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[The Mejelle. Articles 1-100] Author(s): C. A. Hooper Reviewed work(s): Source: Arab Law Quarterly, Vol. 1, No. 4 (Aug.

, 1986), pp. 373-379 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381414 . Accessed: 28/06/2012 05:35
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THE MEJELLE

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Part I Definitionand classification Muhammadan of junsprudence Ariicle 1. The scienceof Muhammadan jurisprudence consistsof a knowledge the of precepts of the Divine Legislatorin their relanon to human affairs. The questionsof Muhammaclnn jurisprudence eitherconcernthe nextworld,being known as rules relatingto worship, or to this world, being divided into sections dealingwith domesticrelations, civilobligations punishments. and ThusGoddecieed the continuation the worlduntilthe appointed of time. This, however,canonlyoccur by mankindbeingperpetuated whichis dependent uponmarriage maleandfemale of with a view to procreation.Moreover,the conanuationof the human species is assuredby individuals associating together.Man,however,in view of the weakness of his nature is dependent upon food, clothing, housing and the industriesfor his subsistence.In otherwords,in viewof the factthatmanis a civilizedbeing,he cannot live in solitudelike the otherariirnals, is in needof co-operation association but and in work with his fellow men in order to live in a state of civilization.Every person, however,asks for the thingswhichhe likes and avoidsthingswhicharedisagreeable to hirn. As a result, it has been necessaryto establishlaws of a naturelikely to maintainorder and justice as regardsmarriage,mutual help and social relations, which are the basis of all civilization. The first division of Muhammadan jurisprudence the section dealing with is domesticrelations.The secondis the sectiondealingwith civil obligations. viewof In the factthatthe continuance civilization this basisnecessitates drawing of of on the up certainmattersrelatingto puIiishment, third sectionof Muhammadan the jurisprudence deals with punishments. As regards sectiondealingwith civil obligations, questionswhichareof the the the mostfrequentoccurrence havebeencollectedtogether fromreliable worksandset out in this Codein the formof Books. These Bookshavebeen dividedinto Chapters and the Chapters Sections.The questionsof detailwhichwill be appliedin the Courts into are thosequestionswhichareset out in the followingChapters Sections.Muslim and jurists, however, have grouped questions of Muhammadan jurisprudence under certaingeneralrules, each one of which embracesa largenumberof questionsand which, in the treatiseson Muhammadan jurisprudence, takenas justification are to prove these questions. The preliminarystudy of these rules facilitates the comprehension the questionsand servesto fLxthem in the niind. Consequently, of ninety-ninerules of Muhammadan jurisprudence have been collected togetheras follows, before commencingon the main work, and form Part II. Althougha few of them, taken alone, atit of certainexceptions,their general applicationis in no way invalidatedthereby, since they are closely interrelated. Part II Maximsof Muhammadan jurisprudence Article2. A matteris detered according intention;thatis to say, the effectto be to given to any particular transaction must conformto the objectof such transaction.

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and and effectis givento intention meaning not to wordsand Article3. In contacts has a Consequently, contractfor sale subjectto a rightof redempiion the phrases. forceof a pledge. Ariicle 4. Certaintyis not dispelledby doubt. as shall that principle a thin% remain it wasoriginally. Article5. It is a fundamental shallbe left Ariicle6. Thillgswhichhavebeenin existencefromtimeimmemorial as they were. Article 7. Injurycannot exist from iime immemorial. principle. Article 8. Freedomfrom liabilityis a fundamental and of the if Therefore, one persondestroys property another, a disputearisesas to shallbe of amountthereof,the statement de personcausingsuch destruciion the heard,and the onusof proofas to anysmountin excessthereofis uponthe ownerof such property. pnnciplewhichappliesto allrightswhich is Ariicle9. Non-existence a fundamental accrue. may subsequently
Example:

of In a case of parmership capitaland labour,a disputearisesas to whetherprofithas been the of madeor not. The statement the personsupplying labouris heard,andthe ownerof the is principle the capitalmust provethat profithas in fact been made, since the fundarnental of non-existence the profit.

whichhasbeenproved shallbe givenin respectto anymatter Article10. Judgment time, unless the contraryis proved. at any particular thingis owned timethata pariicular if Consequently, it is provedat anypariicular shallbe heldto be thereof the ownership, ownership in absolute person by a pariicular arise which invalidatesuch ownership. valid unless circumstances shallbe regarded prsciple thatanynew occurrence Article11. It is a fundamental is to say, if a disputearises as happeg at the time nearestto the present.That suchevent the regarding causeof somenew eventandthe time at whichit occurred, the present,unless it is shall be consideredwith referenceto the time nearestto proved that it relates to some remoterperiod. literally. principlethat wordsshall be construed Article 12. It is a fundamental in shallbe paid to inferences the face of obviousfacts. Article 13. No attention Article 14. Where the text is clear, there is no room for interpretation. to Article 15. A matterwhich has been provedcontrary legal analogycannotbe respectto any other matter. cited by way of analogyin does not destroyanother. Article 16. One legal interpretation is thatis to say, difficulty the causeof facility facility; Article17. Difficultybegets must be shown. Very many subjectsof and in time of hardshipconsideration are such as loans, transferof debts and interdiciion jurisprudence, Muhammadan shownby Muhammadan andindulgence derivedfromthis principle,andthe latitude jurists in their rulings are all based upon this rule. in Article18. Laiitudeshouldbe afforded the caseof difficulty,thatis to say,upon mustbe matter,latitudeandindulgence in of the appearance hardship anyparticular shown.

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Article19. Injurymay not be met by injury. Article20. Injuryis removed. Article21. Necessityrenders prohibited thingspermissible. Article22. Necessityis estimated the extentthereof. by Article A thingwhichis permissible reason theexistence someexcuse 23. by of of therefor) ceasesto be permissible the disappearance that excuse. with of Article Whena prohibition removed) thingto whichsuchprohibition 24. is the attaches revertsto its formerstatusof legality. Article An injury 25. cannot removed the commission a similar be by of injuty. Article A private 26. injury tolerated order wardoff a publicinjury. is in to The prohibition practice anincompetent from of physician derived is fromthisprinciple. Article27. Severeinjuryis removed lesserinjury. by Article In thepresence twoevils)thegreater avoided thecommission 28. of is by of the lesser. Article29. The lesserof two evils is preferred. Article30. Repelling evil is preferable securing benefit. an to a Article31. Injuryis removed far as possible. asf Article Anywant,whether a publicor private 32. of nature, so dealtwithas to is meettheexigencies thecase.Thevalidity salesubject a right redemption of of to of is of this nature.The irlhabitants Bokhara of havingfallenbadlyinto debt, this procedure put into operation orderto meet the exigencies the case. was in of Article Necessity 33. doesnot invalidate rightof another. the Consequently, a if hungry person bread eats belonging another, person to such mustlater thevalue pay thereof. Article34. A thingwhichmay not be takenmay also not be given. Article35. It is forbidden reqllestthe performance a prohibited to of act. Article36. Custom an arbitrator; is to say, custom,whether is that publicor private,may be invokedto justifythe givingof judgment. Article37. Publicusageis conclusive evidence and actionmust be takenin accordance therewith. Article A thing 38. whichit is customary regard impossible considered be to as is to impossible fact. in Article It is an accepted thattheterms lawvarywiththechange the 39. fact of in
times.

Article In the presence custom regard paidto theliteral 40. of no is meaning a of t llng. Article Effect onlygivento custom 41. is where is of regular it occurrence when or universally prevailing. Article Effectis givento whatis of commen 42. occurrence; to whathappens not infrequently. Article43. A matterrecognized customis regarded thoughit were a by as contractual obligation. Article A matter 44. recognizqd merchants regarded beinga contractual by is as obligation betweenthem. Article45. A matter established custom is like a matter established law. by by
.

is Article 48. An accessory whichis attached anobjectin factis alsoattached it in to to law. but the remaining share becomes the property of the recipient of the gift. A thingwhichfailsis not restored. Article 56. Article54. Example: The disposal of a share of undivided jointly owned property by way of gift is invalid. may be permissible an in as accessory. the accessoryalso fails. Article49. ArticleSS. is Article 57. Article51. but if a person eniitled to a share of undivided jointly owned propertywhich has been bestowed by way of gift appears and takes possession thereof. A gift becomes absoluteonly when deliverythereof is taken.A thingwhichis not permissible theoutsetmaybecomepermissible at at some later period. Example: A person bestows a thing upon another person by way of gift. When prohibition and necessityconflict. personmay not sell to anothera thingwhichhe has given to his a creditoras securityfor debt. Whena thingbecomes void. Article52. the youngit its wombis soldwithit. is to say. .the thingcontained it alsobecomes in void. Continuance easier than commencement. Article 58. When the originalundertaking cannotbe carriedout. the purchasertherebyreceives them impliedly and as an accessory. A thing which is not permissible itself. to Example: A person who buys a house is also owner of the road leading to it. Article53. Consequently. Article SO. but if for he gives a sack to the vendor to measureand put therein the provisionswhich he has bought and the vendor puts the provisions into the sack. Example: The young in an aliimal's womb cannot be sold separately.If the principalfails. whena pregnant animal sold. the equivalent thereof is carriedout. Such gift is not binding until delivery thereof has been taken. preference given to the is prohibition. The ownerof a thingheldin absolute ownership alsothe ownerof the is things indispensable the enjoymentof such thing. Consequently. The exerciseof controlover subjectsis dependentupon the public welfare. thatwhichgoesdoes that not return. Example: It is not perITiissible a purchaserto make the vendor his agent to receive the thing sold.376 ARAB LAW QUARTERLY Article 46. An article to an object caImotbe dealt with separately. Article47. the gift does not become void.

is Example: The guardianship exercisedby the trusteeof a pious foundation more effectivethan the is guardianship the Court. That is to say.such silence is regardedas an admissionand a statement.That is to say. if a wordcannotbe construed eithera literalor metaphorical in senseit is passed over in silence as being devoid of meaning. Article66. A referenceto partof an indivisiblething is regardeci a reference as to the whole. No statementis imputed to a man who keeps silence. Article64. Article 71. Article 70.THE MEJELLE 377 Article 59. obscuremattersconcerning whichit is hardto discoverthe truthare judged accordingto the obvious proof concerningthem. The absoluteis construed its absolutesense. Example: If a personadrnits whilesuffering froma mortalsicknessthathe owesa certain sumof moneyto one of his heirs. Example: Whena vendorwho is aboutto sell a greyhorse. of Article60.even though based upon evidence. No validityis attached conjecture to whichis obviously taintedby error. Correspondence takes the place of an exchangeof conversation.rather as thanpassed overin silence.it can to may not be passed over as devoid of meaning. Private guardianship more effeciive than public guardianship.but if he keeps silence wherehe ought to have made a statement. but silence is tantamount a statementwherethereis an absolutenecessityfor speech. Probability. Article 69. Article62. Whenthe literalmeaning cannotbe applied. A wordshouldbe construed havingsomemeaning. is not proof.statesthathe is sellinga brownhorsefor so manythousand piastres. The signs of a dumb personwhich are generallyrecognizedtake the place of a statementby word of mouth. personanswering in the the question is consideredto have repeatedthe question.Thatis to to in say. The word of an interpreteris acceptedin every respect. Article68. A description with referenceto a thing presentis of no effect.the description held to be goodbut the saleis not it is concluded. Article63. his offeris held to be goodandthe wordbrownis of no effect. it may not be said that a personwho keeps silence has made such and such a statement. since the . That is to say. in the eventof a questionbeinganswered the affirmative. Ariicle61. if anyparticular meaning be attributed a word.But if he sellsa greyhorsewhich is not presentandhe describes as brown. Article72. such admissionis not proof unlessconfirmedby the other heirs. but the contraryis the case if such thing is not present. Article65. In obscuremattersthe proofof a thingstandsin the placeof suchthing.suchgreyhorsebeingpresentat the meeting wherethe saletook place. Article 67.the metaphorical sensemay be used. A questionis considered havebeenrepeated the answer. Article 73. If no meaningcan be attachedto a word it is disregarded altogether.provided in thatthereis no proof of a restrictedmeaningeither in the text of the law or by implication.That is to to say.

Example A person states that A owes a sum of money to B and that he is the surety of A. but the witnesses must pay the value of the subject matter of the judgment to the persons against whom judgment has been given. and B does in fact fail so to do. Such person will be obliged to pay ie sum m quesiion if A repudiates the debt and B demands payment. Ariicle81. in the eventof a thingbeingdestroyed.admission proofaffecting is the person making such admissiononly. Article80. Article 83. Example: A person tells A to sell a certain thing to B and informs A that he will pay him in the event of B failing to do so. to the object of the oath is to ensure the continuance the originalstate. A person is bound by his own admission. If the statement. Evidenceis for him who affirms. The vendor may not charge any fee on account of the use of the animal. Article77. because if it had been destroyed before being returned. personto the whom such thing belongs must suffer the loss and converselymay enjoy any advantages attachingthereto. is made while in a state of good health. .the oath for him who denies. Such evidence is not proof. Example: Witnesses contradict themselves by going back upon the evidence they have given. No weight is attachedto mere supposition.378 ARAB LAW QUARTERLY probabilityof such person defraudingthe other heirs of their propertyis based upon the mortal sickness. Article 79. The person making the promise is obliged to pay the money. If the validityof a conditionis established. but if the Court has already given judgment based upon the original evidence. this doesnot invalidate and but a judgmentgiven againstthe person contradicting. of Article78. Article75. The objectof evidenceis to provewhatis contrary appearance. A thing established proof is equivalentto a thing established by by OCCU mspectlon. Any promisedependentupon a conditionis irrevocable upon such conditionbeing fulfilled. such judgment may not be set aside. Contradiciion proofareincompatible. . Article82. Example: An animnlis returned by reason of an option for defect. The probabilityin that case is mere supposition and consequently there is no objeciion to the validity of the admission.thatis to say. Article 74. . Evidenceis proofaffecting thirdpersons. A condiiion must be observedas far as possible. however. Ariicle 84. Failure establish principal to the claimdoesnot implyfailure establish to a claim subsidiarythereto. The enjoyment a thing is the compensating of factorfor any liability attaching thereto. Ariicle85. the loss would have fallen upon the purchaser. such adIxiission is considered to be valid. .the validityof anything dependentthereonmust also be established.ar Article 76.

Any changein the causeof the ownership itself. is not liableto make Article93. of any otherpersonheld Article95. acted good any loss caused by such act unless he has causedby in attaches conneciionwith offencesof or darnage Article94. persondoes Article providedthat such the upon personorderingsuch act to be performed. . and bexlefit the benefit to Article88. Disadvantage an obligaiion attachingthereto.MEJELLE THE 379 loss do not mn together. such Article 100. A personwho makegood any loss caused thereby. The burdenis in proportion the it doesnot fall for 89. If a personperformsany act personally is implicated responsible Article such act is perfog personwho is the cause thereof. a enjoyment. Any ordergiven for dealingwith the property in absolute ownershipis void. No person may take anotherperson's reason. Example: heldin absolute ownproperty to belonging A fallsinto a wellwhichB hasdugon his Ananimal claimed. No liability anirnalsof their own accord.No compensaiioncan ownership to an performs act. Any personwho deprivedthereof. The responsibility an actfallsuponthe authorthereof. eventhoughnot intenhonally) is liable Article92. who person enjoys a thing must submit to the disadvantages to the burden. be and such arlimalis destroyed. compel the cornmission not thereinwith and 90. propertywithout some legal Article 97. of anotherheld in absolute Article 96. Bis responsiblethereforand no liability the subject of a claim to Article 91. digs A a well in the publichighwayandB causesC's animal rests with the person who dug the well. and Article 86. No person may deal with the property ownershipwithout such person's perrnission. time is punished by being by performed himself. of a thing held in absolute Article98. An act allowed by law cannot be made compensation. Remuneration liability to make good Thatis to say. accompanying is Article87.the person the therefor. ownershipis equivalentto a change in that thing of hastensthe accomplishment a thing beforeits due Article99. Example: to fallthereinandto be destroyed. thereof. If any person seeks to disavowany act attempt is entirely disregarded. A personwho is the causeof an actbeingperformed inteniionally.

jsp ..The Mejelle: Book I: Sale Author(s): C. 1. pp. No. use. 525-556 Published by: BRILL Stable URL: http://www. . A. 1986). Hooper Reviewed work(s): Source: Arab Law Quarterly.org. For more information about JSTOR.org/stable/3381397 . please contact support@jstor. preserve and extend access to Arab Law Quarterly. 5 (Nov. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. researchers.jstor.jstor. Vol.org/page/info/about/policies/terms.org . BRILL is collaborating with JSTOR to digitize. available at . We use information technology and tools to increase productivity and facilitate new forms of scholarship. http://www. and students discover. JSTOR is a not-for-profit service that helps scholars. and build upon a wide range of content in a trusted digital archive.jstor. http://www.

It may be concludedor non-concluded. offerandacceptance together Article104. An opiionmeanshavingthe powerto choose. it is a concluded in itself. A void sale is a sale which is invalid in itself. Article 105. An executorysale is a sale not dependent upon the nghts of any thirdperson Such sales are divided into irrevocableand revocablesales.The conclusion a contract of consistsof conneciing legally in such a mannerthat the result may be perfectlyclear.as will be explained the relevant Chapter. A voidablesaleis a salewhich. A concludedsale is a salein whichthereis a concluded divided into valid. An unauthorized personis a personwho) withoutany legal perniission.(See ChapterVII).deals with the propzerty some other person. Contract whatthe partiesbindthemselves undertake do viithreference is of to a particular matter.Suchsalesare Article106. A non-concludedsale is a sale which is void. executory)and conditional. A conditionalsale is a sale whichis dependentupon the rightsof some third party) such as a sale by an unauthorized person. An irrevocable sale is an executorysale to which no opiions are attached. is invalidas regards cert incidental thereto. It is composedof the combination offer and acceptance.The contractbecomescompletedthereby. Article 111. Sale consists of exchangingpropertyfor property. Article 112. or a salewhichis permitted. a salewhichis lawfulboth in itself is and as regardsmattersincidentalthereto. of Article113. A validsale. Acceptance the statement is madein the secondplacewith a view to maldnga dispositionof property.That is to say. . Article 107.THE MEJELLE: BOOK I: SALE BOOK S ALE I INTRODUCTION TERMS OF MUHAMMADAN JURISPRUI)ENCE RELATING TO SALE Article101. Article 110. A revocablesale is an executorysale to which an opiion is attached. Offeris the statement madein the firstplacewitha viewto makinga disposition of propertyand such dispositionis proved thereby. Article 114. Arecle 102. Article 115. Article108. contract. and to Article103. matters Article109. in Ariicle116. whilevalidin itself. voidable. but is illegalas regards sale externalparticulars.

Salesare also dividedinto fourcategories with reference the thingsold: (1) to Saleof property another to personfor a price. When it is caughtand taken. or of number.thatis to say.A salesubject a rightof redemption a salein whichoneperson property to is sells to anotherfor a certainsumof money. Article126. An absolutesale is a final sale. Article118. to purchase something with moneypaidin advance. Saleby barter consistsof exchanging specificobjectforsomeotherspecific one object. Article122. Exchangeof money for money consistsof selling cash for cash.merchandise. Article131. Immovable property consistsof propertysuch as housesand land which are called real propertyand which cannot be transferred anotherplace.This includescash. Article120. (2) Sale by exchange moneyfor money. The expression"possessing definedboundaries" refersto real propertythe boundaries and limits of which can be fixed. Property held in absoluteownership anything is ownedabsolutely manand by may consist either of some specific object or of an interesttherein. Sucha saleis considered be permissible viewof the fact to in that the purchaser a rightto enjoyment the property has of sold. is the vendorhaving a right to take the propertysold on hire.Saleby immediate payment against futuredelivery consists paying advance of in for something be delivered to later.This is the comrnonest category sale and is of consequently specifically calledsale.subjectto the rightof redeeming suchproperty. animals. to Article 130. Property somespecificvalueis spokenof in tsvosenses. Property consistsof something desiredby humannature whichcan be put and aside againsttime of necessity. upon the pricethereofbeingreturned. Article 124. It is alsoin the natureof a voidablesale inasmuch the two partieshavethe rightof cancelling sale. The personmakingthe articleis calledthe manufacturer. Article127.in viewof the factthatthe purchaser of cannot theproperty to any sell sold third party. Movable property consistsof property whichcanbe transferred one place from to another. of exchangingpropertyfor propertyother than money. Article125. Article 119. Merchandise consistsof thingssuchas goodsand piece-goods otherthancash. and the object made is called the manufactured article. A sale with a rightof usufruct a sale subjectto a rightof redemption.(1) It is a thing the of benefit of which it is lawful to enjoy. (2) The other is acquiredproperty. animals.or of length.526 ARAB LAW QUARTERLY Article 117.therebygiving credit. thingsestimated measure capacity by of and things estimatedby weight. by Article 132. A contractfor manufacture sale consistsof makinga contractwith any and skilledpersonfor the manufacture any particular of thing. Again. it becomespropertyof some specific value.(3) Sale by of barter. that is to say. Article128.It comprisesmovableand immovable property. Article 129. Cash consist of gold and silver coins. TheseArticles repeatthe measures capacity givenin Articles131and of etc. .(4) Sale by immediatepaymentagainstfuture delivery.things estirnated measureof capacityand things estimatedby weight.it is in as the the nature a pledge. Article 121. personcausingthe articleto be madeis calledthe contractor the for manufacture. Article123. Articles1334. 132 above. Example: A fish while in the sea is not of any specificvalue. Article 137. Things estimatedby quantity are those things the amount of which is determinedby any measureof capacityor of weight.

price being the means of exchangingproperty. Payment instalments by consistsof a postponement payment a debtin order of of that it may be paid at differentand definite periods.A commonarticleis a thingthe likeof whichcan be foundin the market without any differenceof price. Ariicle 159. Article149. Article139. Article146. Article142. thatis the specificobjectspecified at the saleandwhichconstitutes original the objectthereof. (4) An ascertainedshare of a heap of corn prior to division. By a particular speciesof thingis meanta thing in respectto whichthereis no disproportionate differencein so far as the componentelements thereof are concerned. Articlesmeasured enumeration whicharedissiniilar by and fromeachotherare those thingsin respectto whicha difference priceexists as regardseach particular in article. A postponement paymentconsistsof puttingoff a debt to a defiXiite of date. They are all in the nature of commonarticles. Article 150. and entailsliabilityto make payment. Article lSS. A wholesalecontractis a contractfor sale en bloc.Offerand acceptance also referred as the fundamental are to basisof sale. if it is or. Article144.A rarearticle anarticlethe likeof whichcannotbe foundin themarket. The fundamental basisor essenceof saleconsistsof one pieceof property being exchangedfor another. Article151. (2) A sum of money not immediatelyavailable. since they imply exchange. The priceis the amountto be paid for the articlesold. Articlesmeasured enumeration which closely resembleeach other are by and those things in respectto which thereis no differenceas regardsthe priceof each particular object. Rightof wayis the rightof passing overrealproperty heldin absolute ownership belonging to another. A specific object is any object which is defimiteand ideniified. All these are in the natureof debts. Undividedjointlyownedproperty property is which containsundivided jointly owned shares. Article148. An undivided jointlyownedshareis a sharewhichextendsto andincludesevery part of the jointly-owned property. can be found is differentin price.The thingsoldis the property disposedof. A priced article is a thing which is sold for a price. Article143.THE MEJELLE: BOOK I: SALE 527 Ariicle 138. Ariicle157.The rightof flowis the rightof discharging waterandof lettingwaterdripfroma house to some place outside. A debt is the thing which is proved to be owing. They are all regardedas rare articles. . The value is the real price of an article. Ariicle 153. Article140. (3) A definite sum of money now available. Article 141. Article145. Article 147. A fixedpriceis a pricemutually namedandagreeduponby the two contraciing parties whether corresponding the real value or whethermore or less. to Ariicle 154.becauseenjoyment onlybe hadof can specific objects. Examples: (1) A certain sum of money lent to A and owed by him. The rightof takingwateris the rightof takinga clearlydefinedandascertained share of water from a river. Article 156. The subject of sale is the thing sold. Article 152. Article 158.

