
what he has paid on the debtor, except in the instances provided for in Article
325, nor revert on the creditor unless this latter discharges the debtor from
the debt even after recovering his debt from the payor.
a mortgagor settles the debt of somebody else, to liberate his mortgaged
property in security for such debt, he is entitled to revert on the debtor for
what the amount settled by him.
claim arising, from a beneficial act, shall not be heard after the lapse of
three years from the date on which the creditor had knowledge of his right of
reversion, and in any case fifteen years from the day on which the right
whish are directly and solely arising from law are governed by the provisions of
the law giving right to such rights.
right must be settled whenever its legal maturity conditions are satisfied. If
the debtor is in default, the right shall be compulsory enforced, either in kind
or through payment of an indemnity, in conformity with the law provisions.
shall be willful if it is done by settlement or its equivalent.
shall be forced if settled in kind or through compensation.
case a right loses, for any reason whatsoever, the protection of the law, it may
not be forcibly enforced and becomes a natural obligation against the debtor.
the debtor settles a natural obligation, his settlement shall be valid and not
considered a payment which is not due.
PARTIES TO THE SETTLEMENT
may be made by the debtor, his agent, or any other interested person.
is also valid if made by a person having no interest in doing so, whether
pursuant to an order of the debtor or without such order, the creditor may,
however, refuse settlement from a third party in case the debtor objected to
such payment and notified his objection to the creditor.
a condition to be discharged from a debt, the payor must be the owner of what he
settled. In the event the debtor is a discerning minor, an imbecile of legal age
or, a prodigal under custody, and pays the debt he owes, his payment is valid
unless it is detrimental to the payor.
to some creditors shall not be effective as concerns the other creditors, if the
debtor is interdicted and pays the debt that caused interdiction or sick in his
last illness and the payment is detrimental to the other creditors.
shall be made to the creditors or his representative. Shall be considered
qualified to recover the debt, whoever presents to the debtor a discharge issued
by the creditor, unless it is agreed that payment shall be made to the creditor
the creditor lacks full legal capacity, the debtor shall not be discharged
unless by settlement to his guardian. In the event that settlement is made to
the creditor and the object of settlement perishes in his hands, or is lost by
him, the guardian may claim the debt from the debtor.
REJECTION OF SETTLEMENT
the creditor unjustifiably refuses to accept the duly offered settlement, where
acceptance is a must, or abstain from performing the acts without which
settlement is not complete, or has declared that he will not accept the
settlement, the debtor shall notify him with a warning and fix to him an
adequate delay to perform what he has to do in order to recover his right.
of the creditor shall result in putting the object of the obligation under the
guarantee of the creditor, if it was previously under the guarantee of the
debtor, and the debtor shall be entitled to deposit it on the creditor's expense
and be compensated for the damages sustained.
the object of settlement is a per se specified thing, and it had to be delivered
at the place where it is located, the debtor may, after warning the creditor to
take delivery thereof, obtain the judge's permission to deposit it. Should this
object be an immovable property or is destined to stay where it is, the debtor
may ask that it be put under sequestration.
the object of settlement is quickly perishable, or requires heavy costs to be
deposited or sequestrated, the debtor may, with the judge's permission, or
without it when necessary, sell it at its market price if possible otherwise it
shall be sold by public auction. Depositing its price shall be equal to
depositing the thing itself.
or an equivalent procedure may also be acceptable if the debtor ignores the
identity or residence of the debtor, if the creditor is interdicted and has no
representative to accept the settlement on his behalf, or that the debt was
subject of disputed between several persons, or there were other serious causes
that justify such a procedure.
regards the debtor, a duly made offer shall stand in place of settlement if
followed by a deposit satisfying its legal requirements, a similar procedure if
accepted by the creditor, or validated by a final judgment.
the debtor offers settlement of the debt, and follows such an offer by a deposit
or similar procedure, he may withdraw such an offer, as long as it is not
accepted by the creditor, or is not validated by a final court decision has been
issued for its validity. Should he withdraw his offer, neither his partners in
the debt nor his guarantors shall be discharged.
the debtor shall withdraw his offer, after being accepted by the creditor, or
validated by a court decision, issued for its validity, and the creditor has
accepted such withdrawal, the creditor may not, afterwards adhere to the
securities guaranteeing his right thereto and the partners in the debt, as well
as the guarantors shall be discharged.
OBJECT OF SETTLEMENT, ITS TIME, PLACE, EXPENSES AND PROOF
the debt is identified by designation, the debtor may not settle a substitute
thereto without the consent of the creditor, even if such substitute is equal in
price to the thing due, or be of a higher value.
however the debt is not identifiable by designation, the debtor may settle it
with a similar thing even if not accepted by the creditor.
the absence of an agreement or provision allowing it, the debtor may not force
the creditor to accept partial payment of his right.
the debt is disputed in part thereof, and the creditor accepts the settlement of
the approved portion, the debtor may not refuse settlement of the undisputed
the debtor is under obligation to settle, with the debt, any expenses and what
he has paid does not settle the debt in addition to such expenses, the amount
settled shall, unless otherwise agreed, be deducted from the expense account
then from the principal amount of the debt.
the debts, owned by the debtor are several, and they were all due to only one
creditor, and of one kind, and what the debtor paid does not cover all such
debts, the debtor may upon settlement specify the debt he wishes to settle first
as long as there is no legal or conventional impediment that prevents such
the debt is not specified in the manner stated in the preceding Article, the
payment shall be deducted from the debt falling due. In case there are several
matured debts, deduction shall apply to the most burdensome on the debtor and if
all are equally burdensome then from the debt specified by the creditor.
the absence of an agreement or a provision to the contrary, settlement must take
place immediately once the obligation is finally due on the debtor.
prevented by a law provision, the judge may, however and in exceptional cases,
give the debtor a reasonable delay, or delays, within which he has to execute
his obligation, that is if his condition so requires, and if the creditor shall
not sustain from such postponement a serious damage.
the debt was deferred, the debtor may pay it before its maturity date if this is
in his interest, and the creditor is bound to accept such payment.
the debtor settles the debt before maturity date, then what was received as
payment matures, the debt shall reinstate its postponed status as it previously
otherwise agreed or stipulated, if the object of obligation was specified by
designation, it must be delivered at the place where it was at the time when the
obligation was born.
the other obligations, settlement shall be at the place where the residence of
the debtor is, at the time of settlement, or in the place where the main office
of the business of the debtor is, if the obligation was related to such
the debtor shall send with his messenger the debt to his creditor and if
perished while under the control of such messenger, before reaching the
creditor, then such perished debt shall encumber the debtor's assets. If the
creditor orders the debtor to settle the debt to his messenger and the latter
does so, then its perishing shall be supported by the assets of the creditor and
the debtor shall be discharged from the debt.
otherwise provided by law, the settlement expenses shall be assumed by the
one who settles a part of the debt has to ask for a discharge for what he has
settled, together with endorsing the debt instrument that such settlement has
been effected. If he pays all the debt, he is entitled to ask for the
restitution of the debt instrument or its cancellation.
the debt instrument was lost, he shall have to ask the creditor to confirm, in
writing, the loss of such instrument.
If the creditor refuses to carry out what he has been bound to fulfill as per
the preceding paragraph, the debtor may deposit the object of the due debt with
PERFORMANCE EQUIVALENT TO SETTLEMENT
creditor may accept, as settlement for his debt, something else, or a legal
right to be settled by the debtor. Such agreement, for substitute settlement
shall be governed by the general provisions concerning the contracts provided
for in this Law.
substitute settlement shall be governed by the sale provisions, if the
substitute is a specific property in lieu of the debt.
shall be subject to the provisions for the payment in discharge of the
first debt shall be extinguished together with its securities in case of
substitute settlement, and the right of the creditor shall be transferred to the
is the settlement of a debt due to a creditor, against a debt owned by him to
is either compulsory, and takes place by the power of law, or facultative,
carried out by agreement of both parties, or judicial carried out by decision of
forced offset requires that each of the parties be a creditor and debtor for the
other, and that both debts be similar in kind, description, maturity, force and
weakness, and further provided that applying such offset does not prejudice the
rights of third parties regardless of whether the two debts have the same cause
or different ones.
offset may be performed even in the absence of one of the conditions required
for forced offset.
judicial offset, if fulfilling its conditions, shall be carried out by decision
of the judge, upon an original or incidental request.
the depositary is indebted to the depositor, or an usurper is indebted to the
owner of the usurped property, and the debt was of the same nature as that of
the depositor usurped property, the offsetting shall not take place except by
agreement of both parties.
a creditor destroys a property owned by the debtor, the debt shall be forfeited
if the destroyed property is of the same kind as the debt, otherwise offset
shall apply only by agreement of both parties thereto.
shall be carried out upon request of the interested party and within the limits
of the smaller of the two debts.
at the time the offsetting is sought, the court action is barred by
prescription, this shall not prevent carrying out the offsetting as long as the
period preventing the action to be heard did not lapse at the time the offset
was still possible.
a debtor pays his debt, while he could have asked the offset with a right owned
by him, he may not adhere to the securities pertaining to this right to the
prejudice of third parties unless he had justifiable reason to ignore its
the qualities of creditor and debtor in the same debt are united in the same
person, the debt is extinguished to the extent of the merger.
is no merger when the creditor is a heir to the debtor and participates with the
other creditors in order to recover his debt from the estate.
the cause which gave rise to the merger disappears retrospectively, the debt is
reinstated to its former status.
debtor shall be compelled, upon being duly summoned to perform his obligation in
kind, whenever possible.
however, specific performance is too onerous for the debtor, the judge may, upon
request of the debtor, limit the creditor's right to a sum of money as
substitute, if such performance does not seriously prejudice the creditor.
the object of the right is the doing of an act, and the nature thereof or the
agreement demands that it be performed by the debtor in person, the creditor may
refuse the performance of the obligation by any other person.
the case of non-performance by the debtor of an obligation to do something, the
creditor may request the authorization of the judge to carry out the obligation.
He may, in case of urgency, perform it without authorization from the judge. In
both cases, performance shall be carried out at the expense of the debtor.
the nature of the obligation so permits, a judgment may, in case of an
obligation to do something, take the place of the performance.
otherwise provided by law or stipulated in the agreement, a debtor who is
required to preserve a thing, to manage it or to act with prudence in the
performance of his obligation he brings to the performance thereof the care of a
reasonable person, even if the object in view is not achieved.
all circumstances, the debtor remains liable for fraud or gross negligence.
a debtor infringes an obligation to refrain from doing something the creditor
may demand the suppression of that which he has done in contravention of his
obligation. The creditor may apply to the judge for an order authorizing him to
proceed himself with such suppression at the expense of the debtor.
specific performance has been carried out or when a debtor has persisted in his
refusal to perform the obligation, the judge shall fix the amount of damages
that the debtor is bound to pay, taking into consideration the prejudice
suffered by the creditor and the unjustifiable attitude of the debtor.
COMPENSATION IN LIEU OF PERFORMANCE
the specific performance by the debtor is impossible, he will be condemned to
pay damages for non-performance of his obligation, unless he establishes that
the impossibility of performance arose from a cause beyond his control. The same
principle applies, if the debtor is late in the performance of his obligation.
otherwise provided in the law or stipulated in the contract, damages are not due
unless the debtor has been formally summoned.
formal summons to the debtor will not be necessary in the following
the execution of the obligation becomes impossible or useless due to some act of
the object of the obligation is the payment of damages in respect of an illicit
If the object of the obligation is the restitution of a thing that the debtor
knew to have been stolen or of a thing that he received knowing that it was not
due to him.
the debtor declares, in writing, that he does not want to perform his
the event that the amount of damages is not fixed by law or in contract, the
judge will assess it to be commensurate with the prejudice effectively sustained
when it occurred.
two contracting parties may fix, in advance, the amount of damages either in the
contract or in a subsequent agreement subject to the law provisions.
judge may, in all cases, at the request of one of the parties, amend such an
agreement, in order to make the amount assessed equal to the prejudice. Any
agreement to the contrary is void.
MEANS TO SECURE PERFORMANCE
THE DEBTOR'S PROPERTY AS SECURITY FOR PAYMENT
the debtor's properties shall be held as security for reimbursing his
prejudice to the law provisions in this respect, all creditors have equal ranks
as concerns this security.
creditor, even if his right has not fallen due, may exercise in the name of his
debtor all his debtor's rights save only those that are purely personal or
cannot be attached.
exercise by a creditor of the rights of his debtor is not admissible, unless the
creditor proves that the debtor himself has not exercised such rights and that
the debtor's failure to do so is such as to result in or increase his
bankruptcy. The debtor's forced intervention in the court action is a
creditor, in the exercise of his debtor's right, is deemed the debtor's
representative. The benefits resulting from the exercise of such rights fall
into the patrimonium of the debtor and serve as a security to all his
a simulated contract has been concluded, creditors of the contracting parties
and particular successors in title may, if they are in good faith, avail
themselves of the hidden contract and establish, by any means, the simulation of
the contract by which they were prejudiced.
the case of a conflict of interest between the interested parties, some of whom
rely upon the ostensible contract and others on the hidden contract, the former
shall have preference.
the contracting parties hide a genuine contract behind an ostensible contract,
the genuine contract will bind the contracting parties and their universal
successors in title.
NON-OPPOSABILITY OF THE DEBTOR'S ACT TO THE CREDITOR
the actual or deferred debt covers the debtor's patrimonium, whether by adding
or being equal to it, the debtor is prohibited to give as donation what he is
not bound to donate or not customarily accepted. The creditor may ask the court
to order that such act is not opposable to him.
the creditors shall claim the debtor, whose debt, exhausted his patrimonium, the
latter may not donate his property or dispose of it against consideration, even
without favoritism. The creditors are entitled to ask the court to order the
non-opposability of such act to them, the sale of his property and set-off their
rights from the proceeds of the sale, according to the law.
the creditor pretends that his debt covers the entire patrimonium of the debtor,
he has only to prove the amount of debts owed to him and the debtor shall have
to establish that the property he owns exceeds in value the amount of the debt.
the act has been declared non-opposable, the creditors who have been prejudiced
by such act shall benefit of this dicision.
claim of non-opposability of the act may not be heard after the lapse of three
years from the day the creditor had knowledge of the cause of
claim shall not, under all circumstances, be heard after the lapse of fifteen
years as of the performance of such act.
INTERDICTION OF THE BANKRUPT DEBTOR
may be imposed on the debtor whenever his due debts exceed in value his
request of the debtor or one of the creditors, interdiction shall be adjudicated
by the judge of the domicile of the debtor. The case shall be examined
Any of the creditors may obtain, by virtue of the interdiction order, a decision
from the competent judge to attach all the possessions of the debtor, except
those that may not be attached. Attachment shall remain in effect on the
debtor's property in favor of the creditors until the removal of the attachment.
judge has, in every case before interdicting the debtor, to consider in his
assessment all the debtor's surrounding circumstances, the extent of his
responsibility for the causes, that led to the request for interdiction, the
lawful interests of his creditors and every other circumstance that may affect
his financial status.
the day of entry of the interdiction case, the court clerk must record the
contents of such case in a special register, the decision rendered in the case,
and every other judgment confirming or canceling the said decision, on the same
day the judgment is given.
The clerk shall also dispatch, to the bureau of the Ministry of Justice, a copy
of such registrations and endorsements, to be recorded in the General Register,
organized according to a decision to be issued by the Minister.
case of change of domicile, the debtor has to inform of this change the clerk of
the court of his previous domicile. Upon taking knowledge of this change of
domicile, whether informed by the debtor or advised by any other means, the
clerk has to send copy of the interdiction order, as well as of the information
endorsed on the margin of the registration, to the court in which jurisdiction
falls the new domicile, in order to record same in its registers.
interdiction shall entail the following:
all deferred debts due by the debtor.
debtor's acts of disposition, of his existing assets or the ones to exist at a
future date, shall not be opposable to all his creditors.
of the registration of the contents of the lawsuit, his acknowledgment of a debt
to another person shall be of no effect.
the debtor is interdicted, the president of the competent court shall, upon a
petition submitted by the debtor, decide to grant him a subsidy to be taken from
his own funds. An opposition may be filed against the decision taken on the
petition within three days from the date it is rendered, if filed by the debtor,
or from notifying such decision to the creditors if the opposition is submitted
assets of the interdicted debtor shall be sold, and the proceeds allotted
between the creditors to be set-off the debts, in accordance with the procedures
provided for in the law, leaving a sufficient amount for the subsidy to be paid
to him an to those depending of him.
debtor shall be sanctioned for fraud in the following instances:
a case has been filled against him for a debt, and he intentionally has been
declared bankrupt, to cause prejudice to his creditors and the case ended up by
adjudicating the debt and the interdiction.
he has concealed, after he has been condemned to interdiction, some of his
possessions to prevent taking execution measures thereon; or has fabricated
false or exaggerated debts, with the intention of causing prejudice to his
he has fraudulently changed his domicile, which resulted into a detriment to his
Interdiction shall be removed by a court judgment, rendered by the judge of the
debtor's domicile, upon application submitted by any interested person, in the
If the assets of the interdicted have been allotted between the creditors.
it is established that the debts of the debtor have become less than his
If the debtor settles his matured debts that did not mature because of the
interdiction, and, in this case, the due dates of the debts shall be reinstated
to their previous status provided the debtor has paid all due installments.
The court clerk, on his own initiative, shall annotate, in the margin of the
registration provided for in article 404, the judgment terminating the
interdiction and shall send copy thereof to the cabinet of the minister of
Justice for further annotation.
shall be terminated ipso jure after the lapse of five from the date of
endorsement of slaughter.
debtor may, after the termination of interdiction, ask that the debts which were
due because of interdiction, and were not settled on their maturity date, return
to their previous due dates, provided that he had settled his debts that became
due for a reason other than interdiction.
of interdiction shall not prevent creditors from challenging the debtor's acts,
or availing himself of using his rights in accordance with articles 392, and
from 394 to 400.
is under an obligation to supply something may refrain from performing his
obligation so long as his creditor does no offer to perform an obligation
incumbent on him arising out of the obligation of the debtor and connected
of the contracting parties in bilateral financial transactions in general may
retain the object of the contract, while in his hands, until he receives the due
spends on someone else's property, while in his possession, necessary or useful
expenses is entitled to abstain from restituting it until he recovers what is
legally due to him; unless otherwise agreed or
in the law.
retains the thing must preserve it, and must render an account of its fruits.
2-If the thing retained is of a perishable nature or susceptible of
deterioration, the person who retains the thing may obtain from the judge
authorization to sell it in accordance with the procedures followed in the sale
of a pledge property. The right of retention will then be transferred to the
retains a thing by using his right of retention shall have priority, on all
other competing creditors, to recover his right from such thing.
otherwise provided in the law, the right of retention is extinguished by the
fact of the thing ceasing to be in the hands of the possessor or the
the person retaining the thing, who has lost possession thereof without his
knowledge or in spite of his opposition, may claim restitution of the thing
within a period of thirty days from the time he became aware of the loss of
possession, but prior to the lapse of one year since the date of the loss.
SUBJECTS TO SUSPENSIVE CONDITIONS AND TIME CLAUSES
condition is a future fact upon which the existence of the act or its extinction
depends on its materialization.
absolute act is that which is achieved in an absolute and unconditional manner
without being deferred to future time and occurs instantly.
suspended act is that which is tied up by a non materialized condition, or a
future event, and its effect shall be postponed until the condition is
order that suspension be valid, the context of the condition must neither be
materialized or impossible.
act is void when the condition on which it depends is impossible, contrary to
religious precepts, public policy or morality.
act depending of a suspensive condition, that is not inconsistent with the
contract, is not executory unless after materialization of the condition.
act shall cease to exist when the condition to which it is subject materializes.
The creditor is bound to return what he took and in case this is impossible
because of him, he is bound to compensate.
which is subject to a suspensive condition is established upon materialization
of the condition.
condition must as much as possible, be observed.
act may be added to a term which, when due, shall result in the determination of
the rules of its effectiveness and extinguishment.
it results from the act that the debtor shall only perform it when he is able,
or has the means, to do so, the judge will fix a reasonable time for the term,
taking into account the actual and future resources of the debtor and allowing
for the diligence of a man anxious to perform his obligation.
debtor will forfeit the benefit of the term in the following instances:
he is declared bankrupt or interdict.
he does not supply the security of the debt as agreed upon.
he has, by his own act or for a reason beyond his control, diminished the real
securities of the debt, unless he proceeds to complete same.
the term is for the benefit of one of the parties, he may give it up by his own
term debt will not become due by the death of the debtor unless it is guaranteed
by a real security.
OF THE OBJECT OF AN ACT
object of an act may be several things and the debtor is entirely discharged if
he performs one of these.
option, in the absence of any special provision in the law or clause in the
agreement to the contrary, belongs to the debtor, if absolute. The object of the
act is subject to the provisions applicable to the option of designation.
act is substitutive if its object is a single thing and the debtor will be
discharged if he gives as substitute another thing.
2-The original alone, not the substitute, shall be the object of obligation, and
will determine its nature.
OF PARTIES TO AN ACT
between creditors shall not exist unless by agreement or by a law
debtor may settle his debt to any of the joint creditors, unless one of them
notifies him that he will not accept payment.
a debtor is released of his debt to one of his joint and several creditors for a
reason other than performance, he shall be released as regards the other
creditors only up to the amount of the share of the creditor to whom he is no
creditors may claim the debt from the debtor either jointly or severally.
debtor may not be opposed to the debt of one of his joint creditors on grounds
specific to another creditor. He may, in his opposition, raise the grounds
specific to this creditor or the grounds common to all other creditors.
that which a joint creditor receives on account of the debt reverts to all
creditors and will be divided equally between them, unless otherwise provided by
law or agreed between them.
debt is joint when its cause and the cause of another debt are united, if the
debt has devolved by inheritance to several heirs, a commonly consummated
property or the substitute of a loan taken from common property.
partner in the common debt may claim his share in it and that what he received
will be considered property common between all partners, each in proportion of
one of the two partners receives part of the joint debt, the other party has to
make him participate in it proportionately to his share. They both may sue the
debtor for his share.
2-If a partner chooses to sue the debtor, he may not turn back on his partner
unless his share has perished, and only to the extent of what he received.
one of the partners receives his share in the joint debt, then disposed of it or
consumed it, the other partners are entitled to claim their share in it.
it perishes while in his possession without negligence from his part, he is not
liable to answer for the shares of his partners in it. In this case, he has
received his share and the balance of the debt owed by the debtor will be due to
his other partners.
one of the partners obtains from the debtor a guarantor for his share in the
joint debt, or if the debtor refers him to his assignee, the other partners will
participate with him, within the limits of their shares, in the amount received
from the guarantor or the assignee.
one of the partners purchases, against his share in a joint debt, a thing owned
by the debtor, the other partners may hold him liable to compensate within the
limits of the portion of the price taken from their shares, or revert on the
debtor to the extent of their shares. They may also, if they agree, participate
in the ownership of what their partner bought.
partner may donate his portion in the debt to the debtor or release him thereof,
without having to compensate his partners for what he has donated or
of the partners in the joint debt may reach a compromise for his share therein,
thus if the consideration for the compromise is of the same kind of the debt,
the other partners may either share in what was received or sue the debtor. If,
however, the consideration for the compromise is of a kind different from that
of the debt, they may sue the debtor or the compromising partner who will have
to pay them their share in what he received or their share in the debt.
of the partners in a joint debt may defer it alone without the consent of the
others for such deferral.
may defer his share without the consent of the others and, in this case, he
shall not share with them what they will receive out of the debt.
between debtors will only take place unless by agreement or by a law
one of the joint debtors settles the debt in full, the others are
creditor has to claim his debt from all his joint debtors, or some of them,
taking into consideration the ensuing characterization of his relation with
every creditor that may affect the debt.
2-Every debtor, when asked to pay, is entitled to file an opposition on grounds
that are only special to him or common with the other debtors.
a creditor reaches an agreement with one of the joint debtors for a substitute
settlement, the others shall be discharged unless he reserved his right
vis-à-vis all of them.
the share of one of the joint debtors be extinguished for a reason other than
settlement, it shall not be extinguished as concerns the other debtors except to
the extent of the debtor's share in the debt.
the creditor does not agree to release all the rest of the joint debtors from
the debt, he shall only be entitled to claim the balance of the debt after
deducting the share of the debtor who has been released by him, unless he
reserved his right to revert on them for the entire debt and, in this case, they
shall be entitled to sue the debtor to the extent of his share in the
otherwise agreed, should the creditor release one of the joint debtors from
solidarity, his right to revert on the others for the entire debt shall
the creditor releases one of the joint debtors from the debt or from solidarity,
the remaining debtors may revert on such debtor within the limits of his share
in the proceeds of the debtor among them who has been declared bankrupt.
However, if the creditor has released such debtor from all liability from the
debt, then the creditor shall bear the share of this debtor in the proceeds of
the bankrupted debtor.
non-admission for hearing the case on grounds of prescription, as concerns one
of the joint debtors shall not benefit the other debtors except within the
limits of the share of such debtor.
the time limitation be interrupted or cut-off as concerns one of the joint
debtors, the creditor may not avail himself of this against the others.
the performance of his obligation, the joint debtor is held liable for his act
and, if summoned or sued by the creditor, this shall have no bearing as concerns
the other debtors. Summons served by one of the joint debtors to the creditor
shall, however, benefit the other joint debtors.
reconciliation reached between one of the joint debtors and the creditor shall
not be executory if it results into adding a new obligation on the debtors, or
increased their existing obligation, unless they accept it. They shall benefit
from the reconciliation if it includes release from the debt or discharge by any
of the debt by a joint debtor shall not be binding on the others. If one of the
joint debtors refuses to take an oath tendered by the creditor, or if he tenders
the oath to the creditor and the latter takes the oath, the oath refused or
tendered will not prejudice the other joint debtors. However, in case the
creditor tenders an oath to the debtor who takes it, the other debtors shall
benefit from such oath.
judgment given against one of the joint debtors will have no effect against the
others, but they shall benefit from it if given in favor of such debtor, unless
the judgment is based on a ground relating only to him.
joint debtor, from among the others, who settles the debt will have a claim
against each of the others to the extent of his share. If one of the joint
debtors is declared bankrupt, he will bear with the solvent joint debtors the
consequences of such bankruptcy, without prejudice to revert on the bankrupt
debtor when he becomes solvent.
one of the joint debtors is the principal debtor in the debt, while the
remaining debtors are guarantors, he shall not have any claim against
act cannot be divided when it has for its object something which by its nature
is not susceptible of division, or if the intention of the parties that it
should not be divided.
there are several creditors in respect of an indivisible act, or there are
several heirs to the creditor in this same act, each creditor or heir may claim
the satisfaction of his right in full.
If one of these contests, the debtor shall have to fulfill his obligation to all
of them together or deposit the object of the obligation with the competent
authority, according to what is required by the law.
of the creditors shall have recourse against the creditor who has received
there are several debtors in respect of an indivisible act, each one of them is
liable for the debt in full.
2-The debtor who has paid the debt shall have recourse against the others, each
one for his share.
case the creditor willingly discharges his debtor from a right he has on him,
the right is extinguished.
is not dependant on the debtor's acceptance but shall be void if refused by him
and, if the debtor dies before acceptance, the debt shall not encumber his
discharge is valid if given for an existing debt and not for a future one.
is governed by the substantive provisions governing every donation.
special form is required for discharge even if it is the release of an
obligation whose existence was conditional upon a special form imposed by law or
agreed upon between the parties.
right is extinguished if the debtor establishes that its performance has become
impossible by reason of a cause beyond his control.
right shall not be extinguished by time limitation but the hearing of the court
case, against the one who denies it, shall not be admissible after the lapse of
fifteen years without legal excuse, after due observance of the matter governed
by special provisions.
case concerning a claim of any periodical recurring right, when denied, shall
not be heard after the lapse of five years without legal excuse.
concerns revenue due by a holder in bad faith, the case, against who denies it,
may not be heard after the lapse of fifteen years, without legal excuse.
denied and in the absence of a legal excuse, the case may not be heard after the
lapse of five years, as concerns the following rights.
of physicians, pharmacists, lawyers, engineers, experts, professors, teachers
and brokers, provided that the debts are due as remuneration for work coming
within the scope of their profession or in payment of expenses incurred by
and fees due to be recovered, if such have been unduly paid, without prejudice
to the provisions stated in special laws.
denied and in the absence of a legal excuse, a case may not be heard after the
lapse of two years if it concerns a claim for the following rights:
rights of merchants, manufacturers in respect of things supplied to persons who
do not trade in such things; rights of hotel and restaurant owners for the cost
of accommodation and food and for expenses incurred by them on behalf of their
rights of workmen, servants and wage earners in respect of their pay, daily or
otherwise, and the cost of supplies provided by them.
the instances mentioned in the preceding article, the case may not be heard even
if the creditors are still performing other works for the debtor.
case an acknowledgment or an instrument is drawn-up embodying any of the rights
referred to in articles 474, 475 and 476, the case may not be heard after the
lapse of fifteen years as of it becomes due.
runs only from the day on which the debt becomes due and from the date on which
the condition is realized, if subject to a suspensive condition and, in case of
an action on a warranty, from the date its maturity is established.
case shall not be heard if left by the predecessor then by the successor
thereafter, if the total of the two periods reach the period prescribed for its
period of prescription barring the admittance of hearing the case is calculated
in days; the first day does not count and prescription is completed when the
last day is at an end, unless it is an official holiday, then it shall extend to
the following day.
barring the admittance of hearing the case is interrupted whenever there is a
lawful excuse barring claim of the right.
period within which the excuse still exists shall not count in the calculation
of the prescribed period of prescription.
some of the heirs do not file a case claiming a right to their decedent, within
the period prescribed for its hearing, without a lawful excuse and, the
remaining heirs have such an excuse, the case shall be heard on prorate a basis
of the latter's shares in the estate.
prescribed for barring the non-admittance of hearing the case shall be
interrupted by an express or tacit admission of the right by the debtor.
period prescribed to bar the hearing of the case is interrupted by a court claim
or any legal proceedings instituted by he creditor claiming his right.
the period prescribed to bar the hearing of the case is interrupted, a new
prescription period shall commence and shall have the same duration as that of
the former one.
right of whatever kind is not subject to prescription if adjudicated by a final
prescription barring the hearing of a case in which a right is claimed shall
extinguish claiming the accessories of this right even if the period of
prescription prescribed to claim these accessories is not completed.
plea of non-admittance to hear the case on grounds of prescription may not be
renounced before acquiring the right to submit such a plea. Likewise, it is not
admitted to agree on a term of prescription other than that fixed by law.
person, who is legally capable of disposing of his rights, may renounce, even
tacitly, his right to submit such a plea after being in a position to do
judge of his own initiative cannot decide not to hear the case on basis of
prescription, but this must be requested by the debtor or by any interested
may be invoked at any stage of the proceedings unless the circumstances show
that the person entitled to raise such a plea has waived his right thereto
expressly or tacitly.