All these a in existence. and thehasaccepted. Article In sale. If the future no sale is concluded. No sale tenseis necessarily But whenthe present or isBuy". Arficle Sale is is madeby theuse offerandacceptance of sale* 168. of whichis unknown the case in fifdl one to that thingthe origin refers 166. The vendoris a personwho buys. 161. . purchased". Article for one hundred sold him a certainthing statesthathe Examples: that purchaser he has purchaser a it.QUARTERLY LAW ARAB are of money. imports contractof sale is the aoristtenseif it by be concluded employing of salemay Article170. Deceit is cheating. the senseof a merepromise. present:but the is usedin tense Arficle171. 528 CHAPTER I OF SALE THE CONTRACT SECTION I basisof sale Fundamental in and acceptance. Article Theyarealsocalled is andthepurchaser. employed concludedby offer of wordscommonly 167. by the use of the reader to theEnglish of no significance here translated as being wordis not of a Turkish sAnexplanaiion . a contractof sale.. and Article is misrepresentation in the caseof aIiimals. the of the words"I have the words "I have sold" the acceptance.statesthat he has purchased" insteadof of statiIlg purchaser in to him. states andthe purchaser and afterwards piastres words"I havesold" thillgandthe vendor hasboughta certain In the firstcasethe offerconsistsof the case the words"I have second In The sSe is concluded. A O )}ects.A valid (2) The vendor. sum Examples: a chair. The pllrchaser Article salearethevendor to pariies the 162. ArticleRescission with regard whichis practised 164. kicle Time immemorial person. a contract localityin making in offer and acceptance. or the (1) A vendorinforms statesthathe haspurchased thathe hadsoldsuchthing.suchas the expression or "I will sell" "I will buy" by the use of the imperativea salemayalsobe concluded is concluded meant Article172. in twentieth than less tO aIly to no one of real property. pareicular the is usuallyemployed The past tense 169. . property. mood.The Article two parees. "Sell" imperaiivemood. horse. suchas the statement if the future is meant. A contract no sale is concluded.a heapof CQN1 a house.instead the property it theretoor or something has transferred statesthathe has agreed thathe has purchased stating concluded. contraciing two the setiing aside and stopping is 163. the acceptance and given a person consetute the offer that he has sold. misrepresentation one tenth 165. SpeClIlC a personwho sells 160. Aticle Flagrant the caseof Inerchandise.

although there has been no offer sndaeeeptanee by the parties. a valid sale is concluded. Offer and acceptance may be made by writing as well as by word of mouth. Later on fresh bargniningtakes plaee and as a result the original hundred piastres is substituted for a gold piece of one hundred piastres. (4) A purchaserasks a buteher to weigh him so mueh money's worth of meat from sueh and sueh a part. the seeond eontract is valid. So mueh so that if on the follog day eorn has gone up half a pound in priee per kile. The purchaserthereupon remnins silent. A contract of sale is concluded. the e2rpressions "take" or "enjoy the benefit of it" being equivalent to "I have sold" and "take it". The aeceptance of one of the two contracting parties must agree exaetly with the offer of the other contraeiing party as regards the price or subjeet matter. . With this object in view he tenders five pounds to a corn merchant asking the latter to tell him at what price he sells corn. A eontraet of sale has been eoneluded. or for one hundred and ten piastres or for ninety piastres. The corn merchant replies that he sells corn at one pound per kile. Article 174. But if the vendor says: "Take this article for so much money" and the purchaser replies saying "I have taken it". Article 176. A denb person may make a valid contract of sale by making use of generally recogmsea slgns. (2) A purchasertenders money and takes a melon. the purehaser eannot refuse for this reason to aeeept delivery at the original priee. No sale is concluded. Example: A contraet is eoncluded for the purehase of an artiele for one hundred piastres. SECTION II Agreement acceptance offer of anth Article 177. He is then obliged to take the whole of sueh cloth for . If as a result of fresh bargaining after the eonelusion of the eontraet. (3) A purchaserwishes to buy corn. If.THE MEJELLE: BOOK I: SALE Example: 529 A purchaser says to a vendor: "Sell me this article for so much money". Examples: (1) A purchaser without bargsining and without making any statement gives money to a baker and the baker delivers bread to the purchaser. This is called sale by conduct of the parties. The buteher euts the meat up and weighs it. The fundamental object of offer and acceptance being the mutual agreement of the pes. and the vendor says. "take it" or "you may enjoy the benefit of it". A contract of sale is concluded.the vendor is bound to deliver at one pound. the priee is changed. The vendor replies "I have sold it to you". In this ease a eontraet of sale has been eoneluded. Article 175. Examples: (1) A vendor tells a purehaser that he has sold him certain eloth for one hundred piastres and the purchaser agrees thereto. and later asks-for the corn and the corn merchant states that on the following day he will deliver it to him. . and the purehaser eannot refuse to aeeept the meat. on the other hand) the priee of eorn has gone down. Article 173. Such party has no power to separate or divide either the price or the subject matter. or if the purchaser says "I have taken it". The vendor remninssildnt. The second contraet is valid. . increased or deereased. a sale may also be concluded by any conduct of the parties which is evidence of offer and acceptance.

eachof or themfor one thousand hundred five piastres. cannot He claimto taketheclothora halfthereof fiftypiastres. however. for (2) A tellsB thathe hassoldhim two horsesforthreethousand piastres B accepts. (2) A purchaser statesthathe hasboughtcertain property onethousand for piastres. The place where the sale is concludedis the place where the partiesmeet togetherwith a view tO the conclusionof the sale. The purchaser takethe two for three can thousand piastres.takethe one he prefers the two for the fixed of price.The purchaser statesthathe hasboughtone pieceforone hundred piastres. offer has been made. If he does not do so.at the frxed and the price. of Example: Oneof the twoparties the salemakesan offerat themeeting to placeof the parties the to saleby stating he hassoldsuchandsuchproperty a certain of money.B and must take the two for three thousandpiastles.The purchaser ie vendorthathe acceptsfor one thousand hundred tells five piastres. The firstone for one thousand piastres the secondfor two thousand and piastres. contract sale has been A of concluded. may SECTION III The placewherethe sale is concluded Ariicle 181. JAriicle Bothpariiespossessan optionduringthe meeiingat the placeof sale. (2) A vendorstatesthathe has sold threepiecesof cloth for one hundred piastres.orthat that for sum he has boughtsuch propertyand the otherpartyfails to stateimanediately afterwards . up to the terniination the meeting. two piecesfor or two hundred piastres.If the vendor. Ariicle180. Article179.No saleis concluded.530 ARAB LAW QUARTERLY onehandred piastres. Examples: (1) A vendor statesthathe hassoldtwoparticular horses threethousand for piastres. The vendorstatesthathe has sold it for eighthundred piastres. agreesto the increase priceat the timeit is mentioned. It is sufficient the acceptance if agreeswith the offerby implication. If one of two partiesto a sale enumerates pricesof variousariicles. of Example: A vendorenumerates pricesof various the articiesfor saleandrepeatsthathe has sold them.In that case. If one of the two pariiesto a saleenumerates pricesof the various the ariicles1 andoffersthemforsaleseparately theotherpartyaccepts ariiclehe desires. he maynot divideup the lot and agreeto buy any ariiclehe wishesat the fixedprice.and the proposes saleof such articles blosand the otherpartyacceptssuchoffer the lattermay the en buy the wholelot for the wholeprice. this one for a thousand piastresand that one for two thousand piastres. He cannottake one of them for one thousand hundredpiastres. the purchaser acceptone of the nvo for the fixed pricearldbuy the same.and the two hundred piastres must be deducted.He cannot. Examples: (1) A vendorinformsa purchaser he has sold him certaiIl that property a thousand for piastres.The contractof sale is for one thousandpiastres. five Article178.however. purchaser boundto pav of the is the additional hundred five piastres. afterthe 182.a contract saleis concluded.

This conditionin no way prejudices sale. and a sale is concludedon the basis of one hundredand twenty piastres. Moreover. but on the contraryis an the essential condition of the contract Article 187. and statesthat he has sold for one has hundredandtwentypiastres. and thereafterthe sale cannot be concluded by acceptance.the vendormaycancelthe fail sale.The offer becomes void. occupieshimselfwith some other matter. Example: A vendorsellssubjectto a rightof retaining thingsold untilhe has received the payment of the price. the offer becomes void.bothsale and condition are valid.THE MEJELLE: BOOK I: SALE 531 thathe has boughtor has sold and sometimelateracceptsat the samemeeting. afterstatingthat he has boughtor that he has sold.or discussessome other question. The reasonfor this is that these conditionsassurethe handingover of the price. Article 183. Article 185. If a contractof saleis concluded with an essentialconditionattached.no matterhow long the meetingmay have lastedor how long the period between offer and acceptancemay have been.both sale and condition are valid. eitherby wordor by deed.revokesthe offer.andthe purchaser acceptssuchoffer. Example: A vendorstatesthat he has sold such and such goods for so much money. SECTION IV Sale subject a condition to Article 186. Both sale and conditionare valid. . which is an essential conditionof the contract. No sale is concluded. of Example: A certainthingis sold subjectto the condition thatsomeotherthingshallbe pledgedor that a certain individualshall become a surety.but for beforethe purchaser accepted.shouldthe purchaser to observethe condition. A renewalof the offer beforeacceptance cancelsthe first offer and its placeis taken by the second offer. the offerbecomesvoidandthereis no longeranyreason for acceptance.and the purchaser has laterstatesthathe has accepted such offer. Example: The vendorstatesthat he has sold suchandsuch property one hundredpiastres. Article184. Example: One of the two partiesto the sale. but revokes such offer beforethe purchaser accepted. If one of the two partiesto the salemakesan offer.The sale is concluded.The firstofferis of no effect. If one of the partiesgive any indicationof dissent afterthe offer and priorto acceptance. and thereafterthe sale cannot be concludedby acceptance. but revokessuchofferbefore the other party has accepted. In the case of a sale concludedsubjectto a conditionthe object of which is to assure the due performance the contract.

that condition the thingsoldshouldbe in the possession Article194. the party. SECTION V of Rescission the sale the rescind saleafterthe agreement) may.the at purchaser the time of the rescission.The the partiesrescind the crops have been reapedby the purchaser) is concerned. As in the case of sale. mustbe made Thatis to say. a meetingof the knownat the placewherethe offeris made.The twocontracting of conclusion the contract. Ariicle 196. locality both sale and established recognizedin a particular Example: to lined. whichis not to the benefitof either Article189. In the case of a sale concludedsubject and conditionare valid. the in so far as that partof the priceconcerning land is rescission valid the validityof the rescission. thesecasesthe condition thattheyshall the sale. The rescission of mayalsobe effectedby anyconductwhichtakesthe place Article192.Consequently.acceptance rescission. out by meansof offerandacceptance. A validrescission offerand acceptance. It is an essential if the thing sold is destroyed. saleandthelatterstatesthathe hasdoneso. and Ifthis is not done)andone of the contracting doesanything parties or if oneof the his theotherpartyleaveswithoutexpressing concurrence. otherstatesthathe has agreed is validandthesalecancelled. In the case of sale subjectto a condition voidable. Example: crops.or of a lock subjece a The sale of a fur subjectto a conditionthatit shallbe to subject thecondition of clothes that condition it shallbe nailedtO itS place.or of a SUit OUt in mustbe observed carrying In be repaired. If a portionof the thing sold is destroyed..by mutual parties Article190. resclsslon rescissionis valid as regardsthe Article 195. of the whichindicatesdissent. by the subsequentacceptance the other is of no effect. partiesmust takeplacein the case of Article193. . The loss of the price does not affect ls mvallc .As in the caseof sale)rescission carried Example: a or statesthathe hasrescinded cancelled saleandthe parties Oneof the twocontracting tells the otherto rescindthe or one of the parties thereto.or subjectto a condition The sale of an animal is is valid. A vendorsells landhe ownsirlabsolute the contract. sale is valid) but the conditionis Example: thatit shallnot be sold to a thirdparty. remainder.After withgrowing together ownership. the partiesstatesthathe hasrescinded sale.S32 LAW QUARTERLY ARAB by to a conditionsanctioned custom Article188.but the condition of no thatis shallbe put out to graze In sucha casethe sale effect. is Article191.

THE MEJELLE: BOOK I: SALE CHAP TER II 533 THE SUBJECT MATTER OF THE SALE SECTION I Conditions affecting the subject matter of the sale anzl dessnption thereof. If these are sold.in the caseof fruit. Article206. portionthereofonly havingcomeout. or a piece of land boundedby specificboundaries.leavesandvegetables.Forexample. If the speciesof the thingsold hasbeen stated. Example: The vendorstatesthat he has sold a particular animal. The thingsoldmust be the particular thingwithreference whichthe contract to is concluded. Article208. Example: A specificquantityof red corn. there is no need for any other sort of descriptionor particularisation. Article202. Upon the purchaser accepting. The sale of a thing not in existence is void. The thing sold must be known to the purchaser. The sale is valid.the vendor is bound to deliver that identicalwatch. The thing sold must be in existence. Article 198. whichdo not arriveat maturity simultaneously. Article204. If the thing sold is presentat the meetingplaceof the partiesto the sale. Example: The sale of the fruit of a tree which has not yet appearedis void.flowers.whether is it fit for consumptionor not. it is sufficientif such thing is pointed out by signs. the nature thereof is known and the sale is valid. Article 197. Article 207. Article201. The fact thatthe thingsold is knownis ascertained referring its stateand by to descriptionwhich distinguishit from other things. The saleof fruitwhichis completely visiblewhileon a treeis valid. Article203. Example: A vendor.The purchaser that animal sees and accepts it. SECTION II Things which may anzl may not be sold Article 205. Article 200.pointingto a particular watch. thatportionwhich a has not yet arrivedat maturitymay be sold togetherwith the rest. The thing sold must be capableof delivery.andthe thingsoldturnsout to be of anotherspecies. Sinceit is enoughfor the natureof the thingsold to be knownto the purchaser. He cannot put that particular watch on one side and deliver anotherof the same sort.statesthathe has sold it. The sale at one and the same time of dependentpartswhich are connected togetheris valid. The thing sold must be propertyof some specific value. the sale is void . Article 199.

may be sold individually Example: or a loadof bricks.the saleis valid. owned shareto some other person Article215. The sale of things which do not possess whichdoes not possessany specific property with of Article212. The sale of an ascertained. of Example: for in of property exchange themis The saleof a corpseor of a freeman. without of a rightof flow of a rightof way.andthe certain however. en merchandise bloc. Example: of okesof the fruitof a treethathe has to The venderstipulates retaina certainnumber sold.or a baleof A vendorsells a heapof corn. If grainis sold in a specifiedvesselor of the capacity the vesselor measure.534 LAW QUARTERLY ARAB Example: a diamond. a thirdor a tenth. A personmay sell his undividedjointly of the obtaiIiing permission his partner. ownedin absoluteownership property valid.or by weight.or the purchase void. to attached land and of water attachedto canals SECTION III at Procedure the sale by measureof capacity. by weighing Article218. or in measured a measure. by length. or enumeration.The sale is void. Article211. jointlyownedundividedsharein a piece of real Article214.The sale is voidable. fromthe thing mayvalidlybe separated Article219. The sale is valid.or of The saleof a rowing-boat delivered. animalwhich cannot be caughtand or as recognized property thepurchase 210. Article209. The sale of things estimated or en bloc. is not known is voidable. The sale of a thing which is not capable Example: a runaway be whichhassunkin theseaandcannot raised. is priorto division. The saleof a thingwhichis not generally Article propertytherewithis void.although or the heavinessof the weight may not be known. .is unknown.such as a half. or by Ariicle 217. The purchase property is value voidable.The nature purchaser sumof money. any specific value is void. Article 213. The sale is valid. of the things boughtby the ptlrchaser. A thingwhichmaybe sold separately sold. and of a rightof takingwaterand Article216. The vendor sells a piece of glass stating that it is of deliveryis void. to it according a fixedweight. The sale of a thing the natureof which Example: he wholeof the property ownsfor a that A vendortellsa purchaser he has sold him the statesthathe hasboughtthe same. or a barnfull of straw. The stipulationis valid.

a flockof sheep.of cancelling sale. the purchaser an optionof cancelling sale or of takingthe ninetyeggs for forty-five has the piastres.the priceof the wholeamountonly beingnamed. The sale of things estimatedby measureof capacity. If more than the amountis delivered. or herd of sheep. If on deliverythe amountis foundto be correct. Article 223.or. (3) A barrelof oil is sold as containing hundredokes.anda rollof cloth. or of purchasing has the the amountactually delivered the proportionate of the price. ten piastresa kile.however. it is If foundto be short. it may be sold by the yard or the donum. or yard.the ten eggs remaining ten overbelongto the vendor.the sale is at irrevocable.The purchaser the optionof rejecting diamond. on the basis of fifty kiZes. .If morethanthe stipulated for part amount is delivered.on the of basis of the price of each kile. or measure. (2) A basketof eggs said to containone hundredis sold for fifty piastres.it belongs to the purchaserand the vendor has no option in the matter. is valid.or oke.If it turns out to be five and a half carat. Example: The saleof a heapof corn. and which do not suffer damageby beingseparated fromthe whole. Article224.if the amountprovesto be short.the vendorhavingno optionin the matter.the purchaser the optionof cancelling saleon delivery. Article221. whetherthe price is namedin respectto the whole amount. or of takingforty-five kilesfor fourhundredand fifty piastres. Article 222.the saleis irrevocable. Examples: (1) A vendorsells a heapof cornsaidto be fifty kiles. Article225.It turnsout to be fouranda halfcarat. The sale en blocof thingsestimated quantityon the basisof the priceof each by thing or part thereof is valid. statingthe amountthereofand the price fixedfor parts or portionsthereof.If one hundred'and aredelivered. If the'amountdeliveredis correct.the purchaser have it for twentythousand can piastres.if the arnount has delivered turnsout to be less or more. or of takingthe amountdelivered the on the basis of the price fixed for the parts and portionsthereof. purchaser an optionof cancelling the has the sale.at five hundredpiastres. forty-five If kilesonlyaredelivered. the purchaser an option on delivery. The contractof sale is only valid in respectto the amountstipulatedin the contract. the excess belongs to the vendor.or has the of takingthe portiondeliveredfor the price fixed for the whole.or at twenty paras for e'achegg.or by enumeration and which closely resembleeach other and things estimatedby weight.The principle one explained above applies.or of taking has the the stone for twenty thousandpiastres. In the case of the sale of a wholeamountof thingsestimatedby weightwhich suffer damageby being separated from the whole. may be sold en blocif the amountthereofis made known.the purchaser the optionof cancelling sale.If fifty-fivekilets are delivered. If it turns out on deliverythat there are only ninety eggs. In the case of the sale of a wholeamountof thingsestimatedby weightwhich sufferby beingseparated fromthe whole.a ship-load wood. Example: A diamondstatedto be five caratis sold for twentythousand piastres. the five kiles in excess belong to the vendor.THE MEJELLE: BOOK I: SALE 535 Article220.In caseswherethe boundarieshave alreadybeen defined. or in respect to each individual unit. Realproperty maybe soldby definingthe boundaries thereof.

and if it weighs five and half okes. or. It turns out to measure ninety-five yards only. or. If it turns out to be more. the balance belongs to the vendor. (4) Some cloth said to measureeight yards is sold at the rate of fifty piastresper yard with a view to being made up into a suit of clothes. of buying it for nine hundred and fifty piastres. of buying it for three hundred and fifty piastres. In the event of the sale of things estimated by enumeration and which are dissimilar from each other. Arecle 226.he can purchase it for two hundred and twenty piastres. (3) A piece of land said to measureone hundred yards is sold at the rate of ten piastresper yard. or. the price of the whole amount only being named and the nurnberof such things is found to be exact on delivery. The purchaserhas an option of leaving it or of buying it for one thousand piastres. if it turns out to be one hundred and five yards. the purchaserhas the option of cancelling the sale or of taking the hundred and forty yards for seven thousand piastres. the sale is valid and irrevocable. on delivery the flock is found to consist of forty-five or fifty-five sheep. the purchaser has an option of either rejecting it or. If it turns out to measureninety-five or one hundred and five yards. of buying it for one thousand and fifty piastres.If it turns out to weigh either four and a half or five and a half okes. however. or similarthings on the basis of the price for the whole arnount. turns out to measure one hundred and forty yards. the If sale is voidable. said to measure one hundred and fifty yards is sold for seven thousand five hundred piastres.or of the price per yard. Example: A flock of sheep said to contaiIlfifty head of sheep is sold for two thousand five hundred piastregs. if it turns out to be ninety-fiYeyards. however. . (S) If a whole piece of cloth. or at the rate of fifty piastres per yard. The purchaserhas an option of leaving it or of buying it for four hundred piastres. and if it turns out to be nine yards of buying it for four hundred and fifty piastres.536 Example: ARAB LAW QUARTERLY A copper brazier said to weigh five okesis sold at the rate of forty piastres per oke.are treated in the same manner as things estimated by measure of capacity. If it turns out to be larger. Article 227. If it turns out to measure seven or nine yards. In the case of the sale of a whole amount of things estimated by measure of length. the purchasercan take the whole piece for one thousand piastres. they are dealt with in both cases as in the case of things estimated by weight which suffer damage by being separated from the whole. the sale is voidable in both cases. whether land. Goods and articles such as linens and woollens which do not suffer damage by being cut and separated. If the number is greater or smaller. if it turns out to be seven yards. the purchaser has an option of leaving it. He can either decline to accept the brazier. goods. if it weighs four and a half okes he can purchase it for one hundred and eighty piastres. If it turns out to measure nine yards. the purchasercan take the whole piece for four hundred piastres. (2) A piece of cloth said to measure eight yards is sold for four hundred piastres with a view to being made up into a suit of clothes. Examples: (1) A piece of land said to measureone hundred yards is sold for one thousand piastres.the purchaserhas two options. It turns out to measure seven yards only.

the olive trees are included. afterhavingtakendeliveryof the thingsold. Example: In the caseof the saleof a lock. Thingswhichareneitherappurtenances permanent nor fixturesattached the to . even though not specificallymentioned. even thoughnot specificallymentioned. that is to say. The purchaser. on the other hand.andat a price calculated so much per piece or per unit. and on deliverythe numberis foundto be at exact. .are includedin the sale. If it turns out to be fifty-five head of sheep.even thoughnot specifically mentioned. the sucking calf of such cow is included in the sale without being specifically mentioned.andthe olivegroveis so calledbecause is a pieceof landcontaining it olivetrees. gardenincludedin the boundaries the the of house.andin the caseof the saleof a milch cow. suchas lockswhichhavebeennailed. Thingswhich are considered be partof the thing sold.THE MEJELLE: BOOK I: SALE 537 Article 228. Article229. to are included in the sale without being specificallymentioned. Example: In the event of the sale of a large countryhouse. whicharedissimilar and fromeachother. the numberis foundto be smaller. the purchaser the optionof leaving has them or of buyingthe forty-fiveheadof sheepfor two thousandtwo hundredand fifty piastres. Example: A flock of sheep said to consistof fifty is sold at the rateof fifty piastres head. together with the pathsleadingto the publicroador to a blindalleyareincluded.if he krlewthatless thanthe stipulatedamount had in fact been delivered. in the event and of the sale of an olive grove. The saleincludeseverything whichby localcustomis includedin the thingsold. things to whichcannotbe separated fromthe thingsold.The reasonfor this is that the kitchenand cellarare appurtenances the of house. Similarly.the kitchenandthe cellarareincluded. Article232. In the event of the sale of a portionof a whole amountof things estimated by enumeration.andfixedcupboards and divans. things which have been fixed or constructed permanently.statingthe amountthereof.the sale is voidable. is not called an olive grove. Example: In the caseof the saleof a house. havingregard the objectof the purchase.the purchaser the option If has of leavingthe things or of takingthem for the proportionate shareof the fixed price If more than the stated number are delivered.the saleis irrevocable.Article231.A mere piece of land. treesplantedas fixtures and are includedin the sale) even thoughthis was not specificallystated at the time the bargainwas concluded. Again. Article233.in the eventof the saleof a garden of a pieceof land. the sale is voidable. If it per turnsout to consistof forty-five headof sheep. the key is included. losesthe optionof cancelling sale conferred the uponhim by the preceding Articles. Fixturesattachedto the thing sold are includedin the sale. SECTION IV Matters included but not explicitly mentionedin the sale Article230.

Things comprisedin any generalexpressions addedat the time of the sale are includedin the sale.but havebeenplacedso thatthey maybe removed. arenot included the saleunlesstheyare in specifically mentioned tne time the salewasconcluded.Consequently?thepriceof the at if thing sold is not mentioned. a calf born beforedeliveryof the cow becomesthe propertyof the purchaser. or flowerpots. Example: If thehalters draught of horsesarestolenbeforethedelivery thereof) thereis no necessity to deduct anythingfrom the fixed price.andthingswhicharenotconsidered be partof thethingsold.538 ARAB LAW QUARTERLY thingsold.or rightof takingwater. areincludedin the salewithoutbeingspecifically mentioned. thingswhichby reason local at But of customgo with the thlngsold.suchas cupboards.or rightof flowattaching the houseareincluded the to in sale. The pricemustbe named thetimeof the sa}e. Examples.areIlOt included the in saleunlessspecificallv mentioned. The thingincluded the saleas beingattached in thereto not a partof the price is of such sale. the fruit thereof.any fruitor vegetables are produced that before deliverybelong to the purchaser. Any fruitsor increase occurring afterthe conclusion the contract before of and deliveryof the thing sold belong to the purchaser. (2) Wherea cow has been sold. the growingcrops) and when trees are sold. (1) In the case of the sale of a garden.thingswhicharenot fixtures.the sale is voidable. or thingswhichare to not by reason customA of ircludedin ehethingsold. andpots for lemonsandyoungplantswhichhavebeenplanted witha view to theirremoval elsewhere) not includedin the sale. unlessspecifically are mentioned. places in where such is the custom. CHAPTER III MATTERS RELATING TO PRICE SECTION I Natureof and circumstances affbsting price Article 237. Example: In the caseof the saleof a house. Example: The vendorstatesthathe has solda pariicular housei'withall the rights'. .are not includedin the sale?unlesssome specialstipulation thateffectwas to madeat the timethe bargain concluded. Article235. Article236. Similarly.when land is sold. Article 234. sofasandchairs. the bridleof a ridinghorseandhalter was But of a draught horseare includedin the sale althoughrlotspecifically mentioned. Anyrightof way. Andin theeventof thesaleof an orchard a garden.

A validsale may be concludedin whichpayment the priceis deferred is of and made by instalments. local custom must be followed. Article239. but may substitutefor it anothergold piece of one hundredpiastresof the same type. Article244. Article240. however. SECTION II Sale subjectto payment a futuredate at Article245.Paymentmay also is of be made with pieces of ten and five. The price must be ascertained. or in dollars. Example: A contract madefor paymentin Turkish. Article 243.THE MEJELLE: BOOK I: SALE 539 Ariicle 238. Article248.or yearstime. gold The vendoragreesto sell. the sale is voidable.suchas in so manydays. But in view of custom now prevailingin Constantinople. The time agreeduponfor deferred payment. Fraciionsof coins may be given insteadof a particular type of coinage.In this case. Paymentmust be made in whatevercurrencyis stipulated. Example: A purchaser showsa gold piece of one hundredpiastres whichhe has in his hand.English.or months. Whena contractis drawnup expressing natureof the price. If the priceis statedin piastres. If the priceis statedto be so manygoldcoinsin a locality whichdifferent in types of gold coins are in circulation. . Ariicle247. period the thereof must be definitelyascertained and fixed.withoutstaiing the pariicular type of gold coin. fractions piecesof fortyandof twomaynot be giveninsteadof pieces of of twenty. If a bargain concludedstipulating payment a time whichis not clearly is for at fixed. payment becomes due within one month. If a bargain concluded is with a promise payment somedefinitefuturedate for at whichis fixedby the twocontracting parties. Article 249. or the 26th Octobernext. and statesthathe hasboughtsuchandsucha pieceof property withthatparticular coin.or in piecesof is twenty medjidies each. Article242. Ariicle241. The purchaser not obligedto give that particular coin is gold itself.or payment instalments. it is ascertained by by staiing the amount and descriptionthereof. The same rule applies to silver coins.If not. Article246. the sale is valid.or Frenchpounds. Article250. The priceis ascertained beingseen. can providedthat the circulationthereof is not forbidden. by begins to run from the time the thing sold is delivered. such as "when it rains" the sale is voidable.paymentmust the be made in whateverkind of currencyis mentioned. If a bargainis concludedwherebycredit is given for an undefinedperiod. Anythingproducedat the time of the conclusionof the contractcannot be regardedas determiningthe nature of the price. if it is visible. Example: A bargain concludedfor paymentby medjidies twentypiastres. In the event of defermentand paymentof the priceby instalments.the purchaser give any typeof coinhe likes.

If the purchaser acceptsat the meeting.If the purchaser agreesto suchincrease the meetingplaceof the parties. The vendor mayincrease amount the thingsoldafterthe conclusion the the of of contract.He maynot. CHAPTER IV POW ER TO DEAL WITH THE PRICE AND THE THING AFTER THE SALE SECTION I SOLI) Rightof the vendor dispose thepriceand Qf thepurchaser dispose the thingsoldafter to oJ to of the conclusion the contracl priorto delivoy of and Aricle 252.is invalid.But in placeswhereby customanuncondiiional is concluded payment somedefinitefuture sale for by date. The vendorhasa rightto disposeof the priceof the thingsoldbeforereceiving the same. S E CT I O N I I Increase decrease the pnce and in the thingsold afterthe conclusaon the contract and in of Ariicle254. uponthe expiration precisely yearsfromthe timeof of two the sale.sell movableproperty. The purchaser increase fixedpriceaftertheconclusion the sale.he has a at rightto insistuponsuchincrease thevendor and maynotgo backuponhis offer. of the Arucle253.paymentbecomesdue on the date or dates in quesiion. however. Butwhereby localcustomthewholeor a partof the priceis payable the endof a week at or month. he failsto acceptat the meeiing If however but seeks to acceptsubsequently) vendorcannotbe obligedto give the the addiiionalnumber. Example: "A' pllrchases thingfromthe market a withoutstipulaiing to whether as payment to is be madeforthwith whether or purchased credit.he has the rightto insist at .540 ARAB LAW QUARTERLY Example. The vendorafterkeepingthemfor a year. is for of The vendor statesthathe has given five more.Anacceptance by the purchaser after the meeting. such custommust be observed. or by instalments.Payment on must be madeforthwith. moneymustbe paidaftera periodof one yearfrom The the dateof delivery. Ariicle255. If the thingsold is realproperty) purchaser sell such realproperty the can to anotherpersonbeforetaking deliverythereof. Example: A bargain concluded thepurchase twentymelonsat twentypiastres.If the may the of vendoracceptssuchincrease the meetingwherethe offeris made. deliversthemto the purchaser. Ariicle251. Example: A personwhohassoldproperty his owncantransfer pricethereoftO meeta debt. Goodsaresold to be paidforin a year'stime. An unconditional is concluded sale with a view tQ payment forthwith.thatis.he has the rightof takingtwenty-five melonsfor twentypiastres. however.

however.That is to say. Article259.Later. however. the purchaser of statesthathe has addedan additional hundred two piastres. Article258. (2) A vendorsellsa pieceof landmeasuring thousand one yardsforten thousand piastres. The price of the real property questionis ten thousandfive hundredpiastres.but the vendorcannotclaim the five hundredpiastressubsequently added from the personclaimingthe right of pre-empiion.If a person claiminga right of pre-emption such real property to comes forward.the pricethereofis deductedfromthe total priceand the vendorcan only demandeight piastresfor the eight watermelons.becausesuch person'sright is basedupon the fixed price in the original . he can take the whole arnount represented the ten thousand by piastres.The purchaser agreesand the ten watermelonsaresold for ten piastres. If the vendor fails to accept at the meeting. After the sale he adds one hundredyards. Example: A bargainis concludedfor the sale of an snimal for one thousandpiastres.but signifieshis acceptance later.Beforetakingdelivery addsfive hundred he piastres whichthe vendor to agrees. he must pay one thousandnvo hundred piastresfor the snimnl. Article256.such personcan takethe realproperty questionfor ten thousand in piastres. Examples: ( 1) A vendoraddstwo watermelonsto the eightwatermelonswhichhe has soldfor ten piastres. such acceptanceis invalid.If a in person who is entitled to such propertycomes forward. is to say.If the vendoracceptsat the meetingwherethe offeris made. If the vendorincreases thing sold afterthe conclusionof the contract.If a person clainiing a right of pre-emptioncomes forward. Example: A bargain concludedfor the saleof certainproperty one hundredpiastres. canonlyobtaineightypiastres He for the propertyin question. is for the vendorstatesthathe hasdeducted twentypiastres.After the conclusion the sale. Example: A purchaser buys a piece of realproperty held in absoluteownership ten thousand for piastres.If the two watermelonsare destroyed beforedelivery. the of the sum totalof the fixed pricetogetherwith the increasebecomesthe corresponding valueof the thing sold in respect to the two contractingparties.THE MEJELLE: BOOK I: SALE 541 upon such increaseand the purchaser may not go backupon his offer. takespossession the realproperty question. such increaseor decreaseis contemplatedas having been part of the original contractat the time such contractwas concluded.the the increasebecomes part of the fixed price. If the vendoraccepts after the meeting. obtains judgment. Any increasemadeby the vendorin the thingsold and by the purchaser the in fixed price. Article257. or any decreaseon the partof the vendorof the fLxed priceafterthe conclusion of the contractbecomes a part of the originalcontract.the purchaser entitled and of in is to claim the sum of ten thousandfive hundredpiastresfrom the vendor. If the purchaser increases fixedpriceafterthe conclusion the contract. the purchaser cannotbe forcedto pay the additionaltwo hundredpiastreswhich he has undertakento give.one thousand hundred that one yards. proves his case. The vendormayvalidly deducta portion the fixedpriceafterthe conclusion of of the contract. to which the purchaser agrees.

Priorto deliveryhe forgoesthe pnce thereofaltogether. such fruit must first be gatheredand the tree then handedover by the vendor. but this is not part of the originalcontract.orif the purchaser such is sees land or fields fromnearby. Article263. The vendordeductsone thousand piastres. is suchas a houseoranorchard.He may not claim to take it for nothing.542 ARAB LAW QUARTERLY contract.or in anyfield. Article260. personclg A to havea rightof pre-emption takesuch realproperty ten thousand may for piastres. a personclsiminga rightof pre-emption if comes forward. Article261. Article267. If the vendorreducesthe price of the thing sold afterthe conclusion the of contract. any permission given by the vendorto takedeliverythereof. which can be closedby locking. deliverythereofhas been effected. purchaser considered have the is to taken deliverythereof Article265.is consideredto be delivery.Afterthe conclusion the of of contract. Takingdelivery not an essential is condition sale. In the event of the deliveryof a tree bearingfruit.If he is outsidesuch property.the remainder the fixedpriceis the corresponding of valueof the wholeof the thing sold. If the purchaser on a pieceof land.and the to purchaser so near theretothat he could immediately is lock the same. to Article270. Example: A pieceof realproperty heldin absolute ownership boughtfor ten thousand is piastres. Article269. The vendormaydeductthe wholeof the priceof the thingsoldbeforedelivery.and the vendoris then bound to deliver the thing sold to the purchaser. Article268. The priceof the realproperty question in is ninethousand piastres. however. deliverythereofis . As soonas the thingsoldhasbeendelivered.the vendor mustclearthe landof such crops by reapingthem or by pasturingsnirnalsthereon. subsequent the increase the origiIlal to contract affecting contracting the parties only and in no way invalidating such person'sclaim.andis informed the vendorthatthe latterhasdelivered by suchreal property him. and the vendorgives permission the to purchaser pick such frliit. If fruit is sold while upon a tree. The methodof deliverydiffers. CHAP TER V GIVING AND TAKING DEL IVERY SECTION I Procedureon giving and taking delivery Article262. Article 266.he may take such propertyfor nine thousandpiastres. deliverythereofhas been effected.The vendormust give permission such delivery. The thing sold must be delivered such a way that the purchaser take in may deliverythereofwithout hindrance. accordingto the natureof the thing sold. If landis solduponwhichcropsaregrowing.the purchaser mustfirstdeliverthe priceto the vendor. Consequently. Example: The vendorsells a piece of realpropertv held in absoluteownership ten thousand for piastres. If thepurchaser withinanyrealproperty. for Article264.

the thingsoldmust to In be deliveredtQ the purchaserforthwith. must deliverthe thingsold tO the purchaser He forthwith orderto receivepayment in on due date. if they are exposedto view)by poiniingto or them and giving him permissionto take them. Article281.he loseshis rightof retention.such takingdeliveryis instalid. He must hand the thing sold to the purchaser forthwithin order to receive paymenton due date. Article276. Article279.the wholeof the thingssold may be retained until the full pricehas beenpaid. Deliveryof an animalis takenby seizingit by the heador by the earor by the halter. by weight maybe given by of or by placing them in a cover or receptaclepreparedby order of the purchaser.Deliveryof such animals mayalso be givenby the vendormerelypointingto themand givingpermission them to be taken. Article272. if the thing sold is of But takenby the purchaser withoutpermission is destroyed damaged and or whilein his possession. Article283. If the purchaser takes deliveryof the things sold and the vendor. Deliveryof thingssolden blocandkeptin a lockedplace. he loses his right of reteniion. If the vendorgivesdelivery the thingsoldwithoutreceiving price. Article273. Deliveryof articlesof merchandise effectedby placingthem in the handsof is the purchaser by placingthem besidehim. In the caseof a salefor immediate payment. Article277. If the vendortransfers rightof receiving priceof the thingsold fromthe the the purchaser someotherperson.If he is not in such close proximity suchproperty.the vendorhas a rightof retaining the thing sold until the price is fully paid by the purchaser. Article 284.THE MEJELLE: BOOK I: SALE 543 effected by the vendormerelystatingthat he has made delivery. If the vendorsells variousarticleen bloc. thiscase.deliveryis effectedafterthe expiration suchtime as is of necessaryfor him to arriveand enter therein. Article282.if they arein sucha placethatthe purchaser take for can delivery thereof without inconvenience.seeing this.Deliveryof the thingssoldis effected by handingover the key. Deliveryof realpropertywhich can be lockedis effectedby handingover the key. makes no objection.even thougha separate pricehasbeenstatedfor each ariicle Arecle 280. Article271. If the purchaser takes deliveryof the thing sold withoutpayingthe price and withoutthe permission the vendor. Should the vendor postpone payment of the price after having sold for immediate payment. such taking delivery is valid.He cannotask for the returnof the thing sold in orderto hold it until paymentof the price is made. permissiontO take delivery is given.suchas a storeor box. S E C T I ON I I Right of relention over the thingsold Article278. Article275.he loses of the his right of retention. Article274. In the case of a sale on credit7thereis no rightof retention the partof the on vendor. or. to however. is effected by giving the key to the purchaserand giving him permissionto take them. . Example: A storefull of cornor a boxof booksis sold enbloc. The fact thata pledgeor a guarantor been furnished the purchaser has by does not invalidatethe vendors right of retention. Deliveryof thingsestimated measure capacity.

He cannot be forced to deliverthe wheat in Constantinople. Anycharges connected withthingssolden blocmustbe borneby the purchaser. quesiionof transport the houseof the purchaser decidedin accordance the to local custom. falls upon the Article 292. Article289. attaches the vendor.no liability and the loss must be borne by the purchaser.must declarethe sale and attest the same in Court. Example: Fees of measurers and weighersmust be borne by the vendor. In an unconditional contract thingsoldmustbe delivered the placewhere the it was when the sale was concluded.The vendor. . hasanoption. SECTI ON I V wilh Expenses connected delivery price fall upon the purchaser. did Ariicle286. Article 288.the purchaser store. The cost of drawingup contractsand writteninstruments purchaser. Expensesconnected with the deliveryof the thing sold fall uponthe vendor. Examples: must gatherthem. SECTION V Destruction the thingsold of while in the possession the vendorpriorto of Article293. (1) If grapesin an orchardare sold en bloc. deliversthe wheatin Tekfur Dagh.fall with upon the purchaser. to Ariicle294. If the thing sold is destroyed and delivery. Example: "A" "A" sells wheatat TeEfur Dagh to "B" in Constantinople.such as wood and is with charcoal. Article290. the loss must be borneby the vendor.no liabilityattachesto the purchaser. In the case of thingssold whichare loadedupon animals.He may eithercancelthe sale.544 ARAB LAW QUARTERLY SECTION III Theplace of delivery at Article285. the purchaser musttakesuchcornawayfromthe (2) If a storefull of cornis solden bloc. Article291. Expensesconnectedwith the Example: such and the Fees in connection money-changing. for at at Article287. however. If the thingsold is destroyed afterdelivery. of he but received information thereof afterthe conclusion the contract. Property witha condition delivery a givenplacemustbe delivered sold that place. If at the timeof the salethe purchaser not knowwherethe thingsold was. as counting weighing money.or takedelivery the thingsoldat the placewhereit wasat the timethe of sale was concluded.

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Article295. If the purchaser bankrupt dies afterhavingtakendeliveryof the thingsold, but withouthavingpaid the price, the vendorcannotdemandthe returnof the thing sold, but becomes one of the creditors. Article296. If the purchaser bankrupt dies beforethe delivery the thingsoldandpayment of of the price, the vendorhas a rightof retainingthe thing sold until paymenthas been made fromthe estateof the purchaser. Thus, the thingsoldis disposedof by the Courtandif the sum realized sufficient,the amountdue to the vendoris paidin full, anysurplusbeingpaidto the is othercreditors.If less thanthe sum due to the vendorsis realized,the full amountthereofis paid to the vendor, and the balancestill remaining is deductedfrom the estate of the due purchaser. Article297. If the vendordies bankrupt afterhavingreceivedthe price, but withouthaving delivered thingsold to the purchaser, the suchthingremains the possession the vendoron in of trust. Thus, the purchaser takes the thing sold, and the other creditorscannotintervene.
SECTION VI

Sale

on

approval and subject to

inspection

Article298. If property boughton approval to price, thatis to say, property priceof as the whichhas been fixed, is deliveredto the purchaser whilein his possessionis destroyed and or lost, the price thereofmust be paid to the vendor,if it is in the natureof a thing the like of which cannotbe found in the market.If it is a thing the like of which can be found in the market,a similar article mustbe givento the vendor.If thepricehasnot beenfixed)however, it is considered be in the possessionof the purchaser trust, and if it is destroyedor lost to on without any fault of the purchaser,there is no need to make good the loss. Example: A vendoroffersan animalfor one thousand piastres, askingthe purchaser buy it if he to is pleasedwith it. If the purchaser takesit with a view to buyingit and the animalis destroyed whilein his possession,the purchaser mustpay the priceto the vendor.But if the priceis not statedandthe vendorasksthepurchaser buy the animal he is pleased to if with it, and the purchaser, being satisfiedwith it, laterentersinto negotiations with a viewto purchase, the animal destroyed and is withoutanyfaultof the purchaser, whilein the latter's possession, the purchaseris not obliged to make good the loss. Article299. If delivery takenof property approval is on subjectto inspection,thatis to say, to be exiined or shown, and such propertyis destroyed lost while in the possessionof the or prospective purchaser withoutany faulton his part,suchpurchaser considered haveheld is to the property trustand thereis no need to makegood the loss, whetherthe pricehas been on stated or not. CHAP TER VI OPTIONS
SECTION I

Contractual Options Article300. The vendor,or the purchaser, both,mayinserta condition the contract or in of salegivingtheman option,withina fixedperiod,to cancelthe saleor to ratifyit by carrying out the terms thereof.

546

ARAB LAW QUARTERLY

Article 301. The person in the enjoyment of an option conferred by the contract is empowered either to cancel or to ratify the contract within the period of the validity of the
option.

Article 302. Both cancellationand ratificationof the contract may be by word of mouth or by conduct. Article 303. Words imporiing ratificationare words implying satisfaction, such as, "I ratify", or "I am pleased". Words importing cancellation are words implying dissatisfaction, such as, "I have cancelled" or, "I have gone back". Article 304. Acts importing ratification are those acts implying satisfaction and acts imporiing cancellation are those acts implying dissatisfaction.

Example:
A purchaser having a right to an option performs some act within the period during which the option is valid, indicative of a right of ownership in such property, such as putting it up for sale, or pledging it, or letting it on hire. Such act is an act of ratification by conduct. If the vendor has an option and deals with the propertyin the same way, it iS an act of cancellation by conduct. Article 305. If the person possessing the option allows the period during which the option is valid to expire without either cancelling the sale or ratifying it, the sale becomes irrevocable. Article 306. An option conferred by contract is not transmissible by way of inheritance. Thus, if the person possessing the option is the vendor, the purchaserbecomes the owner of the thing sold upon the death of the vendor. If the purchaseris the person having the option and dies, his heirs become owners of the thing sold without any option. Article 307. If both vendor and purchaser have an option, the sale can be cancelled by whichever party so desires. If one party only ratifies, that party loses his option, the other retaining his. Article 308. If the vendor alone has an option, he does not lose his title in the thing sold, which is still considered to be part of his own property. If the thing sold is destroyed while in the possession of the purchaserafter delivery thereof, the fixed price does not become due, but the purchaser must pay the value thereof on the day he took delivery. Article 309. If the purchaseralone has an option he acquiresa title in the thing sold, which is considered to be a part of his onvnproperty. If the thing sold is destroyed while in the possession of the purchaser after delivery thereof, the fixed price must be paid.
SECTION II

Oplion misdessnption for
Article 310. If the vendor sells property as possessing a certain desirable quality and such property proves to be devoid of such quality, the purchaserhas the option of either cancelling the sale, or of accepting the thing sold for the whole of the fixed price. This is called option for
. . .

mlsc .escrlptlon .

Examples:
(1) If a cow is sold described as giving niilk and it proves that she has ceased to give miLk, the purchaser acquires an option. (2) If a stone sold at night-time as a red ruby proves tO be a yellow ruby, the purchaser acqulres an optlon.

Article311. The optionfor misdescripiion transmissible wayof inheritance. is by Thatis to

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547

it who say,thatif on the deathof the purchaser hasan ophon for niisdescription, turnsout that given, the heir also has the power of the thing sold does not conformto the description cancellingthe sale. dealswith the thingsoldin havingan optionfor misdescription Article312. If the purchaser indicativeof a right of ownershipover such thing, he loses his option thereby. a maxmer
SECTION III

Optionas to payment wherebypaymentof the may Article313. Vendorand purchaser validlyconcludea bargain not timeandin the eventof payment beingmade,the saleis not priceis to be madeby a certain to take place. This option is called an option as to payment. does not pay the price within the stipulatedperiod, a sale Article 314. If the purchaser subject to an option as to paymentis voidable. concluded period, dies havingan optionas to payment withinthe prescribed Article315. If a purchaser the sale is void.
SECTION IV

Optionas to selection may take may validlybe madein a sale wherebythe purchaser Article 316. A stipulation pricesthe likeof whichcannotbe foundin threethingsat different he whichever likesof twoor the market,or the vendormay give whicheverone he pleases.This is calledan optionas to seleciion. Article 317. A period must be fixed during which the option as to selectionis valid. Article318. A personhavingan optionas to selectionis boundto choosethe thing he has bought on the expirationof the prescribedperiod. by Article 319. An option as to selectionis transmissible way of inheritance. Example: of If the vendorsells threepiecesof cloth all beingof one type andconsisting superior, withina periodof to takethe piecehe prefers quality,the purchaser mediumandinferior agreesthereto,a validsaleis concluded,andon threeor fourdays, and suchpurchaser mustchooseone and paythe fixed period,the purchaser of expiration the stipulated the his pricethereof.If he dies beforeexercising opiion,his heirmustchooseone in the same manner.
SECTION V

Optionas to inspection Ariicle 320. If a personbuys a piece of propertywithoutseeingsuch property,he has an it. the upon inspectionthereofof eithercancelling saleor of ratifying This is calledthe Opiion
Optlon

Article 321. The option of inspection is not transmissibleby way of inhentance. whichhe hasbought,his dies if Consequently, the purchaser withouthavingseen the property heir becomes owner of the propertywithout having any option in the matter. withoutseeing accruesto the vendorwho sellsproperty Article322. No optionof inspection it.

ot

mspectlon.

548

ARAB LAW QUARTERLY

Example: "A' sells propertywhieh he has not seen and whieh has eome to him by way of inheritanee. The sale is eoneludedwithoutarlyright of option. Ariiele323. The objeetof the optionof inspeetion to aseertain nature the thillgsold is the of and the whereabouts thereof. Example: A personwho exaIIiines outsideof a plainpieceof clothwhichis the sameon both the sides;or a pieeeof elothmarked withstripes flowers; the teatof a sheepboughtfor or or breeding; the baekof a sheepboughtfor killing;or who triesthe tasteof thingsfor or eating and diinking and who later makesa purehase,has no opeionof irlspeeeion. Ariiele 324. It is suffieientto see a sampleprodueedof things sold by sample. Artiele325. If the thg soldprovesto be inferior the sample,the purchaser an option to has 0t takLng reweetmg or lt.
P . . . .