DEFINITION AND ELEMENTS OF SALE
is the exchange of non monetary property for a monetary property.
shall be provided that the sold be known for the buyer, such a knowledge that
denies all flagrant ignorance.
sold to be known for the purchaser by the statement of its conditions, and
typical characteristic descriptions. If it is present it shall be sufficient to
it shall be mentioned, in the contract, that the buyer had enough knowledge of
the sold, he shall have no right to annul the contract, for lack of knowledge,
unless he proved that the seller has deceived him.
the sale is by a model, it shall be enough to be viewed, and the sold must be
the sold appeared to be not identical to the model, the buyer may opt to accept
it or return it back.
both buyer and seller disagree as for the identification of the sold to the
model, and the model and sold present, the experts' opinion shall prevail. If
the model shall be lost while under the control of either buyer or seller, the
final word in identification or differentiation shall be for the other party,
unless his adversary proved the contrary.
the sample be in the hands of a third party, by mutual agreement of the parties,
then it was lost, and the thing sold was specifically designated, and there is
no disagreement between the parties as to the identity of the thing sold, the
statement of the vendor on its conformity with the sample shall prevail. In case
the thing sold is specified or designated by its kind, and there is no agreement
between the parties as to its being the object of the sale, the statement of the
purchaser on its non conformity with the sample shall prevail, unless the vendor
proves the contrary.
sale may be conditioned upon trial for a fixed period which, if not specified in
the contract, shall be considered the usual period.
vendor is bound to make the trial available to the purchaser.
purchaser may, within the testing period, accept such sale or refuse it, even if
he did not try the thing sold, provided that, in case of refusal, he gives
notice to the vendor.
the trial period has expired, and the vendor kept silent, while having the
opportunity to try the thing sold, his silence shall be considered acceptance,
and the sale shall be binding on him.
the thing sold perishes while in the hands of the purchaser, pursuant to its
receipt, he is bound to pay the price agreed upon to the vendor; if it perishes
prior to delivery for a reason beyond the purchaser's control, it shall be on
the responsibility of the vendor.
sale after trial and the acceptance of the thing sold shall be effective as of
the date of the sale.
the purchaser becomes incapacitated prior to accepting the sale, his tutor or
guardian must opt for what is in his interest, taking into consideration the
rules and conditions provided for in the law.
the purchaser dies before making his choice, while having a creditor whose debt
covers his assets, the right of trial shall pass to this creditor, otherwise it
shall pass to his heirs. Therefore, in case they all agree to accept the sale or
to return the thing sold, their agreement shall be binding, and if some approve
the sale and the others reject it, restitution of the thing sold becomes a
purchaser may not use the thing sold within the trial period, except to the
extent customarily required for trial. If he uses it beyond this purpose for a
reason other than trial, the sale becomes binding.
provisions governing the sale subject to trial shall apply to sale subject to
testing except that the right to tasting does not pass to the heirs and the sale
proceeds of the thing sold accruing during the trial period shall be in favor of
the vendor and its expenses charged to him, except where the proceeds form part
of the sale, in which case the purchaser shall be entitled to theses proceeds if
the sale is completed.
price is what both contracting parties have agreed upon in consideration of the
sale, whether it exceeds the value or is short therefrom. The value is what the
thing has been assessed without increase or decrease.
both the vendor and the purchaser have mutually agreed upon fixing the price at
the market value, such shall be assessed at the time and place of sale. If there
is no market in that place, reference should be made to the market price at the
place at which the prices and customarily deemed applicable.
both parties declare a price other than the price agreed upon, the true price
may take place by adding a profit to the cost price, sell at a price lower than
the cost price or at exactly the cost price, provided the cost price is known at
the time of the contract and the amount of profit, in the sale for profit, and
of loss, in the case of sale at a price lower than the cost price, is fixed.
it appears that the seller made an over statement of the cost price, the
purchaser is entitled to reduce the price to the normal level.
the cost price of the thing sold was unknown at the time of contract, the
purchaser may rescind the contract upon his knowledge thereof; the same shall
apply if the vendor concealed a matter affecting the sale, or the cost price,
but this right shall be forfeited if the thing sold perished or was consummated,
or if the purchaser was dispossessed of its property after delivery.
increase in price made by the purchaser after the contract, if accepted by the
vendor, shall be added to the original contract and the fixed price together
with the increase shall form the consideration for the whole sale.
reduction in price made by the vendor after the contract, if accepted by the
purchaser, shall be made part of the original contract and the balance of the
price after reduction shall represent the contract price.
price shall be payable in advance unless agreed or customarily practiced that it
be deferred or paid by installment over a definite term.
payment of the price is deferred or done by installment, the term shall start
from the date of delivery of the thing sold.
the buyer shall pay a part of the price, he is not entitled to claim
proportionate delivery of the thing sold if splitting shall result in a
reduction in its value.
OBLIGATION OF THE SELLER
– TRANSFER OF OWNERSHIP
otherwise agreed or stipulated by Law, ownership of the thing sold shall be
transferred to the purchaser once the sale has been completed.
of the parties to the sale has to fulfill his obligations except those
the goods are sold in bulk, ownership is transferred to the purchaser in the
same way as ownership of a definite specified thing.
a credit sale the vendor may stipulate that the transfer of ownership to the
purchaser is subject to integral payment of the price, even if the thing sold
has been delivered.
If the price has been fully paid, the purchaser's ownership shall be deemed to
have taken place as from the date of sale.
- DELIVERY OF THE THING SOLD
vendor is bound to deliver the thing sold to the purchaser free of any other
right, unless otherwise agreed or stipulated by Law. He is equally bound to
perform everything necessary from his part to transfer ownership to the
according to the Law or current custom, the nature of the thing sold, requires
the delivery of his ownership titles, the vendor is bound to deliver same to the
purchaser. Should he refrain from delivering them or pretend their loss, and
then were found, the judge shall force him to deliver them. If they are not
found in case they are allegedly lost, the purchaser shall be at choice of
returning the thing sold or resume the sale.
vendor is bound to deliver the thing sold to the purchaser in the state in which
it was at the time of the sale.
includes delivery of the accessories of the thing sold and of all fixture
thereon as well as everything appropriated permanently for its use and
everything else which, according to custom, as accessory to the thing sold even
if not mentioned in the contract.
for construction or trees shall include the land on which the construction is
erected, and the land in which the roots of the trees extend. Likewise,
contracting for a land shall include the constructions and trees thereon, unless
otherwise provided by contract or custom, a legal condition or custom requires
otherwise. Contracting for a house shall include all its fixed utilities to the
exclusion of the movable ones, unless it is specified by the purchaser that they
be included in the contract.
otherwise specified as a condition or customarily accepted, the sale of land
shall not include the plants thereon.
sale of trees as such or as accessory to the land includes the produce that did
not totally or mostly develop shoots or buds but if it did, it is not covered by
the contract unless its appendage to the root figures as a condition or
customarily accepted. In case each of the trees or plants have up to their half
developed shoots or buds, each shall follow the aforementioned rule.
contract that shall deal with plants taken by shearing shall not include the
leftovers unless a condition or custom provide otherwise.
the vendor duly delivers the sold item to the purchaser, he shall not be
answerable for what shall happen to it afterwards.
the quantity of the thing sold is fixed in the contract and, in the absence of
an agreement or custom, a deficiency or increment in it shows, the following
rules shall apply:
case severance is not detrimental to the thing sold, the increase shall be in
favor of the purchaser, who is entitled to recover it in kind, and the
deficiency recovered from his account whether the price is fixed by unit or for
the total of the thing sold.
the thing sold shall be adversely affected by severance and the price is fixed
per unit, the vendor is entitled to the value of the increase and the deficiency
charged to his account.
however, the named price covers the total value of the thing sold, the purchaser
is entitled to the increment while the price shall not apply to any deficient
the thing sold shall be adversely affected by severance and the price is fixed
per unit, the vendor is entitled to the value of the increase and the deficiency
charged to his account.
however, the named price covers the total value of the thing sold, the purchaser
is entitled to the increment while the price shall not apply to any deficient
the increment or deficiency add to the obligation of the purchaser beyond what
he has intended to purchase or change the nature of the transaction, he may opt
for the cancellation of the sale unless the difference is trifle and it does not
contradict the purpose sought by the purchaser.
case the purchaser takes delivery of the thing sold with knowledge of the
deficiency, he shall forfeit his right to the cancellation option mentioned in
the preceding paragraph.
case for rescinding the contract or reducing the price, or completing it, shall
not be heard after the lapse of one year as of delivery of the thing sold.
of the thing sold may be completed in effect or by releasing it to the purchaser
allowing him to receive it and there is no hindrance to his possession thereof.
of anything, is done in accordance with its nature, and according to the
agreement or custom.
the thing sold was in the possession of the purchaser prior to the sale, in any
capacity or for any reason whatsoever, this possession is considered delivery,
unless otherwise agreed.
both parties to the sale agree to consider, in a particular case, the purchaser
having taken delivery of the thing sold, or if the law orders considering some
instances as delivery, the delivery shall be considered de jure completed.
is completed de jure by registration of the thing sold in the name of the
purchaser, if the law requires registration for the transfer of ownership.
shall also be considered as having taken place de jure in the two following
the vendor keeps the thing sold with him at the request of the purchaser.
the vendor notifies the purchaser (to pay the price and take delivery of the
thing sold within a fixed period otherwise it shall be considered delivered) and
he did not.
vendor is bound to deliver the thing sold at the place where it is located at
the time of contract.
the contract includes, or the custom requires, dispatching the thing sold to the
purchaser, delivery shall not be effective until the thing reaches him.
the thing sold perishes before delivery as a result of a cause beyond the
control of either party to the sale, the contract shall be dissolved and the
price refunded to the purchaser.
the thing sold perishes partially, the purchaser shall be at option either to
rescind the sale or take the remaining part against payment of its share of the
the thing sold perishes prior to delivery, or some of it damaged, by an act of
the purchaser, he shall be considered as having taken delivery of the thing sold
and shall be bound to pay the price.
the vendor be, in this case, at option and chooses to rescind the sale, the
purchaser shall warrant to restitute in kind a similar thing or the payment of
its price and appropriate what is left of it.
the thing sold perishes, before delivery, by the act of another person, the
purchaser shall be at option either to rescind the sale or, if he wishes, accept
it and he shall be entitled to turn back against the responsible person to
warrant the restitution in kind of a similar thing or payment of its
If the thing sold perishes partially, the purchaser shall be at option to choose
any of the following:
Take the remainder against payment of its share in the price and the sale shall
be rescinded as concerns the perished portion.
Sign the contract for the whole sale at the named price and turn back on the
responsible person to compensate for the damaged part.
vendor warrants that the thing sold is free from any right to third persons
encumbering the sale if the cause of its becoming due precedes the sale
vendor's warranty remains in effect if the cause of maturity is due to an
incident occurring after the sale resulting from his act.
concerning the recovery of the thing sold, before its delivery, shall be
addressed to both the purchaser and the vendor.
the litigation arises pursuant to delivery of the thing sold and the purchaser
did not ask, in due time, for the forced intervention of the vendor in the
action and a final judgment has been rendered against him, he shall lose his
right to demand the execution of the warranty in case the vendor establishes
that his intervention in the case would have resulted in the rejection of the
action in recovery.
the action in recovery of the thing sold is decided, the recover may revert on
the vendor for the price should he authorize the sale and the purchaser shall be
entitled to the thing sold.
the recover did not accept the sale, the contract shall be rescinded and the
purchaser shall revert on the vendor for the price.
3-The vendor shall warrant to the purchaser any betterment introduced by him in
the thing sold estimated at its value on the date of its delivery to the
vendor shall also warrant to the purchaser the damages occurring from the
recovery of the thing sold, which rose by the fall due of the sold.
clause providing for the exclusion of the vendor's warranty of the price upon
recovery of the thing sold is prohibited and shall annul the contract on account
of such clause.
2-The knowledge of the purchaser, that the thing sold is not the property of the
vendor, shall no to prevent him from taking action as concerns the price upon
recovery is based on the avowal of the purchaser or his refraining to take oath,
he may not take action against the vendor.
the buyer compromises with the prospective recoverer payment of an amount of
money prior to having the latter obtain a judgment in his favor, and the vendor
refutes the claimant's right, the purchaser shall then have to prove that the
claimant is entitled to his claim after which the vendor shall be at option
either to refund the consideration paid for the compromise or restitute the
price to the purchaser.
the compromise is reached takes place after adjudication in favor of the
recoverer, the buyer shall keep the thing sold and may take action against the
vendor for the price.
part of the thing sold be recovered prior to taking delivery by the purchaser of
the whole thing, he shall be at option either to restitute what he has received
and recover the price thereof, or accept the sale and take action as concerns
the part recovered.
part of the thing sold has been recovered after total delivery to the purchaser
and caused a defect in the other part, the purchaser has to restitute the
remaining part and take action against the vendor for the price, or adhere to it
against payment of its share in the price. If, however, recovery did not cause a
defect and the part recovered is the smallest, the purchaser shall have no other
remedy except to take action for the restitution of the share of the recovered
part in the price.
after sale, it is revealed that a right of a third party encumbers the thing
sold, the purchaser shall be at option either to wait until this lien is removed
or rescind the sale and take action against the vendor for the price.
an easement, it is presumed that the vendor does not give a warrant if this
easement is apparent or if the vendor has revealed it to the purchaser.
the claim for recovery is made after the perishing of the thing sold while in
the possession of the seller, he shall warrant its value at date of purchase to
the recoverer and action against the vendor for the price.
the amount warranted by the purchaser exceeds the nominated price, he is
entitled to take action for the difference together with a warrant for damages
due according to clause 4 of Article 536.
recoverer is entitled to claim from the purchaser the revenues or yields of the
thing sold to the extent benefited by him after deducting the expenses required
for production and the purchaser shall take action against the vendor to recover
what he has paid to the recoverer.
- WARRANTY OF HIDDEN DEFECTS
IN CASE OF DEFECT)
sale shall be considered concluded, on basis that the thing sold is free from
defects other than those customarily tolerated.
general rules concerning the option in case of defect shall govern the sale
contract, taking into consideration the dispositions of the following
an old defect appears in the thing sold, the purchaser shall be at option either
to restitute it, or accept it at the nominated price, but he may not retain it
and claim the amount of the decrease in price due to the defect.
defect is considered old if it was existing in the sold before sale, or happened
after sale while still under the control of the seller before delivery.
defect occurring upon purchase shall be considered as old if based on a
previously existing cause in the thing sold while in the hands of the
old defect is conditioned upon being occult. A defect is occult when it cannot
be discovered by normal look on the outward appearance of the thing sold,
detected by an ordinary person, discovered only by an expert or does not show
except by practice.
vendor is not answerable for the old defect in the following instances:
upon sale, the vendor indicates to the purchaser the defect.
the purchaser accepts the defect after he has been aware of it, or after taking
knowledge of it from someone else.
the purchaser buys the thing sold with knowledge of the defect.
the vendor sells to the things sold, on condition that he does not warrant any
or a specific defect in it unless the vendor intentionally hides the defect or
the purchaser was in a state that prevents him from discovering it.
the sale was done by public auction by order of the judiciary or administrative
case the purchaser, prior to taking knowledge of the defect, disposes of the
thing sold as the owner would do, his option is forfeited.
the thing sold perishes due to an old defect, while in the hands of the
purchaser or consumed it before taking knowledge of the defect, he shall take
action against the vendor for deduction of the value of such defect.
a new defect will appear in the thing sold, while in the hands of the purchaser,
he may not return it with the old defect, but shall have a claim against the
vendor for the reduction of the price unless the vendor accepts taking it back
with its recent defect.
In case the occurring defect ceases to exist, the right to return the thing sold
with its old defect to the vendor shall be reinstated to the purchaser.
the thing sold increase in such a way as to prevent its return back, then the
purchaser discovered an old defect therein, he shall have the right to claim
from the vendor the reduction in price because of the defect and the latter
shall not be entitled to claim the restitution of the thing sold to him.
preventing increase is every property of the purchaser related to the thing
several things were sold in one lot and defects appeared, before delivery, in
some of these things, the purchaser may opt between purchasing the whole lot at
the nominated price or return it back in full.
several things were sold as one lot and an old defect appeared, after delivery,
in some of these things, and there is no harm done as a result of sorting them
out, the purchaser may return the defective part against its share in the price,
but he shall not have the right to return them all without the consent of the
vendor. Should the sorting and separation of these things be prejudicial the
purchaser shall have the option either to return the whole lot or accept it
against its full price.
there is in the thing sold a defect that necessitates its restitution, and the
purchaser, before being aware of the defect, has constituted in favor of a third
party a right thereon that does not transfer title, he shall be entitled to
return it to the vendor with this defect after clearing it from such right if
the thing sold was not altered during this period.
he has constituted a right to third parties after his knowledge of the defect,
he shall forfeit his right in returning it. Should the sold thing be altered,
the same provisions governing the alteration of the thing sold bearing an old
defect shall be applicable.
right of the purchaser to return back the defective thing sold shall not be
forfeited due to the change in its value.
yields of the returned defective thing sold, which are not considered a part
thereof, shall belong to the purchaser as of the time of possessing the thing
sold, up to the date of rescinding the sale. He may not claim from the vendor
the expenses spent on the thing sold.
for the yields of the sold thing which are considered a part thereof, shall
belong to the vendor.
concerns the thing sold that does not have any yields, the purchaser shall have
a claim against the vendor for what he has spent.
warranty of the returned defective thing sold shall be transferred from the
purchaser to the vendor once the vendor accepts to take it from the purchaser,
even though he does not collect it in fact or upon establishing before the
courts the presence of a defect even before ordering restitution, if the vendor
is absent, otherwise the warranty shall not be transferred until the order of
restitution is rendered.
lawsuit in warrant of the defect is not receivable due to prescription occurring
after the lapse of six months as of taking delivery of the thing sold, unless
the vendor binds himself for a longer period.
vendor shall not adhere to this duration if it has been proved that hiding the
defect was by fraud imputed to him.
OBLIGATION OF THE PURCHASER
- PAYMENT OF THE PRICE AND TAKING DELIVERY OF THE THING SOLD
otherwise agreed, the purchaser has to pay the price upon contracting and before
taking delivery of the thin sold or claiming such delivery.
vendor may retain the thing sold until receipt of what is due to him from the
price, even if the purchaser has given him a mortgage or a security.
the purchaser accepts deferring the price, his right in retaining the thing sold
shall be forfeited and he becomes under obligation to deliver it to the
the thing sold perishes while exercising his right of retention, the purchaser
shall be liable for the loss unless the thing sold perishes as a result of an
act of the vendor.
prior to payment, the purchaser takes possession of the thing sold of the price
under the sight of the vendor, who did not prevent him therefrom, this will be
considered an authorization to take delivery.
case, prior to payment, the purchaser takes possession of the thing sold without
authorization of the vendor, the latter may recover it. If it perishes or
becomes vitiated while in the hands of the purchaser, it shall be considered as
by the purchaser of the thing sold, even unintentionally, is considered
the purchaser ignores the place of the thing sold, at the time of contract, and
thereafter takes knowledge of it, he shall have at will the option either to
rescind the sale or ratify it and take delivery of the thing sold at the place
where it is.
to an agreement or custom to the contrary, the purchaser is liable to hand over
the down payment of the price at the place where the thing sold exists at the
time of contract.
If the price is a deferred debt, on the purchaser and there is no agreement as
to its payment at a specific place, it must be paid at the domicile of the
purchaser at time of maturity of the debt.
the purchaser takes possession a thing under negotiation of purchase and it
perishes or was lost while in his possession, and the price thereof was
specified, he must pay it, and if such price was not specified there is no
warranty except in case of trespass or default.
an action in restitution is instituted against the purchaser based on a prior
right on the thing sold, or on a right given to him by the vendor, the purchaser
may retain the price until the vendor provides a solvent surety guaranteeing to
the purchaser to return the price paid upon confirmation of the restitution. The
vendor may ask the court to order the purchaser to deposit the price with it
instead of providing a surety.
provision of the above clause shall apply if the purchaser discovers in the
thing sold an old defect warranted by the vendor.
case the sale specifies a certain delay for payment of the price and if not paid
within this delay by the purchaser, there is no sale. If not paid and the thing
sold is still in the possession of the vendor, the sale shall be considered ipso
the purchaser takes delivery of the thing sold, then dies bankrupt before paying
the price, the vendor may not restitute it and the price shall become a debt on
the estate and the vendor shall be in the same rank as the other creditors of
the purchaser dies bankrupt, before taking delivery of the thing sold and
payment of the price, the vendor may retain the thing sold until he receives the
price from the estate and his rank shall be preferential to the other creditors
of the estate.
the vendor has received the price, and died bankrupt before delivery of the
thing sold, this thing shall be considered a consignment in trust with him and
the purchaser shall have precedence thereon over the other creditors.
to agreement, a law provision or custom to the contrary, the costs of delivering
the price, the sale contract and its registration as well as the other costs are
borne by the purchaser, while the costs of delivery of the thing sold are to be
borne by the vendor
“SELM” SALES WITH DEFERRED DELIVERY
is the sale of a property with deferred delivery against a prepaid price.
validity of a deferred delivery sale is subject to the following conditions:
thing sold should be a property that can be designated by description and
quantity, and be available at time of delivery.
contract is to include a statement of the nature of the sale, its kind, its
quantity and the period within which delivery shall be done.
capital of the sale with future delivery (i.e. its price) must be known
quantitatively and qualitatively, and not to be conditionally deferred for a
period exceeding three days.
purchaser may dispose of the thing sold before taking delivery of it.
delivery of the thing sold is impossible prior to the expiry of the period set
for completion thereof due to a sudden contingency, the purchaser shall be at
option to wait for its availability or rescind the sale.
the vendor, in a sale with deferred delivery, dies before the expiry of the
period set for delivery, he shall have a choice between rescission of the
contract and recovery of the price from the estate or wait until the expiry of
this term and, in this case, lay a seizure on assets of the estate sufficient to
cover payment of the thing sold, unless the heirs provide a solvent surety
guaranteeing, upon expiry of its term, delivery of the thing sod.
the purchaser in a sale with deferred delivery exploits the farmer’s need,
and buys from him a future crop, at an evidently unjust price or oppressive
conditions, the vendor shall, when the term set for delivery matures ask the
court to modify the price or the conditions, in such a way to relieve the
court, in such a case, shall take into consideration the circumstances as to the
time, place, the general level of the prices and their difference between the
date of the contract and that of delivery, according to custom.
The purchaser s entitled to refuse the modification deemed by the court
equitable, and recover the true price which he actually paid to the vendor, and
thereupon, the vendor shall be entitled to sell his crop t whomever he wishes.
be void every agreement or condition purporting to forfeit this right whether
such condition is included in the sale contract itself or in the form of another
separate obligation of whatever nature.
shall be void that the capital of the sale with future delivery and the object
of delivery be two foods or two currencies, it is sufficient for other than
food, that they both differ in type and utility.
there is for the thing sold subject to future delivery times where it appears
but ceases to be so when the period set for delivery matures before taking
possession of it by the purchaser, he must wait until it reappears, if he is the
cause of such delay, otherwise he shall be at option either to rescind the
contract or wait until it appears.
its existence shall cease after taking delivery of part thereof by the
purchaser, he must wait for the other part unless the parties agree to account
for what has been delivered.
object of the sale must be a thing of the same nature but may be of a different
nature in the following instances:
substitute in exchange should be delivered in advance.
substitute should be valid for delivery against payment of the price.
delivered should be other than food.
the time of delivery matures, the vendor shall deliver it to the purchaser at
the place agreed upon or, if the parties did not specify a special place of
delivery, at the place of conclusion of the contract. Unless otherwise agreed,
neither the vendor is bound to deliver nor the purchaser to take delivery in a
place other than the two mentioned places.
the vendor and purchaser disagree about, or fail to specify, the quantity of the
thing sold with future delivery or the time of delivery, those prevailing
between people shall preclude otherwise the via media shall prevail.
both disagree about the place for delivery of the thing sold, and one of them
states that it is the place of conclusion, this place shall prevail and if no
statement has been made by either of them then delivery has to be made in its
market at the place of formation of the contract.
sale of vacant space for construction purposes may occur in one of the following
sale of a vacant space over a land, the validity of such sale does not depend on
the description of the projected construction.
sale of vacant space above a construction, on condition that the construction to
be built thereon is described.
sale of vacant space over a vacant space to be constructed thereon, on condition
that each of the lower and upper constructions are described. In case of one of
such three sales, whereby the purchaser has become the owner of the entire
vacant space above the land or above the construction, within the limits of what
he bought from this space, but he is not allowed to build more than what was
agreed upon without the consent of the land owner or the owner of the lower
sale of vacant land shall result in the following:
It shall not be rescinded by the destruction of either the lower or upper
owner of the lower construction shall have to reconstruct it if destroyed, and
restore it if weakened. The owner of the upper construction, with the consent of
the owner of the lower construction, or by court order, may reconstruct it.
bulk sale is the sale of whatever may be dry-measured or weighable, or prepared
without measure or weight or counting, considering as sufficient its gross
estimation. This sale shall be effected in bulk, even if the fixation of the
price shall depend on the quantity sold.
bulk sale may be allowed under the following conditions:
The purchaser should have viewed it at the time of contracting, or have viewed
it, before contracting, a viewing after which it does not usually get altered
until the contract, unless its viewing shall cause damage to it, in which case
it shall be sufficient to describe it.
The parties to this sale ignore its measure, weight or number, with the
possibility of its gross estimation. If it is established to one of them, at the
time of contract, that the other party had knowledge of the quantity of the
thing sold, the contract shall be void, and if he knew that the other had
knowledge thereof after the contract, he shall be at option either to return the
thing sold or pursue the sale.
SALES WITH DEFERRED PAYMENT
vendor of a thing with deferred payment may purchase it from the person who has
sold it to him with an immediate or deferred price payment unless both sales are
different in price and term, and the payment of the lesser price would be at a
date preceding the payment of the higher price, in such a case the second sale
shall be rescinded, if the sale is still in effect, otherwise both sales shall
ON BASIS OF A SAMPLE
sale on basis of a sample is a sale occurring between the one who acts as a
purchaser of goods, that he does not have, vis-à-vis the buyer of a
specific item, so if he is asked to provide the requested item he purchases it
and sells it at a price higher than what he paid for it. Such sale is allowed
unless it constitutes a sale with deferred price higher than that previously
agreed between them. If this be the case, the second purchase is cancelled and
the thing must be sold at the place agreed upon in the first sale to which shall
be added the lesser of the remuneration for effectuating this transaction and of
OF FOODSTUFF AND OTHER THINGS BEFORE DELIVERY
owns a thing, by purchase or otherwise, may sell it before taking delivery
thereof from its previous owner, unless it is bartering foodstuff, then its
purchaser, through dry measuring, may not sell it before taking delivery
thereof. However, if he purchases it in bulk sale, he may sell it before
though their maturity is not apparent, may be sold with its stem and may not be
sold separately from the stem unless matured totally or partially. Maturity
starts to be apparent when the fruit is beginning to ripen and becomes edible
and ready for use.
the stem of such fruits are of the yearly repetitive fruit bearing type, they
may be sold, in case the first growth starts to mature, if the following growth
cycles are successively linked in such a manner as they cannot be distinguished
from each other, but if they can, the second growth yield may not be sold until
the fruits are damaged, after their sale, due to a natural blast that cannot be
repelled, the purchaser shall be entitled to ask for the reduction of the price
thereof, in proportion to what has been affected by he blast, if such an
affliction has occurred before the full ripening thereof and the usual
harvesting, and should the value of the afflicted amount equals the third or
more of the fruits value. However, if the damage is due to lack of water, the
value of the damaged portion shall be deducted from the price, even if its value
was less than the third.