Example: If sueh thingsas cornor oil, and linen or woolmanufactured as to conformto a set so seandard exeellence boughtafterinspecting sple thereof,andarelaterfound of are a not to come up to sample, the purchaser an option. has Article326. In the purehase realproperty of suehas an inn or a house,everyroommustbe inspeeted. the roomsareall of one type,however, is suffieient inspectone of the rooms. If it to Artiele327. WhentAgs whieharedissimilar eaehotherarepurehased bloc,eaehone to en must be mspectedseparately. Ariicle328. If the purchaser buys thingswhicharedissimilar fromeachotherO2 blocand inspectssome of them and fails to inspect the rest, and) upon inspectionof the latter,is dissaiisfied therewith, hastheopiionof accepmgor rejectmg wholelot. He maynottake he the those with which he is satisfiedand reject the rest. Article329. A blindpersonmayvalidlybuyandsellnbutif he buysproperty description the of which is uIlknownto him, he has an opiion. Example: If he buysa housethe descripiion whichis unknown him, he hasan opiion upn of to learningthe descnptionthereof,of acceptingor rejeciing. Article330. A blindperson no optionif he purchases thingwhichhasbeendescribed has a to him beforehand. Article331. If a blindpersontouchesanythingthe natureof whichcan be ascertained by meansof the senseof touch,andsmellstings thenature whichcanbe ascertained means of by of the senseof smell,andtastesthgs the nature whichcanbe ascertained meansof the of by senseof taste,his rightof optionis destroyed. Thatis to say,if he touches smellssuchthings or and afterwards purchasesthem, the sale is valid and irrevocable. Article332. If a personwho hasinspected pieceof property a with a viewto purchase later buys such propertyknowingit is the propertyin question)such personhas no optionof inspeciion.Shouldanychangehavebeenmadein suchproperty, however, suchpersonhasan option. Article333. Inspeciion an agentauthorized buyor receivethe thingsold, is equivalent by to to inspeciionby the principal. Article334. Inspection a messenger,that is to say?a personsent, who merelyhas the by

is he cannot returrlthe samenbecauseby cutiing it he causeda fresh defect. Article338. A defect consistsof any faultswhich)in the opinionof personscompetentto judge. the thingsoldmustbe freefromanydefect. If some defect of long standingis revealed upon the unconditional of any sale pieceof property. Article341. Article335. but has a right to claim a reductionin the price. If the vendordeclaresat the time of the sale thatthereis a defectin the thing sold. cause a depreciationin the price of the property. .the purchaser no rightto returnthe thingsold to has the vendor. the has it it He cannotkeepthe property reducethepriceon account thedefect.or freefromfault.THE MEJELLE: BOOK I: SALE 549 powerof collectinganddespatching thingsold. purchaser the optionof rejecting or accepting for the fixedprice. Article340. Ariicle342. In an unconditional sale. Anydefectwhichoccursin the thingsoldaftersaleandbeforedelivery) whilein the possessionof the vendor)is considereda defect of long standingand justifiesrejection. Article344. He is takento haveacquiesced thereinand cannot reject the thing sold. Article345. If the purchaser deals with the thing sold in any way indicativeof a right of ownership. lame.he has no optionon accountof such defect. although property sold withoutstipulating it shallbe free fromfaults. however. SECTION VI Option defect for Ariicle336.This is calledopiion and of for defect. and the purchaser acceptsthe thingsold with the defect. Example: If the purchaser discovers defectof longstandEng the thinghe haspurchased. A defectof long standingis a faultwhichexistedwhilethe thingsold wasin the possessionof the vendor.he cannotmakeanyclaimon all accountof any defect found therein. Example: The purchaser. afterbecomingawareof the existenceof a defectof long standing the in thingsold. He can.That is to say. Ariicle337.or bad.andwithout is that statingwhetherit is sound. including defects. in of and it provesto be a defectof long standing. offerssuch thingfor sale. standlng. or defective.he cannotreturnsuch animalasseriingthat it had a defect of long . If the purchaser afterbecoming aware a defectin the thingsoldperforms of any act indicativeof the exercise of a right of ownership)he loses his option for defect. If the vendorsellsproperty subjectto the condiiion he shallbe freefromany that claimon account anydefect)the purchaser no optionon account defectfoundtherein of has of Article343.suchproperty nevertheless must be sound and free from defect. If a defectappears the thingsoldwhilein the possession the purchaser. or worthless. does not destroythe purchaser's the optionof mspecton. Example: If a purchaser buysananimal withallfaultsof anydescription whatsoever whether blind.his option of inspectionis destroyed. If a purchaser buysproperty. a in suchas a piece of clothwhichafterbeingcut up andmeasured foundto be rottenand frayed. Article339. claim a reductionin the price on accountof the defect.

If thereis anythingto preventthe returnof the thingsold.550 ARAB LAW QUARTERLY Ariicle346. . difference to and the of tenpiastres between two. purchaser its the cannot claima reduction price)butmust irl eitherreturnthe thing sold or keep it and pay the full price. Shouldthe purchaser the sell propertyto some third personafter beconiingawareof the existenceof the defect of long standing. Example: A horseis purchased fallssickwhilein thepossession thepurchaser. is to say. cut up. Example: A purchaser addscertainsewingor dyeingsvithhis own threador colourto a piece of cloth.The of reason this is thatwhilethe vendormaystatethathe wouldtakebackthe stuffwith for the defectof recentorigin.Suchactsprevent return of the of the thing s(!ld.With this objectin view. and of Thereupon a defectof long standing revealed.or thepurchaser a pieceof landplantstreestherein. to Example: A purchaser buys a roll of linen and cuts it up to makeshirts. defectof long standing justifies a still relectlon. the vendorcannc)t receiveback the defectivething sold. Article348. the sale thereofby the purchaser is tantamount an adontionof the defect. is The purchaser unableto returnthe horse. thatis to say.If the purchaser in becomes aware the existence a defectof longstanding of of in the property questionand sells the samen can demanda reduction pricefromthe in he in vendor.thepurchaser can return the horse to the vendoron accountof the defect of long standing. the valueof the thingsold whensoundand also whendefectiveis ascertained.If the animal in recovers fromtheillness.Expertsestimatethe value of such property sixty piastres at whensoundandwith the defectof long standing forty-five at piastres. If a defectof recentorigindisappears.but can is obtaina reduction the price. The amount the reduction the priceis ascertained a report of in by drawn by up imparealexperts. Article347. the valueof the clothwhen of by If soundis reported be fifty piastres withthe defectfortypiastres. He cannotclaimanyreduction the pricefromthe vendor. but must make a reduction price. If the vendoragreesto takebackthe thingsoldafterthe occurrence a defect of whilein the possession the purchaser of whichrevealsa defectof long standing) should and therebe nothingto prevent return. Anyincrease.He then finds it to be defectiveand sells it. to Article349.he is in no way entL1tled claim a reductionof price. a reduction madefromthe fixedpriceon the basisof the and is differencebetweenthe two prices. anyaddition property that of belonging the purchaser to to the thing sold makes any returnthereofimpossible. Article350. Example: A purchaser buyinga rollof clothforsixtypiastres cuttingit up andmeasuring after and it becomesawareof a defect of long standing. thepurchaser a The to and has right to make a claim for that amount.thatis to say a fourthof eightypiastres a or quarter thefixedpricemaybe claimed the purchaser. even thoughhe is willingto do so.is considered be the to the amount to be deductedfrom the price.onefifthof thefixedprice.If the expertsreportthat the value of such property whensoundwaseightypiastres withthedefectsixtypiastresthe difference and of twentypiastres betweenthe two prices. reduction be madein thepriceis fifteenpiastres. thatis to say.

he has the option of accepiingor rejectingthe whole number.If.shirts. however)such cereals are consideredby local opinion to be positivelydefective)the purchaserhas an option. although thereis no actualdeceit. Beforetakingdelivery) purchaser rejectthe wholeof a number things the may of boughten bloc if someof themproveto be defective or he mayelect to takethemfor the fixed pnce. If such thingsas eggs andnutsproveto be badanddefectivebut not to a greater extentthan thatsanctioned custom.If he has boughta pair of shoes.and after delivery)one of them turns out to be defective)he canreturnthembothandcandemand return the wholeof his money.the sale is void and the purchasercan recover the whole of the price.Property belongingto a piousfoundation to and the Treasuryis treatedon the same basis as the propertyof orphans.THE IZEJELLE: BOOK I: SALE 551 Example: A purchaser buys a roll of linen to makeinto shirts. If the thingsold appears be in sucha statethatno benefitcaneverbe derived to therefrom. however. Example: If one of two fezzesboughtfor fortypiastres provesto be defectivebeforedelivery) both can be rejectedtogether. If the defectbecomes apparentafterdelivery)and no loss is incurredby separation.such as threeper cent) the saleis valid. against proportionate a shareof the fixedpricewliensound. If a personwho has boughtand takendeliveryof a definitenumberof things estimated measure capacity weightandwhichareof one type. SECTION VII Misrepresentation Deceit snd Ariicle356. Ariicle354. but withoutactualdeceit.suchas ten percent. to But if the sale of the propertyof orphansis taintedby flagrantmisrepresentation. Ariicle355. The existenceof flagrant misrepresentatiorl a sale.The vendorcannotsay thathe will its takethe thiIlgbackafterit hasbeencut up andsewn. in doesnot enablethe personwho hasbeenthe viciimof suchmisrepresentation cancelthe sale.andthe purchaser not considered is to have kept back the thing sold from the vendor. If the purchaser sells the. however. such sale is invalid. He cannotrejectthe thingswhicharedefectiveand keep the rest. Aftermeasuring them and sewing iemv he finds that the linen is defective.If the defectis by considerable. Example: If eggs whichhavebeen boughtproveto be so bad that they areuseless. can relurnthat portionin he whichthe defecthas appeared. If cerealssuch as wheatproveto be earthy. even thoughthe vendoris prepared do so. findsa portionthereof by of or to be defective.however)he may returnor keep the whole amount at the fixed price. The vendoris obligedto makea reduction to in the price. lf any loss is caused by the separation. .the purchaser can recoverthe whole of his money.he can returnthatfez! deducongthe valueof suchfez whensoundfromrhefortypiastres. the saleis invalidandthe purchaser returnthe can whole amount to the vendor and recoverthe entire price. the of Article352.He cannotask tor the linen to be takenback.thoughto an extentconsidered by custom to be negligible)the sale is valid and irrevocable.he can recoverthe reduction the price in from the vendor.The reasonfor this is that the threadbelongingto the purchaser has been addedto the thing soid andprevents return. Ariicle351. Article353.He canno-treturn the whole unless the vendor agrees thereto.If one of them provesto oe defectiveafterdelivery.

Article364. the sale is the voidable. in thecaseof a saleby an unauthorized of as person.the victimof suchniisrepresentation no rightto cancel to has the sale. Article365.or defectiveas regards price. If the purchaser is thevictimof deceitbecomes who aware thesaleis tainted that by flagrant misrepresentation dealswith the thingsoldin anymanner and indicative a right of of ownership. SECTION II Effect of various kindsof sale Ariicle369. Article370. Fora saleto be executory.or his tutoror guardian. If a sale is concludedvalidly. If a thing sold which has been bought as a result of deceit or flagrant niisrepresentationdestroyed. If the personwhois the victimof flagrant rnisrepresentation no rightto an dies aciion for deceit is transuiitted his heirs. Ariicle368. Article 367. becomes is or or defectiveorif something is added. new suchas a building a pieceof land. Ariicle363. and flagrant misrepresentaiionalsoproved be present the sale)thepersonso deceiered cancelthe is to in can sale. perishes. A salewhichis defeciivein anyesseniial condiiion. the purchaser takendelivery the thingsoldwiththe permission the has of of . a salewhichis voidis of no effectwhatsyver.but is not legal as regardscertainsubsidiary matters. The effectof the conclusion a saleis ownership) is to sayX purchaser of that the becomesthe owner of the thing sold and the vendorbecomesthe owner of the price.he has no right whatsoever cancel such sale. A voidablesale becomesexecutoryon takingdelivery.suchas saleby a lunatic. In orderthatanyobjectmayproperly the subject sale.is void.That is tO say. the purchaser may deal with the thing sold.such as the thing sold beingunknown.552 ARAB LAW QUARTERLY Article 357.suchobjectmusthe be of in existence. or the sale of propertygiven as a pledge. It is a condiiionprecedent the conclusion the sale thatthe partiesthereto to of shouldbe of soundniind and perfectunderstanding that the sale shouldbe madewith and referenceto some tAg which may properlybe the subjectof sale. to Article359. mustbe of somespecificvalue. vendor the mustbe theownerof thethingsold.or the agentof the owner. If one of the opiions attachesto the sale) such sale is not irrevocable. to Ariicle 360.Consequently) of and the sale of a tAg whichis not in existence.Consequently. mustbe capable delivery. no otherpersonmust be entitledthereto. and Article 366. Ariicle358. in the caseof a if salewhichis void. CHAP TER VI I VARIOUS CATEGORIES OF THINGS SOLD AND THE EFFECT THEREOF SECTION I Typesof Sale Ariicle361. If one of the two parties to the sale deceives the other. Article362.or is incapable delivery or is not of any specific of va}ue.is void. A saledependent uponthe rightof somethirdpersonmayvalidlybe concluded if the permission suchpersonis obtained.

the two pariies to the sale must respecovelygive and take delivery simultaneously. A sale by immediatepaymentagainstfuturedeliverycan only be concluded validlywith referenceto things the quantityand qualityof which can be determined. Article373. trees on it) or.he becomesthe ownerthereof.so thatits nameis changed.it is necessary the to for vendol! . In the event of a sale by an 1mauthorized person. In the caseof a revocable sale. SECTION III Sale by immediate payment against tuturedelive Article380.The vendoragrees. Aracle382. of or if the purchaser disposesof it in any way.and such thingis destroyed withoutthe faultof the purchaser whilein his possession. If a dispute is to a arises as to delivery.the valuethereofon the the day of deliverymust be paid.however.the highest or lowest.a personpossessing opiioncancancelsuchsale.THE MEJELLE: BOOK I: SALE 553 vendor.The amount thingsestimated measure capacity by weightor by length of by of or is fixed by the kile) the weightnor the yard. purchaser of the mustmakegoodthe loss. Ariicle379.saleby immediate of paymentagainstfuture deliveryhas been concluded. each of the contracting pariieshas the right of cancellirlg sale. Otherwi it is of no effect. An executory is irrevocable. suchas repairing or)if it is a pieceof land. of of Consequently. there nonecessity thepurchaser make is for to goodtheloss. to sincethe valueof the twothingsexchanged considered consiitute thingsold.A voidable on deliveryis effective. or if the thingsold beinga house. Ariicle376. Article372.the condiiions applicable a thingsold alsoapply. is Article378.thereis no it right of cancellation.thething being thenature sold in of a thingdeposited trust.Butif the thingsoldis destroyed the whilein the possession the purchaser. A contract saleby ediate of payment against futuredelivery concluded is by offer and acceptance. that takes possession the thingsold with the permission the vendor. if the pricehas been received the of purchaser the rightof retag the thing sold til the vendorhas returnedthe price. For the permission be effective.or his agent.if the purchaser sale. or his guardiangive their permission. Article375.such sale is executory the if owner of the property. it if is corn. A conditional sale becomeseffectivewhen the necessary permission given. such as consllming or sellingit validlyto some it. AI1executorysale becomes effeciive forthwith. an Article377. has Article 374. a thirlgbought as the result of a voidablesale is destroyedwhile in the if possession the purchaser. otherperson)or bestowing upon sorneone way of gift.A contract. In the case of a voidablesale. persongivingpermission the thingsoldto be in existence.or if it is a thi3lg like of whichcannotbe foundin the market.as in the case of sale. neitherof the twopariiesto the salemaygo sale and back thereon. for exarnple.a like thillg must be given by the purchaser the to vendor. on Ariicle 371. Article381. .changesit by grinding intoflour.If any the and of these is absent7the pession is invalid.lle purchaser. Example: A purchaser a vendorthathe haspaida thousand tells piastres immediately agatnst future delivery one hundred of kilesof corIl. If the thingsoldis orlethe like of whichcan be foundin the market. it by the purchaser addsto it in anyway. In the caseof cancellation a voidablesale. or his tutor. In the caseof saleby barter.planting it.however. is to say.

It is cango be paid immediately. bricks. Ariicle In the must be made lulown. for that the quality. however.If a penod is prescribed.neitherparty of 392.andtheplace ihey the woollens. objectmanufactured they backon thebargain havestruck. thatthe moneyshould for not essenti to a contract manufacture Article391.breadth in whichtheyweremade. If a person Article and for manufacalre sale has been to do so. A contractfor manllfacture Article in however.the conditions such is in the natureof a however. suchas linen of and thickness thiilgs measured 385. the e and pariicular sold. of a certain for witha manufacturer theprMuciion is andother (2) A bargain concluded the describing lengthand size thereof7 needlegunsat so muchper gun. 384.554 LAW ARAB QUARTERLY closelyresemble and estmated by enumeraiion which 383. counting. If a personsuffering .breadffi of number and sale has been concluded.such sickness froma mortal Ariicle393. respectto thingsto future such a contract.caseof immediate against conclude payment the in applicable customapplies.and also other each may n measuredby such as bumt bncks and case of things esated by enumeration. In the case of contract given as required.nce or dates:andthe shouldbe stated. who with the specificaiion.. the pariies cbntraciing separatebefore SECTION IV sum thg for a certain a certain to a requests skilledworkman mse 388. paymentagainstfuture validityof a sale by ediate 386.highestor ie iowest: be stated. material aremade and stated. of placedeliverythereofmust also paymentagainstfuture sale by ediate It is esseniialto the validityof a 387. Article The amountof things by the kile and by weight. are delivery in force. a contract moneyand the latterundertakes of concluded. after of for the buildillg a rowing is bargain struckwith a ship'scarpenter qualities for A thereoR contract manufacture esseniial and the describing length.the person SECTION V Contract for manufacture and cale from sruffering a mal sickness Sale ty a person sellsa thingto one of his heirs. Examples: andaskshim to makea pairof boots displayshis foot to a boot-maker (1) A purchaser to do so. Ariicle The length. and for manufacture sale.for instance. has given the ordermay exercisean opiion. an indentification Ariicle 390. and the smountof the pnce of the thing ie example. A reqliirements. thetwo at themeemg wherethe tit delivery tne priceshouldbe paid price is handedover. after and sale has been concluded. Afterthe conclusion a contract accordance Article is notin the If. Article It is essentialto the corn. If no period and and for contract manufacture sale.mustbe from. slundried the mould thereof by len>. and formanufacture sale. the contractis cancelled. contractfor manufacture to valid if it is customary and sale is generally whichno 389.the contract is prescribed. If Article is contract concluded. or a many piastresand the latteragrees from such and such leatherfor so boator ship. of description the articlemust be andsale. delivery the typeof thingsold by produced rainor by imgation:and whether for variety. example.

If a thirdof his property insufficient must make good such deficiency. the heirs can cancel the sale.the purchaser obligedto increase priceto two thirds. must be is Article399. If the valueof the property subjectto a rightof redemption greater .and the heir cannot cancel the sale. The purchaser price.and thereafter thereof. Article394. If he does not do so.suchsalebecomes the after deathof the personsuffering theydo not so give their perniission.and the purchaser clairnthe returnof the balancefromthe vendor. froma by Article395. he givesfavourable dies. If he failsto do so.and who owns nothingbut a housewith five one thousand hundredpiastres. If he does not do so.sincethe thousand property. sum equivalent the amountof debt and can the debt is deducted. A conditionmay validlybe madethata portionof the profitsof the thingsold shall be for the purchaser. fromthemortalsickness. may Article397.If he does so. is sold Article400. Article398. Examples: (1) A personsufferingfroma mortalsickness. Example: sold subjectto a that If it is mutuallyagreedto makea contract the grapesof a vineyard the dividedbetweenvendorandpurchaser. the sale is allowsthereof. than is sold Article401.sells anddeliverssuch houseto a personwhois not one of his heirs for one thousandpiastres. contract shallbe equally rightof redemption carriedout. sellssuchthingforless thanits valueandgives If valid. suchsaleis terms.Such sale is valid. the heirscan cancelthe saleand demandthe return of the house.the purchaser to allowto suchfavourable is valid.it is not executory.the debt which it securesis cancelled. If propertysold subjectto a rightof redemption equalto the amountof the debt and perishes while in the possessionof the purchaser. If a personsufferingfroma mortalsicknesssells a thingto a personwho is not oneof his heirsat the iime of his deathfor a priceequalto the valueof suchthing. since the five hundred piastreswhich he has made a subjectof his generositydo not exceed a third of his property. If the valueof the property subjectto a rightof redemption less thanthe to a of perisheswhilein the possession the purchaser. the heir of his generosityis twice as muchas one thirdof his cannotcancelthe sale. A thingsold subjectto a rightof redemption not be sold to anyotherperson by either the vendor or the purchaser.thatis to say. If a personwhose estateis overwhelmed debts and who is suffering dies.and one thirdof his property delivery terms. ln sale subjectto a right of redemption vendormay returnthe price and likewisecan returnthe thingsold andclaimbackthe claimbackthe thingsold.uponbeing whichhe hasmadethesubject piastres to requested do so by the heirs. If such heirs give their permission If executory. the creditorscan cancel the sale. the creditors for mortalsicknesssellshis property a priceless thanthe truevalueandthen to can oblige the purchaser make good the balanceof the price. SECTION VI to Sale subject a rightof redemption the Article396. (2) If a person sufferingfrom a mortalsicknesssells and deliversthe house for five the is hundredpiastres.THE MEJELLE: BOOK I: SALE 555 is sale dependentupon the pennissionof the otherheirs.

. Promulgatedby Royal Iradah. the purchaser is not obliged to make good the balance. the right of cancellation is transmitted to his heirs by way of inheritance. he must make good the balance. Ariicle 402. and the propertyhas been destroyed. If one of the two parties to a sale subject to a right of redemptiondies. until the purchaserthereof has recovered payment of what is due to him. 8th.556 ARAB LAW QUARTERLY the amount of ie debt and perishes while in the possession Ofthe purchaser. 1286. If the purchaserhas been gliilty of some wrongful act. If he has not been guilty of any wrongful act. Article 403. No other creditorsof the vendor have the right of interferingwith propertysold subject to a right of redemption. Muharram.a sum equivalent to the amolmt of the debt is deducted.

2. researchers.org/stable/3381906 .org. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. and students discover.jstor.org . http://www. 34-56 Published by: BRILL Stable URL: http://www. use. Vol. We use information technology and tools to increase productivity and facilitate new forms of scholarship. . pp. A. 1987).jstor.jsp . No. preserve and extend access to Arab Law Quarterly. http://www.jstor. available at .. please contact support@jstor. Hooper Reviewed work(s): Source: Arab Law Quarterly. For more information about JSTOR.org/page/info/about/policies/terms.The Mejelle: Book II: Hire Author(s): C. and build upon a wide range of content in a trusted digital archive. 1 (Feb. JSTOR is a not-for-profit service that helps scholars. BRILL is collaborating with JSTOR to digitize.

A future contractof hire has been concluded. contractof hire is a contractof hire which comes into force Article407. The employeeis the person giving his serviceson hire. If a thing is let for on coniinuously hire for a periodof threeyears. A futurecontract hire is a contract hire whichcomesifltO forceas from some definitefuture date. which by a contractual neither of the partiesmay cancel without some lawful excuse. by Article 414. for Ariicle 405. The thing hired is the thing which is given to hire. The lessor is the person who gives on hire. to and for Article417. reader. . experts. consistsof givinga similaring if it is a thingthe like of which Ariicle416. The lessee is the person who takes on hire. Indemnification can be foundin the market. by handedto a personemployed the given to workuponis property Ariicle412. Article 413. or by an optionfor defector by an optionfor inspection. A hirerof a wet nuIse is a personwho hires a nurseto give milk to a baby. Ariicle 411. If a for personhas a thingmadefor himselfand tells peoplethatit is prepared hire. Prepared hireis saidof any thingdesigned prepared be let on hire. immediately of of Article408. Fixed rentis the rerltmeniionedandfixedat the timeof the conclusion the contract. An immediate upon the conclusionof the contract. houses)bathsandshopsoriginally relatesto realproperty and to be let on hire. and hiring is takingon hire. An irrevocable and opiion. Esiimatedrent is the rent firYed disinterested of Article415.or the valuethereof. suchthingis deemed to be preparedfor hire Article418. and also such things as carriages horseslet on hire.if it is a thingthe like of whichcannotbe found.THE MEJELLE BOOK II HIRE INTRODUCTI ON TERMS OF MUHA1WMADAN JURISPRUDENCE RELATING TO HIRE Article404. Example: period of A houseis givenon hireas fromthe beginning somefuturemonthfora certain and for a certainsum of money. Article 419. Property such to maydo theworkwhichhasbeenentrusted himn employed so employer. Ariicle 410. It in builtor bought order suchas inns. Ariicle 409.it is a proofthatit is prepared hire. thatis tO say.lettingis giving on hire. thatthe person as stuff given to a tailorto make into clothes. or a load given to a portertO carry. Pariitionof usufructconsists of a division of benefit. the pricepaidfor the use of a thing. Rentis hire. Hasnomeaning theEnglish of of contract hireis anyvalidcontact hirewhichis not burdened Article406.

that is. The secondclass relatesto the hire of merchandise such as the hire of clothesand utensils. at a private employee. It is not essentialthathe shouldactually haveperformed the work. as when the inhabitants a village of hire the services of a shepherdfor themselvesalone by means of a siIlgle contract. The wagesof a privateemployeearedue if he is readyto workduringthe period for whichhis serviceswere hired. In a contractof hire7 the subject matter of the contractconsists of some advantageto be derived from such contract. The firstclass comprisesprivateemployees. Article 424. Example: Porters. The personemploying private a employee maybe one singleindividual several or personscontemplated one individualonly.however. jewellers. personswhoseservicesareretainedby one employeronly. Hire in relationto the subjectmatterof the contractis of two categories.Again. Article 422.In this category.He cannot.thatis. persons who are not employed speciallyby one particular individual. The first class relatesto the lease of real property. until he arrives his destination. Consequently. Article423. The third class relates to the hire of animals.tailors.divided into three classes. Example: A contract manufacture saleis concluded for and whenclothesareordered be madeby to a tailorwho suppliesthe cloth.as in the case of workmenand servantsemployedfor a wage.If he doesso. he is not entitledto his wages. he becomesduringthat perioda privateemployee. The firstis a contract hiremadewith reference an interestin specificthings.but work for anyone. But if any one of such personsundertakes give his serviceson hireto one employer to onlyfor a specificperiod. CHAPTER I GEN ERA L Ariicle 420.But shouldthose personspermitthe shepherdto tend some other person's animals. The secondcategory a contractof hirewith regardto labour.The thirlgwhich for to is the subjectof hire is calledboth the objectgivenon hire and the objecttakenon hire. clock-makers.brokers. Article425.andwho worksfor no otherpersonis. If the cloth is given to the tailorin orderthathe should make the clothes.or a cab-driver. and village shepherdsare all public employees.cab-drivers.that is personswho are not bound by an undertaking not to work for more than one employer.such as the hire of housesand lands.harbourboatmen. The second class comprisespublic employees. a or boatman who giveshis serviceson hire to one employer aloneto takesuchemployerto a certainplace.THE MEJELLE: BOOK II: HIRE 35 Example: Two personswho arejointownersof a houseagreeto take the benefitarisingtherefrom separatelyin alternateyears. such shepherdbecomes a public employee. Employeesare of two classes.declineto do the work. such person's labour has been hired.such shepherdbecomesa privateemployee. The wages of a public employeeare due when the work is done. . Ariicle 421. as in the case of a servantpaid a monthly wage. Hiring the services of craftsmenand artisansis also included in this category.a porter. The first categoryis.the person is hired is called the employee.