SALE OF CULTIVATED OR SEEDED LAND
in the land sold there were plants, that are harvested only once a year, such
plants remain the property of the vendor until their first harvesting, unless
the purchaser has conditioned that they be his.
in the sold land, there were plants that are repeatedly harvested or bearing
fruit, the stem is for the purchaser, and the apparent harvested crop is for the
vendor, who shall have to cut it off on the spot, unless the purchaser has kept
it for himself, and in this case the latter shall have to cut it off
case a seeded land is sold, and the seed is of kind that the plant resulting
therefrom is harvested only once per year, it shall be for the vendor; like a
plant in which the vendor ignores it contains seeds therein upon conclusion of
the contract, he shall opt between either to rescind the contract or proceed
with it without warranty.
However, if the seeding is of a type where the resulting plant is clipped once
after the other, or its fruit is repetitive or its stem shall remain alive, it
shall be for the purchaser.
EXAMPLE OF THE SALE OF PALM TREES AND TREES
a palm tree is sold, when its spadix began to break through, or when its fruits
began to burgeon or were out of their perianth without blossoming or be
apparent, they shall be for the vendor, and left until clipping, and what has
been sold earlier shall be for the purchaser, and the last word shall be for the
vendor who shall swear that they began to show or break out of their perianth.
of the vendor and purchaser may benefit of what the owner, in whole or in part,
may condition for himself.
of some spadix in the palm trees, or the appearance of some fruit in the single
tree, shall be considered as a cleavage and the appearance of all its spadix and
however, there are multiple palm trees or trees and some, to the exclusion of
the others have been cleaved or fruits started to show on some, each shall be
governed by its own rule.
SALE OF SELF EDIBLE CROPS
edible crops and their formed grains in spikes, both, may be sold.
buys a self-edible crop and by fractioning it found that it is putrid and each
fraction thereof has no value, he may claim back the full price if all fractions
are found putrid or the price of the rotten fractions if some fractions only are
the fractions have a value, the purchaser shall be at option either to retain it
with damages or return what is left after breaking it, but if the whole thing
sold is spoiled the purchaser is entitled to damages.
TRANSMISSION BY DISSOCIATION
by dissociation is the sale made by an heir, after death of the decedent, of his
share in the inheritance, to one or more other heirs, in consideration of a
determined compensation, even if the assets of the inheritance were not yet
dissociation contract shall transfer the share, of the vendor, in the
inheritance, to the purchaser, and the purchaser shall replace the vendor in
transmission contract shall not comprise all the property of the deceased which
will appear after the formation of the contract, and which both parties to the
contract were ignoring at the time of contract. Likewise it shall not comprise
the rights due to the estate from either or both of the contracting parties, as
well as the rights due by the estate to both or to one of them.
vendor shall not warrant to the purchaser anything except the existence of the
inheritance and the establishment of his right therein, in case the contract
without stipulating any preference as to any of the contents of the
SALE DURING LAST ILLNESS
Illness: is when a person is unable to resume his usual business occupations and
where the illness leads most probably to death within last then one year. Should
his illness lasts for one year or more while being in a stagnant health
condition without aggravation, his acts are considered valid.
be considered as last illness, conditions in which a person is surrounded by the
risk of death and where in similar conditions the person is most probably going
to perish even if he is not sick.
sale made by a person during his last illness, to an heir, shall be governed by
the provisions of the following Article.
the sick person sells to a foreigner at a price equivalent to the price of a
similar thing or a little less, the sale is enforceable and is not contingent on
the authorization of the heirs.
If the sale was at price inferior to the value of the thing sold at the time of
death, the sale shall be valid against the heirs if the difference between the
value of the thing sold and the price paid does not exceed one-third of the
value of the estate including the thing sold.
this difference exceeds one-third of the value of the estate, the sale is only
valid against the heirs if approved by them, or if the purchaser pays to the
estate the amount necessary to make up the two-thirds, otherwise the heirs shall
be entitled to rescind the sale.
sale made by the sick person to a foreigner shall not be effective for less than
the value of a similar thing, even with little unfairness, against the
creditors, if the estate is covered with debts. The purchaser shall then pay the
price of a similar thing otherwise the creditors are entitled to rescind the
sale made by an ill person may not be rescinded, if the purchaser has disposed
of the thing sold, in such a manner as making the purchaser, in good faith,
acquire a legal right in the assets of the thing sold against a
2-In such a case, the creditors of the estate, which is fully covered with
debts, may claim back from the one who purchased from the sick person the
difference between the price and the value of the thing sold. The heirs shall
have the same legal right, if one of them was the purchaser, but if he was a
foreigner, he shall have to refund to the estate what completes the two thirds
of the value of the thing sold.
SALE BY A REPRESENTATIVE TO HIMSELF
prejudice to the provisions of special laws, no person who represents another
person by virtue of a law provision, an agreement or an order of a competent
authority may purchase, either in his own name or in the name of an
intermediary, even at a public auction, property entrusted to him in his
brokers or experts may purchase in their names or in the name of an intermediary
goods which they have been entrusted to sell.
the provisions of the two preceding Articles, the representative, the
intermediary or the expert may purchase for himself if so authorized by his
principal or the concerned person.
SALE OF A PROPERTY BELONGING TO ANOTHER
a person sells the property of another, without his consent, the sale shall be
concluded contingent upon the ratification of the owner.
the owner ratifies the sale, the contract will become binding on him and
enforceable against the purchaser. The contract will also become enforceable in
case title of the thing sold passes to the vendor subsequent to the formation of
is the exchange of property or pecuniary right with consideration other than
to a barter contract will be considered vendor and purchaser at the same time.
shall not deviate from its nature by the addition of some money to one of the
the absence of an agreement to the contrary, the expenses of the barter
contract, and costs of delivery and the like shall be born by the parties in
provisions governing sale apply to barter as far as they are not in
contradiction with its nature.
SALES AND BARTERS
following may not be sold or bartered:
is hidden in the earth until plucked out and viewed.
bones of stallion or bull.
and barter shall be prohibited and become void in the following cases:
one of the contracting parties is bound by Friday prayers, and signed the
contract after the beginning of the call for prayer at the pulpit, until the
completion of prayer. Also, if one or both contracting parties is bound by
written prayer, and signed the contract after its time has been disturbed in
such a way that nothing was left thereof except what accommodates it until it is
over, contracting may be allowed in such cases if it was deemed needed or
a contract has been concluded for a property to be used illicitly and one of the
parties had knowledge of it from the other or by presumption.
a Muslim sells over the sale of a Muslim, or bought over his purchase, or
bartered over his barter at the time of one of the options or conditions opened
in the presence of the parties at the meeting place.
OF A GIFT AND CONDITIONS OF EXECUTION
is the conveyance, to another person and without consideration, of property or
financial right, during the lifetime of the donor.
donor may, without being divested of the intention of making a gift, impose upon
the donee the performance of a specific obligation. This obligation shall
constitute the consideration for the gift.
gift is formed by an offer and an acceptance, and completed by receipt
a gift, the offer alone is sufficient if the donor is the natural or legal
guardian of the donee and the property donated is in his possession. Likewise if
the donee is a minor custody of the donor.
gift contract shall not be executory in case the thing donated is not the
property of the donor, unless approved by the owner thereof and consented that
it be given to the donee.
gift of a debt the debtor is valid and shall be considered a discharge.
gift may also be made to a person other than the debtor and shall be completed
if the debtor pays the debt to the donee.
donor may recover the donated property if he so provides in the contract in case
the donee fails to fulfill specific obligations in favor of the donor or of any
person of interest to him.
If the donated property has perished or the donee has disposed of it, the value
thereof shall be due to the donor computed as of the time of the act of
disposition or perishing.
donor must not be interdicted as concerns his gift, he must not also be a man of
war or, on other words a non-Moslem citizen of a non-Moslem State that is in a
state of declared or effective war with the Moslems and provided he did not ask
gift of a debtor, whose debt has covered all his property, is valid but
contingent on the ratification of the creditor.
mortgages a thing as collateral for a debt then donated it to a person other
than the mortgagee and this latter consented to it, the donation is valid and
the debt due to him shall remain without sureties, even if the mortgagor is
insolvent. In vase the mortgagee does not accept
the gift made to a person other than him and the mortgagor is insolvent, the
gift is null but if he is solvent, the gift is valid if he pays his debt prior
to its due date or submit a trustworthy surety.
the mortgaged property is donated to anybody else than the mortgagee then the
donor dies prior to the release of the mortgage, the possession of the mortgaged
property shall not be, after donation, be considered for the account of the
donee and the gift shall be null and void.
gift shall be void whenever a debt covers the whole property of the donor before
the donee takes possession of the donated property, even if the debt occurred
after the date of the gift.
of trees while making an exception for their fruit for one or more years, on
condition that the donee will irrigate and serve them during this period, shall
not be allowed, and must be rescinded if it already took place.
rescission of the gift shall result in an obligation on the donee to restitute
the trees if remaining in their status.
however, there is a change in the status of the trees, the donee shall have to
pay its price as of the day he took possession thereof and it shall become his
property as of such date. If this be the case, he shall be entitled to claim
back from the donor a similar quantity of the yields he took from these trees,
if such quantity is known to him, otherwise their value.
donates a thing to a person, then donated it before delivery to a second person
who took possession thereof before the first, he shall be entitled thereto and
the donor shall not be under obligation to pay its value to the first
gift of consigned goods made to the consignee is void, and likewise the gift of
a borrowed thing to the borrower, if not accepted by the consignee or the
borrower except after the death of the donor, whether they had knowledge of the
gift prior or subsequent to his death.
the thing borrowed is donated to other than the borrower, or the thing is
consignment to other than the consignee, and the donor dies prior to the end of
the loan period or prior to the restitution of the consignment, the possession
by the borrower of the thing borrowed, or the consignee of the thing under
consignment, shall be considered as a possession by the donee and the donation
completed, if the donor did not deny it, otherwise the possession by each shall
be considered made for the account of the donor and the donation shall be
gift made by the minor, and the prodigal without consideration is void.
guardian of the interdicted may not donate any of his ward’s property
unless he is his father, and the gift is made with consideration.
a leased property is donated to other than the lessee, and the lessor dies
before the end of the lease period, the possession thereof by the lessee,
subsequent to the donation, shall not be considered as a possession by the donee
before collecting same from the lessee, and in this case the possession of the
lessee shall be considered as a possession by a donee.
one of the spouses has donated to the other a property that necessarily has to
be commonly held, or if the wife donates to her husband their common, the
completion of the donation shall not be contingent on a separate possession by
the donee of the donated property. If, however, one of them donates to the other
a property that does not, by necessity, have to remain common, or if the husband
donates to his wife their common domicile, the donation is not complete unless
the donee takes independently hold of the thing donated.
consideration for the conditional gift must be known, otherwise both parties may
rescind the contract, even after the receipt of the donated property, unless
they agree to specify the consideration before rescission.
the donated property perishes, or if the donee has disposed of it before
rescission, he shall have to restitute its value as of the day of its
promise of a gift or the gift of a future property shall be void.
one of the parties to a gift deceases or becomes bankrupt, before receipt of the
donated property, the gift shall be void, even if made without
gift may be accepted by the donee after the death of the donor if the donated
property is received by the donee, to give a thought before accepting or
rejecting the gift, and he did not accept it except after the death of the
The object of donation may also be received after the death of the donor or if
he endeavored to receive it during his lifetime but he did not succeed except
after his death.
gift by a person on his deathbed is governed by the provisions applicable to a
execution of a gift contract is contingent on any procedure which the law
condition its fulfillment for the transfer of ownership. Any party to the
contract may complete the required procedures.
donor is under obligation to deliver the thing given to the donee and in this
regard the provisions governing delivery of the thing sold shall be followed.
otherwise agreed a donor is under no obligation to warrant against dispossession
if the gift was made without valuable consideration but he is responsible to
make good any damage sustained by the donee as a result of this entitlement
should he intentionally hide the cause of such dispossession. However, if the
gift is made for valuable consideration his warranty is limited to the value of
the consideration paid by the donee.
dispossession becomes due after the perishing of the thing donated while in the
hands of the donee and the dispossessor opts to revert on the donee in
implementation of the warranty, the latter may claim back from the donor what he
has paid under the warranty.
dispossession becomes due and the donee has increased the value of the thing
given in such a manner as the increment could not be separated without damage,
the dispossessor cannot take possession before paying the value of this
donor does not warrant that the thing given is free of hidden defects, even if
intentionally hidden by him, except where the gift was made for valuable
donee is under obligation to give the consideration asked by the donor whether
it is due to the donor or to a third party.
otherwise agreed, should the consideration against the gift be the payment of a
debt due by the donor or by another person, the donee is under obligation to pay
otherwise agreed, if the thing donated is encumbered with a lien to pay a debt
due by the donor or by another person, the donee is under obligation to pay the
costs of the gift contract and the expenses of delivering and transporting the
thing given shall be on the donee, unless otherwise agreed.
donor may revoke the gift before receiving payment without the consent of the
may revoke it after payment with the consent of the donee. If the donee does not
consent to the revocation, the donor may apply to the judge for rescission and
revocation of the gift whenever he has reasonable grounds in support, unless
there is an obstacle to the revocation.
following may constitute reasonable grounds for the revocation of a gift:
the donor has become unable to maintain himself in accordance with his social
position or to meet an obligation to pay alimony which he is legally bound to
pay to another person;
the event of a child being born to the donor after the donation and still being
alive at the time of the revocation, or if the donor had a child which he
believed dead at the time of the donation and is discovered to be still
the donee has failed without justification to meet his contractual obligations
or failed in his duties towards the donor or one of his relatives, and such
failure constitutes serious ingratitude on his part.
the donee kills the donor, with premeditation and without right, his heirs are
entitled to annul the gift.
following constitutes an impediment to revocation of a gift:
the gift is made by one spouse to the other or to a cognate to a degree
precluding marriage unless the gift may unjustifiably result is discriminatory
preference between them.
the donee has definitely alienated the thing given; if however, such alienation
is only partial, the donor may revoke the gift as to the remaining part.
there is an inherent increase of the thing given, involving an increase in value
thereof; or if the donee transforms the thing given in such a manner as causing
a change in its name.
one of the contracting parties dies after receipt of the thing donated.
the thing given perished while in possession of the donee; and in case the loss
is partial revocation may be for the remaining part.
the gift has been made against valuable consideration.
the donation constitutes alms or an act of charity.
a creditor donated the debt due to him to the debtor.
of the gift, whether by mutual consent or judicially, shall nullify the effect
of the contract.
donee is only liable for the restitution of the fruits as from the date of the
agreement of revocation or from the date of the judgment. He is entitled to
restitution of the necessary expenses but as for the other expenses he may claim
restitution only up to the increase in value of the thing donated.
without consent of the donee or without a court decision, the donor takes back
the thing given, he is responsible for its perishing whatever the cause may
the revocation of the gift is pronounced by a judgment and the thing donated
perishes while in the possession of the donee, after he has been summoned to
hand back the thing given, the donee is responsible of the perishing whatever
the cause thereof may be.
father may recover what he had donated to his son; the mother may as well
recover what she had donated to her son, if he is not an orphan, but if he is,
she may not be allowed to recover it from him, even if he became orphan after
right of each one of the parents in recovering what has been donated to their
son shall be forfeited in the following instances:
the thing given has undergone an inherent change or has been alienated by the
a financial transaction took place, with the donee pertaining to the gift, and
the revocation of the gift has prejudiced the donee or third party.
the donee or the donor contracted, after the gift, a serious illness, and until
it disappears any of the two parents shall recover his right to restitute what
he has donated to his child.
PARTNERSHIP IN GENERAL
is a contract, by which two or more persons, undertake to contribute jointly in
an undertaking of a pecuniary nature by providing a contribution of property or
services, with the object of sharing in the profits or the losses of the
partnership is deemed by the fact of its constitution, to be a juristic
juristic personality shall not be opposed to third parties until completion of
the formalities of registration and publication required by law.
parties may, however, if the partnership has not completed the formalities
referred to above, avail themselves of this juristic personality.
ELEMENTS OF THE PARTNERSHIP
partnership contract must be in writing.
the contract is not in writing, this shall have no bearing on the third
party’s rights. As concerns the partners themselves the contract shall,
however be considered valid unless one of them challenges its validity then it
shall be considered invalid as of the date of introducing the case in
capital of the partnership must be a sum of money or its equal in negotiable
instruments, and in case it is not cash money its value must be assessed.
contribution of the partners may be in equal or uneven shares but a debt owed by
third parties may not be a share in the partnership’s capital.
the contribution of a partner consists of a right of ownership, of an usufruct
or of any other real right, the provisions as to sale shall apply as regards
warranties in case of perishing, or against dispossession, defects or
If, however, the contribution consists merely of the use of the property, the
provisions as to lease shall apply as regards the above warranties
the contribution of a partner consists of his services, he must carry out the
services he has undertaken to perform under the contract.
profits shall be distributed as provided for in the contract.
the share of each of the partners in the profits has not been determined in the
contract, the profits must be apportioned between them, each in proportion of
his contribution in the capital.
losses shall be apportioned between the partners, each in proportion of his
contribution in the capital, and any contrary condition shall be void.
the partners agree that the share of any of them in the profits shall consist in
a fixed sum of money, this condition is null and void and the profits shall be
appointed in proportion of the contribution of each in the capital.
the contribution of the partner consists only of his services, his share in the
profits is assessed in accordance with the benefit that the partnership realizes
as a result of his services. If, in addition to his services, a partner has made
a contribution in money or in anything else, he will be entitled to a share in
respect of his services and another share in respect of the contribution he has
made in addition to his services.
it is agreed that one of the partners shall not participate in the profits or
losses of the partnership, the partnership deed is void.
OF THE PARTNERSHIP
the absence of a provision or agreement to the contrary, each partner represents
the other partners in the performance of the partnership’s business and
acts of disposition coming within the objects for which the partnership was
partner is a trustee of the partnership’s moneys in his possession.
it is agreed, in the partnership’s deed to delegate to one of the partners
to represent the partnership and to manage its business, he alone is entitled to
perform all acts coming within his delegation and all accessory acts deemed
the delegation is given to more than who are not authorized to act severally,
they have to act jointly except in matters that do not need an exchange of
opinions or in an urgent which may cause prejudice to the partnership if not
partner entrusted, in the partnership’s deed, with the management of the
partnership may not be revoked or his delegation limited without legitimate
partnership manager may be appointed from among the partners or from outside the
partnership with or without a salary.
manager shall act within the limits of the objects of the partnership entrusted
to him provided he abides with the contract provisions or, in the absence of
such provisions, with what is customary.
the manager exceeds the limits of his competences he shall be liable to
compensate any prejudice sustained by the partnership as a result of his acts.
partnership may have more than one manager.
they are several, the competence of each shall be specified.
discharge or the discharge of any of them shall be done in the same manner by
which they were appointed.
has been delegated, for the management of the partnership, or appointed as
manager thereof, may not withdraw or resign at a time that may be detrimental to
who are not managing partners are excluded from the management. They are
entitled, however, personally to examine the books and documents of the
THE EFFECTS OF THE PARTNERSHIP
partner, entrusted with the management of the interests of the partnership shall
watch over its interests as if they were his own, unless he has been appointed a
manager on remuneration, in which case he shall not exercise less care than an
shall also abstain from any activity prejudicial to the interests of the
partnership or contrary to the object for which the partnership was
partner may not retain any of the partnership’s funds and, if he does, he
shall be liable for the payment of damages for any prejudice caused to the
partnership as a result of such retention.
the assets of the partnership do not cover the debts related to its objects, the
partners shall be liable for the balance of these debts from their own funds,
each in proportion to his share in the losses of the partnership.
If, however it is provided in the partnership’s deed that they are jointly
and severally liable, they shall all jointly be answerable for the debt.
creditors of a partner cannot, before liquidation of the partnership, obtain
payment of their claims out of such partner’s share in the capital but
only of his share in the profits.
case the partnership’s deed provides for the joint liability of the
partners, such creditor may obtain payment from the capital of the partnership
subsequent to its liquidation.
WIND UP OF THE PARTNERSHIP
partnership comes to an end in one of the following instances:
Expiration of its term or by the achievement of the object for which the
partnership was formed.
Total loss of its capital or the capital of one of the partners before turning
it over to the partnership.
Death, insanity, bankruptcy, insolvency, interdiction or withdrawal of one of
Unanimous agreement of the partners.
A court order pronouncing the dissolution of the partnership.
to the expiration of the partnership’s term, this term may be extended for
a fixed period and this shall be considered a continuation of the
not withstanding the expiration of the term or the achievement of the object for
which the partnership was formed, the partners continue to carry on their work,
this shall constitute an implied extension of the partnership, from year to year
on the same conditions.
creditor, of one of the partners, may oppose the extension of the partnership.
His opposition will suspend the effect of this extension so far as he is
may be agreed that, in the event of the death of one partner, the partnership
will continue with his heirs, even if they are minors. In this case, and subject
to the conditions and provisions stipulated by law, the heirs shall, pursuant to
their approval or the approval of their legal or appointed guardian, replace the
may also be agreed that, in case of death, interdiction, bankruptcy, or
retirement of one of the partners, the partnership will continue between the
other partners. In such a case, such partner or his heirs will only be entitled
to his share in the assets of the partnership. This share will be assessed in
accordance with its value at the date of the event which resulted in the partner
ceasing to be a partner, and must be paid in money. Such partner will share in
subsequent rights only to the extent that such rights arise from operations
prior to the event which resulted in his ceasing to be a partner.
court may, on the demand of any one of the partners, order the dissolution of a
partnership for non-performance by a partner of his obligation, or for having
caused a serious damage to the partnership as a result of his management.
majority of the partners may apply to the court for the exclusion of any
partner, whenever their request is based on serious grounds, justifying such
A partner may also, if the duration of the partnership is fixed, apply to the
court to authorize his retirement from the partnership if he gives adequate
reasons for his request.
both above instance, the discharged or retired partner’s share shall be
governed by the provisions of Article 675, paragraph 2, and such share shall be
estimated according to its value as at the date of introducing the case in
LIQUIDATION AND PARTITION OF THE PARTNERSHIP PROPERTY
liquidation and the partition of the partnership property is carried out in the
manner agreed upon between the partners; failing such agreement, any interested
party may apply to the court to appoint one or more liquidations to carry out
the liquidation and partition.
juristic personality the partnership will be maintained, to the extent required
a liquidator is appointed, the partnership’s manager, or managers, shall
be deemed, as far as third parties are concerned, the liquidators.
liquidator shall undertake all the liquidation tasks such as making the
inventory of the partnership’s assets, collect its dues, pay its debt and
sell its property to the extent that it be ready for partition. He shall have to
observe all the restrictions stipulated in the order of his appointment and he
may not do any act not required for liquidation.
concerning the partition of common property shall apply to the partition of the
The partnership assets are divided between all the partners after payment of the
creditors’ rights, deduction of amounts required to cover debts that have
not fallen due or are subject to litigation and repayment of disbursements
resulting from liquidation.
Each partner shall be allocated an amount proportionate to his share in the
capital. He shall also receive from the profits, and bear from the losses the
proportion agreed to, or provided for in the present Law provisions.
TYPES OF PARTNERSHIPS
business partnership is a contract by virtue of which two persons, or more,
agree to undertake a work and warrants it to third parties in consideration of a
fee, whether they share the work equally or in a disproportionate manner,
provided their share in the work is combined or concomitant.
Each of the partners shall be bound to perform the work he agreed to and which
was undertaken by one of them.
Each one of them is entitled to receive the fee agreed upon and the work master
shall be discharged if he pays it to any of them.
partner who has accepted his share of the work is not bound to perform it
personally, he may give it to his partner, or to other than a partner, unless
the work master has conditioned that it be performed by him in person.
Profits shall be shared between the partners as agreed upon between them.
may be divided unequally even if the work is shared equally.
Each of the partner is entitled to his share in the profits even he does not
perform his work due to a justifiable reason.
partners are jointly liable to complete the work.
case the thing that the object in which the work is to be performed perishes or
becomes defective due to an act of one of the partners, the work master may
recover the compensation from any of them, at his choice, and losses shall be
apportioned between the partners in proportion to their share in the
a business partnership, the place of work may be offered by some of the partners
and the machines and tools by the others. They may likewise agree that the
place, the machines and the tools should be offered by some of them and the work
performed by the others.
The activities of a business partnership may consist in loading and transporting
things regardless of the kind and loading capacity of the transport means
offered by each partner as long as each partner warrants the work
If the partnership object is not accepting to perform the work but only to lease
the transport means and divide the rent between them, the partnership is void
and the rent of each of these means shall be vested to its owner and each one
assisting in the collection of the rent and in transporting shall be entitled to
the ordinary fee payable for such work.
An apparent partnership is a contract whereby two, or more, persons agree to
purchase something on credit, due to their credibility, and then sell it on
basis that they are partners sharing the profits.
The partners shall be responsible for the price of the thing purchased, each in
proportion of his share in it, whether they purchased it in common or
otherwise agreed, profits and losses shall be apportioned between the partners
in proportion to their liability assumed upon purchasing the thing on
speculative partnership is an agreement whereby the capital owner agrees to
provide the capital and the other party to endeavor and work aiming at realizing
order to be valid, speculation should satisfy the following conditions:
Capacity of the financier to give a proxy and of the proxy to act as such.
The capital invested should be known and negotiable.
The capital may not be a loan or deposit by the financier of which the party
receiving the loan or the deposit is liable to refund or restitute it.
Payment of the capital to the other party in the contract.
The share of each partner in the profits must be determined and common
Subsequent to receiving the capital, the receiving partner shall have the
capacity to dispose of it by proxy from the provider.
The receiving party shall act as a trustee of the capital received and a partner
in the profits.
party receiving the capital may not be asked to warrant it if lost or perished
without negligence from his part.
speculation may be general and absolute or limited in time, place or kind of
trade or by any other restricting condition.
In case the speculation contract is absolute, the speculator shall be considered
authorized to act and dispose of the capital in speculation matters and its
ramifications according to the established custom in this respect.
The speculator may not mix up the speculation moneys with his own funds or give
it in speculation to others, unless admitted customarily or if authorized, by
the capital provider, to act according to his own judgment.
Likewise, the speculation capital may not be given as a gift or loan or as a
collateral for a debt so as it exceeds the amount of the capital, without
express authorization of the capital provider.
the capital provider limit the speculation to certain restrictions that should
be followed and if the speculator exceeds the limits within which he is
authorized to act, the profits shall be allocated as agreed upon between the
partners and the losses to be born by the speculator.
the speculator shared with another speculator the speculation money, or sold
some of his goods on credit basis, without the permission of the capital's
owner, the first speculator shall guarantee the speculation money against all
deterioration or loss, in both instances.
the speculator pays the speculation money, without the consent of the capital's
owner, to another person to use it for his work with, then the first speculator
shall guarantee whatever deterioration or loss sustained and nothing shall be
required from the second speculator. If the latter realizes a profit, the first
speculator shall not take any part thereof, and the second speculator shall
collect part of the profit which was allocated to him if equal to the part
allocated for the first speculator and, if less, the increment shall be in favor
of the capital owner and not to either the first or second speculators.
the speculator uses the speculation money in his trade and looses part of it and
pays the balance, without permission from the capital owner, to another for the
purpose of speculation and the latter realizes a profit, the capital owner shall
recover, from the second speculator, all his capital plus his share in the
profit. In this case, the second speculator shall be entitled to turn back on
the first speculator for the balance of his share in the profit should he be
unaware of the violation or loss of the first speculator, otherwise he shall not
be entitled to claim anything from him.
speculator and the capital's owner must share the profit, in the proportion
agreed in the contract and, if not fixed, it shall be divided between them
according to the prevailing custom, otherwise in equal shares.
it is allowed to the speculator to mix his money with the speculation capital,
the profit shall be divided proportionately with the capital, thus the
speculator shall collect the profit of his capital, and the profit of the
speculation money shall be distributed among the contracting parties in the
manner stated in the first paragraph.
The capital's owner shall bear, alone, the loss, and any condition to the
contrary shall be void.
If any of the speculator money shall deteriorate it shall be deducted from the
profit and, if it exceeds it, the remainder shall be charged to the capital
account. The speculator shall not be held liable for it.
shall terminate in the following instances:
Rescission of the contract by either of the contracting parties.
The dismissal of the speculator by the capital owner, and the speculator shall
be prohibited to dispose of the speculation money, after his knowledge of the
dismissal, if such money was in the form of cash money otherwise, the speculator
may convert it to cash.
The expiry of the term, if it was limited by a certain period.