As in the caseof sale. of somelesseradvantage. In a contract hireX of statements madeindicative offerandacceptance such of are expressions "I have given on hire". Onepariicular thingmaybe let to twopariicular persons. Example: A lets his houseandafterdoingso a halfshareis seizedby a person entitledthereto. Eachone mustpaythe amount therentwhichfallsto his ownshare. B can also dwell in it. aftera partition theusufruct beenmade.36 ARAB LAW QUARTERLY Ariicle426.He can carryon any othertradetherewhichcausesno greater injuryto the lessorn a tradecausing lesser or a degreeof injury. or He cannot. Two jointownersmaysimultaneously let property jointly ownedto someoeher person. Example: A hires a house to dwell in.The lease relatingto the other undividedshareremainsin force. Any restriction imposedin connection with any thingwhichdoes not become alteredby any changein the person using it is inoperative. Article 432. Anythingwhich becomesalteredby any changein the personusing it may validlybe made the subjectof a restriction.But he maynot carry tradeas a blacksmith a shopwhich on in he has hired as a grocer'sshop. of by Ariicle434.let his shareto some of has other person. He maynot let it tO any other of person. however. The ownerof a shareof undivided jointlyownedproperty let suchshareto may his co-owner whethersuch shareis capable divisionor not. . (2) If a persondoes not live in a housewhichhe has hiredfor purpose habitation.He may. of CHAPTER II QUESTIONS RELATING TO THE CONTRACT OF HIRE S£CTION I The fundamental of theconlract hire basis of Article433. '4Ihave takenon hire" and "I have as accepted". Article427.obtain any greateradvantage. No other personrnayride it. Ariicle428. Examples: (1) A blacksmith hiresa shop in orderto carryon his tradethere. "I have let".however. Ariicle429.The shareof onemaynot be obtained of fromthe other unless they are guarantors one another. A personwhois eniitledto a definiteadvantage arising of a contract hire out of mayobtainenjoyment suchadvantage the eqliivalent of or thereof. of he maystoregoodstherein. Ariicle431. the conwact hireis concluded offerandacceptance. Example: A personhires a horse to ride himself. Arucle430 The exislenceof undivided shares jointly of ownedproperty aftertheconclusion of a contractof hire does not invalidatesuch contract.

silenceis considered indicateassentand acceptance to Examples: (1) A leases a shop at a monthlyrenl of fifty piastres. A refuses to pay sixty piastresand remainsin the shop. and the lessee remainsin possession.but if not. Article441.Thus. Examples: (1) A cook is hiredfor a weddingfeast. if a traveller of by boards a steamboator a harbour rowingboat or ridesa hiredpony. In both cases no contractof hire has been concIuded. the contractof hire is concludedby the use of the past tense.lets the realproperty an orphan a of or piousfoundation a rentwhichis less thanthe estimated for rent. such contractis cancelled. If the two parties persist in their contention. In a contractof hire. Example: A says "I will give on hire"and B says "I havetakenon hire".who remains the shop. Article437. If any event happenswherebythe reasonfor the conclusionof the contract disappears.increase decrease the rent. It cannot be concludedby the use of the future tense.or by the of by use of generallyrecognizedsigns by dumb persons. an estirnated rent must be paid. uponthe of But death of the child or the wet-nurse)such contractis cancelled.such as by way of inheritance gift. He is only obligedto payfifty piastresas hitherto. . (3) A personseekinga wet-nurse dies. Article436. althoughit may not yet have come into force. Article 443. A contract hiremaybe concluded wordof mouth.After stayingtherefor a few months.the secondcontract to or of takesthe placeof the first. amount hireinvolved any the of mustbe paid.If. (2) An ownerof a shop proposesa rent of one hundredpiastres the lesseea rentof and eightypiastres. If afterthe conclusionof a valid contractof hire. A contract hiremayvalidlybe concluded takeeffectat somefuturedate. The rentis eighty in piastres. Ariicle438. or however.he remainssilent and continuesto residein the shop withoutinterruption. neitherof the contracting pariiesmaycancelsuchcontract merelyon the groundthatit hasnot yet comeinto force. Article442. the rateof hire of whichis well known. some other personoffersa higherrent. The contract hire is of cancelled (2) A personsuffering fromtoothache makesa contract with a dentistto extract tooth his for a certain fee. The pain ceases.The ownerleavesthe lessee.so that the contractcannot be carriedout. the lessorinformshim thatif he agreesto pay suxty piastres the first of the on month he can remain. he must leave. A contract hiremayalsobe concluded conduct.withoutconcluding oralcontract. If the persontakingthe property hirebecomesownerof the hiredproperty on in any manner. If fresh negotiations commenced are after{he conclusionof the contractwith regard anychange.THE MEJELLE: BOOK II: HIRE 37 Article435. Article440. As in the case of sale. of by If a guardian trusteeof a piousfoundation. Consequently. The contractof hire is cancelled. It of to is irrevocable. Ariicle439.or A says ('hire"and B says "I have hired".or by writing. must pay a he monthly rent of sixty piastres. the contract hireis voidable of and the rent must be increasedto the estimatedrent. however. The contract hireis not cancelled. such propertyloses its qualityof hired or property.If such rate is not known) an estimatedrate must be paid. the contract hiremaynot be cancelled the lessorby reasonof thatfact alone. One of the spousesdies.

if it is to be usedforcultivation) nature the thingsto the of be planted. if the persontakingsuch landon hireso desires. . z . must also be stated. In a contract hire. or the agent of the owner.a statement generalterms or. In the case of the hire of such thingsas houses.thatis tQ by of say. and by staiingthe place to which they are tO be transported. the periodof hiremust be stated. In the caseof hireof a horse. SECTI ON I I I Essentials thevalidity a contract hire to of of Ariicle448.1C .and. theymustbe shownto thedyer)thetexture thereof mustbe specified. There are four essentials the validityof such permission. . who is to ride it: or it maybe statedin general termsthat whosoever wishes may ride such horse. In the caseof hire of land.suchlettingis dependent on upon the ratification the owner. The rent must be clearlyascertained. in must be made to the effect that he may plant whateverhe likes Ariicle455. they must be of sound riind and perfectunderstanding.and the colour stated. the advantage be derived of to fromthe subjectmatter the of contractmust be specifiedin such a manneras to avoid any possibilityof dispute. To concludea contractof hire.it mustbe statedwhether suchhorseis to be usedas a draught herse. Ariicle446. what work is to be done and how it is to be performed.38 ARAB LAW QUARTERLY SECTION II execution of Conditions reldlttng to lhe concl and thecontract htre of Article444. one of theseessentials lackingX If is the . or a ridinghorse. to Ariicle453. of if one of twoshopsis let on hire)withoutthe pariicular shopin question beingspecified. Article445. shouldit be payablefrommerchandise. permlSSlOn 1S lllVa . or his nltor or guardiarl. the two contracting partiesmust possessthe reguisitecapacity. and the periodfor which the contractis concluded.that is to say.anda contract lettingon of or of hirehasbeenconcluded an estimated for rent)suchcontract dependent is uponthe ratification of the tutoror guardian. If anyunauthonzed personletsanything hire. the the of and the rent.. Article449.shopsand a wet-nurselthe advantage be derived therefromis defined by staiing the periodof hire. In a contract hire offerandacceptance of mustagreeandthe partiesmustmeet togetherat the sarneiime and place. Article456. The subjectmatterof the contract hiremust be specified. Article450. In the caseof hireof the services skilledworkmen) advantage be derived of the to fromthe services suchworkmen of maybe specified statingthenature thework.Consequently. The person lettinga thingon hiremustbe theownerof thethinghe letson hire. Arucle447. Ariicle554. to which remain constant: two contracting the parties.the purposefor whichsuchlandis to be used.or the distance. The consentof the twocontracting pariies essential thevalidity a contract is to of of hire. Article452. property. and if so. such contractis invalid. subjectmatter the contract. In the case of transport goodsnthe advantage be derivedtherefrom of to is specifiedby indicatingthem.andthe lessee being given an opiion as to which one he will take.andif the owneris a IIiinor is mad. Arucle451. as in the case of sale. Example: Whenclothesareto be dyed. .

to Ariicle457.a thingwhich of hire. rentmust be paid. the contractof hire is executory. On the otherhand. But if the property dedicated piouspurposes. . Article465. In the secondcase. If the rentis cash. be the sarne basis as an orphan. Article458. A voidable rent rent. may be the rent in a Article463. The voidability other conditionsessentialto the of being known and sometimesowing to the absence not the rentmustbe paid. If the conditions of the contract hire is contractis absent. and the distance by is therefrom specified suchload beinginspected of hiredmustbe capable enjoyment. The advantage be derivedfromthe thing animalis invalid.but of of for requisite the conclusion a contract hireare Article460. the amountthereof of the price of a thing sold. the estimated the contract. of by or thingsestimated measure capacity. of sralidity not estimatedrent is payable. but to the estimated persongiving on hire is not entitled to the fixed of arisesfromtheamount the hire of of a contract hiresometimes Article462. A thing which is valid as the price in of is not validas the pricein a contract sale contractof hire. If the rentconsistsof merchandise. may neverthelessbe valid as the rent in a contract Example: for for animal. such Example: into by a madmanor by a minor of A contractof letting or taking on hire entered lettingon hirebecomesmad is understanding void But if the persongivingor imperfect is not cancelled. If one of the conditions contractis void. a runaway a Consequently. A madmanis treatedon present. such contract out the amountof the hireneed not of Article459.But in a voidablecontract only.contractof hire in respect to SECTION IV of of Nullity or voidability the contract hire of of esseniialto the conclusion a contract hireis absent.MEJELLE: BOOK II: HIRE THE 39 Example: to place. oneof the conditionsessentialto the validityof the voidable. the exceed the fixed rent. after the conclusionof the contract. CHA P TE R III QUESTIONS AFFECTING THE AMOUNT OF THE HIRE I SECTION Rent a contractof sale. Article461. estimated to is paid. of hire. The advantage be derived A instructsB to carrya certainload to a certain beingmadeknown.whatever amount In the firstcase.providedthat it does thereofmay be. If a contract hire whichis void is carried an or belongsto orphans. in the case Article464. as must be clearlyascertained.or in exchange the rightof A gardenmay be takenon hirein exchange an dwelling in a house.

there is no necessity to hand over the rent immediately. or things estimated by enumerationand which closely resemble each other. if it iS stipulated that rent must be paid in advance. Ariicle 470. if it consists of loading. such person is deemed to have agreed to pay the rent. The reasonfor this is that by using the property. A is obliged to pay the rent. delivery thereof must be given at any place that may be required. and such person uses such property. SECTION II Necessily rent:nght of the person for givingon hireto take rent Article 466. Article 468. delivery thereof must be given in the place where the hire becomes payable. the contract of hire may be cancelled. A is entitled to the amount of the hire. and if it is property prepared for hire. the person giving his services on hire may refuse to perform the work until his wages have been paid. If a person uses the property of anolher person without the conclusion of a contract and without such person's permission. . even though he does not inhabit such house. In a voidable contract of hire. In the case of things which require loading and entail expense on account of transportsuch things must be delivered at the place agreed upon for delivery. If no place has been designated for delivery and the thing hired consists of real property. Rent becomes payable when the thing is put to the use for which it is hired. if the person taking the thing on hire pays the rent in advance. Rent with a condition for immediate payment is irrevocable. delivery of such real propertymust be given at the place where such real property is situated. Article 471. such rent must be made known by stating both the amount and description thereof. however.40 ARAB LAW QUARTERLY or by measure of weight. and the person taking the thing on hire cannot demand the return thereof. In a valid contract of hire. and if it consists of labour. rent is payable. the person letting the thing on hire may refuse to hand over the thing hired until the rent has been paid. The rent is not payable unless the thing is actually put to the use for which it was hired. whether the contract of hire is for the use of some specific thing. Example: A takes possession of a house which he has taken on hire by means of a valid contract of hire. an estimated rent must be paid. Article 467. delivery thereof must be given at the place where the person hired performs his work. Rent does not become payable irrevocablyby the conclusion of an unconditional contract: that is to say. In the second case. But if the owner of the propertyhas previously demanded payment of rent. the person letting the thing on hire becomes the owner thereof. mere ability to put the thing to the use for which it was hired is not enough. or for the performance of any piece of work. lets such horse on hire to B in order that he may ride it to a certain place. owing to the mere conclusion of a contract of hire. In the case of things which do not require loading and do not entail expenses on account of transport. Article 469. if the person letting the thing on hire demands paymentof the rent in advance and the person taking the thing on hire refuses. but not otherwise. Example: A the owner of a horse. Rent which is payable immediately is irrevocable:that is to say. Article 472. In both cases.that is to say. the rent is also payablewhen there is ability to put the thing to the use for which it was hired. In the first case. Upon arrival at that place. even though no benefit can be derived from such property. the person taking the thing on hire is bound in any case and first of all to hand over the rent.

the expensesoccasioned suchrepairs uponsuchperson) by fall since the givingof the houseis in the natureof a loanfor use. But if the personhiring the mill uses it for any purposeotherthan thatof grindingcorn. SECTION I II Right of lien of a personto whicha thinghas beenentrusted workupon to Article482. If the rerst payableby somespecifiedperiod. suchas a tailor)a dyer.the persongiving the thing on hire must in any case first of all give deliveryof the thinghired. Ariicle476. Article478.the portionof the rent corresponding such period is deducted.the periodof hire is extendeduntil the shore is reached. no part of the rent is payable. Article477. such personis boundto pay a portionof the rent corresponding thereto.THE MEJELLE: BOOK II: HIRE 41 Article473.If he exercises of suchrightof retention the property and . to (2) The waterof a mill is CUt off and the mill remains idle.or a cleaner. If the period of hire terminatesprior to delivery. a boatis takenon hirefor a certainperiod.andthe persongivinghis serviceson hiremustperformthe work.has a rightof retention overthe thingentrusted him to to workupon. If a stipulation madefora deferred is payment the priceof the hire)the person of givingthe thingon hiremustfirstof all deliversuch thirlg. must performhis work.Thus. whohasmadeno contract and whereby his workis to be doneon a creditbasis. rent falls due as from the time of delivery. Example: Rentpayable monthlymustbe paidat the end of the month.Rentpayable yearlymustbe paid at the end of the year. Ariicle474.andthe periodof suchtimeexpires If while on the journey. The price of the contractof hire is not payableuntil afterthe expirationof the period agreed upon. If an unconditional contractof hire is concludedfor the use of some specific object.andno stipulation madeas to immediate of is or deferredpayment.such is rent must be paid at the expirationof that period.If it cannotbe usedduringthatperiod. Effectis givento anycondition agreeduponby twocontracting partiesregarding immediateor deferredpaymentof the rent. Article4SO.The person taking the boat on hire must pay an esiimatedrent in respect to such excess period. the persongiving the thing on hire is not entitled to rent in respect tO the period expiringprior to delivery.thatis to say. Article481. for payment his wage.andwhoseworkcausesa changein the thinggivento him to workupon. and such persondoes in facteffectsuchrepairs himselfanddwellsin such housefor a certainperiod. If a persontakesa shop on hireandis givendeliverythereofandallegesthaton accountof slackness businesshis tradehas stoppedandhis shophas beenshut. Artiele479. A personhiredto do work. such person of cannot refuse to pay rent for that period. The ownerof the housecannot claim anythingfrom him by way of rent in respect to such period. Article475. No rentis payable fromthe iime at which the waterwas cut off.suchas monthlyor yearly. Examples: (1) A bathis in needof repairs. deliverymustbe givenof the thinghired. a persongivinghis serviceson and hire. If one persongiveshis houseto another personiIlorderthatthe lattermayrepair it and live in it rentfree.or for the performance anypieceof work. If the benefit to be obtainedfrom the thing hired is entirelylost) no rent is payable. Whenthe rentfallsdue.

If no time is meniionedas the commencement the periodof hire when the of contract concluded.suchcontract cannotbe cancelled. the year is consideredto consist of twelve months. or of so much for the year. If a poriionof the monthhasexpiredanda contract hirehas beenconcluded of for a periodof one year. Arucle491. or foranyperiodin excessthereof suchcontract a monthly is contract. He cannot. If a poriionof the monthhas expiredand a contract been concluded a has for period of months.so as tO makethirty of days.42 ARAB LAW QUARTERLY is destroyed whilem his possession. a has Uponthecompletion the first of month. haveexpired. A personhiredto do work. or whether longduraiion. is was Article487 Realproperty mayvalidlybe let on hirefora periodof a year. cannotbe calleduponto makegoodtheloss.whetherof shortduration.suchcontract cancelled fromthe beginning the following is as of month. The intervening months are calculatedas from the first day of each lunar month.such month is completedby the payment rentat so muchper day.andwhoseworkcausesno changein the thingupon whichhe works.howelrer.If the firstnightandday)however.withoutpaying the wages.hasno rightof retention the thinguponwhich over he is working. suchcontract cancelled fromthe end of the month.If payment is . If a contract madefora periodof one monthanda portion is thereof expired. A personmaygive his property hire.such iime is deemedto be the zimewhen the contract concluded. he however. he The ownerof the property an opiioneitherof clg has compensanon the basisof the on valueof the thirlgdestroyed. oneof the two If contracting partiesallegesthat he has cancelledthe contract duringthe courseof the month.for paymentof his wage.cl his wages in addition. If a contract hire is madeat the beginning the monthfor a periodof one of of monlh. without stating the rent per month. of and of is anda certain surnis agreedupon as beingpayable rentfor eachmonth. If a portion themonthhasexpired thenumber months notexpressed. Article494. In if the month is less than thirty daysna full monthisrent must be paid. and the first month is not complete. or of merely and claimingthe value of the thing destroyed. sucha case. Thus. CHAP TER I V THE PERIO1:) OF HIRE Article484. a on the for fixed period. validcontract beenconcluded. Article486.the firstincomplete as month is consideredto consist of thirty days in the same manneras the other months. If a contract hireis concluded a periodof one yearat the beginning the of for of month. Article488.plus cost of transport of payingthe wages. The commencement the periodof hireis deemedto be the timenamedwhen of the contractwas concluded. fromdaystakenfromthe lastmonth.eitherat a rentof so much per month. both the persongivingandthe persontakingsuchrealproperty hiremay on cancelthe contract hireon the firstnightanddayof the secondandsubsequent of month. Article492. Ariicle483. if he exercisesa right of reteniionand the propertyis destroyed while in his possession) is liable to makegood the value thereof. whatever formof ownership. Ariicle490. and the othereleven to months as from the first of the lunar month. Arecle489. Article485. Article493.suchas a of period of years. If real propertyis hired at a rent of so much per monthand the numberof monthsis notmentioned.If duringthe courseof the monthone is as of the partiesstatesthathe has cancelledthe contract fromthe beginIiing the following as of month.suchas a porteror a sailor.suchas a day. has the period of one month is consideredto consist of thirty days. the first monthis calculated according days.

If the person exerciseof a right of ownership. Eitheror optionexists in Article497.however. A contractual optionof a certainnumberof days. The periodof optionis presumedto run from contract. The personhavingthe optionmay cancelthe contract of the option or may ratify such contract. is set forthin Articles302. of the exercise of the right of a lessee.MEJELLE: BOOK II: HIRE THE 43 may cancelthe contractof hire in in made advancefor two or more months.the option becomes irrevocable. subjectto an of hireduringthe period Article498. If the person is lost and the contractof hire withoutcancellingor carryingout the contract. any act with regardto the thing hired indicativeof the possessesan option and performs by conduct. neither party to respect those months.the Article505. of mouth.the condiiions of performance the work.or in writing. so many days. work is to coITImence.Shouldit prove to be smaller. If a personhires anotherto work for a day from the as by prescribed localcustommustbe observed regards or prayer iill sunset. as in the case of sale. the contractis presumed is of the contract employment If following.or by may and Article499. The commencement the contractof hire is when the option was lost. by a given period. If a pieceof land takenon hire and said to consist is validandthe fixedrentbecomes of or provesto be of greater smallerextent. the persongivingon hire as conduct. at donumthe rentis payable so Article504. the contractof possessingan option allows the periodof the option to expire Article 500. he is hiredto do ten daysworkduringthe summer. of so manyyardsor donums Article503. of the timeof the conclusion the Article501. for a as forexample) carpenter a Article496. sunriseto the time of evening Ariicle495. If a personis hiredto workfora periodof days. If a pieceof landis takenon hireat so muchper much per donum.the person option of cancellingthe contractof hire. If a wageis fixed as paymentfor work to be performed contractof hire is valid and the condition effective. Bothcancellation ratification be by word if 303 and 304. Consequently.and if the r . to be concludedwith referenceto the days of period ten days. unless the month is stated and the day from which the invalid CHAP TER V OPT I O N S SECTION I options Contractual the case of hire.thecontract hire takingthe land on hire has the payable. Examples: shirtto be readyon the same (1) A gives cloth to a tailorto be cut up and madeinto a day.the contractof hire is cancelled to withregard the thinghiredindicative any an on taking hirepossesses optionandperforms act hire is ratifiedby conduct. (2) A hires a camel from B to carry him to Mecca in persongiving the thing on hire In both cases the contractof hire is executory. bothof the partiesmaygive or takeon hire. presumedto run from the time of Article502.

If as he sees it. (1)A contract wayin be paid accordingto the and asa perfumery so much. for so to for according the way in animal so muchandiron cornon a draught to is contract concluded load be paid according the load used. house house for two hundredpiastres. of Option inspection . he an previously. a piece of work whichchanges 511.If he thecondition) the fixed wage. of Article of such work. and the condiiionis executory SECTION II 44 LAW ARAB QUARTERLY option of inspection. has an option in change the subject-matter Upon seeingthe clothor the Example: with a tailorto stitcha cloak. The contractis (6) if it iS sarneday. on be real property hire without a persontakes a piece of ArticleS09. however. . with any change in the subject-matter accordance sumof money. The wages must to respect a shopto be used forso muchin faed rent is (2)A contract concluded hire must pay the persontakingthe thing on for so much as a forge.if the place is dilapidated unfit for Article an in respectof such house. The which he uses the shop. and piastres to the place to which he houseon hire for one hundredhire agrees.An inspection seeingit. hasno option exercise option as soon a housewhichhe hasseen and 510.the placeandthe the theworkman. to (3) A must forone much. and thirty piastres valid. The person taking tO aninspection of the thinghiredis equivalent Ariicle508. he may derivedtherefrom. such personmay exercise inspeciion of forrnis changed. canclaimthe fixedwage. an extent that its original to habitation such with any in accordance option. A personhiredto do inspection. according whichever another tO fixed rent on if it is stitched the personmust then pay the Such thathe will payfiftypiastres A handsa cloakto a tailorstating stitchedon the followingday. is agreement concluded An an opiion.he is eniitleFto he failstO do so. Example: of cottonseedfor a certain madeto cleana certainamount has no option of is he A contract has not seen the cottonseed Althoughthe personso employed mspectlon.andthe distance. hundred goes. If a persontakeson hire However. the thing on hire has an to of theadvantage Article507. out. the tailormay exercise in is not changed to attaching a thingwhich is no opiion of inspeciion Ariicle512. is carried to whicheverway the work according it over-stitching for Examples: a thingforso much)andfor is madeforback-stitching which it is sewn. fulfils such wage does not exceed the wage. esiimated provided an in twoor threewaysas regards alternaiively wagesmayvalidlybe fixed wagesmustbe paid 506 Article The time. . The hire agreedupon let a pariicular on axiimal hirets go to Chorlu three for statesthathe has and (4) A muleteer piastres to Philipolis for two hundred and piastres to Adrianop hundred on hiremustpaya sumcorresponding The persontakingthe animals piastres. There of such work.the work. he has let one particular on (S) A statesthat The persontakingthe house he lives in. load. cloak.

without giving him notice thereof. Ariicle 514. however. or where the mane or tail of a horse is cut. The cancellation.THE MEJELLE: BOOK II: HIRE SECTION III 45 Option defect for Arucle 513. Example: A place collapses and destroys the use to which a house taken on hire can be put. If a defect occurs in the thing hired before such thing has been put to the use for which it was hired. If the benefits sought to be obtained are entirely lost. as where the plaster of a house falls off. must take place in the presence of the person letting the house on hire. In all these cases there is an option for defect if they are taken on hire. If the person giving a thing on hire removes a defect of recent origin before the cancellationof the contract of hire by the person taking such thing on hire. If the person taking a thing on hire wishes to cancel the contract of hire prior to the remollal of a defect of recent origin which prevents the thing hired being put to the use for which was hired. that is to say. the frame of the roof of a house sinks. If he on cancels the contract in the absence of the persongiving the thing on hire. Article 515. the latter has no rightof cancellation. on account of the benefits sought to be obtained being destroyed. Article 518. Example: A house is entirely destroyed. the circumstance which creates an option on account of defect is something which causes the complete loss of or interference with the benefits sought to be obtained. he is bound to pay rent as though he had not left the house. If a defect occurs in the thing hired. In any case the rent is not due. but not to such an extent that rain and cold can enter. If a room or a wall of a house collapses and the person taking the house on hire . the person taking the house on hire may cancel the contract without the necessity of doing so in the presence of the person giving the house on hire. Article 517. the person giving such thing on hire cannot prevent himfrom doing so. the back of a horse which is hired is injured by galling. The person taking the house on hire may cancel the contract of hire. Article 516. the person taking the thing on hire may exercisean option. the utility of a mill is negatived by the water being cut off. But defects which do not interfere with the benefits sought to be obtained give no right to an option for defect in the case of a contract of hire. in which case he must pay the whole of the rent. If the house is entirely destroyed. such person may cancel the contract it in the presence of the person giving the thing hire. Article 519. There is an option for defect in the case of a contract of hire. or he may cancel the contract of hire. If he fails to give notice and leaves the house. In a contract of hire. as in a contract of sale. however. a place is knocked down so as to be unsuitable for habitation. He may not do so in his absence. And if the person taking the thing on hire wishes to take possession thereoffor the remainder of the period. as is set forth in Article 478. and the rent continues to be is payable as heretofore. He may either put the thing hired to the use for which it was hired in spite of thedefect. such defect is considered to have existed at the time the contract was concluded. the contract may be cancelled in the absence of the person giving the thing on hire. such cancellation of no effect. however. Whether the contract is cancelled or not the rent is not due.