If one of the contracting parties passes away, or became insane, or interdicted.
one of the contracting parties has terminated the speculation, before term, the
prejudiced party may claim back from the other to repair the damage sustained by
the speculator dies without specifying the speculation money, the right of the
capital owner shall be a debt against the estate.
the speculator has specified it prior to his death, and it was found in his
estate, it shall be allocated for the capital's owner, in priority against his
general provisions applicable to a company shall govern the business companies,
speculation and methods thereof, in all matters that does not contravene the
special provisions applicable to each.
rules stipulated in this chapter shall not violate the provisions of the
loan is the transfer to the borrower of ownership of a sum of money or any
fungibles upon condition that the borrower returns, at the end of the loan, a
thing equal in amount, kind and quality.
borrower owns, by contract, the loan in full property even if he did not collect
it from the lender and it shall be adjudicated in his favor if the lender
refrains from delivering it to him. The loan shall not become void if any
impediment occurs to the borrower preventing him from disposing of the sum of
money before receiving it.
lender must, as a condition, enjoy the capacity to donate.
guardian or the custodian does not have the authority to lend or borrow a sum of
money owned by whoever is under his guardianship or custody except by permission
of the court.
borrowed money must be fungible and consumable.
the loan contract is conditioned upon paying a benefit that exceeds the contract
requirements, other than guaranteeing the borrowers right, the condition is void
but the contract is valid.
loan may be granted on condition of a pledge or guarantee.
the event of dispossession of the borrowed money while the loan is still
effective and in the hands of the borrower, his obligation to refund a similar
thing shall be forfeited and he shall be entitled to turn back on the lender
claiming satisfaction for any prejudice that he may sustain because of this
dispossession, if acting in bad faith.
a hidden defect appears in the borrowed money, the borrower shall only be liable
to restitute its value, as defective.
the loan has a fixed or customary date of maturity, the borrower is under
obligation to refund it to the lender upon expiry of its period, even if he did
not benefit from it.
the loan it has no due date, the borrower is not bound to restitute it until the
expiry of a reasonable period within which he is enabled to benefit of it as
accustomed in similar things.
borrower is bound, upon expiry of the loan period, to restitute a thing equal in
amount, kind and quality, at the agreed time and place, regardless of whatever
change may occur to its value.
restitution of a similar thing reveals to be impossible, the lender’s
right shall accrue to its value on the day received.
several persons borrowed a thing which was received by one of them with the
consent of the others, none of these may claim from him more than his share in
the thing received.
otherwise explicitly or impliedly agreed to the contrary, the borrower is bound
to repay the loan at the country where it has been granted.
it has been agreed that repayment should be done in another country where the
value of the loan differs from its value at the place of origin, the
lender’s right shall accrue on the value at the place where the loan
is a contract by which the two parties thereto put an end to a litigation and
settle a dispute by mutual consent.
order to effect a compromise, the parties must have legal capacity to dispose
for valuable consideration of the rights which are the object of the compromise.
capacity to donate is required if the compromise includes waiver of some rights.
compromise of the discerning child and the imbecile, if authorized, is valid
if they do not sustain any apparent prejudice. The same rule shall apply to
tutors guardians and curators, without prejudice to the specific law provisions.
object of the compromise must be something which consideration may be taken as a
substitute thereof even if it is not a sum of money and must be known as
concerns collection and delivery.
compromise consideration must be known if it requires collection and
the compromise consideration is a property or usufruct owned by third parties,
the validity of the compromise is incumbent on the consent of this third party.
may be made on rights whether admitted by the defendant or denied or to which he
kept silent and did not show consent or denial.
case of acknowledgment, if the compromise takes place on a consideration to be
paid by the admitting party, it shall be considered a sale, or a rent, if on a
case of denial or silence, the compromise shall be considered an exchange, as
regards the plaintiff and in consideration of oath and settlement of the
dispute, as concerns the defendant.
a person make a compromise on part of his claim or a portion of what he claims
to be due by the other party, he has forfeited his right to the balance.
a compromise is reached between two persons, each claiming a property in the
possession of the other, provided that each keeps the property in his
possession, it shall be considered a barter the validity of which is not
dependent on knowledge of the two bartered properties.
shall be governed by the clauses of the contract which is closest in similarity
with it, as concerns validity and its resulting effects.
shall result in transferring the right of the compromising party to the
consideration thereof and forfeiture of his right object of the dispute.
shall be binding to both parties, and none of them, or his heirs thereafter, may
effect of compromise shall be restricted to the rights involved and settlement
of the dispute thereto.
parties to a compromise may go back on it, if considered an exchange, but may
not do so if it includes a waiver of some rights.
may not be reached in case it includes any of the following impediments:
Extinction of a debt in a debt.
Sale of the food exchanged before its receipt.
Deferred Exchange of gold for silver and vice versa.
Usury on credits granted.
Relieving the debtor from some of the deferred debt, with a view to expediting
Removal of the deferred debt security from the debtor, against expediting
payment with an increment added thereto.
Beneficial advance payments.
innocent victim of a compromise by denial may reject the compromise in the
If the unjust acknowledges, after the compromise, the injustice made to the
If subsequent to compromise, a proof in favor of the victim of injustice was
revealed that was unknown at the time of the compromise and took an oath that it
was not known to him.
If he has a missing proof which he could not produce at the time of litigation
and which he would have produced at the time of the compromise if it were there.
a compromise was reached based on denial, due to the fact that the supporting
document of the right object of the compromise was not in the possession of the
defendant, he shall be entitled to renounce to the compromise if found
thereafter. However, if he alleged that the document was with him and when asked
by the plaintiff to produce it in order to take his right as stated therein he
pretended that it was lost and reached a compromise with him, he may not
renounce to the compromise thereafter, if found.
one of the heirs reaches a compromise with a debtor to their decedent, the other
heirs may constitute themselves as a party to the compromise or instead claim
from the debtor their right or reach a compromise with him.
heirs may compromise on their share in the estate by accepting part of the
estate subject to the presence of the other party in the compromise if he has
received what is equal or below his share, or the presence of all the heirs if
he received more than his share.
If one of the two creditors has compromised with a debtor to both of them, the
other creditor may refuse to participate in the thing object of the compromise
and revert on the debtor claiming his share. In case he finds him insolvent he
may not have a claim at all against his partner.
The other creditor may join his compromising partner in what he has compromised,
if he did not abstain from compromising and, in this case, he shall claim from
the debtor the balance of his share and the compromising creditor shall have a
claim against the debtor for what his partner took from the latter.
may not occur on consumables, such as honor, animal unspecified food against
deferred food of the same or different unless the object of compromise is a
property of equal or lesser value.
it is impossible to have knowledge of something unknown, it may be the object of
compromise against something known, provided ignorance is from both sides or
from the debtor alone.
prejudice to the provisions of articles 734 and 735 herein, compromise shall
irrevocably settle the dispute. The claim of the defendant may not be heard even
if he establishes evidence to his claim or to the fact that the denying party
has previously acknowledged the object of the claim.
lease is granting ownership of the use of a specific thing to the lessee for a
certain time in return for a fixed rent.
conclusion of a lease contract is made contingent upon the capacity of the
contracting parties at the time of the contract.
The implementation of a lease contract requires that the lessor, or whoever acts
on his behalf, has the right to dispose of the leased premises.
The lease contract made by a person who by his own initiative and without
authority from the owner is contingent upon the ratification of the owner of
the right to dispose of the premises and the satisfaction of the conditions of
object of the contract of lease is the enjoyment of the right to use the leased
premises which takes effect by delivery thereof.
use of the premises object of the contract is condition upon:
it be sufficiently known in order to settle the dispute.
premises object of the use must be known either by visiting I, determining its
location or giving its detailed description, otherwise the contract shall be
must be known either by specifying its kind and amount, if cash money, and by
specifying its kind, description and determination of its amount, if otherwise.
the rent is unknown, the lease contract may be rescinded and the rent for the
period preceding the rescission shall be due on basis of the rental of similar
rent may be in kind, a debt or a usufruct.
rent shall be due upon completion of the use or make its completion
of the rent may be in advance, postponed or by installment payable at fixed
the contract does mention the period within which the rent should be paid, it
shall absolutely be due after completion of the use or after its completion
for the rent due for a time unit, the periods of payment shall be fixed by
custom, otherwise the judge shall fix same upon request of the interested party.
rent shall be due, for the period preceding the delivery of the leased object,
unless the lessee is responsible for the delay in delivery.
lease period shall start as of the date fixed in the contract, otherwise from
the date of the contract.
lease period must be made known.
case the lease contract is made for an indefinite period or if it becomes
impossible to establish the alleged period, the contract shall be considered
made for the period specified for payment of the rent and expires at the end of
this period upon request of any of the contracting parties.
a lease contract expires, and the lessee continues to use the leased object with
the knowledge of the lessor and without his objection, the lease shall be
considered renewed under the original conditions and for a similar term.
lease may be reported for a future date which shall be binding by contract
unless the leased object is the property of an endowment or of an orphan and, if
this be the case, it may not be reported for more than a year from the date of
the period of the lease has expired, and the necessity for its extension has
been established, then it shall be extended to the extent of this necessity
provided the lessee pays a rent equal to the rent of a similar object.
the lessor asks the lessee to pay a specific increase, over and above the named
rent, after the expiry of the lease period, this increase shall be binding to
him in case the said period expires and he kept in possession of the leased
object without objection.
two contracting parties are bound to implement the contents of the contract in
such a way as to realize its legitimate objective.
the lease contract has been validly formed, the usufruct of the leased object
shall be transferred to the lessee.
LIABILITY OF THE LESSOR
DELIVERY OF THE LEASED PROPERTY
lessor is bound to deliver to the lessee the leased property and its accessories
in a condition suitable for the full achievement of the purpose for which it was
shall be completed by enabling the lessee to take hold of the leased property
without an impediment obstructing the usufruct thereof, while remaining in his
possession for an uninterrupted period until the expiry of the lease period.
lessor may refrain from delivering the leased property until he receives the
rent payable in advance.
the object of the lease is something specific in consideration of a global rent
and there is mention of the number of its units without specifying the rent for
each unit, then it was revealed that its units are over or below what is
mentioned, the rent shall be that named in the contract without any addition or
deduction but in the latter case the lessee shall have an option to rescind the
the rent of each unit has been named in the contract, the tenant shall be liable
for the named rent for the excess units, and the lessor is bound to deduct the
named rent for the missing units. In either case, the lessee shall have an
option to rescind the contract.
however the excess or the shortage be minimal without any effect on the intended
benefit, the lessee shall have no such option.
delivery of the leased property and its accessories shall have the same effects
as the delivery of the thing sold, unless otherwise agreed by the contracting
MAINTENANCE OF THE LEASED PROPERTY
owner is bound to repair the defects occurring to the leased property affecting
the fulfillment of the intended purpose. In case he abstains from doing so, the
lessee may ask the judge to allow him carrying out the repairs and claim from
the lessor the expenditures incurred to the extent customarily allowed.
the defect which the lessor is bound to repair, is customarily considered a
minor or urgent thing, that cannot be delayed, and the lessee has asked him to
repair it, but he delayed taking action, or it was impossible to contact him,
the lessee may repair it and deduct the cost, to the extent customarily allowed,
out of the rent.
the lessee, by permission of the owner, has made constructions, or improvements,
to the benefit of the leased premises, or its maintenance, he may claim from the
lessor the cost thereof, to the extent customarily allowed, even if he did not
reserve to himself the right to this claim.
if the works done by the lessee were for his personal benefit, he shall have no
claim against the lessor.
lessor may prevent the lessee from any work which may destroy or change the
leased property, and from putting any machines or equipment that may be
detrimental to it or reduce its value.
the lessee does not abstain, the lessor may ask the judge to order the
rescission of the contract, and remedy the damages caused by such
WARRANTY OF THE LEASED PROPERTY
lessor may not do anything which disturbs the lessee in his enjoyment of the
leased property during the period of the lease, and shall not make any
alterations to the property that prevent or disturb such enjoyment, otherwise he
shall be held liable.
lessor not only warrants the lessee against his own acts and against those of
his servants but also against any disturbance or damage based on a lawful claim
by any other lessee or by any successor in title of the lessor.
as a result of such disturbance, the lessee is deprived from the enjoyment of
the leased as provided in the contract, he may ask the rescission of the lease
or a reduction of the rent together with the payment of damages for the
prejudice sustained by him.
lessor shall warrant the lessee all defects in the leased property that may
prevent or considerably reduce the enjoyment thereof, but he does not warrant
the defects that are customarily tolerated.
lessor shall not warrant the defect if the lessee had knowledge of it at the
time of the contract or could easily have knowledge of it.
as a result of such defect, the lessee is deprived of the enjoyment of the
leased property, he may ask rescission or reduction of the rent, together with
the payment of damages for the prejudice sustained by him.
presence of a defect in a lease shall be governed by the provisions applicable
to the option opened in case of defect in the property object of a sale in all
matters that are not incompatible with the nature of a lease.
agreement exonerating from warranty against disturbance or defect is void if the
lessor has fraudulently concealed the cause of such warranty.
OBLIGATIONS OF THE LESSOR
PRESERVATION AND RETURN OF THE LEASED PROPERTY
The leased property is in trust in the hands of the lessee who shall warrant
every shortage, deterioration or loss resulting from his neglect or trespass. He
is bound to preserve it as would an ordinary person do.
When there are several lessees, each one of them shall warrant the damages
resulting from his trespass or neglect.
In the use of the leased property, the lessee may not exceed the limits of
enjoyment agreed upon in the contract. In the absence of such agreement,
enjoyment of the leased property should be within the purpose for which it was
designed and in the manner customarily practiced.
In case he exceeds in his enjoyment the limits agreed upon or contradicts what
is customarily practiced, he must warrant against whatever damage that may
result from his act.
The lessee may not, without the permission of the lessor, make any alteration to
the leased premises unless necessitated for its repair and no damage is thereby
occasioned to the lessor.
Unless otherwise agreed, if, in the fulfillment of this obligation, the lessee
exceeds its limits, he shall be compelled to reinstate the leased property to
its original condition and, in addition, to pay compensation if due.
lessee is bound to carry out the restoration works agreed upon or those of which
he customarily in charge.
shall have, during the lease period, to clean the leased property and remove all
the dust or garbage accumulated thereon, and all what he is customarily in
lessee may not prevent the lessor from carrying out the necessary maintenance
works to the leased property.
case these works shall disturb the lessee in his enjoyment of the leased
property, he shall be entitled to rescind the contract unless he continues to
enjoy the use thereof until the achievement of the maintenance works.
complete loss of enjoyment of the leased property shall release the lessee from
paying the rent as of the occurrence of such loss.
case the loss is partial but in a manner that may affect the full enjoyment, the
lessee is entitled to rescind the contract and he shall be relieved from paying
the rent as of the rescission date.
the lessor repair the leased property prior to the rescission, the lessee shall
only be relieved from paying the rent to the extent of the lost enjoyment but he
shall not be entitled to rescind the contract.
the full enjoyment of the leased property is prevented, due to an act of the
competent authorities, without cause attributed to the lessee, the lease shall
be rescinded and the rent forfeited as of the date of such prevention.
only partial enjoyment of the leased property is prevented, in a manner that
affects the designed enjoyment, the lessee is entitled to rescind the contract
and he shall be relieved from paying the rent as of the date of notifying the
lessee may rescind the contract in the two following instance:-
its execution shall lead to an evident detriment to the person or property,
whether his own or of any of his subordinates, in the enjoyment of the rent
anything occurs that prevents the implementation of the contract.
lessee is bound, upon expiration of the lease period, to restitute the leased
property to the lessor, in the condition in which it was at the time he took
delivery thereof excluding loss or deterioration due to a cause not imputable to
he retains it unlawfully, he is bound to pay to the lessor compensation equal to
the rent of a similar property as well as damages for the prejudice sustained.
the restitution of the leased property requires transportation, the
transportation expenses shall be borne by the lessor.
the lessee has erected buildings, planted trees in the leased property, even
with the lessor’s permission, the lessor is entitled, at the expiration of
the lease, either to remove the buildings and the plants or appropriate the
improvements at cost price ready for removal, if its removal is detrimental to
the property, otherwise the lessor may not keep it without the consent of the
LENDING AND SUB-LEASING THE LEASED PROPERTY
lessee may lend or sublet the whole or part of the leased property without
valuable consideration if the property is not altered through change of user.
lessee may not sublet whole or part of the leased property to another person
without permission or approval of the lessor.
the instances shown in the previous two articles, the lessee must abide by the
conditions set forth in his lease contract as to nature and duration.
the lessee sublets the leased property with the permission of the lessor, the
sub-lessee shall substitute the original lessee in all his rights and
obligations resulting from the original contract.
the contract, concluded with the original lessee, is rescinded or terminated,
the lessor is entitled to terminate the contract with the sub-lessee and
recuperate the leased property.
END OF THE LEASE CONTRACT
lease shall terminate in the two following instances:
At the expiration of the agreed term unless automatically renewable.
At the expiration of the enjoyment right if the lease is issued by the owner of
such right, unless approved by the owner of the property.
after the lease has expired, the lessee continues to enjoy the leased property
with the express or implied acceptance of the lessor, the contract is deemed
renewed under the same original conditions.
the lessee has used the leased property without right, after the expiration of
the lease term, he is bound to pay the rent due on a similar property for the
period of utilization, and shall in addition warrant the lessor against any
damage occurring to the leased property.
lease shall not end with the death of one of the contracting parties.
heirs of the lessee may, however, request the termination of the contract, if
they establish that, due to the death of their decedent, the onus of the
contract has become heavier than what their financial resources can bear or if
it exceeds the limits of their needs.
the lease has only been contracted due to the occupation of the lessee or for
other personal considerations, then he passed away, his heirs or the lessor may
ask the termination of the contract.
of the contracting parties may, for an unforeseen excuse concerning him, ask the
termination of the lease contract and, in this case, he shall warrant to the
other party, within customary limits, against the damages that he may sustain as
a result of such termination.
case the lessor is the one who asks the termination of the contract, the lessee
is not bound to restitute the leased property until he receives the compensation
or obtains a sufficient collateral.
the leased property is sold without permission of the lessee, the sale shall be
enforced between the seller and the purchaser but shall not affect the right of
the lessee authorized the sale or approved it, the sale shall be binding to him
and he shall be under obligation to deliver the leased property unless he has
paid the rent in advance, in which case he is entitled to retain the leased
property until he is reimbursed a portion of the rent equivalent to the period
during which he did not enjoy the use of the said property.
lease contract of a house or a similar property shall not be terminate because
of the illicit use of it by the lessee and he was ordered by the public
prosecution to put an end to his viciousness. In case of non compliance to this
order, the judge shall, upon request of the owner or a neighbor, evict him from
the property and have it leased to another person, in case the house or the
neighbor has suffered a prejudice, in which case he has to pay the rent for the
period starting from the date of his eviction until the property is leased to a
LEASES OF AGRICULTURAL LANDS
lease of an agricultural land is valid if accompanied by a statement specifying
what is cultivated therein or allowing the lessee to plant whatever he wishes.
lease of a land may not be a definite lease while occupied by unharvested plants
duly planted, unless the lessee is the owner of these plants.
lease of planted land may be allowed, and the owner thereof shall be charged to
pluck off the plants and deliver it to the lessee, in the two following
If the land has been rightfully cultivated and the plants harvested at the time
of the lease.
If the land was not unduly cultivated, whether the plant was harvested or
lease period of the planted land may start at a future date when the land will
a person leases a land for cultivation, the lease thereof shall include all its
rights, however the agricultural tools and machines and the permanent fixed
constructions are excluded unless specified in the contract.
the contract includes the lease of the agricultural tools, machines, and others,
the lessee is bound to maintain and use these properly.
leases a land that he can plant as he wishes, he may cultivate it repeatedly
during the year, summer and winter.
the lease period has terminated before ripening of the plants, for a reason
beyond the control of the lessee, it shall be left in consideration of a rent of
similar things until its ripening and harvesting.
lessee must work the agricultural land in accordance with the requirements of
normal agricultural use. He must maintain the land in a good state of production
and he is not allowed to change the established method of cultivating the land,
the effects of which might extend beyond the period of the lease.
lessee is bound to carry out repairs necessary for the normal enjoyment of the
lessee must carry out the repairs which are required for the usual utilization
of the land, and the maintenance of irrigation machines, drains, roads, viaducts
unless the agreement or custom runs otherwise.
the leased land is submerged by water so that it becomes impossible to
cultivate, or if water is cut off, and land has thus become impossible or too
onerous to irrigate, it or if a force majeure has impeded its cultivation, then
the lessee may rescind the contract and shall not have to pay the rent.
the plants have been destroyed before its harvest, for a reason beyond the
control of the lessee, he shall have to pay from the rent in proportion of the
period lapsed before the destruction of the plants, and the remainder shall be
forfeited, unless it was within his ability to plant similar ones, thus he shall
be bound to pay the share of the rent for the remaining period.
the contract may be rescinded nor the whole, or part of the rent forfeited if
the lessee has received a warranty from any source against the prejudice
DEFINITION OF SHARECROPPING
is a contract, for the exploitation of a land between the land owner and the
exploiter, whereby the produce is shared between them in the proportion agreed
FORMATION OF THE SHARECROPPING RELATION
validity of a sharecropping contract is contingent upon:
The land must be known and fit for cultivation.
The kind of plants and the type of seeds must be specified otherwise the
exploiter shall be given the freedom to plant whatever he wishes.
The share in the produce for each of the two parties should be defined in terms
of a proportion in common property.
is not allowed to condition the deduction of the cost of seeds or the value of
the tax on the bare land from the principal of the produce before partition.
sharecropping, the duration of the agreement must be specified in such a way as
to be consistent with the achievement of the purpose there from, otherwise the
contract shall remain in force for a single agricultural cycle.
EFFECTS OF THE SHARECROPPING CONTRACT
the sharecropping contract is formed, the produce shall be owned in common by
the parties thereto and shall be divided between them in the proportion agreed
the sharecropping land is adjudicated to another person after planting it but
before harvesting and the two parties to the sharecropping contract were in good
faith ignoring the reason why it was adjudicated, they may keep the land under
sharecropping until the end of the season of what has been planted and the party
who has contributed by offering the land shall have to pay to the adjudicated
owner a rent equivalent to that of a similar land.
case both parties were of ill-faith, the adjudicated owner is entitled to pluck
off the plants and recover his land free from any occupancy and without any
obligation to either one of them.
the one who has offered the land is alone of bad faith, and the adjudicated
owner refused to leave the land in their possession in consideration of a just
rent until the end of the season, then the following shall apply:
If the seeds were supplied by the one who has offered the land, he shall pay to
the other party a just fee commensurate with his work, together with a
compensation equivalent to the amount disbursed, wages paid to the
workers,...etc within customary limits if the contract binds him to make such
disbursements. The party offering the land may avoid this by paying to the other
party the value of his share in the plants once matured, not plucked off, until
If the seeds were supplied by the farming partner, he shall be entitled from the
party offering the land the value of his share in the ripened crops until
In both cases, whether the seed was supplied by him or by the one who has
offered the land, the sharecropper may opt to take his share out of the plucked
off crop, then he will get nothing else.
OBLIGATIONS OF THE LAND OWNER
land owner shall have to deliver the land fit for cultivation, with all its
easement rights such as drinking and passage, and all what is allocated for its
exploitation, if permanently fixed thereon. .
shall also be liable to repair the agricultural tools which he shall have to
deliver fit for use, whenever they need repair, as a result of normal use.
THE SHARECROPPER’S OBLIGATIONS
sharecropper shall be liable for the supplies of the agricultural works, the
maintenance of the crop and its preservation, the irrigation canals and any
similar things, until the season of the crop harvesting.
2-The supplies of the crop after its ripening, harvest and what follows, as well
as the ensuing expenses until partition of the produce shall be the liability of
each of the contracting parties in the proportion of his share.
the purpose of cultivation and preservation of the land and its auxiliaries, as
well as the plants and
crop, the sharecropper shall have to exert the care of an ordinary
default of the above and if his neglect shall cause a prejudice, he is bound to
sharecropper may not rent the land or charge others of its cultivation except
with the consent of the land owner.
the sharecropper violate such obligation, the land owner may rescind the
sharecropping contract. If the land was, at the time of rescission, cultivated
and the seed was supplied by the land owner, he may recover such, and revert on
the sharecropper for the prejudice sustained; and if the seed was not supplied
by him, he may either recover the land cultivated and pay the cost of the seeds
to its owner, or to leave the crop for both until its harvesting time, and
charge the first sharecropper with the equivalent rent and compensation for the
damages caused by him.
EXPIRATION OF THE SHARECROPPING CONTRACT
sharecropping contract shall end by the expiration of its term. If such term has
expired before the ripening of the crop, the sharecropper may keep until it
ripens in consideration of paying the rent of an equivalent land proportionate
with the amount of his share in the crop for the following period. The necessary
expenses for the green crop shall be born by each of the land owner and the
sharecropper in proportion to their shares.
the land owner pass away while the crop did not yet ripen, the sharecropper
shall keep carrying on the work until the ripening of the crop, and the heirs
may not prevent him.
the sharecropper dies before the ripening of the crop, his heirs shall replace
him in the work, until ripening of the crops, despite the refusal of the land
the sharecropping contract is rescinded, or its voidance has been demonstrated
or declared by judgment, the whole crop shall be for the seeds owner. If the
said owner is the land owner, the sharecropper is entitled to the wage payable
for similar work, and if the seeds owner shall be the sharecropper, the land
owner shall be entitled to the rent of a similar land.
both instances, the wage or the rent of a similar work or land may not exceed
the share value of its owner in the crop.
LAND SERVICING CONTRACT
service contract is one between a worker and the owner of trees or plants
according to which the worker undertakes to service the trees or plants for a
determined period in consideration of a share in common of the crop.
validity of this contract is contingent upon determining the share of each party
to the agreement by a proportion in common property.
order that this service contract be valid, the trees must be fruit bearing
during the year of the contract, the fruits are not ripened before the agreement
and that the succeeding growth does not bear fruits prior to reaping the
previous one without interruption of the fruit bearing process. Should one of
the afore-mentioned three conditions be in default, the service contract of the
above shall not be valid unless it is accessory to an agreement fulfilling these
the service contract concerns trees to which plants are auxiliary thereto, or
vice-versa, and the value of the auxiliary is one third of the principal’s
value or less, then the contract on the principal shall include the auxiliary
and the result shall be as follows:
The worker in a service contract shall be in charge of its servicing as he
serves the principal.
Its produce may not be conditioned to be the property of the principal or the
The share of the worker from this produce shall be similar to his share in the
The validity conditions of the servicing contract must be met as concerns the
principal to the exclusion of the accessory.
servicing contract is binding and is not rescindable by one party without
servicing contract should limited to the period of plucking off or to a time
during which plucking off usually occurs. If it is undetermined at the time of
the contract then it shall be limited to the time when plucking off is due, if
the fruits are from one productive origin, or the first plucking off if from
various and different origins; provided that that the second plucking off takes
place during the period of the sharecropping. If the fruits come from several
but not different origins, the term of the contract shall extend to the last
If a period has been fixed in the contract, during which there is probability
for the fruits to blossom but it did not show yet, none of the contracting
parties may have a claim against the other.
otherwise provided, the works and expenses required for the servicing shall be
subject to the following provisions:
The works needed for the servicing of the trees, the growth of the produce and
its quality and its preservation until ripening such as irrigation, tree
grafting and lopping shall be the task of the worker. The fixed works, however,
that does not reoccur each year, such as drilling wells, erecting warehouses,
are the responsibility of the trees and plants owner.
The pecuniary costs needed for the exploitation and ordinary care such as, the
price of fertilizers, and pesticides, until ripening of the produce, shall be
the obligation of the owner of the trees or the plants.
As for the expenses needed after the ripening of the crop, like harvesting and
storage expenses, these shall be the liability of both parties, each one
according to the proportion of his share in the produce.
worker may not assign his duties to third parties without the authorization of
the owner of the trees or plants, otherwise the said owner shall have an option
to take all the crop, if he so wishes, and give the one who executed the work
the wages for performing similar works, or leave to them the produce and turn
back on the first servicing worker for the cost of a similar crop, in addition
to damages for the prejudice sustained as a result of his act.
the trees, the fruits, or the plants have become due to a third person and the
two contracting parties to the servicing contract, or one of them, have spent or
taken action affecting the growth of the trees, fruits or plants so, depending
on the circumstances, the following shall result:
the rightful owner has approved the servicing contract, he shall substitute the
previous possessor in all his rights and obligations, towards the worker,
emanating from the contract and shall refund to the one who has offered the
trees or plants, an amount equal to the relevant and useful expenses customarily
spent by him.
the rightful owner did not approve the contract, which was made in good faith
without knowledge of either party of the reasons for entitlement, the entitled
party may chose either to take what he is entitled to and pay to the worker the
price thereof, and to the one who has offered the trees or plants, the amount
equal to the useful expenses customarily spent by him; or leave the crop until
the end of the season and take from the one who has offered the trees or plants,
a customarily adequate compensation for the benefits lost due to such waiting
both parties to the contract are of ill faith at the time of contracting, the
beneficiary may take his dues without liability towards any of them.
one of them is of bad faith and the other acted in good faith, the latter may
claim, from the rightful owner, a compensation considered fair by custom for
whatever his disbursements or work benefited the trees or plants.
the worker fails to work, or if he is not entrusted with the fruits, the trees
or plants, the owner shall be liable for the wages payable for similar work
executed prior to rescission.
servicing contract shall not end by the death of the owner of trees or plants,
and his heirs shall not prevent the worker from resuming his work according to
however, the worker die, his heirs may chose between terminating the contract
and resuming the work. If they chose termination of the contract, and the fruits
did not yet ripen, they are entitled, upon ripening, the share of these fruits
that would have been for their decedent in proportion of his work until his
it has been provided that the worker has to execute the work in person, the
servicing contract shall end upon his death and his heirs shall be entitled upon
ripening of the fruits, the share due to their decedent in proportion to the
work performed by him.
case the worker has shown negligence in the performance of the work assigned to
him by agreement or custom, his share in the crop shall be reduced in proportion
to the neglected work.
provisions regulating the sharecropping contract shall govern the servicing
contract in whatever has not been provided for in the preceding articles.