A personwho takesa houseon hirewithoutstatingthe use to whichit is to be put. is not entitled anyreduction out of he to in the rent. If a persontakesa pieceof landon hirewitha rightto sowingwhathe likes.however.suchpersonwasawarethatthe housewas in that statewhen he took it on hire he is considered haveagreedto the defect.suchcontract becomesa validcontract hire. which matteris settled accordingto custom. Article526. The persongivingthe thingon hiremllst put rightanything likelyto interfere with the benefits sought to be obtainedfrom the thing hired. If a persontakest:wo houseson hiretogether a certain for sumof moneyandone of them collapses.andmayplacehis effects therein.But if suchmatter definedbeforecancellation. the his contract hireis valid.provided is not of such a natureas to any it weakenor damagethe building. he may cultivate such land more than once in a year with a view to winter and summer crops. CHAP TER VI TYPE OF THING HIRED AND MATTERS RELATING THERETO SECTION I Article522. Article520. of Arecle 525. If a housetakenon hire as containing manyroomsprovesto containfewer so rooms than the stipulatednumber.The same stipulations in force as regardsshops. Article521. the of to of If he carries the termsof the contract hire. Article523.46 ARAB LAW QUARTERLY doesnot cancelthe contract hire.He maynot perform workof sucha natureas to damage any the building unlesshe receives permission theowner. Article524. however. maydwellin it himselfor let someotherpersondwelltherein. (2) Repairsand improvements the houseand watercoursesand pipes)the repairof to thingsdetrimental habitation othermattersrelatingto the bviilding to and must all be performed the owner. are Article529. A personmay validlyconcludea contract hire for a shop or housewithout of stating the use to which it is to be put.he may leave both of them together. the persontakingsuch landon hire payingan estimatedrent. suchcrops of may remainon the land until they are ripe. ArticleS28. A person therein. If the periodof the contract hireexpiresbeforethe cropsareripe. If a persontalces pieceof landon hirewithoutstatingwhathe will sow therein a or withoutmakinga stipulation a general of natureto the effectthathe maysow whatever he likes.If the ownerrefuses do these. If a personlets his houseor shop on hire containing goodsor effects. If.the persontakingthehouseon by to hiremayleavethe same.Localcustomis followed regards the of as the tetheringof animals.the persontakingthe house on hire has the option of cance}Eing contract hireor of agreeing thecontract hireandof payingthe fixedrent.but the personlettingsuchhouseorshopon hireis boundto deliverthe of house or shop after taking out the goods or effects. Examples: (1) The owner must clean the water channelof a rnill. Article527. He cannot to Matters relating the hireof real property to may validly take a houseor shopon hirewithoutstating who is to live . the of is and persongivingthe landon hire agreesthereto. the contract hireis voidable.He may perform kind of worktherein.but dwellsin the restof thehouse.no portion the rentis of of remitted.

if such repairsare purelyin the interestof the persontakingthe property hire. If the persontakingproperty hiredoesrepairs suchas of are on givingsuchproperty hirefandsuchrepairs forthe improvement theproperty. weaponsand tents. A contractmay validlybe made to take a specificanimalon hire and a valid contractmay also be made with an owner of animalsto be carriedto a specific place. with theconsentof the person on Article530. he mustnevertheless hire thereof. either of having such building pulled down. A contract takean unspecified .such act is in the natureof a gift andhe cannotclaimthe expenses incurredthereby from the person giving the house on hire.on the expiration the periodof hire. or of havingsuch trees uprooted. on animal hireis of no effect.the persontakingthe propertyon hire may call upon the person giving the propertyon hire to make good the has expensesincurredby such repairs. earthand sweepingswhich have accumulated contractof hire must be cleaned and removedby the person taking the thing on hire. If a persontakesclothingon hire to go to any particular pay such placeandwearsthemin his house. A validcontract hiremaybe concluded a definiteperiodandfor a definite rent with regardto movablepropertysuch as clothing. the Article 533. SECTION Il Hire of merchandise for of Article534. or does not wearthemat all. In the event of the persontakingthe thing on hire damaging giving such thingon hire.in whichcasehe is till eitherof waiting theanimal to obliged to pay a portionof the fixed hire proportionate the distancehe has been carried. A personwho takesclotheson hireto wearhimselfmaynot give suchclothingto anotherperson to wear. or preventing harmbeingdonethereto. any the changing tilesof the roof. the such as repairing ovenof the house.If the persontakingthe houseon hiredoes these thingshimself. the ownerof the animal boundto chargesuch load on to anotheranimaland carry it to the place in question.If suchanimalis to Article541. Article 537. place. the persontakingthe houseon hire cannotclaimthe has expensesfromthe persongivingthe house on hire.or of keeping them upon paymentof the value thereof.andsuchanimal to Article539. SECTION III Hire of animals Article538. Dust. If a specificanimalis takenon hireto proceed a certain becomesfatiguedand stops on the way.andfailsto go to Article535. whateverthat may be. duringthe periodof the Article 532. the persontakingsuch animalon hire has the option of the gets betteror of avoiding contract hire. or on Article531 If the persontakingrealproperty hireerectsbuildings plantstreesthereon.apply to the persc)n Court for an order cancellingthe contractof hire. If a bargain been struckto carrya certainload to a certainplaceand the is and animalbecomesfatigued stopson the way. unlessa stipulation been madeto that effect. may. has Article540. place. if he is unableto preventsuch damage.even thoughno stipulation been made to that effect on However.THE MEJELLE: BOOK II: HIRE 47 latermakethisa pretextfor leavingthe house. of the persongivingsuch realpropertyon hire has the option. Jewelleryis treatedon the same basis as clothing. such thing. the Article536.

it is not to and specified to whetherthe aIiimal to go to Greater LesserCheEmeje. is Example: A validcontract hirecannotbe concluded takean animal hireto go to Bosniaor of to on Arabia.such contractis valid. .The wordSham. by custom is applied the townof Damascus. If an animal takenon hireto proceed a certain is to town.the person taking such animalon hire must be taken to his house iIl such town. But if it is customary take an animalof no to particular type on hire. or this may validlybe done if by custom the name of such territory appliedto a town. in accordance custom.If he doesin factgo beyondsuchF>lace. Article542.If an animal takenon hireto go to a specified is place. to Article544.The owneris obligedto transport personto suchplaceby with that horse in accordance with the pancular custom. therefore validcontract be concluded hire to and a may to an animalto go as far as Sham. The persontakingthe al on hire for a specifiedperiodmaynot use it for longer thanthatperiod.howeverX the personeaking sf and suchanirnal on hire agreesthereto.andit so happens that dere aretwo placesof thatname)an estimated sum by wayof hiremustbe paidin respecttO whicheverplace the person taking the animalon hire goes. such hire is valid. and the animal destroyed is whilein his possession he must make good the loss. mustmake or he good the loss. Example: A horseis hired from a horse-owner take a personas far as a partitular to place. of the persontakingsuch animalon hire is responsible handingover the animalsafe and for sound.the loss must be made good. such as a sanjak vilayet.and the persontakingsuchanimal hireproceeds another on by roaui and the anianal destroyed.andthereareseveral roads leadingthereto. is he must make good the loss. Example: If an animalis takenon hire tO gO to Tekfur Daghbut insteadgoes tO Islimiyeh the and al is destroyed. nameof the town.the loss must be made good if the road takenis morewindingor is difficultthanthatprescribed the ownerof the animal. Article 548. Article547.If he doesso andthe animal destroyed. and is governedby such custom. If an animal takenon hireto proceed a certain is to place.township villageto whichsuchperson goingmustbe The or is meniioned. If an al is takenon hire to go to a specified place. A personwho takesan anirnal hireto proceed a specified on to placemaynot go beyondthatplacewithoutthe perIIiission the owner. by the loss need not be made good.the persontakingsuch animalon hire may proceedby whichever road he prefers whichis commonly 1lsedby the public.If he does so. Article543. Example: An animalis takenon hire to proceedfromConstaniinople CheXmeje. however. In a contractof hire it is not enoughto designatethe end of a journeyby mentioIiing nameof a particular the territory.the persontakingsuch animal hirecannotgo with hirnto ano{her on place. Article545.On the otherhand.andif suchanimal destroyed is eitheron the outward returnjourney. Article546.If the ownerof the anirnal prescribes road the whichis to be taken.48 ARAB LAW QUARTERLY specifiedafterthe conclusion the contract.But if it is of equallengthor easier.the name of a certairl territory. estirnated as is or An sum by way of hire must be paid according the distanceto the placein question.

the amount such of of load is deterIIiined custom when an ariimalis taken on hire. on on If he beatshim on anyotherplace.A may loadfive kilesof his own wheatZ of anybody or else'swheatof whatsoever upon suchhorse.raltermsto takean animalon hire to be ridden by anyone. The persontakingan animalon hire may not beat such withoutthe owners permission. the contractof hire is voidable. Article555. is no hire need be paid. Article551.local customis bindingas regardsthe saddle.the for persontakingthe arlimal hiremayonlybeatsuchariirnal a placewhereit is usualto do so.In this casealso. (See Article 86). Examples: (1) A takesa horseon hire to carryfive kilesof wheat. If the ownergives his permission an animaltakenon hire to be beaten. and the animalis destroyed.such on of feeding is an involuntary and the value thereofcannotlater be claimedfrom the gift owner.no otherpersonmayride is such animal. by Article 556.the loss mustbe madegood. Article554. the and animalis destroyedas a result thereof. The owner of the animal taken on hire must urlloadsuch animal. An ariimalhired to carry loads may also be used for riding purposes.or allowsomeotherpersonto do so.Buthe maynot loadfivekilesof wheaton an animal hiredto carry five kiles of barley. An animal whichis takenon hireforridingmaynot be usedas a draught animal. If an axiimal takenon hirefor ridingandit is not statedwho is to ride it. Ariicle550. Ariicle SSS. A valid contractmay be made to take an animalon hire to be riddenby a specifiedperson. Whenan animal takenon hireandthenatureandquantity the loadis stateds is of a loadof another nattlre equalto or lesserthansuchloadmayalsobe placeduponsuchanimal. rope and sack.A validcontract mayalsobe madein gen. But no greaterload may be placed thereon. But whetherhe ridesit himselfor allowssomeotherpersonto rideit) once the particular personto ride such animal is known. Ariicle559. once a particular personhas been namedno otherpersonmaybe allowedto ridethe ariimal.the loss must be made good. If an animalis takenon hire as a draughtanimal. nor is Iaiddown in generaltermsthat any particular personwho wishesmay ride it.THE MEJELLE: BOOK II: HIRE 49 Article 549. In this case. as for example on the head. such loss must be made good. If he does so. (2) A hundredokesof iron may not be loadeduponan animalhiredto carrya hundred okes of cottorl.he must makegood as the loss. A personwho has takenan atiunal hirein orderthatit Inaybe riddenby any on personhe likes. If an animal hiredto be riddenby a certainperson. Ariicle553. however.He mayalsoload sort five kilesof barley. The persongiving the animalon hire is responsible feedingsuch arlimal. . Article557. Ariicle 560. If it is so usedand the animal destroyed.If he does so. Article552. and the animalis destroyed a resultthereof. Article561.If the person takingthe ariimal hire) however)feeds it withoutthe permission the owner. But if this is madeclearbeforethe contract cancelled) is such contact becomesvalid. mayeitherride such axiimal himself. no other person may ride it. insteadof the quarter. for Example: The feedingand watering an ariimal of takenon hire fall upon the owner. If the amount the loadis not statedor madeclearby signs.

If the employer work.It must tailor he must make good the loss. they are to be of beforehand. There is no need to give the pairof proniisesto give B a whena wetnurseis takenon hire wagemustbe paid.so LAW QUARTERLY ARAB S E CT I O N I V services Hire of personal be made for the hire of personalservicesor the Article562. may not employ Ariicle571. he is not is no agreement Inade personsendshis son to a masterto learna tradeand Article569. that does work. workmen employs Article565. sewn by any other person and it is destroyed.they they are entitled to an estimatedwage. is by The work performed skilled workrnen also is payment to be whereby hireis enteredinto withan employee of Article566.If it are is if and thedailywageof suchworkmen known. as is set forth in SectionIII withoutentering request If a personworksfor someotherpersonat the latters Micle 563. anyoneto do the work in his Example: The so manypiastres. If a teacher employed teachanyscience is period. piece of gives a definiteorderto the employeeto do a certain Ariicle573. they are entitled and such personsperforrn of that village. he is entitled to an esiated of withoutfixingthe arnount the wageto be paid. trade. but an pair of oxen. or of of a villagehiretheservices a khofa an imam or Article570.It is customaryhowever. pieceof workforhim and to someotherperson do a certain requests Article564. and they with local custom.the employee Ariicle572. such order is unconditional. is teacher entided to his fee.If he is not of suchclass is he of the classof persons to entitled receive anything.whether the studiesunderthesecircumstances. If an unconditional personin his place. of this type. If a contract of and themarket. of Chapter of nanlre the work.he is entitledto receivean estimated to in any into contract regard the wageto he however) is not who workfor a wage. of the defined.If the pupil entitled lo his fee.If B hasit maynot haveit sewnby anyotherperson. wageif be paid.the question is decidedin accordance a muezzin. If the natureof the for medium quality. If not. If the inhabitants to receivetheir wages from the their duties. cannot be includedin wages. an estimatedwage must be paid. Tips given to servantsfrom outside or artandtheperiodis defined)the to is Article568. If a bothclaima fee afterthe boy haslearntthe the between two as to the fee to be paid. A contractmay validly the otherway.and such person in him proniises something returnwithoutmentioning wage. Article 567. mayemployanother has contract beenmade.as by specifying of skilledlabourfor a specifiedperiodor in some performance II. Whena personhas been employedto place. withB for B to sew him a cloakwithhis ownhandfor A contracts be sewnby B himself. the nature which in by made givinga thingthelikeof whichcannotbe found been defined. . inhabitants he do workpersonally.Suchperson entitled particular in is of contract employment concluded respectto that thepupilstudiesor not. estimated clothes has not been defined clothes tO be made for her. If theperiodis not tohis fee if he is readyandwillingto teach. If a person eniidedto receivethedailywage. contract hire is voidable. not is known. not has Example: of number daysin returnfor whichA A callsB andasksB to workfor him for a certain oxen. If a person the amountthereof.

Article581. and first brokeris not entitled to anything. the ownerof the property is entitledto the wholeof suchsumin excess.instructing to sell it for so many to him piastres. or if it brings up the milk. Article576.and such brokersellsit for morethanthe stipulated sum. If a personemploysreapers reapcropsin his field fora certainsumof money. fee Article580.the restis destroyed a fallof hailor by by some otheraccident. to andaftersuch reapers havereapeda portionthereof. Example: It is not the dutyof the porterto takethe loadup to the top floor. Article577.or the end of such journey. If a brokerhawkspropertyroundbut cannotsell it.or if the thingsold is of returnedon account of some defect. the brokeris not entitledto a fee. If a persongives his property a broker. Ariicle 574. CHAPTER VII RIGHTS AND OBLIGATIONS OF THE PERSON GIVING ANO THE PERSON TAKING ON HIRE AFTER THE CONCLUSION OF THE CONTRACT SECTION I Deliveryof the thinghired Article582. Mattersconnectedwith the work done are settled in accordance with local customwhen thereis not specificcondiiionbindingthe personemployed. The tailoris eniitled to the fixed price. The employeris not boundto feed the employeeunlesslocalcustomis to that effect.and lhe broker not entitledto anything is morethan the brokeragefee. Upon the conclusionof a valid contractof hire for a particular time or for a particular journey.the thinghiredmustbe delivered the persontakingthe thingon hireto be to continuously his possessionuntil the expiration such period. A portermust carrythe loadinsidethe house.the reapersare entitledtO a shareof the frxedwageproportionate the to quantity reaped. Article575.the tailorhas the cloak sewn by his assistantor by anothertailor.THE MEJELLE: BOOK II: HIRE 51 Example: A instucts a tailorto sew a cloakfor so muchmoneywithoutbindinghim to do the work personally. and some person appears who is entitledto the thingsold andtakespossession the same. in of . Article583. such second broker takes the whole of the fee. customhas it that the thread shall be the tailor's thread. and the ownersells it at somelaterdate.norto put graininto a barn. Ariicle578. In the case of a sale. I)eliveryof the thing hired consistsof permissionbeing given by the person givingthe thingon hireto the persontakingthe thingon hireto enjoysuchthingwithoutlet or hindrance. the returnof the brokerage cannot be claimed. Article579.Thus. if the of if or child refuses to take her breasts. where the brokerhas receivedhis fee. he may not be called upon to make good the loss.After the conclusionof the contract. If a wet nursefallssick she is entitledto cancelthe contract employment. If anotherbrokersells such property. but he is not boundto put it in posltlon. of The employer may alsocancelthe contract employment she becomessick or pregnant. but not to the balance. If the cloak is destroyedwithout his fault.

the persontakingthe thingon hire of of must give up the thing hired. In the caseof a voidable contract hirethe persontaking thingon hiremay of the validly give it on hire to some third person after taking deliverythereof.he loses his right of retention. Article589.againgivessuchproperty of on hire to some third person. madepayment advance. unlessthey havebeen sold to the persontakingthe property on hire. Article593. is that is to say.if beforethe expiration the periodof hire the purchaser the vendorto hand of asks over the thingsold. Ariicle 584. SECTION II Rightof the conlracting partiesto deal with the thinghired after the conclusion the contract of Article586. of suchcontract irrelrocable. the proportion the rent represented such roommustbe deducted. the Courtshallcancelthe contract sale.As of by regards restof thehousethe lesseemayexercise option. Ariicle590.no rentis payable of on uniilit is delivered free fromall suchencumbrances. Article 592.if it is movableproperty. the right of the lessee tO cancel the contractis lost. Article588.52 ARAB LAW QUARTERLY Example: A takesa carton hirefor a certainperiod)or in orderto go to a certain place. The persontakingthe thing on hire may let such thingon hire to some Ihird personif it is not changedby use or enjoyment. as the and However. If the thinghiredconsistsof realproperty) persontakingsuchrealproperty the on hiremaygiveit on hireto somethirdpersonbeforetakingdelivery thereofW maynot do He so. SECTION III Retumof the thang hired Article591. on the expiration the periodof hire) as the and of the saleis irrevocable regards purchaser he maynot refuseto takedeliverythereof. If to of the persontakingthe property hireratifiesthe sale)the salebecomes on executory respecttO in eachparty If the persontakingthe thingon hire)however. If theperson givingthe ing on hireasksbr the return his property of uponthe . The persontaking the thing on hire may not use the thiIlghiredafter the teinanon of the contractof hire.If thelessorevacuates house the an the eniirelyandhandsit overbeforecancellation the contract. however. ownermaynot at The use it for his own purposesduring that period.A canuse the cartduringsllchperiodor untilhe hasarrived his destinaiion. If a personwho owns real propertyin absoluteownership containing other property his own. If a person whohasgivenhis property hiretO someotherperson a deflnite on for periodin accordance the termsof anirrevocable with contract hire. andit is impossible do so. the second contracton hire is ineffeciive. Article587. Whenthe lessorof a househandsthe houseoverminusa roomin whichhe has storedhis goods. If the persongivingthe thingon hiresellsthethinghiredwithout perniission the of the persontakingthe thing on hire. givessuchrealproperty hire. the sale is not executory regards latter. On the termination the contract hire.If the persontakingthe thingon hire hands it over without receivingpayment. Ariicle585.but is as the executory regards vendorand the purchaser. has in the thinghiredcannotbe takenfromhim untilhe has received payment the amount the rent of of paidby him in respectto the unexpired poriionof the lease.

or neglect such personmay not be calledupon to makegood the loss. If it is property prepared hireandis notclaimeel for to be property ownedin absolute ownership nor as a resultof contract. If the return the thinghiredinYolves of expenditure transport. The otherjointownercannot claim rent in respect to his shareneven though it is propertypreparedfor hire. the loss must be made good by such person. . He is a of not obligedto payrent.andusesit fora certain periodwithoutthe permissionof B. Example: One of the jointownersof a piece of jointlyowned property uses such property a for certainperiodindependently withoutthe consentof the otherjointowner. (2) In the caseof a housefor hire. If a personuses any property withoutthe permission the ownerthereof. Article595. If.asserting and thatit is his own property ownediIl absoluteownership.the property beendedicatedto pious purposes. If.but the persongivingthe thingon hireis boundto takeoverthe thinghiredon the expiration the of contractof hire. and however.THE MEJELLE: BOOK II: HIRE 53 termination the contract hire. (2) An animalis takenon hire to go to a certainplace.this of amounts to wrongfulappropriation. the persontakingthe thingon hireis boundto returnit to of of .whichB lets out on hire. an estimated mustbe paidif it is not claimedto be rent propertyheld in absoluteownershipnor as a result of contract. An estirnatedsum by way of hire must be paid.or is the property a minor.If it is not broughtto suchplace.an estimated mustbe paidin respecttO the periodduringwhich of rent it hasbeeninhabited. If the owneris in thatplace. Ariicle594. .the anirnal is hiredto leaveandreturntO a definiteplace. even though it is preparedfor hire. he musttakeoverhis anirnal. CHA P TER VI [I CO MP EN SATI ON SECTION Compensation I in respect to use Article596. If property usedwhichis claimedto be property is ownedin absolute ownership. :um. for suchexpenses fall upon ehe person giving the thing on hire.an has of estimated rentmustbe paidin anycase. payment use must be for made. Examples: (1) Upon the terriination the leaseof a housethe ownermustcomeandtakedelivery of thereof. nothing need be paid in respect to such use. he arrives doesnot takeit over)andit is destroyed If and while irlthe possession the personhiringthe animalwithoutsuchperson's of fault. that is an estimatedrent must be paid. (3) A takesB's horse. The persontakingthe thingon hire is not boundto returnthe thinghired. But if the house has been dedicated piouspurposes is the to or property a minor. he is not obliged to pay for the use thereof. however. Ariicle597. whetherit is claimedto be property heldin absolute ownership7 or as a result of contract.butis broughtto the houseof the persontakingtheanimal hire on and is destroyedwhile there. Examples: (1) A lives in B>shousefor a certainperiodwithoutconcluding contract hire.it must be broughtto thatplace.