PARTNERSHIP BETWEEN LAND AND PLANTS OWNERS
is the participation between a land owner and the person who undertakes to plant
specific orchards, supplied by him, provided they become partners in the land
and trees at a known percentage, if the trees has reached a certain growth
before bearing fruits.
validity of the "mugharasa" is contingent upon fulfilling the following
mugharasa should be in fixed assets of palm trees or trees and not in seasonal
palm trees or trees, object of the mugharasa, must be determined at the time of
formation of the contract.
shares in the partnership in both the land and the palm trees, or trees, must be
partnership, in land and palm trees or trees, shall start as from the date at
which the trees reach a certain degree of growth before bearing fruits.
provisions governing planted land servicing contract shall apply to Mugharasa in
as much as they are not in contradiction with its nature.
one who is entitled to manage the "wakf" shall be in charge with its
two persons are entitled to manage the “wakf”, either one may not
unitarily decide of its rental.
person entitled to administer the wakf may not lease it to himself, even in
consideration of the current rent, unless he has accepted the lease from the
may let the mortmain property to his ascendants or descendants, for a rent
higher than the current rent, by permission of the judge.
beneficiary, even if he is the sole beneficiary, may neither grant a lease nor
receive the rent unless the right to do so is given to him by the constituent of
the wakf, or he is so authorized by the person who is entitled to grant a lease.
condition put forth by the constituent of the wakf must be observed in the
lease, so if he fixes a period for the lease, it should be complied with.
no one accepts the lease for the specified period and the administrator of the
wakf was not given the right to lease for the period considered to the benefit
of the wakf, the matter shall be brought forward before the judge in order to
authorize the lease for the period considered by him in the interest of the
the constituent of the wakf did not fix the lease period, the rent for shall, at
most, be for one year for immovable properties, and three years for the lands;
unless otherwise required in the interest of the wakf and permission of the
judge, in this respect, has been granted.
Any lease entered into for a longer period, even by successive contracts, shall
be reduced to the period mentioned in the preceding clause.
In case the "wakf" is in need of construction and does not generate enough
revenue, the judge may authorize leasing it for a period sufficient for the
properties of the wakf may not be leased for a rent inferior to the current rent
of similar properties and any contract to the contrary shall be rescinded,
unless the tenant agrees to pay the current rent for similar premises and
provided the interest of the wakf has been taken into consideration.
estimation of the current rent for similar properties, at the time of formation
of the contract, without consideration of any change that may occur during the
some improvement has occurred to the site, as such, where the wakf property is
located, which has led to an exorbitant increase of the current rent in the
locality that is not attributable to the expenses incurred by the tenant or the
improvements done by him, the tenant shall have to opt either to terminate the
lease or accept the new current rent as of the time of such improvement,
regardless of the fact whether the lease was made for the purpose of
construction or for any other purpose.
the lease period has expired, and the tenant has constructed or planted, out of
his own money and for himself, in the wakf property with the permission of the
person in charge of letting, he shall then have the priority over others for
rental for a future period at the current rent of a similar property.
he does not accept the current rent of a similar property, and the destruction
of the construction or the plucking of the trees shall be detrimental to the
leased property, the wakf administrating body shall be entitled to appropriate
these additions at their cost after destruction or plucking, unless they agree
with the tenant to leave the construction or the plantation until it falls and
the tenant shall be entitled to the rest of it.
administrator may rent the property in mortmain, along with the construction and
the plants, with the consent of their owner provided the latter receives a share
in the rent commensurate with his ownership thereof.
the rental period has expired, while the tenant has a construction erected or
trees planted on the premises, out of his own money, without permission, he
shall be ordered to destroy what he has erected or pluck what he planted, if not
detrimental to the wakf, otherwise he shall have to wait until the construction
or the trees fall and he then be entitled to the remains thereof. In both
instances, the Wakf Body is entitled to appropriate what has been erected or
planted at a price not exceeding its value destroyed or plucked, or standing as
they actually are, whichever is less.
matters requiring the permission of the judge, the opinion of the Ministry in
charge of the wakf affairs must be sought, prior to the issue of such
permission, as to what is required in the best interest of the wakf.
provisions governing lease contracts shall apply to the lease of wakf, in as
much as it is not in contradiction with the preceding law provisions.
is to give others the right to appropriate, without valuable consideration the
use of a specific thing during a specific time or for a specific purpose, which
thing the borrower undertakes to restitute after use. The borrowed thing is the
thing which usufruct has been appropriated.
is completed by receiving the borrowed thing, prior to which it shall have no
borrowed thing must be specified, usable non-consumable, allowed for use even if
not allowed for sale.
lender must be the owner of the usufruct, even if he is not the owner of the
borrowed thing itself and he is not interdicted as to its use.
borrower must have the capacity to receive the loan.
the lending period be restricted by a certain time or act, then the lender may
not recover the borrowed thing. If it is not restricted in time or the
performance of an act, he is not entitled to restituting it prior to the expiry
of the period current in similar loans.
lender shall recover it from the borrower, under all the circumstances, if it is
used for a purpose other than what it was loaned for, or if he experience an
unexpected different need for borrowing.
borrowed thing is a trust in the hands of the borrower, if it perishes or is
lost or depreciated without trespassing or negligence, there is no warrant by
him, unless it has been agreed otherwise.
guardian or the custodian may not lend any property owned by his ward. If any
one of them lent it, the borrower shall be liable for the current rent for
similar property, and if it perishes the borrower shall warrant it.
wife may not, without the consent of her husband, lend anything owned by him,
which is not usually in her possession. If so she does, and the borrowed thing
perishes or become defective, the husband may opt either to sue her, or the
borrower, in warrant.
otherwise agreed, when a person borrows a land for the purpose of erecting a
construction, or planting trees therein for a period limited by agreement or
custom, then the lender shall have, at the end of such period, the choice to ask
the borrower to destroy the construction, or pluck off the trees and the
leveling of the land to its original condition, or to pay him the price of the
construction or the value of the plucked off trees.
lender is not entitled to claim, from the borrower, the rent of the borrowed
thing after the utilization thereof.
the borrowed thing has been dispossessed while in the hands of the borrower, the
lender does not warrant it, unless otherwise agreed or the reason for
dispossession has been concealed on purpose.
The lender shall be responsible for every prejudice sustained by the borrower as
a result of this dispossession.
If dispossession takes place subsequent to the perishing of the borrowed thing
while in the possession of the borrower without trespassing or negligence from
his part, and the dispossessor has chosen to ask for the warrant, the borrower
may claim from the lender what he warranted to the dispossessor.
The lender does not warrant against hidden defects, unless he has deliberately
concealed such defects or has warranted that the thing is free from defects.
OF THE BORROWER
borrower is bound to take such care for the preservation and maintenance of the
thing borrowed as he would take for his own property; provided that the care he
takes is not less than that which a reasonable person would take of his
he has neglected to drive away any prejudice to the borrowed thing, while he
could do it, he shall be bound to warrant.
borrower shall bear the charges of the borrowed thing and the expenses of its
restitution and the fees for its transportation.
borrower may only use the thing lent in the manner common to absolute lending
unlimited in time, place or kind of use.
it is limited by a period of time, or a place, he shall observe this
restriction. If determined by kind of use, he may not go beyond a similar and
less prejudicial limitation.
a defect occurs from the use of the thing borrowed which may devaluate it, the
borrower shall not warrant the amount of the devaluation unless it results from
its use contrary to the current use.
the borrower goes beyond what is customary in such loaning of the thing or in
using it, thus resulting in its perishing or defectiveness, he shall warrant to
the lender any prejudice occurring to the thing.
borrower may not, without the permission of the lender, dispose of the borrowed
thing in such a manner as to give a right to someone in its use or its property
by loaning, mortgaging, leasing it or otherwise.
borrower may deposit the borrowed thing with an honest person, capable of
keeping it, and does not guarantee it if it shall perish while under his
control, without any breach a neglect.
comes to an end by:
of the term agreed
the purpose for which it was done
of the lender or the borrower, and shall not devolve to the heirs of the
the borrower dies without having knowledge of the lending and the thing borrowed
was not found in his estate, its value at time of death shall be consider as a
debt on the estate.
borrower may restitute the thing lent before the end of the loan. If, however,
such restitution is prejudicial to the lender, he cannot be compelled to accept
the lending has been rescinded or expired, the borrower shall have to restore
the borrowed thing to its owner, and abstain from its utilization, unless the
law has allowed him to keep it.
it shall end by the death of the borrower, his heirs shall deliver it to the
lender upon request.
the borrowed thing is a precious item, the borrower shall have to deliver it by
himself to the lender. Other things, however, may be delivered in person or
through the intermediary of those under his guardianship having capacity to act.
borrowed thing must be restituted at the agreed place, otherwise in the place at
which it was borrowed, or customarily fixed.
for work is one by virtue of which one of the parties undertakes to do a piece
of work in consideration of a remuneration which the other party undertakes to
contractor may undertake to supply the work only, the master of the work being
responsible for the supply of materials which the contractor uses in or for the
performance of his work.
contractor may undertake to supply the material and the work as well.
a contract for work, the location, the kind of work, its quantity, the way it
should be performed and the duration of work must be described and the
case the master sets forth as a condition that the contractor has to provide all
or part of the materials, he is responsible for its good quality as provided for
in the contract, if any, otherwise in conformity with the current custom.
When the materials are supplied by the master, the contractor is bound to care
for their preservation, observe in his work the technical requirements and to
return to their owner whatever left of it; otherwise he shall warrant against
perishing, defect or loss thereof.
the absence of an agreement or trade custom to the contrary, the contractor
shall provide, at his own expense, the tools and accessories he needs to perform
contractor shall perform his work according to the conditions of the contract.
If it is established that he is fulfilling his obligations in a manner that is
defective or contrary to the agreement, the master may ask the immediate
rescission of the contract, if remedying the situation is impossible, otherwise
the master may summon the contractor to abide by the terms of the contract and
rectify, within a reasonable time, the manner in which he is performing the
work. If at the expiration of the fixed delay, the contractor fails to comply
with this requirement, the master may ask the judge the resiliation of the
contract or authorize him to hand over the completion of the work to another
contractor at the expense of the first contractor.
contractor shall warrant the results of his act and work against prejudice or
loss whether or not caused by his trespassing or negligence. There is no
warrant if this occurs from an accident that could not be avoided.
the contractor's work shall produce some effects on the property, he may have a
lien over it until he receives the remuneration due to him, and if it perishes
in his possession prior to payment of the remuneration, he shall neither be
liable to warrant nor entitled to remuneration.
If his work shall not have any effect on the property itself, she shall have no
right to detain it in payment of his remuneration and if he does so he shall be
liable to warrant against his unlawful act.
the object of the contracting contract was the erection of buildings or other
fixed constructions that the architect has designed, to be executed by the
contractor, under his supervision, they shall be jointly liable, for a period of
ten years or a longer agreed period , to indemnify the master of work for total
or partial destruction of these buildings or fixed constructions and for every
defect endangering the solidity and security of the building; all this unless
the two contracting parties agreed that these constructions are meant to stay
for less than ten years.
obligation to indemnify shall remain in effect even if the defect or the
destruction is due to a defect in the ground itself, and even if the master
authorized the erection of the defective buildings or fixed constructions.
ten year period shall start as of the time of delivery of the work.
the architect’s work is limited to the preparation of the plans without
being entrusted with the supervision of their execution, he shall be responsible
only for defects in the plans.
clause tending to exonerate or limit the warranty of the contractor or the
architect is void.
action on the warranty may not be heard after three years from the occurrence of
the destruction or the discovery of the defect.
OBLIGATIONS OF THE MASTER
master must take delivery of the completed work as soon as the contractor
completes it and places it at his disposal. If the master, in spite of being
formally summoned, fails without reasonable cause to take delivery, and the work
perishes in the hands of the contractor or becomes defective, without any
trespassing or neglect from the latter, he shall not be bound to warrant.
master is bound to pay the remuneration for the work upon taking delivery of the
work contracted, unless otherwise agreed or practiced by custom.
a contract is concluded in accordance with an estimate drawn up on a unit price
basis and it becomes evident, during the course of the work, that it will be
necessary to complete the work, according to the agreed plan, to considerably
exceed the estimated price, the contractor is bound to notify the master
forthwith of the matter stating the anticipated increase in price. If he fails
to do so, he shall forfeit his right to recover the expenses incurred in excess
of the estimate.
the estimated excess in the price for the execution of the plans is
considerable, the master may release himself from the contract and stop the
execution without delay and pay the contractor the cost of the works done by him
estimated in accordance with the terms of the contract.
a contract is concluded on a lump sum basis according to an agreed plan, the
contractor has no claim to an increase in price required for the execution of
a modification or addition is made to the plan, with the consent of the master,
the current agreement with the contractor, as regards such a modification or
addition, shall be observed.
the contract did not specify a price for the work, the contractor shall be
entitled to the price for similar works, in addition to the cost of the
materials provided by him as required by the works.
there were no agreement as to the remuneration of the architect, who made the
plans for the building and supervised their execution, he shall be entitled to
the remuneration payable for similar work, in accordance with the current
If happens what impedes the completion of the work’s execution, according
to the design he has prepared, he shall deserve the wage according to what he
contractor may entrust the execution, of the whole or part of the work, to a
sub-contractor unless he is precluded from so doing by a clause in the contract,
or unless the nature of the work requires that he executes the work in person.
contractor, in such a case, shall remain responsible towards the master of the
subcontractor may not have a claim against the master, as regards the dues of
the first contractor, unless the latter refers him to the master.
END OF A CONTRACT FOR WORK
contract for work shall come to an end by completing or by rescission of the
contract by mutual agreement or by order of the court.
an excuse arises that prevents the execution of the contract, or the completion
of its execution, any of the contracting parties may ask for its rescission or
termination, as the case may be.
the contractor has started the execution of the work and then became unable to
accomplish it, for a reason beyond his control, he shall be entitled to value of
the completed work, in addition to the expenses disbursed for its execution to
the extent of the benefit that the masters derives from such work.
party prejudiced from rescission may claim compensation from the other party
within the limits allowed by custom.
contract for work is dissolved by the death of the contractor, if it was agreed
that he executes the work in person or if his personal skill was taken into
account in the contract.
the contract does not include such provision, or if such personal skill was not
taken into account in the contract, the master may ask for the rescission of the
contract in case the heirs do not offer the necessary qualifications for the
proper execution of the works.
both instances, the value of the completed works and the expenses incurred shall
devolve to the heirs in accordance with the contract and what is required by
employment contract is a contract whereby one of its parties undertakes to
perform some work to the benefit of the other party under his supervision and
administration, in consideration of a salary which other party undertakes to
however, the wage earner is not prohibited to work for another employer, or if
he is not tied up in his work by a specific time to the benefit of the employer,
the employment contract does not apply to him and he is entitled to his
remuneration in accordance with the agreement.
employment contract may be for a limited or unlimited period, and for a specific
the employment contract is for the lifetime of the employee or of the employer
or for more than five years, the employee may, after the lapse of five years,
terminate the contract, without indemnity, provided that he notifies the
employer six months beforehand.
employment period shall start as of the time fixed in the contract, otherwise as
of the date of the contract, unless the custom or the circumstances of the
contract otherwise provide or require.
the employment contract be for a limited period, it shall automatically come to
an end by the expiry of its term and if both parties thereto continue its
execution, this shall be considered as renewal for an unlimited period.
case the employment contract is for the execution of a specific work, it shall
end by the achievement of such work. If this work is renewable by its nature,
and the execution of the contract continues, after the completion of the work
agreed upon agreed upon, the contract shall be considered tacitly renewed for
the period required for the performance of the same work anew.
employee’s salary is what he receives under the contract in money or
benefit of any kind.
the salary is not fixed in the contract, the employee shall be entitled to get a
wage in accordance with the rates, if any, applicable to work of similar nature,
otherwise the judge will fix it according to the requirements of equity.
following sums form an integral part of an employee’s salary and are taken
into account in computing the attachable portion thereof:-
payable to canvassers, commercial travelers and commercial representatives.
Percentages payable to employees of commercial establishments on the price of
sales effected by them and high cost of living allowances paid to them.
Any gratuity paid to a worker in addition to his salary, as well as fidelity
bonuses pr increase in his family charges and other similar allowances, if
payment of such sums is provided in the individual contract of employment or in
factory regulations or if these sums are customarily payable so that the
employee considers these as forming part of his salary and not a bounty,
provided that these amounts paid are of known value before the attachment is
are deemed to be part of the salary only in industries or trades where it is
customary to pay tips and where tips are subject to regulations by which they
can be controlled.
are deemed to form part of the employee’s salary when the amounts given as
tips by customers of a particular commercial establishment to its employees are
collected in a common fund for distribution to the workers by or under the
supervision of the employer.
some industries, such as hotels, restaurants, cafés and bars, an
employee’s salary may consist solely of the tips received and the food he
someone performs a work for another, upon his request and without agreement as
to the remuneration, he shall be entitled to the salary payable for similar
work, if he is salaried, otherwise he is not entitled to any salary.
the work under contract is teaching something which may be of some assistance
from the instructed person to his instructor, and it is not mentioned in the
contract who deserves the remuneration from the other party, the custom, in
effect between those concerned at the place of work, shall be followed.
OF THE EMPLOYMENT CONTRACT
THE EMPLOYEE’S OBLIGATIONS
in person the work and use, in so doing, the care of an ordinary man.
in his conduct the requirements of tact and morality.
the orders of the employer relating to the performance of the agreed work in all
what does not expose him to danger and does not violate the law or morality.
with care things entrusted to him for the performance of his work.
the industrial or commercial secrets of the work, even after the expiration of
the contract, as required by the agreement or customarily practiced.
employee shall be bound by all that is customarily considered as an accessory of
the work even if not so provided in the contract.
worker may not engage himself, during his work time in anything else nor work,
during the period of his employment contract, for another employer, otherwise
his employer may either rescind the contract or reduce the wage in proportion to
the employee’s negligence in discharging his work.
employee warrants whatever shortage, perishing or missing that may affect his
employer’s property due to his negligence or trespassing.
the work entrusted to the employee enables him to have knowledge of the secrets
of his employer’s business or to know the clients of the establishment,
the parties may agree that the employee will not be entitled, after the
termination of the contract, to compete with the employer or participate in a
agreement shall not be valid unless it is limited as to time, place and kind of
work, to the extent necessary for the protection of the legitimate interests of
employer may not avail himself of such an agreement if he terminates the
contract without any cause attributable to the employee; nor can he avail
himself of such agreement if he himself has given the employee adequate grounds
to resiliate the contract.
both parties agree to hold the employee liable in case he commits a breach of a
condition restraining competition and this clause is so onerous as to act as a
pressure on the employee to compel him to remain in the service of his employer,
the condition will not be valid.
the employee discovers a new invention or discovery while in the service of his
employer, the latter will not be entitled to it except in the following
In case the nature of the work agreed to aims to attain such purpose.
If the contract expressly stipulates that the employer is entitled to any
invention reached at by the employee.
When the employee realizes his invention through the materials, tools,
constructions or other means put at his disposal by the employer for this
If, however, the invention or discovery, in the foregoing instances, is of
serious economic importance, the employee may ask for a special remuneration to
be fixed in accordance with the principles of equity, taking into account the
extent of help supplied by the employer.
above provisions will be without prejudice to the provisions of the laws on
inventions and discoveries.
OBLIGATIONS OF THE EMPLOYER
employer must pay the employee his salary as agreed whenever he performs his
work or when he prepares and devotes himself to it, in case no work has been
assigned to him.
of the salary to the employee will be at the time and place fixed in the
contract or established by custom.
Make available all the means of security and safety in his establishment and
provide all what is necessary to enable the employee fulfill his
Make sure that the machines and the apparatuses used for work are in proper
running condition so that it does not cause any prejudice.
Observe the requirements of morality and politeness in dealing with his
To give to the employee, at the end of his service, a certificate mentioning the
kind of his work, the starting and ending dates of his service, the amount of
his salary as well as of all additions thereto paid to him.
Give back to the employee all his personal papers.
the employer asks another person to perform a work against reward, he shall be
bound to pay him a salary equal to that payable for similar work, whether this
person is a wage earner or not.
employer will have to provide food and clothing for his worker, if customarily
established, whether this condition is mentioned in the contract or not.
the period fixed for work has expired and there is a reason justifying its
extension, the contract shall continue to run as long necessity so require and
the employer shall be liable to pay a salary equal to that payable for such
the term of work is fixed in the contract, and the employer rescinds the
contract before its expiry, with no valid excuse or a defect in the work
performed by the worker, he shall have to pay him the salary due until the end
of such period, if the worker has made himself available for service within it.
of the employer and employee shall perform the obligations imposed by the
special laws, side by side with the obligations stipulated in the above
OF THE EMPLOYMENT CONTRACT
to the provisions of articles 898 and 900, a contract of employment ends at the
expiration of the term fixed unless renewed, or upon completion of the work
the duration of the contract is not fixed by the agreement or by the nature of
the work or by its object, each of the contracting parties may terminate the
contract at any time provided it is preceded by a notice to the other party of
his intention to do so within a reasonable time prior to the expiration of the
a cause arises preventing its execution, the contract may be rescinded.
any of the contracting parties has an unexpected excuse concerning him, he may
ask for the rescission of the contract.
both mentioned instances, the party asking rescission shall be liable for the
prejudice caused by rescission to the other party.
contract shall end by the death of the employee as well as of the employer in
case the personality of the latter has been taken into consideration upon
conclusion of the contract.
arising out of a contract of employment are prescribed after one year from the
time of termination of the contract.
in relation with the disclosure of trade secrets are not subject to such
governed by a special provision, the contract of employment shall be governed by
the same provisions applicable to lease contracts.
provisions of the employment contract shall not apply on workers governed by the
labor law, except to the extent at which it does not expressly or impliedly
contradict the laws applicable to them.
mandate is a contract whereby a principal appoints a proxy on his behalf to
perform a licit and known act.
conditions for the validity of the mandate are the following:
a-The principal must have the right to dispose by himself of the acts
constituting the object of the mandate.
b- The proxy must not be prohibited from disposing of what he has been empowered
c- The object of the proxy must be known and apt to be given by proxy.
power of attorney in litigation is not conditioned upon acceptance of the other
party to the litigation.
mandate may be absolute, restricted or made subject to a condition precedent or
deferred for a future time.
mandate is special if it is restricted to one or more specific matters; it is
general if it comprises all matters which can be entrusted to a proxy.
a special mandate, it confers on the proxy a power to act in matters specified
therein and in matters necessarily incidental thereto as required by the nature
of each matter mandated and prevailing custom.
general, it empowers the proxy to perform all acts of exchange and disposal,
gratuities being excepted and requires a specific mention authorization.
mandate given in general terms, which does not specify the intended meaning
thereof, only confers on the proxy the power to perform acts of management and
act that is not one of management or preservation requires a special mandate
specifying its nature and all acts incidental thereto as required in the
subsequent ratification of the act shall be considered as a prior mandate.
mandate shall confer to the proxy the power to dispose of all matters included
therein without exceeding its limits except if more benefic by virtue of the
contracting contract, the agent shall be fixed the charge of disposing in what
shall be entertained by the agency, without exceeding the limits thereof unless
in whatever shall be more beneficial to the principal.
the mandate is gratuitous; the proxy must exercise in its performance the degree
of care he gives to his own affairs.
the mandate is for remuneration, the proxy must exercise in its performance the
diligence of a reasonable man.
several proxies are appointed by virtue of a separate contract, each one of them
may act independently within the limits of the mandate issued to him except when
the principal provides otherwise, then none of them may act independently and
their independent act shall not bind the principal.
several proxies are appointed by the same document without being authorized to
act severally, they must act jointly except in cases where a unanimous decision
cannot be reached, such as litigation, without an exchange of views with the
other co-proxies, or where an exchange of views is not essential, such as
receiving a payment or paying a debt.
proxy may not appoint a substitute to perform all or part of the acts mandated
unless he is permitted to do so by the principal or authorized to follow his
opinion. In this case the substitute shall be considered as a proxy to the
the proxy is authorized to appoint a substitute without specifying the person,
he is liable towards his principal for his faulty choice in appointing the
substitute or for faulty instructions he has given to him.
a special mandate the proxy, if overloaded by his work, may mandate another
person to assist him but not to act independently.
of donation, lending, pledging, deposit, loaning, partnership, speculation and
compromise upon denial, contracted by the proxy, if not attributed to his
principal are not valid.
of sale, purchase, rent, compromise upon avowal are not necessarily added to the
principal within the mandate; but if the proxy attributes these to the principal
within the limits of the mandate, they shall be for the account of the principal
and, if added to him without declaring that he is contracting in his capacity of
proxy, the rights deriving from the contract shall be his.
both instances, the ownership shall be established to the principal.
collected by the proxy for the account of his principal shall be considered as a
deposit not guaranteed by him if it perishes in his hands without negligence
from his part.
proxy empowered to receive money has no power to litigate and the proxy for
litigation has no power to receive money, except with a special authorization
from the principal.
litigation a party may not mandate an enemy of his rival.
proxy asked to purchase a thing without mention of the price may buy it at the
price paid for a similar thing, or even at a little higher price in things that
do not have a specified price.
he purchases with a small disadvantage in price a thing that has a specified
price or at a considerably disadvantageous price, the contract may not be
enforced against the principal.
proxy mandated to purchase a specific thing may not buy it for himself and if he
does, the purchase shall be for the account of the principal even if he declares
that he purchases it for himself.
proxy mandated to purchase may not sell to his principal something that he owns.
purchase shall be for the proxy’s account if:
The principal has specified and the proxy bought for a higher price.
b- The agent bought at a considerably disadvantageous price.
c- He declared that he is purchasing the property for himself, in the presence
of the principal.
the proxy for purchase has paid the price of the thing sold from his own funds,
he is entitled to claim from his principal what he has spent, within the normal
standards, in implementation of his mandate.
may retain what he has bought until he receives its price.
proxy, who has been mandated, in an absolute manner, to sell the property of his
principal has to sell it at a suitable price.
the principal has fixed the price of the thing sold, the proxy may not sell it
at a lower price.
case he sold it at a lower price without a prior authorization, or a subsequent
ratification of the principal, and delivered it to the purchaser, the principal
shall be at option either to retrieve the sold thing or ratify the sale or
recover from the proxy the difference in price.
proxy mandated to sell may not buy for himself what he was mandated to sell.
may not sell it to his ascendants, descendants, spouse or to whomever such an
act may draw benefit or cause a loss, except at a price higher than the price
paid for similar things. He may sell to those mentioned at the price payable for
similar things, if he was mandated to sell to whomever he wishes.
the proxy mandated to sell is not bound to sell in cash, he may sell the
property of his principal either in cash or on credit basis as customary.
the proxy sells it on credit, he may take a pledge or ask for a surety to the
buyer for what he sold on credit even if the principal did not mandate him to
ask for these.
has the right to receive the price of the thing sold from the purchaser even if
this right is given to the proxy and the purchaser may pay it to the principal
and payment to him discharges the purchaser from liability thereto.
the mandate is gratuitous, the proxy is neither bound to obtain payment of the
price of the thing sold nor collect it but only to give authority to his
principal to receive it or collect it.
the proxy is remunerated; he is bound to obtain payment of the price and to
proxy is bound to give to his principal all necessary information in connection
with the execution of his mandate and render him an account thereof.
THE PRINCIPAL'S OBLIGATIONS
principal shall have to pay the agreed remuneration to the proxy whenever he
executes the work assigned to him. In case there is no agreement as to the
remuneration and the proxy is one of those who work for remuneration, he shall
be entitled to the remuneration usually paid for such work, otherwise he shall
be considered acting gratuitously.
principal has to reimburse his proxy the expenses incurred by him to the extent
usually accepted in the implementation of a mandate.
principal shall be bound by all the rights to which his proxy is entitled on
account of executing the mandate in the usual manner.
shall be answerable for all the prejudice sustained by his proxy because of the
normal execution of his mandate, unless such is the result of his negligence or
the principal orders somebody else to pay his debt from his own funds and this
other person did, this shall be considered as a mandate and the ordered person
may claim back from the orderer what he has paid, whether the latter has, or
not, conditioned payment upon reverting back on him.
he has ordered him to cover the principal’s expenses or those of his
parents or children, the person who was given such order may claim back the
amount known to be actually spent, even if reverting back on the debtor was not
provided as a condition.
provisions governing representation in contracts, provided for in the present
Law, apply to the relationship of the principal and the proxy with the third
party dealing with the proxy.
mandate comes to an end by:
completion of the mandated work it;
expiration of the period for which it was given.
death or incapacity of the principal, even if the mandate confers a right to a
third person, except as concerns the mandate to sell the mortgaged property if
the mortgagor has mandated the court or the mortgagee to sell the mortgaged
property upon expiration of the term thereof.
death or incapacity of the proxy, even if the mandate confers a right to a third
person. However, the heir or the guardian, should he have knowledge of the
mandate and be of full capacity, must give notice of the death to the principal
and take all necessary measures dictated by the circumstance in the best
interest of the principal.
principal may, at any time he wishes, revoke his proxy or limit his powers
unless the mandate confers a right to a third person or is issued in the
interest of the proxy and, in such case, the principal may not end or limit the
mandate without the consent of the person in whose interest the mandate was.
principal shall indemnify the proxy for the prejudice sustained as a result of
an untimely or unjustified revocation.
proxy may renounce his mandate which does not confer a right to a third party.
He has to notify his principal of this renunciation and carry through any work
he has commenced to such a condition that it does not expose the principal to
the mandate is against remuneration, the proxy warrants indemnifying the
principal from whatever prejudice resulting from his untimely or unjustified
the mandate confers a right to a third party, the proxy must carry through the
mandated work unless there are serious reasons justifying his renunciation. In
such a case, he shall have to notify the right owner, and wait for a period
within which the latter shall have time to protect his right.
proxy in litigation shall be revoked if he acknowledges something on behalf of
his principal outside court sessions or, if the avowal being excluded from the
mandate, he avows in or out of court.
the proxy in litigation disposes of whatever he was mandated to after taking
knowledge of his revocation, he shall be liable to indemnity and if he disposes
of it prior to such knowledge, his act shall be enforceable.
mandatory of a proxy is revoked by the death or bankruptcy of the original
principal and by his revocation from the part of the principal or the proxy who
mandated him, but shall not be revoked by the revocation or death of the
is a contract whereby one person to take delivery from the depositor of a thing
which he undertakes to keep in safe custody and return in kind.
thing deposited is the property deposited with a trustee for safe keeping.
validity of the contract is conditioned upon the thing deposited being a
property that can be controlled by possession.
is completed by taking possession of the thing deposited de facto or de jure.
depository is neither entitled to claim remuneration for keeping the thing
deposited nor a rent of the premises where it is kept, unless provided for upon
depositing or practiced by special custom.
OBLIGATIONS OF THE DEPOSITORY
thing deposited is put in trust under the control of the depository. Unless
otherwise agreed, he is liable to indemnity if it perishes because of his act or
negligence in keeping it
depository is bound to exercise in the custody of the thing deposited, the care
which an ordinary person employs in his own affairs; he has to put it under
shall preserve it in person or by one of his dependents with whom he can entrust
his own property.
depository may not deposit the thing in his custody with a third person without
permission of the depositor unless he is compelled to do so but he has to
recuperate it upon the cessation of such compelling cause.
he has deposited it with somebody else, with the consent of the depositor, he
shall be liberated from his obligation and the third person shall be the
depository may not utilize the thing deposited or confer to others a right
thereon without authorization of the depositor; if he does so and it perishes or
devaluates, he is liable to indemnity.
the depository shall travel taking with him the thing deposited without
authorization of the depositor, while he was able to deposit it in the custody
of another person, and the thing deposited perishes or deteriorates he shall be
liable to indemnity. If he travels with it because he did not find another
custodian to leave it in his custody, and it perishes or is lost without fault
imputable to him, he is not liable for indemnity.
the depositary has borrowed the thing deposited or traded therewith, without the
consent of the depositor, he shall warrant it and shall not be discharge
therefrom except by restituting a similar thing to the place of deposit, if
fungible, or by paying its value to the depositor and not to the place of
deposit, if valuable. The depository shall be entitled to the profit in case of
case of borrowing or trading therewith with the consent of the depositor, it
shall cease to be a deposit and become a debt on the depository of which he will
not be discharged unless he returns a similar thing, if fungibles, or the value
thereof, if ad valorem, to the depositor and not to the place of deposit.
he has borrowed some of the thing deposited or traded therewith, he shall
warrant this part as detailed above, as the case may be, and the other part
shall remain on deposit.
depository is bound to return the thing deposited and deliver it to the
depositor at the place of deposit, unless the contract includes a condition
stipulated in the interest of both parties to the contract, or one of them, and
in this case the condition required should be observed.
the thing deposited has perished or being devaluated, without breach or
negligence on the part of the depository, he shall have to give to the depositor
whatever warranties obtained by him and transfer to him whatever rights obtained
against third persons he may have acquired as a result thereof.
depository shall have to restitute the benefits and yields of the thing
deposited to the depositor.
the thing deposited perishes in the hands of the depository, even due to his
fault, he has to cover the damages.
the depository intermingles the thing deposited with a thing which could not be
distinguished threrefrom and is not similar in kind or character, he shall
warrant it as soon as it is mixed; but there is no warranty from his part if it
can be distinguished or if it is similar in kind or character.
such instance, if some of the mixture has been deteriorated, the warranty shall
be apportioned according to their share in this mixture until the deteriorated
part could be distinguished, then the warranty shall be on the owner of this
the thing deposited is lost or stolen from the depository, due to non-observance
of the method of its preservation as prescribed in their agreement or
customarily followed for the preservation of similar things; or due the fact
that he forgot it in a place where he left it or if he took it with him in a
place while he could have put it at his home or with a trusted person before
entering such place. In all the above cases he is bound to warrant it.
the depository takes the thing deposited with him to return it to the depositor,
or if he forwards it to him, without his consent in both cases, then it perishes
or is lost by him or by the messenger in charge of forwarding while in his way
to the depositor, he shall be liable of its warranty.
case of litigation as to whether or not the authorization was given, the
statement of the depositor given under oath shall prevail.
the depository pretends the deterioration or loss, without fault from his part,
of the thing deposited, he shall be believed and in case the depositor accuses
him of prevarication or insist that he is a liar, he shall have to administer
oath on him. If he refuses to take the oath, in case of accusing him of
prevarication, he shall warrant the thing deposited as soon as he refuses to
swear, but the oath shall not be tendered back to the depositor. In case the
depository refuses to take the oath, in case of assertion that he is a liar, he
shall not warrant the thing deposited unless he tenders back the oath to the
depositor who shall have to swear that the depository is a liar.
upon depositing, the depositor has provided as a condition that he will not take
oath in the case of deterioration or loss, this condition shall have no effect.
the depository, upon claiming the thing deposited from him, denies having
received it and the depositor submits a proof that he received it but the
depository alleges that he has returned it to him, or that it deteriorated
without fault from his part, he shall warrant the thing deposited and any
allegation from him as to its restitution or deterioration shall not be
there are several depositories, and the thing deposited is indivisible, it may
be kept by one of them with the consent of the others or by each
case it is divisible, it may be partitioned between them and each shall keep his
share in deposit respectively.
the depositor has been absent in intermittent intervals, the depository must
continue to preserve the thing deposited until proof of his death or his being
alive is established. Should the thing deposited be subject to perishing during
the waiting period, he shall have to secure the authorization of the court to
sell it and keep in deposit the proceeds with the court treasury.
two persons have deposited a joint property with another, and one of the
depositors has asked the depository to restitute his share, in the absence of
the other, he shall have to restitute it, if among fungibles; otherwise he shall
turn down the request until acceptance of the other depositor.
the thing deposited is subject of dispute between them, he shall abstain to
restitute it to one of them without the consent of the other or a court order.
case of death of the depository and the thing deposited was in kind among the
assets of his estate, it shall be considered in trust with the heir who shall
nave to return it to its owner.
it was not found in kind, then there shall be no warranty on the estate if:
heir establishes that the depository has stated the status of the thing
deposited such as restituted by him, perished or lost without breach or
negligence from his part.
heir recognized and described it and stated that it was lost or has perished
after the death of decedent, without breach or negligence.
If the depository dies without identifying the thing deposited, and it was not
found in his estate, it shall be considered a debt on the estate and its owner
shall share the other creditors in his claim.
If the depository dies and his heir has sold the thing deposited and delivered
it to the purchaser after which it perished, the owner thereof shall have the
choice either to claim its price on the date it is sold, if non fungible, or
claim a similar thing, if fungible.
If the thing deposited was still in the hands of the purchaser, its owner shall
be at choice either to take it back and reject the sale or approve the sale and
take the price thereof.
among the estate of a decedent, it was found a thing on which it was written in
the handwriting of the decedent or the depositor that it is a deposit with
indication of its owner and the quantity thereof and was found partly missing,
the missing part shall be taken from the estate if it is made known that he has
disposed of the thing deposited.
OBLIGATIONS OF THE DEPOSITOR
depositor is bound to pay the agreed remuneration, in case the deposit is made
depositor must repay the expenses, authorized by him, incurred by the depository
for the preservation of the thing deposited.
the depositor was absent, the depository may bring the matter to the attention
of the judge to order as deemed convenient by him
the depository has spent on the thing deposited without the consent of the
depositor or the permission of the judge, he shall be considered as a donor.
depository may, however, in necessary or urgent cases, spend on the thing
deposited, an amount customary acceptable, and claim from the depositor what he
has spent out of his own funds.
depositor shall bear the expenses of restituting the thing deposited as well as
the delivery expenses.
shall have to indemnify the depository against any loss he may incur as a result
of the deposit unless such loss resulted from his trespassing or neglect.
the thing deposited has been the object of a dispossession, the depository shall
be entitled to refer back on the depositor for what he had warranted
case of death of the depositor, the thing deposited shall be delivered to his
heir, unless his estate is covered with debts and, in this case an authorization
of the court in this respect becomes necessary.
KINDS OF DEPOSITS
the object of the deposit is a sum of money or another thing of a consumable
nature and the depository has been authorized by the depositor to make use of
it, the contract is deemed a loan contract.
deposit of effects brought in by guests of hotels or similar establishments is
warranted by the proprietors of these establishments who are responsible for any
loss or shortage occurring thereto.
regards articles of value, sums of money or securities they shall not be
warranted, without breach or neglect, unless the owners of such establishments
accept to keep these valuables, having knowledge of their value, or unless they
have refused, without just cause, to keep them, or if the loss has been caused
by their gross negligence or by the gross negligence of one of their staff, then
they shall be covered by a warranty as customarily practiced.
guests, or those of similar establishments, shall have to inform the proprietors
of such establishments of their effects, lost or stolen, prior to their
departure from the establishment.
in warranty of what has been lost or stolen shall not be heard after the lapse
of six months as of the date of departure from the establishment.
of the depositor and the depository, may terminate the contract whenever he so
wishes, provided that such termination shall not at an inconvenient time.
if the deposit was made against remuneration, neither of them may terminate the
contract prior to the expiry of the deposit period but the depositor is entitled
to ask for the return of the thing deposited at any time if he pays the entire
balance of the remuneration and provided that there is no condition to the
the depository is stricken by an insanity from which there is no hope of
recovering his senses and the depositor establishes against the tutor or
guardian that the deposit was made, so if the thing deposited is still there in
kind it shall be restituted to its owner, otherwise the depositor shall recover
its value from the funds of the insane provided he has a solvent surety.
the depository shall recover his senses and alleges that he had returned the
thing deposited or that it perished without breach or negligence from his part,
his oath in this respect shall prevail and he may ask the refund of the amount
taken from his funds or from his surety in lieu of the thing deposited.
is a contract whereby the two parties in dispute entrust to a third party a
property to be safeguarded and managed and returned together with its yields to
whoever establishes his right thereto.
the two contracting parties agreed to put the property under the control of two
or more persons, none of them may separately keep it or dispose of its income
without the consent of the others.
case of disagreement, the two parties to the dispute may ask the judge, in order
to prevent an imminent danger, or for a just cause, to appoint a custodian to
take delivery of the property to preserve and manage it, and authorizing him to
exercise any right, which the judge shall deem it in the interest of both
case it is revealed that custody is indispensable to preserve the rights of
those concerned judicial custody may be imposed on the property in mortmain in
the following cases:
the property in mortmain is vacant or a conflict arose between those in charge
of such property or by one of them and the Nazir, or when an action for the
removal of the Nazir. In such cases the custody ends upon appointment of a Nazir
to the Wakf, whether such appointment is provisional or definite.
the Wakf is in debt.
one of the beneficiaries of the Wakf is bankrupt, and that custody has been
revealed to be necessary for the protection of the rights of the creditors, then
custody will be ordered in respect of his share alone unless it is impossible to
isolate it, otherwise custody will be ordered in respect of all the property in
the parties to the dispute fail to agree on the person of the custodian, the
judge shall appoint him.
AND RIGHTS OF THE CUSTODIAN
under the control of the custodian shall be held in trust, and he may not
exceed, in his mission, the limits set up for him, otherwise he shall incur
rights, obligations and powers of the custodian are defined in the agreement or
in the judgment ordering custody. In the absence thereof, the provisions
relating to deposit and mandate will apply in so far as they do not conflict
with the provisions stated in the present chapter.
custodian is bound to ensure the preservation and administration of the property
entrusted to him with the diligence of a reasonable person.
from acts of preservation and administration, the custodian must not act without
the consent of the parties to the dispute or without authorization of the judge
unless there is an urging necessity that shall endanger the produce or the
movable property subjecting it to deterioration or perishing.
custodian is bound to provide the interested parties with all necessary
information relating to the implementation of his task and to render accounts
thereof within the delays and by the means agreed upon by the parties or ordered
by the judge.
custodian must render accounts of the amounts expended during the performance of
his mission, taking into consideration reasonable amounts spent in similar
situation by another source.
the custodian provided as a condition that his work be remunerated, he shall be
entitled to such remuneration upon completion of his task, and if he did not put
such a condition, but he is one of those working against remuneration, he shall
be entitled to the similar wage payable in similar situations.
custodian may resign his task at any time provided he informs the concerned
persons and carry on the works he started until reaching a stage where it shall
not prejudice the parties to the dispute.
case of death of the custodian, his inability to perform the duties entrusted to
him, or in case a dispute arises between him and one of the concerned persons
and the parties did not agree on naming a substitute, the judge shall appoint a
custodian of his choice upon request of one of the parties in order to resume
performance of the unaccomplished task.
custody comes to an end upon completion of the work or by agreement of all the
interested parties or by decision of the judge. The custodian must then
forthwith restitute whatever has been entrusted to him to the person agreed upon
by the concerned parties or designated by the judge.
is a contract by which a person is bound to pay a sum of money, or give
something else, as agreed upon, to the one who succeeds in attaining the aim
targeted in the contract.
is allowed in racing, shooting, sports or muscle building.
validity of a betting contract is contingent upon the following:
The bet should be known and the one bound to pay it specified in person.
The object of the contract must be described in a manner excluding any excuse of
ignorance; i.e. in racing; the distance between the starting and ending points;
and in shooting: the number of shots and the acceptable target shot.
bet may be payable in kind or a debt, immediately due or deferred as a whole, or
partly due and partly deferred.
racing takes place with a bet, it is considered a contract binding the racers
and none of them may disengage except by mutual agreement.
the betting is between two individuals or two groups, the bet may be paid by one
of them or by a third party, and each category is considered as one person I
being bound by the outcome of the bet.
case the contestants in a betting are more than two and it was intended to
reserve to other than the winner some of the outcome, the share payable to the
next in rank in the race should be lesser than that payable to the one preceding
is acceptable that the outcome of the bet be payable by one of the contestants
or by a third party to the winner; but if the two contracting parties agree that
the winner shall be entitled to a prize from the other party, this is not
allowed since the contract shall turn out into gambling.
one of the contestant’s arrow meets an obstacle which deviates it from its
target, or if his horse or camel is hit on the face, or the whip conducting it
is taken from the hands of its rider thus causing reduction in its running
speed, it shall not be considered in these instances outraced. If, however, the
whip has been forgotten by the rider before riding, or it fell from his hand
while riding, thus causing reduction in its running speed, it shall be
Any agreement relating to gambling, or prohibited betting, is void.
A person who loses in gambling or prohibited betting may, notwithstanding any
agreement to the contrary, reclaim what he has paid within six months from the
time when he paid what he lost. He may prove such payment by all means of claim.
A person may gratuitously bind himself to pay another person periodical payments
during his lifetime.
In case this obligation is related to education, medical treatment or agreement,
it must be honored in accordance with customary practice unless otherwise
specified in the obligation.
The validity of this obligation is contingent upon its being established in
A life annuity may be granted for the lifetime of the obligee or any other
In the absence of an agreement to the contrary, the obligation, in the absolute,
is considered made for the lifetime of the obligor.
the obligor fail to meet his obligation, the other party may demand due
performance of the contract.
the annuity is settled for the lifetime of the obligor, who dies prior to the
death of the obligee prior to the date when the periodical payment becomes due,
the oblige will be entitled to part of the annuity proportionate to the period
that expired until the death of the obligor, within the limits agreed upon, and,
unless otherwise agreed, he shall have a claim against the estate; the payment
due being considered as a will.
Insurance is a contract whereby both the insured and the insurer cooperate
together to face the risks or accidents insured against and, whereby in
consideration of a specified amount or periodical premiums, the insurer
undertakes, upon occurrence of the event or the risk specified in the contract,
to pay to the insured or the beneficiary a sum of money, an annuity or any other
The law regulates the insurance organization, namely as concerns their legal
forms, method of formation, means of performing their activities and supervision
thereon, in order to achieve the cooperation aims of insurance without prejudice
to the mandatory provisions and fundamental principles of Islamic
Until the enactment of the law referred to in the above clause, shall remain in
force, the rules and conditions actually observed concerning insurance and
prejudice to the provisions of the preceding Article, insurance may cover risks
occurring out of personal accidents, workmen compensation for labor accidents,
insurance against theft and breach of trust, car and tort insurances and all
other events which custom or law allows insurance against the risks resulting
following conditions in a policy of insurance are void:
a- The condition providing for the forfeiture of the right to insurance on
account of a breach of the laws, unless such breach constitutes a deliberate
felony or misdemeanor;
b- The condition providing for the forfeiture of the insured’s right due
to his delay in notifying the authorities that have to be notified, or in
producing documents, if it appears that the delay was for an acceptable
c- Any printed condition relating to cases involving nullity of the contract or
forfeiture of the insured’s right, which is not shown in a clear
d- The arbitration condition included in the printed general conditions of the
policy and not as a special agreement distinct therefrom;
e- Any arbitrary condition, the breach thereof appears that it has no bearing on
the occurrence of the event insured against.
Exoneration of the insurer from his liability may be agreed upon, in case the
beneficiary pays an indemnity to the victim without the consent of the insurer.
The agreement referred to above may not be invoked if it is established that
payment of the indemnity was in favor of the insurer.
insurer may be subrogated into the right of action which the insured may have
against the author of the damage involving the responsibility of the insurer, to
the extent of the compensation he has paid, unless the author of the unintended
damage is an ascendant of the insured, one of his descendants, spouse or one of
those living with the insured under the same roof, or a person for whose acts
the insured is responsible.
concerning the various insurance contract, which are not mentioned in the
present law, shall be governed by special laws.
OBLIGATIONS OF THE INSURED
a- Pay the agreed amounts on the term fixed in the contract;
b- Reveal at the time of conclusion of the contract, all information which the
insurer consider of importance to be known by him in order to assess the risks
covered by him.
c-Inform the insurer of all matters, occurring during the contract period, which
lead to the aggravation of risks.
If the insured, in bad faith, conceals a matter or makes a false statement in
such a manner as to lessen the importance of the risk insured against, or leads
to a change in its object, or if he fraudulently breaches his promise to fulfill
an obligation, the insurer is entitled to demand rescission of the contract and
be paid all premiums due prior to such demand.
In the absence of fraud or ill faith, the insurer, upon demanding rescission,
has to refund to the insured all premiums paid by him or the portion thereof for
which he assumed no risk at all.
OBLIGATIONS OF THE INSURER
insurer is bound to pay the insured amount or the sum due to the insured or the
beneficiary, as agreed, upon occurrence of the risk or maturity of the period
fixed in the contract.
covering tort liability shall have no effect unless the victim files a claim
against the beneficiary after the occurrence of the event from which resulted
Actions arising out of insurance contracts shall be barred by limitation after
the expiration of three years from the date of the occurrence which gave rise to
such action, or of the knowledge of the interested party of its
This period, however, shall only run, in the event of concealment by the insured
of the information relating to the risk insured against, or submission of
incorrect statements, as from the date the insurer has taken knowledge thereof.
RELATING TO CERTAIN CLASSES OF INSURANCE
insurance against fire, the insurer is liable for the following:
a- Damages resulting from fire even caused by earthquakes, thunderbolts,
hurricanes, winds, cyclones, domestic explosions, damages caused by airplane and
other air vessels crashes or whatever is customarily included in this class of
b- Damages which are the inevitable result of fire.
c- Damages to things covered by the insurance by reason of salvage measures or
of measures to prevent the extension of the fire.
d- Disappearance of the things covered by the insurance, occurring during the
fire, unless it is established that this was occasioned by theft.
insurer is liable for damage resulting from the unintentional fault of the
insured or the beneficiary.
any agreement to the contrary, an insurer is not liable for damages caused
deliberately or fraudulently by the insured or the beneficiary.
insurer is liable for damage caused by persons for whose acts The insured is
responsible, whatever be the nature of their fault.
insurer is liable for the damages resulting from the fire even if the fire broke
out owing to a defect in the thing insured.
Whoever insures a thing or an interest with more than one insurer must notify
each one of them of the other insurance contracts, the value thereof and the
names of the insurers.
In case there is more than one insurer, the insurance value must not exceed the
value of the thing or interest insured.
a thing or interest is insured with more than one insurer for amounts exceeding
in total the value of the thing or interest insured; each insurer is bound to
pay a part equivalent to the proportion between the capital assured and the
value of all the insurance contracts added together provided that the total sum
paid to the insured does not exceed the damage incurred by him as a result of
insurance contracted on the chattels belonging to the insured in bulk and that
were present, when the fire broke out, at the places occupied by him, shall
extend to the things belonging to the members of his family and to those in his
service, if they share the same living with him.
Should the thing insured be encumbered with a pledge, or with other real
warranties, these rights will be transferred to the compensation due to the
insured by virtue of the contract of insurance.
If these rights have been registered and notified to the insurer, even by
registered letter, the insurer may not pay the amount due by him to the insured
except with the consent of these creditors.
insurer, in the case of life insurance, is bound to pay, to the insured or to
the beneficiary, the sums agreed upon the occurrence of the event insured
against or on the maturity date stipulated in the contract, without need to
establish the damages sustained by the insured or the beneficiary.
formation of the insurance contract on the life of a third party is conditioned
by the written approval of such third party, prior to the conclusion of the
contract or, in case he lacks capacity, the contract shall only be concluded if
approved by his lawful representative.
The insurer is released from the obligation to pay the sum assured in case the
insured commits suicide and he shall refund to the beneficiary an amount
equivalent to the value of the insurance reserve, unless the beneficiary
establishes that suicide was not meant to have the sum assured become due so, in
this case, he shall be entitled to the sum of the premiums paid less the
expenses that should be deducted therefrom.
When suicide is due to an act beyond the control or awareness of the insured, or
for any other reason leading to a total absence of will, the insurer shall be
bound to pay the entire sum assured agreed upon. The beneficiary shall have to
establish that the life assured was, at the time he committed suicide, out of
control of his actions.
The insurer is released from his obligations when the insurance is taken out on
the life of a person other than the insured and he deliberately causes the death
of this person or if the death occurs at his instigation.
If, however, the beneficiary of the insurance is a person other than the insured
who deliberately caused the death of the insured, or if death occurs at his
instigation, he shall be deprived of the sum assured. In the case of an
attempted homicide, the insured shall be entitled to substitute another person
for the beneficiary.
The insured may provide that the sum assured be paid to persons specified in the
contract or to be nominated at a later date.
If the insurance is made for the benefit of the spouse of the insured, his sons,
descendants or his heirs, the sum assured shall be due to those who effectively
have these qualifications at the death of the insured. Should the heirs be the
beneficiaries, the sum assured shall be divided upon them in accordance with
their legal shares in the estate.
insured who has undertaken to pay periodical premiums may release himself from
the contract at any time provided he gives written notice to the insurer of his
intention to do so. He shall be released from payment of subsequent premiums.
Neither incorrect particulars nor misstatements as to the age of the insured
shall render the insurance contract void, unless the true age of the insured
exceeds the limit specified in the table of rates.
If, as a result of incorrect particulars or misstatements, the premium agreed
upon is less than the premium that should have been paid, the sum assured shall
be reduced in the proportion that the agreed premium bears to the premiums which
should be paid on the basis of the true age.
If, however, the agreed premium is higher than the premium which should have
been paid on the basis of the true age of the life insured, the insurer shall be
bound to refund the excess received by him and to reduce the subsequent premiums
to the limit corresponding to the true age.
life insurance, the insurer who has paid the sum assured shall not be entitled
to be subrogated to the rights of the insured or of the beneficiary against the
person who caused the event assured against or against the person responsible
amount of insurance payable to the insured or to the beneficiary, at the
maturity of the period stipulated in the contract, may not include any usurious
agreed to be paid upon death of the insured shall not be included in his
ELEMENTS OF SURETYSHIP
is the joining of the financial assets of one person, the surety, to the
financial assets of the debtor in the fulfillment of his obligation.
Suretyship is formed by using this word or words of guaranty.
It shall be complete and executable by an offer made by the surety unless
rejected by the guaranteed debtor.
is validly contracted if the surety has full capacity to donate.
is void if contingent on an option to be made by the surety.
may be of immediate execution or subject to a valid condition or to a suitable
condition precedent or entered into in respect of a future time or of a
validity of a suretyship is conditioned upon its object being warranted by the
principal as a known debt, kind or person and being deliverable by the
suretyship may consist of the wife’s alimony or that of the parents even
before it is adjudicated by the court or conventionally agreed upon.
of the seller’s representative to the purchaser, to pay the price of what
he was mandated to sell, is not valid, so is the suretyship of the guardian in
respect of what he sold of the minor’s property, as well as the suretyship
of the Nazir in respect of what he sold of the Wakf property.
The suretyship of a person on his death bed is not valid if his funds are
covered with debts.
His suretyship is, however valid, if his debts do not cover his entire funds, in
which case the provisions governing wills shall apply.
conditioned upon the discharge of the principal is a transfer; and the transfer
subject to the non release of the transferor is a suretyship.
surety to a conditional suretyship or to a future debt may go back on his
suretyship prior to the entitlement of the debt.
otherwise agreed, suretyship extends to the accessories of the debt and to the
expenses of claiming the debt.
KINDS OF SURETYSHIP
Suretyship in person binds the surety to assure the due appearance of the debtor
at the time fixed upon request of the creditor and if he fails to do so, the
judge may condemn him to a daily fine for delay in performance of an obligation,
as he may release him from this fine if he establishes his inability to have him
If the surety binds himself to pay a specified amount as a penalty in case of
failure of having the debtor duly appear, he must pay this amount, but the judge
may, if justified, fully or partially exempt him therefrom.
the surety undertakes to pay the debt in case he fails to deliver the debtor, he
is bound to fulfill his obligation.
In suretyship in person, the surety is released from his obligation if he
delivers the debtor to the creditor or fulfills the obligation object of the
The surety shall also be released by the death of the guaranteed debtor but not
in case of death of the person in whose favor the surety is given and, i8n this
latter case, the heirs of this person are entitled to ask the surety to have the
debtor duly appear at the time fixed.
guaranteed debtor must be delivered at the place fixed by the surety and, in the
absence thereof, at the place of the contract.
the surety satisfies the right due for the absence of the guaranteed debtor and
the impossibility of having him to duly appear, then it was established the
death of this debtor prior to payment, he is entitled to recover what he
it is not clear from the suretyship whether it is one whose object is pecuniary
or in person, and there is no presumption as to which is meant, it shall be
construed as a pecuniary suretyship. If the surety alleges that it meant a
personal suretyship and the creditor alleges that it is a pecuniary one, the
allegation of the surety, after taking oath, shall prevail.
husband may revoke the suretyship in person given by his wife without his
authorization, even if the guaranteed debt is less than one third of her
SURETYSHIP AGAINST DISPOSSESSION
against dispossession is a guaranty to refund the price of the thing sold in
case of dispossession.
surety of the seller, in case of dispossession, shall not be asked to fulfill
his obligation until dispossession is adjudicated and the seller is ordered to
refund the price.
EFFECTS OF SURETYSHIP
BETWEEN THE SURETY AND THE CREDITOR
The surety has to fulfill his obligation upon maturity of the fixed delay.
If his obligation is subject to a condition precedent, fulfillment shall take
place upon this condition is materialized.
The creditor may have a claim against the principal and/or the surety.
If the surety has a guarantor, the creditor may have a claim against any of them
at his choice.