If the thinghiredis destroyed owingto the failure thepersontakingthe thing of on hire tO take propercare)or the valuethereofis decreased. (2) A fire breaksout in a house whichhas been hiredby reasonof a fire being lighted whichis largerthanwhatis customary the houseis burnt. If the persontakingthe thingon hireactsin a waycontrary whatis customary.The otherjoint-owner not give does his assenteo the sade seizeshis share.The loss must be made good. is not obligedto pay of for the benefit received.He cannotclaimrentin respectto his share. Ariicle602. Arecle 601. If any personemploysa or withoutthe consentof his tutor. or any to do.such minoris entitledto receive esiimated an wageforhis services uponhis reaching ageof puberty. Such personmust make good the loss. holdssuchshopfor a certain B period. Example: The personeaking animalon hirebeatsit andit dies. or the valuethereofis diminished. Examples: (1) A is jointownerof a shopandsellssuchshopto B withoutthepermission the other of joint-owner. the . and howevermuch the shop may have been preparedfor giving on hire) because the purchaserhavingasserted he hasusedit as an owner. If the thingtakenon hireis destroyed whilein possession the persontaking of such ehingon hire) the laetermay not be calledupon tO makegood the loss.his ownership that beingclamed to be basedupona contract. his takesit fromthepurchaser.his heirsmayclaiman esiimated wagefromtheemployer respect the periodof in to the employment. If use is madeof property whichis claimedtO be ownedas a resultof contract. even thoughit is preparedfor hire.54 ARAB LAW QUARTERLY Article598. SECTION II by lhe persontakingthe thingon hire Ariicle600. the thingtakenon hireis on trust of while in ehe possessionof the person taking such thing on hire.thatis to say. (2) A sellsarlddelivers mill to B whichhe asserts his ownproperty in absolute his is held ownership.since this is claimedtO be based on a contract.The loss must be made and good. unless he has cotted somewrongful or 1legligencen performed actwhichhe is not authorized act. upona contract sale.arsother person appears claiming the millandafterproving caseandobtaig judgment. Ariicle599.suchpersonmust makegood the loss. Examples: (1) Clotheswhicharetakenon hireareusedin a waycontrary whatis customary to and becometattered. or is destroyed reasonof his an by bmtal and violent driving. loss must be madegood. Such personcannotclaimanythingfromB in the wayof rentin respectto thatperiod. If the tAg hiredis destroyed reason thewrongful of the persontaking by of act the thingon hire. Comperlsatton Ariicle603. to such act is wrongfuland he must make good any damageor loss resultingtherefrom. nothingneed be paid in respectto such use. the the If niirlor dies. Afterhavingheldit fora certain period. Article604. Whetherthe contract hireis validor not.

Examples: (1) A instructs his shepherd who is his private employee to pasture his flock in a certain place and no other. he must make good the loss if such property is destroyed. A must make good the loss. On the expiration of the contract of hire. If it turns out after the cloth is cut up that it is not sufficient for the purpose. Articie 608. If the thing entrusted to an employee to work upon is destroyed by the wrongful act or negligence of such person. and if the animals are destroyed while in that place. Article 606. The tailor tells him that it is sufficient. there is no liability to make good the loss. he incurs no liability. the latter must make good the loss. the shepherd must make good the loss. if his failure to go after the animal arose out of the probability that in so doing he would lose the other animals. he is under no obligation to make good any loss arising out of the destruction of property in his possession not caused by any act . A private employee is a trustee. (2) A hands cloth to a tailor instructing him to cut it and make him a long coat therefrom. The shepherd takes the flock to another place. He has committed a wrongful act. however. Again. Article 605. Example: A takes an animal on hire to load so many okesof oil and instead loads the sarne number of okesof iron upon it and the animal is destroyed. and the person taking the thing on hire fails to do so. He is not liable. the thing hired remains on trust in the possession of the person taking the thing on hire for safe keeping. Article 609. Consequently. if the person taking the thing on hire uses such thing on the expiration of the period of hire and such thing is destroyed. The shepherd must make good the loss. he must make good any loss caused thereby. If the person taking the thing on hire goes beyond what he has agreed to do. He must make good the loss. if the cloth is sufficient. Article 610. But if his act in contravention results in something equivalent to or less than what he has agreed to do. Consequently. acting in contravention of what he has been authorized to do.THE MEJELLE: BOOK II: HIRE ss Example: A person takes an animal on hire and drives it into a deserted place so that it is lost. if the person giving the thing on hire asks for his property to be returned on the termination of the contract of hire. he must make good the loss. But if a load equal to or lighter than oil is loaded and the animal is destroyed. A can claim to have the loss made good by the tailor. Negligence of the employee consists of any fault of his of which he is guilty without excuse in the preservation of the thing entrusted to him on account of his employment. SECTI ON I II Loss causedby employees Article 607. Example: An animal strays from the flock and is lost purely on account of the neglect of the shepherd to come and catch such animal. A wrongful act of an employee consists of any act or conduct contrary to the express or implied order of his employer.

56 ARAB LAW QUARTERLY of his. A publicemployee liableto makegoodanydawnage lossincurred his own is or by act. Prom?llgated Royal Iradah6th. Zil Qada} 1286. . Ariicle611. whetherresultmgfrom any wrongfillact or negligenceof his or not. Siniilarly. property destroyed his ownactwithout faulthe is not liableto make if is by his good the loss.

BRILL is collaborating with JSTOR to digitize. . We use information technology and tools to increase productivity and facilitate new forms of scholarship.jstor. For more information about JSTOR. A. Hooper Reviewed work(s): Source: Arab Law Quarterly.jsp . 2. please contact support@jstor. 1987).org/stable/3381346 . Accessed: 28/06/2012 05:39 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. preserve and extend access to Arab Law Quarterly. JSTOR is a not-for-profit service that helps scholars. http://www. use. and students discover. researchers. 158-165 Published by: BRILL Stable URL: http://www. Vol.jstor.jstor.org.The Majelle: Book III: Guarantee Author(s): C. http://www.org/page/info/about/policies/terms. 2 (May.org . and build upon a wide range of content in a trusted digital archive. pp. available at . No.

THE MEJELLE BOOK III GUARANTEE INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE RELATING TO GUARANTEE Article 612. however. That is to say.or for the vendor personally.a personwho undertakes do a thingwhichsomeotherpersonhas to undertaken do. to Article619.or the personguaranteed. Article614. A guarantee property constituted a personbeconiing of is by guarantor the for paymentof something. A guarantee consistsof theaddition anobligation anobligation respectto of to in a demandfor a particular thing. A contingent guarantee constituted a personbecorriing is by guarantor the for paymenlof the priceof the property sold. Article613. The personin whose favourthe guarantee made may decline to acceptsuch is guarantee. A guarantor a personwho addsan obligation his ownto thatof someother is of person.In otherwords. A personalguaranteeis constitutedby a personbecorriing guarantor a for anotherman personally. in the eventof its beingappropriated a person by having a right thereto. An unconditional guarantee a guarantee is constituted independently any of conditionor of any future time. Article620. Article617. are CHAPTER I THE CONTRACT OF GUARANTEE SECTION I Fundamentul of a bases contract of guarantee Article621. Until such time as he does so. A guarantee may be concludedand becomeexecutory the mereofferof the by guarantor. Thus. In the caseof a personal guarantee personguaranteed the subject the and matterof the guarantee one and the same thing. if in the is . The subject matterof the guarantee the thingwhichtheguarantor is undertakes to handoveror pay. Article615. A guarantee deliveryis constituted a personbecoming for by guarantor the for deliveryof something. Article618. The latter person is called the principal.and bindinghimselfalso to meet the obligation whichaccruesto thatother person. Article616. The personin whosefavourthe guarantee madeis the persondemanding is the guarantee and who is the creditor. it consistsof one personjoinirlg himselfto anotherperson.the guarantee valid.

There may also be more than one guarantor. on demand. nor to have to arrived theageof puberty.the identityof such person is mustbe clearlyestablished. and the creditordies withoutreceivinginforreaiion any that such person has stood security.a personstandssecurityfor the is latterrecovering amountdue to him. Article 625. and the guarantor boundto make good the samein kind or in cash. SECTION II Conditions attaching a contract Guarantee to of Article628. madman.A validcontract guarantee thereby of is concluded. Shoulda personundertake be a guarantor any lirnited to for perlodof time. the perfollllance such obligationmust be bindingon the principal of debtor. a minorbecomesa guarantor of If whilea minor andafterarriving the age of pubertyratifiesthe contract guarantee. the guarantor bound thereby. and the is debtor fails to pay.the guarantor. Example: A states that he has stood security. Example: A tellsB thathe will standsecurityfor thepayment anysumdue to B in the eventof B of not receiving payment thereof.That is to say.thereis no needfor suchproperty be If to identified. Similarly. any are words which by custom are evidence of an undertakig to be bound. Again. The offer of the guarantor.Consequently. of Article 627. that is to say. validcontract guarantee be concluded a of may with regard the price to of a thing sold. or that he is a guarantor. In the caseof a guarantee property. obligation of the mustfalluponthe principal debtor.a contractof guarantee subjectto a conditionfor immediate futureperformance also be or may concluded. rent and otherproveddebts. Article629. that he is ready to or indemnify someone. is Ariicle 622. In addition to the conclusionof an unconditional contractof guarantee.a validcontractof is . Article624. In orderto be able to makea contract guarantee. A contract guarantee alsobe concluded meansof a proIxiise of may by dependent on a condition (see Article 84). suretymust be of sound of a mindandmusthavearrived the age of puberty. It is not essentialfor the personguaranteed be of soundmind. that is. A valid contractof guaranteeis therebyconcluded. the amount of such debt being unknown. validcontract guarantee be entered in at a of may into respect of the debt of a madmanor a minor. if and the personin whosefavourthe guarantee madeclaimsthe sum due to him. a guarantee may be concludedfor paymentforthwithor at some future date. it is property. a contract guarantee limitedduration therebyconcluded of of is independently any condition of or of any future time. a personbecomesguarantor the debt of another if for owingto some third person. imbecileanda at a an niinorcannotmakea validcontract guarantee. wordsused imporiingguarantee. Ariicle 626. such person may demandpaymentfrom.THE MEJELLE: BOOK III: GUARANTEE 159 absenceof the personin whosefavourthe guarantee made. Article631. a valid contractof guaranteeis concluded. validcontract guarantee a of may be concludedwith regardto propertywhichhas beenwrongfully appropriated. A person may validly be a guarantor a guarantor.Consequently.Consequently. Article630. cannotbe madeto at of he abide thereby.however.Consequently. Article623. If the subjectmatterof the guarantee a person.

That is to say. Article 635. Example: A states that he guaranteesthe debt of B. provided there is no right of retention. and the time has arrived. he being merely obliged to return the price thereof if he has received the same. the responsibility for which does not fall upon the principal. since the sale is cancelled. and if C does not pay his debt when it falls due. and if it is payable at some future date. and at the expirationof the period prescribed for payment. But a valid contract of guaranteecannot be made with regard to any actual property sold before the receipt thereof. But a person may validly undertake to be guarantorfor the person guaranteedif such things are wasted or destroyed. No substitution is permissible in criminal punishment. the sum guaranteedmay be clairned forthwith if the debt is payableimrnediatelyby the principaldebtor. If the debt is payableforthwith. If they are destroyed. Article 633. payment may be demanded by the creditor at once from the guarantor. the guarantoris bound to deliver such goods. because if the property sold perishes while in possession of the vendor. he will stand security for the debt. Article 632. if payable at some future date. The effect of a contract of guaranteeis a claim. then upon the expiration of the prescribed period. the guarantor may not be called upon to make payment until the condition has been fulfilled.condilional and fulzlre contraclsof guarantee Article 634.But no claim may be made against the guarantor uniil the principal debtor has been asked to pay. since a valid contract of guarantee may be concluded with regard to a bankrupt also. A valid contract of guaranteemay also be concluded in respect to both the property sold and the delivery thereof. Examples: (1) A tells B that if C does not pay his debt to B. there is no obligation upon hirn to deliver the actual property sold. including blood money payable by a murderer.160 ARAB LAW QUARTERLY guaranteemay be concluded with regard to property bought on approvalas to price. In an unconditional contract of guarantee. just as the death of the person with regardto whom a contractof guaranteehas been concluded frees the guarantor from liability. CHAPTh:R II THE CONTRACT OF GUARANTEE SECTION I Uncondilional. no valid contract of guarantee can be concluded in respect to capital punishment and other criminal matters and punishments of a personal nature. Article 636. it consists of the right of the person in whose favour the guarantee is made to claim the subject matter of the guarantee from the guarantor. or let on hire or in other cases where property has been entrusted to some third party. or is to take effect at some future date. . But a valid contract of guarantee may be concluded with reference to indemnities for personal injury payable by persons who may have inflicted bodily injury. payment may be demanded from the guarantor. Consequently. Where a contract of guarantee is concluded subject to a condition. Upon demand. the guarantoris in no way liable. provided the price has been fixed. It is not a condition that the person guaranteedshould be solvent. a valid contract of guaranteecannot be concluded with regardto property pledged or lent for use. however. A conditional contract of guarantee has been concluded. Likewise.

A is not bound as guarantorfor the price.Nor canhe withdraw he statesthathe willmakegoodany if sum whichmaybe owingto C fromO. Example: A becomes guarantor absolutely B) eitherpersonally in respectto a debt. No claimmaybe made upon the guarantor producethe person guaranteed to before the day in question. or urrongful appropriation proved. that is to say. Upon the fulfilmentof a condition)all mattersin amplification restriction or thereof must also be fulfilled. A is responsible the to personin whosefavourthe guarantee madefor anything is sold to C.The guarantor no rightof askingfor the sameperiod for was has of grace a second time.or when the property sold and is is deliverythereof is given.Butif A undertakes be guarantor anything of to for whichB may sell to C. A validcontract he of guarantee beenconcluded) if B is robbedby C. And if A statesthat he has withdrawn fromthe contract requestsB not to sell tO C andB nevertheless and does sell to C. The guarantor not liable to pay the sum of money in question. guarantor of the cannotwithdraw fromthe guarantee. Article638. Article637. He may. Example: A statesthat he is guarantor B for a periodof one monthas from today.the guarantor withdraw ean from the guarantee beforethe debtorhas becomeliablein respecttO any debt. withdraw from the contractof guarantee priorto the sale. Afterthe conclusion a contractof guarantee. or in respecttQ the prieeof anything he maysell.until judgmenthas been is given by the Court. the caseof a conditional fueurecontract guarantee. guarantor not be calleduponfor the may paymentshouldanypersonprovethathe is entitledto the thingsold.The is personin whosefavourthe guarantee madeis entitledto ask for payment any time is at whatsoever after the expiraiionof the period of graceas from the ame at which the demand payment made. or in respectto anythingthatmaybe wrongfully appropriated from him. Article640. when the debt falls due.A is only for liable during that period. becausethe debt cameinto existencebeforethe conclusion the contract guarantee) of of notwithstanding factthatit wasprovedafter the the conclusion the contract. payment has and maybe demanded from the guarantor. or when the money is lent. . In the caseof a contingent guarantee. (3) A becomes guarantor condition that when the person in whose favour the on guarantee mademakesa claimfor paymenthe shallbe givenso manydaysgrace. In or of however. Article639. In cases of guarantee limitedduration)no demandmay be madefrom the of guarantor except during the period of the guarantee. or foranysumthat for maybe lent by him. and thereafteris dischargedfrom the guarantee. or for the priceof any goods which he may sell.however.THE MEJELLE: BOOK III: GUARANTEE 161 (2) A tells B thatif C stealshis property will makegood the loss. uniil the Courthasgiven judgmentfor the returnof the price by the vendor. The guarantor onlyliablein that is the circumstances contemplated. A cannot for or withdraw fromthe contract. B admits that he is in debt for a certainsum of money. (4) A tellsB thathe is guarantor anysum thatmaybe due to him. Example: A undertakes be guarantor B for the paymentof any sum whichmay be given in to of judgmentagainsthim. (5) A standssecurityfor the appearance B upona certain of day.

whole amountof one thousandpiastres. A transfer debt subjectto a condition the debtorshallnot be freedfrom the his instructs debtorto transfer if Consequently. If he produces called fails. debtor the whereby principal of in Arecle648. Example: by piastrescontracted B.162 ARAB LAW QUARTERLY wrongfully for Ariicle641. If a personwho is guarantor property been guaranteed some third may of sumforwhichhe maybecomeliableby reason his guaranteethecreditor for person any have recourseagainstwhicheverone of them he wishes. C also becomesa for A is guarantor a debt of one thousand of payment his sumfrom can The creditor demand piastres. a creditor of is liability a contract guarantee. for guarantor the thousand joinllyguarantee he of whichever the two guarantors wishes. SECTION III of Guarantee property obliged to make good the loss suffered. actionshallbe taken If theybecome to the eachguarantzed amount bepaidby theothers.however. the eventof his being guarantor If fromhis obligation. borrowing SECTION II person of for Guarantee the production a particular Thus. eachonefor against at guarantors oneandthesameiime. that to someotherpersonon condiiion thedebtoris to guarantee sumhe is owing he does so. Article650.He his no waydestroys rightof claiIsiing from the other or from both simultaneously. is Arecle 643. each accountguarantee Article646. other. debtseparately. guarantee Ariicle642. If they eachguarantee they can bothbe calleduponto pay the amountfor whichthe otheris liable. of his share thedebt Butif theyhavealso each of them is liable for the whole amountof the debt. the contractis changedinto a transferof debt. that of Ariicle649. may claim or appropriated lent for use arld who delivers or for indemnificaiion the cost of transportfrom the person wrongfullyappropriating such propertyfor use. If thereareseveral of any aciionmaybe takenagainst oneof themforthewholeamount the debt. If thereis a condition the contract guarantee becomesfreed from his liability. the the consistsof producing personguaranteed.But if the two guarantors the the debt. A personwho holds propertybelongingto some otherpersonon trust may of validlybecomethe guarantor that personfor the paymentof a debt owing by him?on is and shallbe madeout of suchproperty the guarantor thenobligedto that condition payment . they are each liablefor the half of this sum only. and payment. A personwho is guarantor the returnand deliveryof property such propertyto the owner. he such person. A guarantor has Article644. such personmay demalldpaymentfrom whicheverof the two he wishes.he shall be compelledto producehim. The personclaimingunderthe guarantee the opiion of claimingeither the of debtor. If personswho are jointlyindebtedon one partieular any one of them for the whole amount.The exercise his rightagainst onein the or the against guarantor against principal mayclaimfirstfromthe oneandthen fromthe other. action may be taken against for guarantors such of guarantors onedebtwho havebecome Article647. by has of *Article645.he is discharged upon to do so. A personal in at the mustproduce personguaranteed anytimesiipulated.

On the otherhand. in respectto whathe hasguaranteed notwhathe haspaid.if he is guarantor respectto in base coin and pays in sound coin. the debtis payable of if forthwith by the principal debtor.that is to say. he is only entitled to receivebase coin from the principaldebtor. postponement respectto the guaranton. the guarantorInay make application the Courtfor the appointment a representative such personand for the to of of person guaranteed be handed over to him. If a personrequestsanotherto guararltee debt whichhe owes to some third a personand such personagrees.does not act as a postponementin respect to the principaldebtor. In the caseof an absolutecontract guarantee.payment thereofmayalso be demanded forthwith fromthe guarantor If the principal debtoris to makepayment somefuturedefinitedate)however.and paysthe debt. In the eventof the deathof the is guarantor) heirs must producethe personwhose appearance guaranteed the time the is at agreedupon)or if suchpersonsurrenders himselfin accordance thecontract guarantee. to Article652. If the guarantor produces personguaranteed the ame agreeduponand the personin the at whose favour the guaranteehas been given cannot be found. But if A is guarantor respectto one thousand in piastres as the resultof a settlement and paysfive hundredpiastres. If the creditorpostponeshis claim in respectto the principaldebtor. the and Butif he haspaida portion thedebtas a resultof a settlement of withthecreditor. Article657.payment at may only be demandedfrom the guarantor that date. In the event of the deathof the personin whosefavourthe guarantee is given his heirs may claim the sum in question.A can only recoverfive hundredpiastres fromthe principal debtor. Article651. Ariicle 655. In thecaseof a restricted contract guarantee. of payment be demarlded may from the guarantor accordance in with the natureof the guarantee.andfailsto producesuchperson to at the appointed time. is to he then personallyliable. the estate of the guarantor becomesliable for paymentof the debt. and not to the whole debt. with of the guarantor7s property freedfromall liability.If he retumsthe property the ownerthereofafterbecomingguarantor. guarantees paythe debt of suchperson.he maydo so. Article654.the guarantor obligedto paysuchdebt. . Ariicle 656. on Ariicle653. (2) A is a guarantor so many piastresand as the resultof a settlementpays with for goods.If theyfailto produce personguaranteed. is the or if such personfails to surrender himself. hasa right he of recoursein respect to that amount only.THE MEJELLE: BOOK III: GUARANTEE 163 makepayment fromsuchproperty.such person must find a guarantor upon the creditorapplyingto the Court to that effect. If anypersonguarantees produceanother a giventimeand in the eventof to at his failingto do SQ. He is entitledto receive for soundcoin fromthe principal debtor. whetherfor immediatepayment or for paymentat some future definite date. A in however. He pays with base coin. If a personwho has contracted debts repayable some futuredefinitedate at wishes to leave for some other countrybeforesuch debts fall due for payment. he is consideredto have postponedhis claim both in respect to the guarantor and any person guaranteeing him Any postponement respectto a firstguarantor as a postponement in acts of the secondguarantor. A recovers fromthe principal debtorin cashthe amountthathe has guaranteed. andalsofor a periodbeyond that date. andwishesto exercisehis rightof recourse against debtor. Examples: (1) A is a guarantor sound coin. the property destroyed) guarantor not obligedto If is the is pay anything. A contract guarantee validlybe concluded respectto a debtpayable of may in at somefuturedefinitedatefor a periodto coincidewith suchdate.

whether the principal the was by debtor the guarantor guarantor or the is releasedfrom the contractof guarantee. he handshimoverin thepresence a policeofficer.however. Thereupon. But if he handsoverthe personguaranteed to withoutbeingrequested do so.however) is of If of he releasedfrom the guarantee. is Ariicle661. If a personwho has guaranteed producea certainpersonon a certainday to producessuch personbefore that day. Article660. If it has beenstipulated he shalldeliverhim in somespecified that town.but handshirnoverin the street. The releaseof the guarantor does not bringaboutthe releaseof the principal debtor. Examples: (1) A buysa pieceof land anderectsa buildingthereon.he is not freedfrom the contract guarantee. The guarantor released is fromthe contract guarantee simplyhanding of by over the personguaranteed when requested do so. CHAP TER III RELEASE FROM THE CONTRACT OF GUARANTEE SECTION I General Article659.164 ARAB LAW QUARTERLY Arecle 658. If the personin whosefavourthe guarantee madeinforms guarantor is the that he hasreleased fromthe contract guarantee) thathe hasrenounced rightshe may him of or any have againsthim. of whether such personagreesor not. he is not released to fromthecontract unlesshe statesthathe is handinghim over in pursuanceof the contractof guarantee. delivers elsewhere. If any party to a contract based upon consideration deceivesanotherparty thereto. Article665.liability. whois a minor)stating thathe hasgivenhim permission engagein trade.such party must make good any loss causedto the olher. SECTION II Releasefrom a contract guaranlee produce particular of to a person Ariicle663. the guarantor freed from all. as a townor township) is released such he fromthecontract guarantee. Upon the guararltor producing personwhoseappearance guaranteed the was to the personin whosefavourthe guarantee givenin a placewhereit is possibleto takelegal was proceedings. (2) A requests certain merchants sell certain to goodsto his son. .The merchants eniitledto recover valueof the goods are the which they have sold to the boy from A. is not released and him he fromthecontract guarantee.It is laterprovedthatthe boyis the to son of someotherperson. even thoughthe person in whose favourthe contractis given does not agree thereto. personappears a who provesto be entitledto such land and takespossession thereofw is eniitledto A recover vfiue of the landfromthe vendorarldin addition valueof the building the the at the time of handingit over. Ariicle664. of If he hasagreedto produce him in Court. Article662. he is releasedfrom the contractof guarantee. Whenthe subjectmatterof the guarantee madeoverto the personin whose is favour guarantee made. The releaseof the principal debtorfromliability bringsaboutthe release the of guarantor.

principal in bothof themarereleased fromthe contract of guarantee.Shouldthe personin whose favour the guaranteeis given die. however. PromulgatedRoyal Iradah. is from the contractof guarantee. in such contractdoes not include the contractof guarantee. If propertyis taken on hire for a fixed period and some person becomes guarantor the rentto be paidin respectthereton for the contract guarantee of terminates the at end such period Shoulda freshcontractof of hire be concluded respecttO that property.or if no conditionhas been insertedat all. Muharram. the guarantor on is released fromthe contractof guarantee. In theeventof the deathof a guarantor of property. Article669. and if there is any personguaranteeing the guarantor. theguarantor and the principaldebtor are releasedfrom liability. Ariicle671.andbothsuchpersonsagreethereto. If theguarantor transfers liabilityin respectto the person whosefavourhe has in concluded contract guarantee someother the of to person. Shouldtherebe some otherheirof the debtor.the guarantor releasedfrom the is contract guarantee. he is releasedfrom the contract guarantee of and any personguaranteeing is alsoreleased him fromthe contract. In the eventof the guarantor of the or debtorcomingto a settlement withthe creditor respectto a poriionof the debt. also is he released. the guarantor aloneis freed. 18th.Again)if the guarantor dies. a stipulation been inserted if has to the effectthatbothof themor the principal debtorare to be released.the guarantor is only released fromthe shareof the debtor. the guarantoris not releasedfrom the contractof guarantee. Article670. If a personbecomesguarantor the for priceof a thingsold and the contractof sale cancelledor the thing sold is claimed is by some personwho is eniitled theretoor is returned accountof some defect. of shouldthe debtorbe the sole heir of the creditor. If a conditionhas been inserted stipulating the releaseof the guarantor for only.however.THE hSEJELLE: BOOK III: GUARANTEE 165 Ariicle666. SECTION tII of property Release from a conlract of guarantee Article667. If the personwhoseappearance is guararlteed the guarantor released dies. property the guaranteed may beclaimed from the guarantor's estate.and a claim may be made by such person'sheirs. and not from the share of the other heir. Ariicle668. Article 672. by 1287. . In the event of the death of the creditor.and the creditor the option of claimingthe whole of has the debt from the principaldebtor or of claiming amountcoveredby the settlementfrom the the guarantor the balancefrom the and principal debtor.

http://www. pp.org/page/info/about/policies/terms.. A. We use information technology and tools to increase productivity and facilitate new forms of scholarship. preserve and extend access to Arab Law Quarterly. 1987).jstor. Hooper Reviewed work(s): Source: Arab Law Quarterly.The Mejelle: Book IV: Transfer of Debt Author(s): C. http://www. available at . Vol.jsp .jstor. .org . For more information about JSTOR. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. BRILL is collaborating with JSTOR to digitize. and build upon a wide range of content in a trusted digital archive. 3 (Aug. JSTOR is a not-for-profit service that helps scholars. No.jstor. use.org/stable/3381699 . 311-314 Published by: BRILL Stable URL: http://www. please contact support@jstor. and students discover. researchers.org. 2.

to the does Ariicle679. the limitsthe Article678. The transferor the debtor who makes the transfer. The transferee the personwho agreesto the transfer the debt to himself.THE MEJELLE BOOK IV TRANSFER OF DEBT INTRODUCTI ON TERMS OF MUHAMMADAN JURISPRUDENCE RELATING TO TRANSFER OF DEBT of Ariicle673.In both cases a validcontractfor the transfer debt has been concluded . The subject matter of the transferis the propertytransferred. By transfer debtis meanttransferring debtfromthe account one personto of a that of another. of Ariicle 676. is is Article 675.arldby the agreement his the creditorand such other person.or A tells B to transfer him a sumof moneyowingto him by C and B tO of agreesthereto.and the transfereemay not thereaftergQ back on the transaction. A contract the transfer a debt is concluded the transferor for of theretoof creditorthathe hastransferred debt to someotherperson. is Article 677. CHAPTER I THE CONTRACT OF TRANSFER SECTION I OF DEBT of The fundamental basis of a trar2sfer debt by informing his Article680. . Ariicle681. A contractfor the transfer a debt may be concludedbetweenthe personin of whose favour the transferis made and the transfereealone. Example: A informsB thathe hastransferred him a certainsumof moneyowingto him by C and to B agreesthereto. A restricted transfer debtis a transfer debtwhereby transferor of of or paymentby the transferee propertyof his owing by the transferee in his possession. Ariicle 674. The person in whose favour the debt is transferred the creditor. An absolute transfer debtis a transfer debtwhereby transferor not of of limit the paymentto propertyof his in the possessionof the transferee.