His claim against any of them shall not forfeit his claim against the
suretyship may be restricted to payment of the debt from the debtor’s
funds deposited with the surety, provided he obtains the assent of the
the suretyship is absolute, the surety’s obligation shall follow that of
the principal whether immediately due or deferred.
the due debt has been has been guaranteed by one of the sureties through a
deferred suretyship, the debt shall be deferred as regards the surety and the
principal together, unless the surety has conditioned the deferred period to be
added in his favor or the creditor has accepted deferment as regards the surety.
In this latter case the debt shall not be deferred as concerns the
the debt is secured by an encumbrance on an immovable property, prior to the
suretyship, and the surety demands that the debt be claimed first from the
principal, execution on the funds of the surety may not take place before
execution on the property securing the debt.
guarantor of a surety may ask the debtor to claim his debt first from the first
the surety or the debtor dies prior to the maturity of the deferred debt, the
debt becomes due as concerns the estate of the deceased.
the same debt is secured by several sureties, any of them may be asked to pay
the debt unless they all secured the debt in the same contract without
specifying that they act jointly and severally then each shall be liable only
for his share in the suretyship.
case the sureties are jointly and severally liable and one of them settles the
debt on its maturity, he may call upon each of the other sureties to pay his
share of the debt as well as a proportional part in the share of the surety who
established by a law provision or a judicial order, when absolute, shall entail
joint and several liability between the sureties.
the creditor has accepted a thing of another kind in payment of the debt, the
principal and the surety is discharged, unless this thing is dispossessed.
a debtor becomes bankrupt, the creditor is bound to prove his debt in the
bankruptcy, under penalty of being deprived of his remedy against the surety to
the extent of the loss suffered by the surety as a result of the
creditor’s failure to prove his debt.
The surety is not entitled to call upon the principal for any thing given on
behalf of the latter by him, unless the suretyship was given or accepted upon
request of the principal and the surety has effectively given it.
He is not entitled to call upon the principal to refund what he has paid from
the deferred debt except after maturity of the debt.
A creditor is bound to hand over to the surety, at the time of the discharge of
the debt, all documents that are necessary to enable him to exercise his right
of action against the debtor.
When the debt is secured by another real pledge or similar right on a movable,
the creditor must surrender such securities to the surety. When, however, the
debt is secured by a charge on an immovable property, the creditor must transfer
his rights to the surety, provided the surety bears the expenses of such
transfer and call upon the debtor to refund the expenses paid by him.
the debt matures, the creditor must claim it within six months from the maturity
date otherwise the surety shall be considered not concerned with the
BETWEEN THE SURETY AND THE DEBTOR
When the surety has given in lieu of the debt something else, he shall have a
right of action against the debtor for what he secured and not for what he has
When, however, he compromised with the creditor on a portion of the debt, he
shall have a right of action for what he compromised and not the total
When the principal discharges the debt before the surety, or if he is aware of
any reason barring the creditor from claiming his right, he must inform the
surety of it. If he fails to do so, and the surety has discharged the debt, he
shall be at option either to call upon the principal or the creditor for
If the claim is filed against the surety, he must ask for the forced
intervention of the principal, failing which the principal may avail himself of
all means to rebut the debtor’s claim.
surety, pecuniary or personal, is entitled to ask the court to forbid the
secured debtor from traveling outside the country, if the suretyship was done at
his request and there are proof that this will cause prejudice to the
surety is entitled to call upon the debtor to reimburse him the expenses
incurred in the implementation of the suretyship contents.
the debtors are jointly and separately liable, any of their sureties, requested
by all of them, may have a claim on any of them for the portion of the debt paid
surety may not take a consideration I exchange of his suretyship and, if he
does, he must return it to its owner. The suretyship shall be forfeited if he
takes the consideration from the creditor, the debtor or a third person with the
knowledge of the creditor. If, however, he takes it without the knowledge of the
creditor, he shall be bound by the suretyship as well as by giving back the
suretyship comes to an end by any of the following events:
Perishing of the property in the possession of the secured debtor, due to force
majeure, prior to its request.
Cancellation of the contract giving rise to the right which the secured debtor
has to honor.
Discharging the surety from his suretyship or the debtor from his debt.
Death of the secured debtor.
Bringing the secured debtor at the place of delivery after expiration of the
term fixed even if the beneficiary of the suretyship refuses to take delivery,
unless unduly prevented.
Bringing the secured debtor prior to the expiration of the term and there is no
harm to the beneficiary of the suretyship from taking delivery thereof.
If the secured debtor delivers himself voluntarily.
surety for the price of sale is released from his suretyship if the sale is
rescinded, or the thing sold is dispossessed, or returned due to a defect
the surety or the secured debtor makes a compromise with the creditor on a
portion of the debt, both shall be discharged of the balance, but if the
compromise states that the surety alone shall be discharged and the creditor
shall have a choice either to take from the surety the portion of the debt
object of the compromise and the balance from the principal or claim from the
principal the whole debt.
death of the beneficiary of the suretyship, the right devolves to his
the creditor dies and his estate devolves exclusively to the debtor, the surety
is released from the suretyship and if he has, in addition, another heir, the
surety shall only be released from the share of the debtor in the estate.
surety, in a temporary suretyship, shall only be bound to fulfill the
obligations resulting during the period of the suretyship.
If the surety or the debtor refers the creditor, for the entire secured debt or
part of it, to another person by virtue of a transfer of right accepted by the
transferee or by this other person, both the principal and the surety shall be
discharged within the limits of this transfer.
If the discharge of the surety only is stipulated as a condition in the
transfer, he will be discharged alone to the exclusion of the principal.
transfer is an assignment of debt and of the claim from the transferor to the
transfer is a binding contract, unless one of its parties has reserved for
himself the option to revoke it.
Transfer may be restricted or absolute.
A restricted transfer is one that restricts, upon its execution, the debt which
is due to the transferor from the transferee, or the property which he holds in
trust or in guaranty.
The absolute transfer is the one which has no restriction of this sort, even if
The validity of a transfer is conditioned upon the acceptance of the transferor,
the transferee and the third party beneficiary.
The transfer is formed between the transferor and the transferee provided it is
accepted by the concerned creditor
validity of the transfer is conditioned upon the transferor being indebted to
the concerned creditor but not upon the transferee being indebted to the
transferor. If the transferee accepts the transfer, he shall be liable to pay7
the debt to the concerned creditor.
beneficiary in a mortmain may transfer his right, when due, to a third party and
refer him to the person in charge of the mortmain if the proceeds of the wakf
were in his possession prior to the transfer.
acceptance of the father or of the guardian of a transfer on a third party is
possible, if it is beneficiary to the minor, such is the case when the
transferee is more solvent than the transferor, but not admitted if he is near
or equal to him in solvency.
addition to the general conditions, the formation of a transfer is conditioned
It must be executable and not subject to a condition precedent except if it is
suitable or customarily acceptable but not deferred to a future date.
Its execution should not be deferred to an unknown date.
It should not be limited to a specific period.
The thing transferred should be a known debt that can be substituted.
The object of the transfer to the transferee, in a restricted transfer, should
be a debt or a property that cannot be substituted and that the two objects be
equal in kind, quantity and characteristics.
It must not comprise a conditional or anticipated emolument to one of the
parties. The transfer shall not be affected by an emolument added after its
conclusion which shall not be due.
The transfer is null if it lacks one of its constitutive conditions and the debt
goes back to the transferor.
If the transferee has paid to the creditor prior to the revealing of nullity, he
may claim it back from either the transferor or the creditor.
transfer is null if the cause of the debt, assigned to or transferred to, is
BETWEEN THE CREDITOR AND THE TRANSFEREE
the transfer is validly formed, the creditor is entitled to claim the debt from
the transferee; the transferor shall be released from the debt and the claim as
debt shall be transferred to the transferee with the same characteristics as on
the transferor; if it is due immediately, the transfer shall be so and if
deferred, the transfer shall be deferred.
creditor and the transferee may, after the formation of the transfer, agree on
part of the debt or less, defer payment of the due debt, pay the deferred amount
before term, or take something in exchange of the debt unless this constitutes
usury for late payment.
debt transferred shall maintain its securities despite the change in the person
of the debtor. The surety, personal or pecuniary, however, shall not be bound
towards the creditor unless he accepts the transfer.
transferee may, towards the creditor, avail himself of all incidental pleas of
defense relating to the debt, which he had towards the transferor as he may
exercise the pleas which the transferor has towards the creditor.
BETWEEN THE TRANSFEROR AND THE TRANSFEREE
transferor may claim from the transferee the debt or the property owed by him to
the former, if the transfer is not restricted to any of these and has fulfilled
all its conditions. The transferee is not entitled to retain either of these
until payment is made to the creditor.
right of the transferor to claim from the transferee the debt or property held
by him shall be forfeited if the transfer is restricted and have satisfied its
conditions. The transferor, however, shall not be discharged towards the
creditor if he settles any of these to the transferor.
a valid transfer, of both kinds, the transferee may not abstain from settlement
to the creditor even if the transferor has received from the transferee his debt
or recovered the property that was with him.
If the absolute transfer has been completed with the consent of the transferor,
a set-off shall take place the debt that the transferee owes him and the amount
paid in execution of the transfer.
In case he has no debt owed to him by the transferee, he shall have a claim
against him after execution of the transfer.
THE CREDITOR AND THE TRANSFEROR
transferor has to deliver to the creditor the instrument establishing the right
transferred as well as all information and means enabling him to exercise this
otherwise agreed, if the transferor warrants to the creditor the solvability of
the transferee, this warrant applies only to his solvability at the time of the
case the transferor dies before collecting the debt of the restricted debt, the
creditor shall be allotted the funds pertaining to the transferee or in his
possession during the lifetime of the transferor
due date of the debt shall remain as it is in the transfer, of both kinds, in
case of death of the transferor, and the debt shall become due upon the death of
restricted transfer shall be void if the debt is forfeited or the property is
dispossessed due to a matter preceding the transfer. In this case, the creditor
shall have a claim to recover his right from the transferor.
restricted transfer shall not, however, be void if the debt is forfeited or the
property dispossessed due to a reason that accrued subsequent to the transfer
and the transferee shall, after settlement, claim back from the transferor what
creditor shall have a right of recourse against the transferor in the following
If the transfer is rescinded by mutual assent of the parties thereto.
the transferee denies the transfer and there is no proof of its existence and
the transferee took an oath in denial thereof.
If the property assigned by a restricted transfer perishes and it was not
THE CREDITOR AND THIRD PARTIES
there are several transfers of the same right, the one that is first opposable
to third parties shall prevail.
assignment is not opposable to third parties except by a formal notification to
the transferee or his acceptance thereof by virtue of a document bearing a
an attachment is laid down between the hands of the transferee prior to the time
the transfer becoming opposable to third parties, the transfer is considered, as
regards the author of the attachment, as another attachment.
this case, if an attachment is laid down after the transfer became opposable to
third parties, the debt shall be divided between the author of the first
attachment, the creditor and the author of the second attachment, in equal
parts, provided it is taken from the share of the second seizer a sufficient
amount to enable the creditor completing the amount of the transfer.
transfer ends by settling its object to the creditor effectively or de
PRINCIPAL REAL RIGHTS
AND PROTECTIVE MEASURES
right is the power given to the owner to freely dispose, use and enjoy of his
owner of a thing has alone, the right to enjoy the property owned, its yields,
fruits and products and to dispose of the property by all acts of disposition
allowed by law.
owner of a thing owns everything that constitutes an essential element of it
which cannot be separated therefrom without having the thing perish, deteriorate
otherwise stipulated by law or provided in the agreement, the ownership of land
includes that which is above and below, as far as it can be usefully enjoyed in
height and depth.
one can be deprived of his property without lawful reason.
for public utility may take place against a far compensation and in
with the law provisions.
ON THE RIGHT OF OWNERSHIP
owner has the right to dispose freely of his property, unless his act is
excessively detrimental to others or constitutes a violation to the law or to
the regulations concerning public or private interest.
detriment may cause weakness of construction, its demolition or deprivation of
the essential necessities, that is the utilities intended from
third parties interests are tied up with the property, the owner may not dispose
of it in a manner detrimental to the right owner without his consent.
AS TO NEIGHBORHOOD
light from the neighbor is considered excessive detriment, so no one is allowed
to erect a construction blocking the windows of his neighbor’s dwelling in
such a manner as to obstruct light from him, otherwise the neighbor may ask the
removal of such construction in driving away any prejudice he may sustain.
someone has a property of which he lawfully dispose and another person erects in
the neighborhood a construction which has been prejudiced by the old situation,
the owner of the recent construction may not allege prejudice and he has to
drive away from him any damage that he may sustain.
The owner or the person benefiting from the use of the airspace over the
property through which have spread the tree branches of another person, has the
right to claim the removal of what has trespassed his airspace even if no damage
occurred to him. Should he abstain, he is liable compensate what has perished
because of him. The prejudiced party is moreover entitled, without need to a
court order and without liability on his part, to remove what has spread over
his property even by cut-off, if this is the only way to eliminate the
The same remedy shall apply to the tree roots which have spread within the land
owner of the building is entitled to ask the prevention of his neighbor from
planting trees in the vicinity of his building, if such trees are of a kind that
has roots that may spread and, if planted, he has the right to ask for its
A neighbor may neither compel his neighbor to erect a wall or similar partition
on the boundaries of his property nor to desist himself from part of the wall or
of the land on which it is erected.
The owner of the wall is not entitled to demolish it without strong excuse, if
this is prejudicial to his neighbor whose property is sheltered behind this
The owner must not exercise his right in an excessive manner to the extent
detrimental to his neighbor’s property.
The neighbor has no right of action against his neighbor for the usual
unavoidable inconvenience, but he may claim the suppression of these
inconveniences if they exceed the usual limits, taking into consideration in
this respect custom, the nature of the immovable properties, their respective
locations and the use for which they are intended. The license issued by the
competent authorities is not a bar to the exercise of such a right of
Restricting the Rights of the Person in Favor of whom
Act of Disposition has been taken
owner may not provide in his act of disposition, whether a contract or a will,
conditions restricting the rights of the person in favor of whom it has been
taken, unless these conditions are licit and are intended to protect a lawful
interest of the disposer, the disposed to or a third party for a limited
condition preventing the party disposed to from disposing shall be void unless
it fulfills the provisions of the preceding article.
private road is like a co-ownership to those who have the right of passage on
it. None of the right owners may do anything thereon without authorization of
the other co-owners.
Passers-bye on a public road, when have the right of passing through a private
The owners of the private road may not agree to sell or partition it or close
its point of ingress.
other than the co-owners of a private road may open a door on it or have passage
one of the co-owners of a private road blocks a door opened on it, he shall not
forfeit his right of way and he, or his predecessor, may reopen it.
of the private road construction nave to be borne by each of the co-owners in
proportion to the benefit accrued to each.
prejudice to the provisions concerning inheritance shares of each heir, when two
or more persons are owners of the same thing, through any of the reasons of
acquisition of property, but their respective shares in it are not allotted
distinctively, they are joint owners and, in the absence of a proof to the
contrary, they shall have equal shares in the joint property.
Each of the co-owners in the property shall be entitled to alienate freely of
his share without obtaining the permission of the other co-owners provided he
does not cause prejudice to the rights of all other co-owners.
When the alienation is focused exclusively on a separate part of the joint
property and, upon partition, this part is not allotted to the disposer; the
right of the acquirer of the alienated part is transferred, as of the date of
alienation, to the part accruing to the disposer as a result of the partition.
If the acquirer did not know that the disposer did not own the property
alienated separately at the time of the contract, he shall have, as well, the
right to annul the alienation.
the two cases of commingling and confusion, a co-owner in common may not
alienate his share without the authorization of the other co-owner.
In the absence of an agreement to the contrary, the management of a property
held in common belongs jointly to all the owners in common.
When one of the co-owners assumes the management without objection from the
other co-owners, he shall be considered acting as a proxy to them.
A decision taken by the majority of co-owners as to ordinary acts of management
is binding on all of them. The majority shall be calculated on the basis of the
value of their shares.
Failing a majority, the co-owners may appoint a manager and establish, for the
management and enjoyment of the property, rules applicable on all the co-owners,
their successors, general or special; otherwise one of the joint co-owners may
apply to the court to take the necessary measures for the preservation of the
property and appoint a manager thereof.
Co-owners who possess at least three quarters of the property held in common may
decide, in order to obtain a better enjoyment of the property, to make essential
modifications or changes, in the purpose for which the property was intended,
which exceed the normal scope of management, provided that these decisions are
officially notified to the other co-owners. Dissenting co-owners are entitled to
refer the matter to the judge within two months from the date of
The judge before whom the matter was referred, if he approves the decision taken
by the majority, take whatever decision he deems appropriate as to the measures
to be taken. He may, in particular, order that security be given to the
dissenting co-owner so as to guarantee any compensation that may become due to
co-owner in common is entitled, even without the consent of the other co-owners,
take measures necessary for the preservation of the property in common.
costs of managing the joint co-ownership and its preservation, as well as taxes
imposed on it and all other charges resulting from common property or
encumbering the property shall be borne by all co-owners, each in proportion of
CESSATION OF JOINT OWNERSHIP
is the division, by consent or by order of the judge, of the common property and
specifying the share that was held in common.
allotted part in property must be divisible and owned by the co-owners when
operating the partition.
prejudice to the provisions of the other laws, whoever wishes to end the status
of common property and was not, in this respect, in agreement with the other
co-owners, is entitled to apply for a judicial partition.
validity of a partition by agreement requires the consent of every partitioner.
The validity of a judicial partition requires that it be requested by one of the
The judicial partition shall take place even if one of the co-owners
property held in common must be divisible in such a manner as not to depart from
the benefit aimed at by the partition.
provisions of Article 1166 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 30 dated 27/09/2020, to read as follows:
a property cannot be divided in kind or when such partition involves a damage or
a serious diminution in the value of the property to be partitioned, every
co-owner shall be entitled to sell his share to another co-owner or request the
judge to sell it in the manner set out in the law.
the share cannot be sold, this partner may request the sale of the whole
property in the manner set forth in the law, and the price shall be distributed
to the partners, each in proportion to his share. The judge may order to limit
the auction to the partners first if one of them so requests.
all cases, the sale request shall not be accepted if it results in greater harm
to the rest of the partners, and a new sale request may not be submitted by the
same person before the lapse of one year from the date of dismissal of the
preceding request or the date of repair of the damage, whichever is
The personal creditors of any co-owner may oppose the partition, whether reached
by agreement or judicially, through a notification served on all co-owners, if
partition is conventional, or an intervention in the proceedings, if
The partition shall be without effect as regards the creditors if the co-owners
do not have them intervene in all stages of the proceedings.
If the partition has already taken place, the creditor who has not intervened
cannot attack it unless there has been fraud.
a debt on the decedent shows up after the partition of the estate, the partition
is cancelled unless the debt is paid by the heirs or they have been discharged
by the creditors or there is a property other than the divided one of which the
debt can be paid.
co-owner, party to the partition, is the sole independent owner of his share
allotted to him after the partition.
partition may not be revoked after its completion. All the partners may,
however, rescind and terminate the partition by agreement between them and
restore the divided property in its common status as it was.
things of different species and those in kind of the same species shall be
subject to the provisions applicable to acceptance on condition, after sight
examination and option of rescission on grounds of defect. As to partition of
fungibles, they shall be subject to the option of rescission on grounds of
defect to the exclusion of the two other provisions concerning acceptance on
condition and after sight examination.
Whoever, in a partition by consent, has fallen under serious inequity, may
request from the judge the rescission of the partition and order a new partition
on equitable basis.
Inequity shall be evaluated on basis of the value of the partitioned property at
time of partition.
action for rescission and re-partitioning shall not be heard if it is not
instituted within the year following the partition.
partition is void if the property partitioned dispossessed as a whole or only a
part of it held in common and, in this latter case a new partition shall take
place for the remaining part of it.
partition of a non authorized agent is contingent upon the approval, by words or
by act, of the co-owners of the partitioned property held in common.
of usufruct is the sharing of enjoyment which may be temporal or spatial. In the
former, the co-owners of the common property successively enjoy the whole common
property for a period proportionate to the share of each one of them; in the
latter, each of the joint owners enjoy a specific part of the common
In temporal sharing of usufruct, the period of time must be specified, while
this is not required in spatial enjoyment of common property.
The co-owners shall agree on the period of time of sharing the usufruct,
otherwise the court shall fix the period considered by it as adequate, taking
into consideration the nature of the dispute and of the common property, and
shall draw lots to specify the start of the temporal sharing of usufruct and
determine the place in the spatial enjoyment of common property.
concerns the opposability towards third parties, the capacity of the co-owners,
their rights and obligations and the means of proof, the sharing of usufruct
shall be subject to the provisions of the lease contract, if not in
contradiction with the nature of this partition.
The co-owners shall agree, during the process of the final partition to share
the enjoyment of the common property between them until the completion of such
If the co-owners do not reach an agreement as to sharing the enjoyment of the
common property, the judge may, upon request of one of the co-owners, order it
and he may, in this respect, seek the assistance of experts if need be.
If one of the co-owners of the divisible common property asks the partition and
the other co-owner asks sharing the enjoyment thereof, t6he action in partition
shall be admitted.
If one of them asks sharing the usufruct, while none has asked the partition,
and the other one refrains, he shall be compelled to accept sharing the
If one of the co-owners asks for sharing the usufruct of a common property that
is not divisible and the other abstains, he shall be compelled to accept sharing
the usufruct shall not be void by the death of one or all of the co-owners and
the heirs of the deceased shall replace him.
COMPULSORY JOINT OWNERSHIP
due compliance with the provisions of articles 1165 and 1166 of the present law,
co-owners in a commonly held property are not entitled to ask for its partition
if it is revealed from the purpose for which it was affected that the property
must always remain held in common.
FAMILY JOINT OWNERSHIP
members of the same family who have a common occupation or interest may agree in
writing to establish a family joint ownership. This joint ownership consists
either of an inheritance which the members of the family agree to leave wholly
or partly in joint ownership or of any other property belonging to them which
they agree to place in such joint property.
A family joint ownership may be established by agreement for a period not
exceeding fifteen years. Each one of the co-owners may, however, if there are
serious grounds to do so, apply to the court for authority to withdraw his share
of the joint property before the end of the agreed term.
When no period is fixed for such ownership, each one of the co-owners may
withdraw his share after six months from the day he gives notice to this effect
to the other co-owners.
Co-owners cannot demand partition so long as the family joint ownership
continues and no co-owner can dispose of his share in favor of a person who is
not a member of the family without the consent of all co-owners.
If a person who is not member of the family acquires, as a result of a voluntary
or forced alienation, the share of one of the co-owners, he only becomes a
partner in the family joint co-ownership if he and the other co-owners consent
Co-owners who own the majority in value of the shares may appoint amongst
themselves one or more managers to administer the common property. Subject to
any agreement to the contrary, the manager may introduce such changes in the
intended use of the property held in common as may ensure a better enjoyment of
A manager may be discharged in the same manner as he was appointed,. The court
may also, upon the request of any owner, discharge him if there is a serious
cause justifying such discharge.
to the preceding provisions, family joint ownership will be governed by the law
provisions relating to common property, mandate and estates.
OWNERSHIP OF STOREYS IN BUILDINGS
When the different storeys or various apartments of a building belong to
different owners, such owners are considered co-owners of the ground and of the
parts of the building intended for the common use of all, or any part registered
under this description, or if the nature of the building require that it be of
common use; especially comprising the following:
The foundations, the main walls.
Common separating walls and walls affected to entrances and to support the
Ventilation canals for utilities.
Floor supports, vaults, entrances, yards, roofs, stairs and staircases,
passages, corridors, floor supports, lifts and concierge rooms.
Heating and cooling apparatuses, all kind of pipes, gutters, drains, common
installations and extensions such as lighting and water supplies and their
supplements and all that are considered ancillaries to the building with the
exception of those that are inside the storeys or the apartments.
All the above, in the absence of any provisions to the contrary in the title
deeds or private law.
parts in the building, as stipulated in the preceding article, cannot be
divided; the share of each owner shall be proportionate to his share in the
building. No owner can dispose of his share in the parts held in common
independently of his share in the building.
inner walls which separate two apartments belong in common property to the
owners of these two apartments if not considered among the common parts.
owner may utilize the parts held in common, in accordance with the use they are
intended, provided he does not prevent the other owners exercising their
owner must participate in the cost of the preservation, maintenance, management
and reconstruction of the parts held in common. Unless otherwise provided in the
building management statutes, the share of every owner in these costs will be
calculated in proportion to the value of his share in the building. Every owner
causing an increase in the costs of the building shall be responsible to cover
owner can renounce his share in the parts held I common with a view to avoiding
participation in such costs.
modification can be made to the parts held in common, even in the event of
reconstruction, without the consent of all the owners, unless such modification
made by one of the owners, is to the benefit of such parts without changing
their allotment or sustaining prejudice to the other owners.
The owner of a lower storey is bound to execute works and repairs necessary to
prevent higher storey from falling.
If he refuses to execute the necessary repairs, the judge may, upon request of
the prejudiced party, may order the execution of the necessary repairs and the
prejudiced party is entitled to claim from the owner of the lower storey the
costs sustained by him.
If the building falls down, the owner of the lower storey is bound to rebuild
his storey as it was, failing which, and in case the owner of the higher storey
rebuilds it, with his consent or with permission of the judge, he may claim from
the owner of the lower storey his share in these costs paid by him.
If the owner of the lower storey refuses to rebuild and this was done by the
owner of the upper storey without the judge’s authorization or the consent
of the owner of the lower storey, he may only claim from the latter his share in
the building at the time of reconstruction.
If the owner of the upper storey rebuilds the lower storey without referring to
its owner and establishing his refusal, the former shall be considered as
donating these costs and he has no claim whatsoever against the latter.
In the two first instances, the owner of the upper storey may prevent the owner
of the lower storey from disposing and making use of his storey until he has
repaid the amount due to the former. He may also let it, with the judge’s
authorization and recover his right from the rent.
owner of the upper storey may not heighten the building in such a way as to
injure the owner of the lower storey.
UNION OF OWNERS OF STOREYS AND APARTMENTS
Whenever there is a joint property of a building divided into storeys or
apartments, the owners thereof may constitute between themselves a Union to
manage it and ensure proper use.
The objective of constituting such Union may also be the construction or the
acquisition of buildings with a view to allocating the ownership of parts of
such buildings to members of the Union.
In its formation, statutes, management and powers and all other matters of its
concern, the Union shall be subject to the relative law provisions.
of the partners in a party wall may not heighten the wall by increasing
construction on it without authorization of the other partners.
If a partner in a party wall has a serious interest in heightening it, he may do
so on his own expenses provided he does not cause a serious prejudice to his
partner. He is responsible of its maintenance and of making it fit to support
the burden of its heightening without affecting its ability thereto.
If the party wall is not fit to support the heightening, the co-owner who
desires to heighten the wall must reconstruct it entirely at his own cost, in
such a way as the thickening shall, as far as possible, abut on his side. The
reconstructed wall remains, apart from the heighten parts, a party wall, but the
neighbor who has re-heightened the wall cannot claim any compensation.
neighbor who has not contributed to the expenses of heightening may become a
co-owner of the heightened part if he pays half the cost thereof and the value
of half of the ground covered by the increased thickness, if any.
An owner of a party wall is entitled to make use of it for the purpose for which
it is normally intended and to put on it to support the roof without making it
support too great a weight for its strength.
When a party wall becomes unfit for the purpose for which it is normally
intended, the cost of repairs or reconstruction will be borne by the co-owners
in proportion to their respective shares in it.
the absence of proof to the contrary, a wall which at the time of its
construction separated two buildings is deemed to be a party wall up to the
point at which it ceases to be a common wall to the two buildings.
OF ACQUISITION OF PROPERTY
OF A PROPERTY WITHOUT AN OWNER
takes possession of a movable which has no owner, with the intention of its
appropriation, acquires the ownership thereof.
A movable is deemed to have no owner when its owner abandons possession of it
with the intention of renouncing his ownership thereto.
Animals, other than domestic animals, are deemed to have no owner so long as
they are at liberty. Tamed animals which were accustomed to return to their
specified place and then have lost this habit, become without an owner.
Treasures found in a land owned by a specific person are deemed to be his
ownership but he has to pay one fifth to the State.
Treasures explored in a land owned by the State are fully owned by such
If, however the land is duly in mortmain, whatever explored therein belongs to
found buried in a land is State ownership even if found in a land that has an
concerning, treasures, minerals as well as the right of fishing, the right to
things found and to antiquities are governed by special laws.
thing of pecuniary value thrown by the sea and its property has not been claimed
by anyone is the property of the founder who first has taken possession thereof.
If ownership is claimed by a non Moslem or a non Dhimmi, one fifth of it goes to
the State Treasury and the balance to the founder. If it was preceded by a claim
in ownership by a Moslem or Dhimmi, it is for its owner, if he has knowledge
thereof, otherwise it shall be deemed an abandoned thing.
Uncultivated land which has no owner is the property of the State.
The appropriation or the possession of uncultivated land can only be effected
with the authorization of the State in accordance with the laws in force.
uncultivated land is a land with no affectation neither by ownership or use.
Affectation takes place by developing the land, by its becoming within the
inviolable domain of a State, a well, a tree or a dwelling.
Whoever develops or constructs an uncultivated land with authorization of the
State, becomes the proprietor thereof.
The competent authority may authorize the development of an uncultivated land by
using it for his benefit without appropriating it.
a person develops part of a land by authority of the State and leaves the other
part, he becomes owner of the developed part to the exclusion of the other part
unless the uncultivated part falls in the middle of the developed lands.
development of an uncultivated land takes place by erecting a construction on
it, planting trees, drilling water from it or the like and it becomes the
property of the one who developed it. If it is abandoned for a long period of
time and developed by another person it will become, by its development, the
property of this other person. This land will also become the property of the
latter, even before the lapse of a long time after its abandonment by the
former, if the first developer keeps silent without justification after his
knowledge thereof. If, however he does not keep silent or if his silence is
excused, it will remain his property bur the second developer will be entitled
to the gross value of what he developed, in the first instance, and the reduced
value, in the second instance.
inviolable domain of a State is its points of ingression and egression, its wood
cutting area and its pastures. The inviolable parts of a dwelling are the
easements enjoyed by its inhabitants during their living therein. Easements of
dwellings gathered in one domain may be enjoyed by the inhabitants of each
dwelling in as much as no prejudice is sustained by their neighbors. The
inviolable well is its output sufficient for drinking and irrigation and that
prejudice will be sustained if any thing affects its output or water. The
inviolable space of a tree is all what it needs for its irrigation, the
extension of its roots and branches and that prejudice will be sustained if
anything adversely affects its growth. The inviolable space is reserved for the
inhabitants of the State or dwelling, or the owner of a well or tree and they
may prevent others from enjoying it or do anything in such domain.
acquires a land through purchasing or is bestowed it by inheritance or donation
from the developer, then it was abandoned, it shall not cease to be his property
by its abandonment regardless of the period of abandoning it.
If it is developed by another person, he shall not acquire its ownership through
developing it except by a possession having duly fulfilled its conditions.
Walling an uncultivated land is not considered as developing it.
Whoever walls a land he shall have preference over all others for a period of
three years. If, however, he does not develop it within this period of time, the
land may be given to another person provided he develops it.
drills a well in an uncultivated land, by authorization of the competent
authority, it becomes his property.
yields of an exploited land are the ownership of the exploiter and it is
conditioned upon the possibility of being initially appropriated.
AND LIQUIDATION OF THE ESTATE
The heir shall acquire by inheritance the immovable and movable properties as
well as the rights included in the estate.
The designation of the heirs, their shares in the succession and the devolution
of the estate is governed by the precepts of the Islamic Shari’a and the
laws issue in application thereof.
In the absence of the appointment, by the decedent,of an executory custodian to
his estate, the court may, at the request of one of the concerned parties,
appoint as administrator of the estate a person chosen unanimously by the heirs,
failing such unanimity the judge shall, after having heard the heirs, choose
If among the heirs there is a fetus in gestation, an incapacitated person or
lacking capacity or an absent, the provisions of the special laws should be
appointment of an administrator by the deceased must be confirmed by the judge,
if so requested by one of the concerned parties.
The appointed administrator of the estate may resign his duties in accordance
with the provisions governing mandate.
The judge, upon request of a concerned party or the public prosecution, or even
without request at all, may, whenever justified, discharge the administrator and
appoint another one.
The Court shall enter, in an ad hoc register, the orders appointing
administrators of the estate, confirm their appointment if made by the decedent,
their discharge or their renunciation.
Such entry shall produce its effect on those dealing with third parties, as
concerns the immovable properties belonging to the estate.
The administrator of the estate shall, pursuant to his appointment, take
possession of the property of the estate and proceed with their liquidation
under the control of the judge. He may ask for remuneration to be appreciated by
The estate shall bear the costs of the liquidation and these costs shall have a
privilege in the same preferential rank as legal expenses.
judge must, when necessary, take all necessary measures for the preservation of
the estate. He may, in particular order that the cash money, securities and
articles of value, be deposited with the Treasury of the court, in which
jurisdiction all or most of the estate property is situated, until completion of
the liquidation process.
administrator of the estate has to pay out of the assets of the estate:
Burial and funeral expenses.
Sufficient alimony, up to an acceptable limit to be paid, out of these assets,
to the needy heir until liquidation of the estate after obtaining a court order
to pay it and to deduct this alimony from the share in the estate of each heir
to whom such alimony is paid.
dispute arising as regards such allowance shall be settled by the judge.
As from the date of appointing an administrator of the estate, the creditors may
only take proceedings, or continue those already commenced in connection with
the estate, against the administrator.
All proceedings taken against the decedent must, at the request of any
interested party, be suspended until settlement of all debts on the
heir may, before receiving an inheritance certificate showing his share in the
net estate, dispose of estate assets, recover estate debts, or set off a
personal debt against a debt of the estate.
The administrator of the estate is bound to take the necessary measures to
preserve its assets, perform all necessary acts of administration, represent the
estate in the actions brought before the court and recover the debts due to the
The administrator of the estate, even if not remunerated, is responsible to the
same extent as a paid proxy. The Court may call on him to render an account of
his administration at fixed intervals.
The administrator of the estate must address to its creditors and debtors a
notice calling upon them to submit a statement of all their claims and debts,
within a delay of two months from the publication of such notice.
The notice must be posted on the notice board of the court within which
jurisdiction the decedent was last domiciled and the court within the
jurisdiction of which all or most of the estate assets are situated. This notice
must also be published in a daily newspaper.
The administrator of the estate must, within three months from the date of his
appointment, file with the Court, which appointed him, an inventory statement of
the assets and liabilities of the estate with an assessment of their value. He
must also inform, by registered letter, all concerned of this filing.
He may apply to the judge for an extension of time, if this extension is
administrator of the estate may, for the purpose of assessment of the value of
the estate’s assets and the preparation of their inventory, seek the
assistance of an expert. He must also record all pertinent information disclosed
by the papers of the deceased and those coming to his knowledge. The heirs must
advise the administrator of all debts and claims of the estate known to
person, including an heir, who fraudulently appropriates a part of the assets of
the estate, is liable to the penalty provided for in the Penal Code for
dispute as to the accuracy of the inventory should be filed with the competent
court, within thirty days from the date of depositing the inventory
SETTLEMENT OF THE DEBTS OF THE ESTATE
Upon the expiration of the delay fixed for the submission of disputes arising
out of the inventory, the administrator of the estate will proceed, upon the
authorization of the Court, with the payment of the uncontested debts of the
Debts which are contested will be settled after the final decision of the court
on their veracity.
the event of the estate being insolvent, or of the possibility of it being so,
the administrator must suspend the settlement of any debt, even if uncontested,
pending final decisions in respect of all disputes concerning the estate.
The administrator will discharge the debts of the estate with funds derived from
claims recovered, cash in hand, proceeds of the sale of movables belonging to
the estate and, if insufficient, from the sale price of real estates.
The sale of movable and immovable property of an estate will be made by public
auction in the manner and subject to the delays laid down for forced sales in
the Law on Procedures before the civil
unless all the heirs agree on another manner. If the estate is insolvent the
approval of all the creditors, to the manner agreed upon between the heirs, is
necessary. The heirs are always entitled to take part in the auction.
Court may, at the request of all heirs, pronounce that the debt covered by a
real security has become immediately due for payment, and fix the amount payable
to the creditor.
heir may, after distribution of the deferred debts that are covered by a real
security, pay the amount allocated to him before the due date.
of the estate, whose debts have not been paid because they were not shown in the
inventory and were not covered by a real security on the property of the estate,
have no remedy against whoever acquired in good faith a real right on this
property, but have a claim against the heirs to the extent to which they have
benefited from the estate.
administrator of the estate shall, after discharge of its debts, proceed with
the payment of legacies and other charges.
DELIVERY AND PARTITION OF THE ESTATE
residue of the estate property, after settlement of the liabilities, devolves on
the heirs in proportion to their share in the inheritance.
The administrator of the estate shall deliver to the heirs the property of the
estate devolving on them.
The heirs may, upon the expiration of the time fixed for the submission of the
disputes relating to the inventory of the estate, demand that all or part of the
things or cash which are not required for liquidation be provisionally delivered
to them, with or without security.
court will, upon request of one of the heirs or of the interested parties, issue
a certificate of inheritance specifying the legal heirs and the share of each in
heir may call upon the administrator to deliver to him his share in the estate
as a divided part, unless such heir is obliged to remain in co-ownership by
reason of an agreement or a provision of the law.
If the request for partition is acceptable, the administrator of the estate will
proceed with the partition provided it will become final only upon the unanimous
approval of the heirs.
If the heirs do not unanimously approve the partition, the administrator of the
estate will ask the court to effect the partition in accordance with the
provisions of the law; the cost of the action in partition will be deducted from
the shares of the heirs.
partition of an estate shall follow the rules governing partition of property,
as well as the provisions of the following articles.
there is, amongst the property of an estate, an agricultural, industrial or
commercial enterprise constituting a distinct economic entity and the heirs did
not agree on carrying on the exploitation thereof, and third parties have no
claim on such property, it must be allotted as a whole to such one of the heirs
who applies for it if he is the most capable of the heirs to carry on the
enterprise, provided that the value of the property is determined and deducted
from his share in the estate. If the heirs are all equally capable of carrying
on the enterprise, it shall be allocated to the heir who offers the highest
price, provided that this price will not be less than the price for similar
at the time of partition, a debt due to the estate is allocated to one of the
heirs, the other heirs are not, in the absence of an agreement to the contrary,
guarantors of the debtor, if he becomes bankrupt subsequent to the
will dividing the property of the estate between the heirs of the testator
setting out the share of each heir or of certain of the heirs is valid. If the
value of the share of the share so given to one of them exceeds his hereditary
share, the excess is deemed to be a legacy by will.
partition made by disposition mortis causa may always be revoked. It becomes
irrevocable on the death of the testator.
the partition does not include all the property of the decedent at the date of
his death, the property which has not been included in the partition devolves in
common on the heirs in accordance with the rules of inheritance.
one or more of the contingent heirs included in the division predecease the
decedent, the divided part allotted to him or them devolves in common on the
other heirs in accordance with the rules of inheritance without prejudice to the
rules concerning the mandatory will.
general rules as to partition, with the exception of those relating to lesion,
apply to partition made by disposition mortis causa.
the debts of the estate are not included in the partition, or if they are
included and the creditors do not agree to the partition, any heir may, if these
debts are not settled in agreement with the creditors, petition the court for
partition and settlement of debts, provided that account must be taken, as far
as possible, of the partition made by the decedent and the considerations which
guided him to reach such partition.
RULES APPLICABLE TO ESTATES THAT HAVE NOT BEEN LIQUIDATED
the estate has not been liquidated in accordance with the preceding provisions,
the unsecured creditors of the estate may take action, in respect of their
claims or legacies, on the immovable property of the estate which has been
alienated or which has been encumbered with real rights to the benefit of third
parties, provided that they have laid down an attachment prior to the
registration of the alienations.
A will is an act of disposition taken by a person to be executed after his
The legatee acquires the ownership of the property bestowed upon him by
will is governed by the rules of the Islamic Shari’a and the law
provisions deriving therefrom.
action concerning a will or oral revocation thereof may not, in case of denial,
be heard after the death of the testator unless are found official papers or
papers completely written and signed in the handwriting of the testator, or if
the paper on which is written the will or the revocation thereof bears the
certified legal signature of the testator.
Every legal act made by a person during an illness immediately preceding his
death, with the purpose of making a gift, is deemed to be a testamentary
disposition and will be governed by the rules applicable to wills regardless of
the description given to such an act.
The heirs of the decedent have to prove that the disposition has been made by
their decedent during an illness immediately preceding his death. The legal
instrument establishing the act cannot be invoked against the heirs unless the
instrument bears a certified date.
If the heirs establish that the act of disposition was made by the decedent
during the illness immediately preceding his death, the act is deemed to be a
gift, unless otherwise proven by the beneficiary of such act or there exist
special provisions to the contrary.
a person disposes of a property in favor of his heirs, reserving at the same
time the possession and the enjoyment of this property during his lifetime, the
disposition is deemed to be a testamentary disposition and, in the absence of
any evidence to the contrary, shall be governed by the rules applicable to
ACCESSION IN RESPECT OF AN IMMOVABLE PROPERTY
ACCESSION BY ACT OF NATURE
brought by the river to the land of a person becomes his property.
The owner of a land displaced as a result of an Act of God may claim such land
if it can be determined for sure. The owner of the enriched land shall guarantee
to the owner of the impoverished land payment of its value and acquire its
Court action regarding the claim of such land will not be heard after the lapse
of one year from the date of such incident.
or small islands, formed by nature in the river channel, are deemed to be part
of the State domain.
or small islands formed within lakes, as well as lakes and sea alluviums are
considered State property.
uncovered by the sea, lakes, ponds or swamps, which have no owner are considered
ACCESSION BY ACT OF MAN
constructions, plantations or works existing on the land are, in the absence of
evidence to the contrary, deemed to have been carried out by the owner of the
land at his own expense and belong to him.
erected by the owner of the land, on his land but with materials belonging to
another and without his consent, and if these materials still exist and their
recovery is claimed by their owner, the land owner must return same to him. In
case such materials are obsolete or depleted, the owner of the land must pay its
value to their owners. In both instances, an indemnity, if justified, has to be
a person carries out a construction, plantation or other erections with his own
materials on land which he knows is not his property, without the consent of the
owner of the land, the latter is entitled to demand the removal of these works
at the expense of the one who erected them. When the removal is detrimental to
the land, the owner of the land may appropriate these works at their break-up
a person carries out a construction, plantation or other erections with his own
materials on land owned by a third party, basing himself on a lawful cause, ,
then if the standing value of these erections is greater than the value of the
land, the author thereof may appropriate the land at a price equal to that paid
for similar land. If the value of the land is not below the value of the added
erections, the owner of the land may acquire the erections at their standing
a third party carries out works with his own materials, with the permission of
the owner of the land, the latter cannot, in the absence of an agreement with
regard to these works, demand their removal. The owner of the land must pay to
the third party, if the third party does not himself ask for their removal, the
standing value of these works.
a third party carries out plantation or other erections with materials belonging
to another, the owner of the materials cannot claim their restitution but he has
a claim for compensation against the third party and also against the owner of
the land up to the outstanding amount due by him in respect of the value of the
one of the share owners, in a divisible common property, builds for himself,
without the consent of the other co-owners, then the property was partitioned
and, if the built-up part falls in the lot allocated to the builder, it becomes
his property, but if it falls in the lot allocated to the other co-owner, he may
acquire ownership thereof at their removal value or he may ask the builder to
demolish what he erected.
OF MOVABLE PROPERTY
two movables belonging to two different owners become mingled in such a way that
they cannot be separated without deterioration, the Court, in the absence of an
agreement between the owners, shall decide the matter under litigation guided by
custom and rules of equity and justice, taking into consideration the damage
already done, the condition of the two parties and their good faith.
ownership of movables, immovable properties and other real rights are
transferred by contract whenever satisfying its basic elements and conditions as
set forth in the Law and without prejudice to the following articles.
of movables not specified as to their species is transferred only by
of immovable property and of other real rights are not transferred, either
between parties or as regards third parties, except by registration in
accordance with the relative law provisions.
undertaking to transfer ownership of an immovable property is restricted to the
obligation of paying a compensation if the promisor breaches his undertaking
whether or not it provides for compensation.
is the entitlement of a co-owner having a share in an immovable property to take
the share of his partner who has transacted his share against its price, in a
financial transaction, and for its value in a non-financial transaction, which
indicates that he accepts to take it at its customary value.
right of preemption belongs to:
The Nazir of a mortmain on a common property if the settlor has entitled him to
take the share of a co-owner by preemption for retention purposes.
The person entitled to the mortmain property after expiration of its term or
after the death of all beneficiaries, if the mortmain property is a common real
estate and one of the co-owners has sold his share in it.
right of preemption does not belong to:
The beneficiary of a mortmain to part of a real estate held in common between
the settlor and another person, if the co-owner sells his share irrespective of
the fact that the beneficiary intended to mortmain the share that he wanted to
take by preemption, unless he is the one entitled, at the end of the mortmain,
to the share to which he is the beneficiary; in which case he shall be entitled
to take it by preemption in full property.
The neighbor, in the event of sale of an adjoining property, even if he may nave
a right of way through a lease or an easement.
The Nazir of a mortmain on a common property if the non-mortmain share is sold,
even if the Nazir intended to mortmain this share which he wanted to take by
preemption, unless the settlor entitles him to take by preemption for mortmain
purposes, in which case he may do so.
co-owner shall not have a preemption right in the following instances:
whether sold separately or with the land and, in this latter case, preemption
may be exercised on the land alone to the extent of its share in the price, but
the crops remain the property of the purchaser.
A well, in case the land that it waters is partitioned and the well remains a
common property but if the land is not partitioned, it is subject to preemption
whether the co-owner sells his share in it separately or in conjunction with his
share in the land.
The precincts of a house or a passageway giving access to it, whether the
co-owner sells his share in each separately or in conjunction with his share in
the house, if the house is partitioned but the precincts or the passageway
remain common property between the two co-owners, and if the house is not
partitioned the precincts and the passageway shall be subject to preemption as
An animal unless it is attached to a commonly held property, for use in tilling
or irrigation or the like, and the co-owner sells his share in the land and in
the animal together, in which case it becomes subject to preemption as
appurtenant to the property.
person against whom preemption is exercised is the owner of the share of one of
the co-owners in full property supervening upon the ownership of the other
co-owner by way of a transaction even if not pecuniary.
preempted property is a divisible real estate transacted by one of the
co-owners, even by way of exchange with a similar real property, or if the real
property is a building or trees owned by two co-owners of a land in mortmain.
There will be no preemption if the real property is not divisible.
If one of the co-owners sells his share in a commonly held real property and the
other co-owners take this share by preemption, it shall be divided between them
according to the shares and not per capital
If the purchaser is one of them, they shall leave him his share of the
preemption in it, up to the purchase price, and shall not take from him the full
Shares will be considered as of the date of exercising preemption and not from
the date of sale.
If the preemptors are of different degrees, the preemption right belongs to the
one who participates with the seller of the preempted property in the
pre-determined share in the succession, and, if he forfeits his right, then to
the heir who does not participate in a pre-determined share of the estate and,
if this latter forfeits his right, then to the legatee, unless he forfeits his
right, in which case it goes to the co-owner who is a stranger to the
Each of the above-stated shall participate in the preemption of those who come
after him in the scale of preemption but not vice-versa. The heir of each one of
them shall substitute him in his preemption right and in participating in the
preemption with those in a lower degree in the scale of preemption.
there are several sales of a real property subject to preemption and the
preemptor was unaware of the several sales, or if he had knowledge but was
absent, he shall have the option to take by preemption at any of the sale prices
and pay the chosen price to the purchaser who was in possession of the land even
if it is lesser than the price at which he purchased, and the purchaser shall
have a claim for the amount in excess against the seller. If the preemptor had
knowledge of the successive sales and was present, he shall take it at the last
sale price only.
If a preemptor accepts a sale, all subsequent rights shall be cancelled and all
prior dispositions shall be affirmed. Any person whose purchase has been
consequently annulled shall have a claim against the seller for the price he has
paid to him and not for the value of the property.
Under all circumstances, if any defect appears in the property, or if it has
been dispossessed, the purchaser shall be liable for the price of the accepted
preemptor shall exercise preemption for himself and not for others and if he
does exercise it for a third party, even as a gift to the latter or as a
gratuity, the preemption will be annulled and his right to take it for himself
will be forfeited.
Preemption after sale shall be established whenever there is a justifying cause
A donation for consideration shall be treated as a sale.
real property giving rise to preemption must belong to the preemptor at the time
of purchasing the preempted property.
established, preemption is not foreclosed by the death of the seller, the
purchaser or the preemptor.
is not allowed on:
Property acquired by donation without corresponding consideration, given as a
charity or devolving be inheritance or legacy.
Building and trees sold on purpose without the land on which they stand or on
building and trees standing on lands owned by the State.
right of the preemptor on preemption shall be forfeited in the following
If he shares with the purchaser of the share of his co-owner, or buys or leases
it from him, even if he ignores that this shall cause forfeiture of his
If he sells his share even if he has no knowledge that his co-owner sold his
share before him.
If, within two months and without good reason, he did not ask to take the share
by preemption, knowing that the land has been constructed or planted by its
If, within two months and without good reason, he did not demand preemption as
of the time he has knowledge of the sale made by the co-owner of his share, if
he is present in the country, and as of his return from voyage and his knowledge
of the sale made by his co-owner; if absent at time of the sale. Should he deny
knowledge of the sale, while the purchaser alleges that he knew of it, he will
be believed in his denial if made under oath.
the preempted property is sold in one deal, the preemptor shall have the option
either to take it all or leave it to the purchaser, but he may not choose to
take part of it without the other part unless with the consent of the purchaser,
whether the sold property was one share or divided in several shares and whether
there was one seller or purchaser or several.
some of the preemptors forfeit their right to preemption, or were absent before
exercising their right to it, the others or those present among them may either
take the whole of the preempted property or leave it all but may not take part
of it to the exclusion of the other part without the consent of the purchaser.
case the person present elects to take the whole preempted property, the
provisions of the following article should be observed.
If some of the preemptors were absent before exercising his right to preemption
and the present preemptors choose to take the whole of the preempted property
and thereafter arrives one of the absentees, he will take his share in the
preemption from the one present, on the assumption that the preemption is for
two persons only, and if a third one of the absentees arrives he will take his
share on the assumption that the preemption is for three persons, and if fourth
one arrives he will take his share on the assumption that the preemption is for
four persons; and so on .so forth.
Liability for the price of what they have taken, if dispossessed or upon
appearance of a defect shall be upon the purchaser even if the seller exempted
him from the sale prior to taking the sold property from him by
claim for preemption shall not be heard:
if the sale is made by public auction according to the procedures prescribed by
if the sale is made between ascendants and descendants, the spouses, relatives
up to the fourth degree or in-laws up to the third degree;
if the preemptor renounces his right to preemption expressly or tacitly.
The preemption action must be filed within two months as of the date of
knowledge of sale by the preemptor.
Under all circumstances the preemption claim shall not be heard after the lapse
of six months as of the registration date.
The action in preemption shall be filed, against the purchaser, with the court
in whose jurisdiction the property is situated.
The court shall decide each case relating to the true price of the preempted
property and it may grant the preemptor a respite of one month to pay the amount
ordered by the court, otherwise his preemption shall be declared void.
The purchaser may claim before the judge from the preemptor to exercise his
right to preemption or renounce to it. His answer to either option will bind him
and, if he does not answer, the judge shall declare the forfeiture of his right
If he asks for a respite in order to think it over before giving his answer to
exercise his right or renounce to it, the purchaser may reject his
Whoever wishes to purchase cannot, prior to the sale, ask the preemptor to
exercise his right or renounce to it, and if he does so prior to the sale and
forfeited the preemption, this forfeiture shall not be binding upon the
prejudice to the rules relating to registration, the title of the preemptor in
the sale shall be established by order of the court or by taking delivery by
THE EFFECTS OF PREEMPTION
yields of the property from which the purchaser benefited prior to preemption
shall be his up to the time of exercising the preemption. If he has leased it to
a third party prior to preemption and the rent was due lump sum or on monthly
basis and the lessee paid the rent, the preemptor may not rescind the lease. The
rent shall belong to the purchaser if the remaining period of the lease, after
exercising preemption, does not exceed one year. If the rent is payable on
monthly basis and the lessee did not pay the rent, or if the remaining period of
the lease is more than one year, the preemptor may cancel the lease or affirm it
and the rent shall belong to him after exercising his right to preemption.
The acquisition of a preempted real estate, by order of the court or by consent
is considered a new purchase subject to the options of sight inspection and
defect by the preemptor even if the purchaser waived his right thereto.
The preemptor is not entitled to benefit from the delay given to the purchaser
for payment of the price, except with the consent of the seller.
If the property is dispossessed in favor of a third party, subsequent to the
exercise of the right of preemption, the preemptor shall have a claim for the
price against the seller or the purchaser, whoever received it from him.
If, prior to the action in preemption, the purchaser made some additions to the
preempted property out of his own funds, or has built or planted trees, the
preemptor shall have a choice either to abandon his right to preemption or
acquire the ownership of the property at the price thereof together with the
increase in value as a result of the addition or of such construction or
When, however, such addition, construction or plantation has been made after
filing the action in preemption, the preemptor may abandon his right to
preemption or demand their removal, if appropriate, or accept the status quo
after paying the bare value of the addition or of what has been newly introduced
to the land, if removed.
If the preempted property has been diminished for a reason not imputable to the
purchaser, or by his act but serving some interest, the preemptor may take it
for its full price and shall have no claim with respect to the diminution, or
may leave it to the purchaser. If diminution is caused by his act which serves
no interest, then the price due by the preemptor shall be reduced by the value
of such diminution.
preemptor may quash all the purchaser’s dispositions even if the preempted
property is put into mortmain or affected as a place of worship.
as collateral, or a privilege right for or against the purchaser on the
preempted property shall have no effect against the preemptor if completed
subsequent to the filing of the action in preemption. The creditors shall
maintain their rights on the price of the property.
Possession is the actual domination of a person, by himself, over a thing or
right which may be negotiated.
Possession by an intermediary is valid whenever the intermediary acts in the
name of the possessor and that his relationship to the possessor is such that he
is obliged to obey his instructions as regards the possession
The individual lacking discretion may acquire possession through his legal
Possession does not result from an act done by permission or merely
obtained by duress or obtained secretly or in a dubious manner has no effect, as
regards the person against whom the duress, secrecy or dubious means are
exercised, except from the time that such defects have ceased to exist.
Possession is deemed continuous as from the time it becomes apparent through
using the thing or the right in a normal and regular manner.
Whoever alleges that he has acquired ownership by lapse of the limitation period
may rely on the possession of the person from whom the property was transmitted
The tenant, the usufructuary, the bailee, the borrower or their heirs may not
plead limitation of time.
is transmitted by a possessor to another by mutual agreement, provided that the
person to whom the possession has been transmitted is able to assume control
over the thing or the right, object of possession even without actual
If several persons are in dispute as to the possession of the same thing or
right, the possession shall provisionally be deemed with the one who has the
physical possession unless it is established that he has obtained such
possession in a defective manner.
In the absence of a proof to the contrary, possession shall maintain the same
character with which it started.
the absence of proof to the contrary, the possessor of a thing shall be
considered of good faith if he has no knowledge that he is trespassing on the
right of others.
The possessor shall cease to be of good faith only as of the time he becomes
aware that his possession constitutes a trespass to the right of others.
Likewise, the good faith character shall cease to exist as of the time the
possessor is notified in the pleadings of the defects of his possession.
Whoever usurps by duress the possession of another person shall be considered of
ceases when the possessor abandons his actual control over the thing or the
right or loses it in any other way.
Possession does not cease if a temporary obstacle prevents the possessor from
exercising his actual control over the thing or the right.
The claim as regards possession shall not be heard if such obstacle continues
for a whole year and is the result of a new possession exercised against the
wish or without the knowledge of the possessor.
The period of one year runs from the moment from which the new possession
commences, if it takes place overtly, or from the day on which the former
possessor knew of it, if it commences secretly. In the presence of a major
obstacle preventing the filing of the claim, the period of one year is computed
as of the time it becomes possible to file the claim.
the possessor brings a hands-free action in court in order to restitute his
possession, he is entitled to demand preventing the defendant from erecting
constructions or planting trees in the disputed land as long as the case is
under examination, provided that he submits sufficient securities to cover the
indemnity payable to the defendant for the prejudice that he may sustain in case
it is revealed that the claimant is unjustified in his claim.
person who possesses a movable or an unregistered immovable property considering
himself the title owner thereof, or possesses a real right on a movable or on an
unregistered immovable property, and his possession continues without
interruption for fifteen years, shall not be actionable in property or in rights
in rem by any person who has no legitimate justification.
If the object of possession be an unregistered immovable property or a real
right in rem and the possession has been acquired in good faith and, at the same
time, based on a valid cause, the period barring the hearing of the case shall
be seven years.
A valid cause is a document or an event proving possession of a real estate.
Shall be considered a valid cause:
Transfer of title by inheritance or legacy.
A gift inter vivos with or without consideration.
No claim as to the origin of a mortmain property or as to inheritance can be
heard if they could be brought, but failure to do so is not based on a
legitimate cause, against a person in possession of a real estate who acted as
an undisputed owner for an uninterrupted period of thirty years.
Ownership of assets and real estates owned by the State, or its public
organizations, as well as assets and real estates belonging to the charitable
Wakf, cannot be acquired or be subject to rights in rem by prescription.
No claim for absolute ownership, inheritance or mortmain bestowed on progeny,
against the possessor of a real estate, shall be heard if such property has been
in his possession and in the possession of the person from whom he acquired it
by sale, gift, will or inheritance or otherwise, the period set forth for the
prescription of such claims.
In the absence of proof to the contrary, actual possession coupled with an
established previous one is a presumption that it existed between the two
periods of time.