Example: A agreesto acceptthe transfer B of somedebtwhichmaybe proved the futureto be by in due to him. and is the on being informedthereof)agreesthereto. .is valid. Forthecontract transfer debtto be executory.If the transferee. whois residentin someothercountry. To conclude contract the transfer a debt. Article688.is void. Consequently. if the minoracceptsthe transfer a debtandthe tutorgiveshis permission. The contractis invalid.312 ARAB LAW QUARTERLY Article682.agreesthereto. or whetherinterdicted. the transfer acceptance the transfer a debtby a minorof perfect or of of underst2nding dependent is uponratification thetutor.provided transferee. Article687. however) be clearlyascertained. Any contractfor the transfer a debt in respectto whicha validcontract of of guarantee be concluded. beinginformed on thereof. transferor theperson of of the and in whosefavourthe transfer mademusthavereached age of puberty. such transferbecomesexecutory. lAoreover.If thetutorratifies. to C. is the Consequently.The contract thetransfer a debt a for of hasbeenconcludedn subjectto the consentof the personin whosefavourthe transfer has been made. transferee of the must be wealthierthan the transferor. A contractfor the transfer a debt in respecl to whicha valid contract of of guarantee cannot be concluded. the transferor theperson a for of and in whosefavourthe transfer mademustbe of soundmindn the transferee is and mustbe of sound mind and have reachedthe age of puberty Consequently. subjectto the agreement the personin whosefavourthe transfer of is made. contract by the becomes executory. Ariicle685. contract the transfer a debtwhichis unknown any for of is irlvalid. Example: A transfers debtowingto him by B to C. and any acceptance the is of transferof a debt by a minor whetherof perfector imperfectunderstanding.a validcontract for the transferof the debt is concluded. The subjectmatterof the contract can must. that the transferor nor shouldbe entitledto receivesomethingfrom him. agrees a B thereto. Ariicle686. Arucle689. whether or permittedby his tutor to undertakebusiness. A contract the transfer a debtincurred reason a guarantee arising for of by of or out of a contractfor the transfer a debt may be validlyconcluded) the sameway as a of in contractfor the transferof debts wich have been incurreddirectly. transfer acceptance the any or of transfer a debt by a minorof imperfect of understanding void. A contract the transfer a debt may be concluded for of betweenthe transferor and the transferee only. Ariicle683. A contractfor the transfer a debt may validlybe concludedbetweenthe of transferor the personin whosefavourthe transfer madealone. and if the latter agreesthereto.is invalid. C agrees. It is not essentialto the validityof a contractfor the transfer a debt thatthe of transferee shouldbe indebtedto the transferor. SECTION II Conditions relating transfer to of debt Ariicle684. Example: A transfers debtwhichhe owesB.

Article692. andsuchperson of agreesto the transfer thatcondition. he mayobtainwhathe hasgivenfromthe transferor. if anypersonappears But whois entitled to the thing sold and takes possessionof the same wherebyit is proved that the transfereeis free from the debt. In the caseof a restricted contract the transfer a debt. the transferor beforemaking If dies payment. contract voidandthe debtreverts the is to the transferor. If such the personhasa claimagainst transferee. The effectof a contractfor the transfer a debtis thatthe transferor. lattermayhave recourseagainstthe former.or if thesaleis rescinded. in the caseof a transfer of of . The transferis void and the sum due to the creditorrevertsto the transferor.the othercreditors haveno rightto touchthe subjectmatter of the transfer. being depositedon If or trust. any. areliberated if fromall responsibility the debt.the contract valid. Article693. or by reasonof an optionof inspection anoptionfordefect. If a restricted contract the transfer a debtis concluded for of whereby payment is to be madefroma sumof moneybelongingto the transferor the possession the transferee. the contractof transferis soid. and some person appearswho is entitled to such money and takes possessionof the same.the pricein consequence and being no longerdue. the transferor for of loses his right to claimon accountof the subjectmatterof the transfer. Ariicle691.That after is to say. or suchtransfer is not void and the transferee a rightof recourse has againstthe transferor payment. Ariicle697.the contractcontinuesin force. the thing sold is destroyedbeforedelivery.THE MEJELLE: BOOK IV: TRANSFER OF DEBT 313 CHAP TER II EFFECT OF A CONTRACT FOR THE TRANSFER OF DEBT Article690. such money has been wrongfullyappropriated. Article695. and the debt revertsto the transferor. and such money is lost without any fault being attributable. it is subjectto compensation. if. If a restricted contract the transfer a debtis concluded for of whereby payment is to be madefroma sum of moneydepositedon trustby the transferor with the transferee. the contractof transferis void. in of andsuchsumof moneyis not subjectto compensation.andthe transferee boundto sell on is is the propertyand pay the debt from the price realized. If any personwho makesan absolutetransfer a debt has no claimagainstthe of transferee. thecontractis not void. Article696. If however. before paymentis made. A pledgeewho transfers rightto claimthe debtfromthe pledgor somethirdpersonlosesall his to right of retentionover the pledge. Example: A transfers C a debt whichis due to B. In the caseof a vaguetransfer debt. or if the thing sold is returnedby virtueof a contractual option. his of and guarantor. Uponmaking goodsuchloss. he hasa right of recourse againstthe transferor. The transferee underno is obligation whatsover give the subjectmatterof the transfer the transferor. he to to If is liableto makegoodanyloss resultingtherefrom. it has beenlost by the act of C and mustbe repaidby him. If a restricted contract the eransfer a debtis concluded for of whereby payment is to be madefromthe sum to be receivedin respectto the priceof a thingsold due to the vendor from the purchaser. thatis to say. If anypersontransfers debt to someotherpersonandprovides payment a that is to be madefromthe pricerealizedon the saleof somespecificproperty his. debtsbeing his greater thanthe valueof his estate. amount the claimis set off against debtafter the the of the paymenthas been made.afterhe has paidhis debt. to be paidfrommoneywhichhe has deposited to with C on trest. Article694. The personin whosefavour for the contract madethen has the right of demanding is paymentthereoffromthe transferee. he doesso.

the subject is matter the transfer be claimed. The moneywhichwas the subjectof the transfermay be claimed.or the personin whosefavourthe transfer madeliberates transferee is the from the debt. thedebtis likewise if payable forthwith the transferor. Article699. cannot. Paymentis madein gold.he is liberated from the debt. Promulgated Royal Iradah. Silvermoneymay be claimed from the transferor and not gold. Article698.314 ARAB LAW QUARTERLY debtwhereit is not siipulated whether subject the matter thetransfer payable of is forthwith.the transfer of by If at is the same nature. Examples: (1) Silvermoneyis transferred.and in the is of the transferee becominghis heir. (2) Paymentis made with goods and effects. 1288 by . Ariicle700.25 Sefer.andwhenrecourse made. of may Thatis to say. or it is transferred someother is to person.however. If the subjectmatterof the transfer paid.or theperson whosefavour transfer mademakesa giftof thesubject in the is maeter the of transfer disposesof it as alms and the transferee or accepts. the transferee takesfrom the transferor exactlythe sarnetype of moneythat was the subjectof the transfer. the transferbecomesdevoid of effect. or at somefuturedefinitedate. In the eventof the deathof the person whosefavour transfer made. the debtis payable somefuturedefinitedate.claimthe identical He Inoneywhichhas beenpaid.the transfer onepayable is forthwith.and paymentmust be made when the debt falls due. Thereis no rightof recourse against transferor the untilthe transferee paid has the debt.

A.org/stable/3381827 . and build upon a wide range of content in a trusted digital archive. http://www. Hooper Reviewed work(s): Source: Arab Law Quarterly. use. No. 3 (Aug.org. 299-310 Published by: BRILL Stable URL: http://www. We use information technology and tools to increase productivity and facilitate new forms of scholarship. please contact support@jstor. preserve and extend access to Arab Law Quarterly. 3. Accessed: 28/06/2012 05:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use.jstor. researchers. available at . Vol. Constraint and Pre-Emption Author(s): C.jstor..org .jstor.jsp .org/page/info/about/policies/terms. For more information about JSTOR. http://www. JSTOR is a not-for-profit service that helps scholars. pp.The Mejelle: Book IX: Interdiction. and students discover. 1988). BRILL is collaborating with JSTOR to digitize. .

Lunaticsaredividedinto two classes. Article945. Article947. An irnbecile a personwhosemind is so deranged is that his comprehension is extremely limited. CONSTRAINT AND PRE-EMPTION Article941. minorwho can to A distinguish betweenthesemattersis calleda youngpersonof perfectunderstanding. Interdiction consistsof prohibiting particular any personfromdealingwith his ownproperty. suchpersonis calledan interdicted person.The firstconsistsof personswho arecontinuouslymad and whosemadnesslasts the whole time. The first class consistsof majorconis straint. A prodigal personis a personwho by recklessexpenditure wastesand destroys his property no purpose. personswho aresometimes that madand sometimes sane. or * The translationof certain technical terms in this Article has been omitted as having no meaning for the English reader. . who does not understand ownership lost by sale and that is acquired purchase. CONSTRAINT AND PRE-EMPTION INTRODUCTI ON TERMS OF MUHAMMADAN JURISPRUDENCE RELATING TO INTERI)ICTION.andwhoseactionsareimperfect. By permission meantremovingthe interdiction destroying right of is and the prohibition. A minorof imperfect understanding a youngpersonwhodoesnot understand is sellingand buying. Article946.his speechconfused. The secondclass consistsof persons whosemadnessis intermittent.THE MEJELLE BOOK IX INTERDICTION. that is misrepresentation amounting fivein ten. Constraint consistsof wrongfully forcinga personthrough to do something fear withouthis ownconsent.wherebythe deathof a personor the loss of a limb is caused. The personto whomsuchpermission givenis calledthe permitted is person Article943. Article948.Afterinterdiciion. thatis to say.suchas assault imprisonment. Article942. Constraint divided into two classes. fromminormisrepresentation.The secondconsistsof minorconstraint wherebygriefor painaloneis caused. is to say. Article944.* Article 949. whois unableto distinguish by and obviousflagrant misrepresentation.Personswho aredeceived theirbusinessowingto theirbeingstuto in pid or simple-minded alsoconsidered be prodigal are to persons. A personof maturemindis a personwho is ableto takecontrolof his ownpropertyandwho does not wasteit to no purpose.

themfromdealing marketmay be restrained praciice.andnot to prohibit on businessor tradein the on 965.held absolof a pieceof property in of consists acqiiringpossession he gaveforit. to belonging B. make ately goodanyloss caused destroysproperty Example: understanding. even thoughhe be a goodthe loss. invalid. A personwhois a prodigal also be interdicted the Courtuponthe appliby Article in debt may Article959. Uponthe in public. he mustmake the anda personin debtto be interdicted. tradeallegethattheirworkis . over in in virtueof whichthe rightof pre-emptor the who shareswithanother rights is a person 954. Providedhe has not Ariicle963. 950. of may solelyby reason his dissolute physician) also maynot be interdicted public. The subject pre-emption Article of ownership heldin absolute attached. Article The pre-emptor to property whichtherightof is real of 952. Minors. No personwho carries carrying suchbusinessor Article persons of by reason the factthatother on carrying the same from beingruinedthereby. Article A private CHAP TER I TO INTERI:)ICTION MATTERS RELATING SECTION I 300 LAW ARABQUARTERLY therero relating and persons matters of Classes interdicted areipsofcto interdicted. a Courtdeclaring prodigal Article961. does public not belongto this is no exit. and datearevalid. in his absence. the interdiction madeby himup to thal or any a personof dissolutecharacter sequently. Article by may 958. contracts admissions his squandered property. heldin waterfromsomeflowing property absolute of taking is rightof takingwater a right takingwaterfromriversusedby the 955.In such cases. A jointownerof a servitude a sharein water. mustbe given.or a sharein a road. the Article Pre-emption the by payirlg purchaser amount whichhas beenpurchasedn ownership ute of pre-emption. Article960.lunatics imbeciles be interdicted the Courl. Article962. ofthe interdiction. conduct. is of matter pre-emption the property subject 953.But the rightof for a reservedinited number class.andannounced shouldbe for reason suchinterdiction whomtheCourtintendsto interdictinformed the person that be It is not essential must. mayvalidlybe interdicteddoesnortakeeffectuntilhe hasbeenso informed.Suchperson ConHe present. Article suchas water ownership. Article A private of persons. the is the personenjoying right is pre-emption 951.the objectof the interdiction be interdicted. Article The is pre-emption exercised. Anydisposition persons. is Articles. Persons however. suchas saleandpurchase of property mustimmedimoreover.however. youngpersonof ilnperfect If A. A personwho is of on the partof interdicted cationthe creditors. withtheirproperty. and 957.suchas an ignorant whocauseinjuryto the them from is tO restrain Article964. roadis a roadfromwhichthere 956.Such to in the preceding referred persons by theirownacts.

Anydisposition property. The repeatedconclusionof contracts to maybe inferred. Ariicle971. mayact for all time.andnot otherwise.the reasonbeingthat the contract sale is one whereit iS or not certainwhetherit will be for his advantage disadvantage.The minormayengage (2) The tutortells the minorto engagein tradein a certain in tradeanywhere. market. The minormay of (3) The tutor tells the minorto buy andsell property a particular buy and sell any sortof property. A minorof imperfectunderstanding not in anymarmer positionof his property. from which the inteniionto makeprofit Ariicle969.CONSTRAINT SECTION II Matlers relating to minors} lunatics andimbeciles makeanyvaliddismay Ariicle966. or tellshim to sell a certainthing)such act does not amountto to to permission engagein business.But if he merelyauthorizes to concludea singlecontract. or maybe givenexplicitly by implication. him to This amountsto permission engagein business. of he maydeliverhim the balance suchproperty. on a Article968. is invalid.Butin the caseof contracts of subjectto the permission are such will be forhis benefitor disadvantage.Thus. Ariicle967. if he thinksthat of it is to the advantage the minor. The rninorhas full andabsolute the tutormakeshim interdicted.as wherehe statesthatcertainthingsareto be foundin the market and tells him to buy them. A tutormaygive a minorof perfect1lnderstandingportionof his property trialwilh which to engagein business. Example: The withoutpermission. sort. contracts concluded his or the tutor.The tutorhas the optionof givirlg withholding consent. Examples: for to (1) The tutorgives perlIiission a niinorof perfectunderstanding a periodof one day and permission.whichis purely of thoughhis tutordoes not assentthereto.even to his own disadvantage. Any dispositionof property of whichis purelyfor his own benefit)suchas the acceptance gifts and presents)is valid.but the tutoris considered haveemployedsuchminor with cuslom. Permissiongiven by the tutormaynot be madesubjectto any conditionas to type or iime and place7 limitedto any particular of business.even however.amountsto permission engagein business. until or one month. they whereit is notcertainwhether thoughthe tutorassentsthereto. by a suchas bestowing thinguponanother wayof gift. execution property sells A minorof perfectunderstanding certain of the saleis subjectto the assentof his tutor.eventhoughhe hassoldit for a pricewhichis of greaterthan the valuethereof.even thoughhis tutorassentsthereto. enteredinto by a minorof perfectunderstanding. Permission .he will givehis consent. Example: of to A tutortells a rninor engagein business)or to buy andsell property a certainnature.AND PRE-EMPTION 301 THE MEJELLE: INTERDICTION. as agentin accordance Article970.andif it turnsout as a resultthathe is of maturemind.

(5) The guardianchosen and appointed by such anceslor (6) The guardianappointed by such guardian. . A tutor who has given permission to a must take the same form as the permaking the minor interdicted. a minor that he be allowed to dispose of Article 975. It is not enough for him to be made ity of people house in the presence of two or three persons. other relative who are not guardians. or the father (4) The true ancestor. A such perrnission. the Article 976. he wishes to make the minor interdicted. or invalid. In the event of the death of a tutor who void. . that appointed by the father during his lifetime. the guardian chosen and (2) If his father is dead. that is to the father of his father. and Article 980. however. that is Court. or any granted such Court or by the successor of the judge who after the death or dismissal of such other tutor. then the guardian of say. Example: in business. The tutor has given makes no comment thereon and does not prohibit . to say. is Any permission given by a brother.and a senior tutor of such minor refuses under any circumstancesmake such minor niinorpermission to do so. by his tutor. is to say. When permission is given to a minor to the matters included in the pertriission. during his lifetime. has given perrnissionto a minor. has become known to people in made known to the majorand must be interdiction must in the sarneway be made general. become null and void by reason of the death or dismissal may be interdicted by minor who has been granted perIriissionby the Court Article 977. but the interdiction by rmsslon. interdicted in his own in the market. If the Court deems it in the interest of to give permission. The tutor of a minor in this connection (1) His father. . minor may later revoke such permission Article 973. or an uncle. such minor is considered to Article 972. lCatlOn. are Like person. the guardian appointed by the (7) The Court. But permission given by the Court does not permission which he has given becomes of the judge.302 LAW QUARTERLY ARAB Example: with the knowledge of his tutor. or the guardian appointed. . who A minor of perfect understandingengages in business him from so doing. of perfect understanding. . appointed by him during his lifetime. is: Article 974. who are not coniinuously mad. the guardian chosen. Article 978. . Acts of disposition over property by lunatics acts of disposition over propertyperformedby a sane performed during a lucid interval.Conarrived at the age of puberty in respect have such tracts as those relating to sale and hire are valid. . the Court may give the property. may not make the niinor interdicted judge. An imbecile is considered to be a minor are considered to be minors of imperfect Article 979. The father.NllSperIIllSSlOn 3y lMp. the father of the father of the minor. Lunatics who are continuously mad understanding. and no other tutor may interdicted. (3) If the guardianchosen is dead. After this permission A tutor gives a general perrnissionto a minor to engage The the market.

however. but his capacity to shouldbe put to the test. suchsaleis not executory. Article991 Any disposition property theprodigal of by afterinterdiction regards civil as his transactions invalid.uniil it has beenprovedthathe is of maturemind Article983. their admissionshall be confirmed)and their contractsand admissionsare executoryand valid. When a youngpersonarrivesat the age of puberty. by Article985. withouteffect.it mayvalidate suchsale. at Article988 If any young personwho has not arrived at the cornmencement of the age of pubertybriIlgsan actionto provethat he has in fact arrived the age of puberty. If property handedby a guardian a minorbeforeit hasbeenprovedthathe is to is of maturemind. Courtalone.the guardian must makegood the loss. Article993. any adrnission madein respecttO property existenceat the time in the interdietion declared. as regards civil transactions.may be the tutorof the prodigal. If a maleor femaleapproaching ageof puberty the admitin Courtthattheyhave arrivedat the age of puberty.by menstruaiion.The terminaiion the age of of pubertyin bothcasesis fifteenyearscompleted.showsno of signs of puberty. If the ineerdicted prodigal sellsproperty. Article 987.If a maleon reaching twelveyearsanda female on reachingnine yearscompletedhave not arrivedat the age of puberty.such action at shallnot be heard. Article994.the condiiionof theirbodiesshows that their admissionis true. Article992 Any expenditure necessary the interdicted for prodigal for thosedependent or uponhim for supportmaybe madefromhis ownproperty. and to Ariicle 986. andif it turns out thathe is of maturemind)his property shouldthen be givento him. the Court If thinksthatanybenefitmaybe derivedffierefrom. If property handedto a minoruponhis reaching ageof puberty.and the conditionof theirbodiesshowsthat theiradmission is false.they are said to be approaching pubertyuntilsuch timeas theydo in factarriveat the ageof puberty. If a youngpersonwho is not of maturemind arrives the age of puberty)his at propertyshouldnot be handedto him and he shouldbe prohibited previously as fromdealing therewith. Puberty provedby the eIriission seedduringdreams. Any person who upon reaching the termination the ageof puberty.The father) The ancestor guardians and haveno rightof tutorship overhim. Article989. If such personslaterstatethatat the time they madethe admissionthey had not arrivedat the age of puberty.If. Article982.and seek tO annulany dispositionthey mayhavemadeovertheirproperty. The commencement the age of pubertyin the case of malesis twelveyears of completedand in the case of femalesnine yearscompleted. such admission shallnot be corfirmed.thatis to say. by the capacity conceive. however. a minorof perhis like fect understanding.CONSTRAINT AND PRE-EMPTION 303 Article981. An interdicted prodigalis. Article984. accruing was or thereafter. andsuch property lost whilein the possession theminor)or the minor is of destroysthe same. attention no shallbe paidthereto. is considered in law tO havearrived the ageof puberty.and it is is the laterprovedthathe is a prodigal. An adniission madeby an interdicted prodigal a debtdue to another absolof is utely invalid.THE 1WEJELLE: INTERDICTION. SECTION III Interdicted prodigals Article990.thereshouldbe no undue hastein handinghis property him. however.such personshallbe interdicted the Court. the powertO make is of by pregnant. is .Any such dispositions are madepriorto the interdiction the sameas are thoseof otherpeople.

Interdiction on account of debt only applies to property of the debtor in existence at the time the interdiction was declared. such country house shall be sold and a suitable dwelling purchased from the sum realized. the Court shall prohibit the debtor from dealing with his property. they may make application to the Court and ask for such person to be prohibited from dealing with his property or adIIiittinga debt to some other person. however. The Court shall begin by selling those things which are most advantageous to the debtor. and he is liable to make payment thereof. If an interdicted prodigal borrows money and uses it for his personal expenditure. shall be paid from the debtor's property. After the interdiction has been removed. Article 996. any contracts entered into by a bankrupt debtor which are prejudicial to the rights of creditors. Again. are expensive. the interdiction may be removed by the Court. the admission is valid. and the balance given to the creditors. If he acquires property after the interdiction has been pronounced. if the debtor has a large country house and a smaller one is sufficient for him. and the Court shall then declare the debtor to be interdicted and shall sell his propertyand divide the proceeds among the creditors. are invalid in respect to property which existed at the time the interdiction was pronounced. and it is possible to do with less expensive clothes. They are valid. The interdiction applies to anything likely to destroy the rights of creditors. the Court shall esiimate the amount necessary for his maintenance and disallow the rest. the real property of the debtor. however. such as making gifts and bestowing alms and selling property at less than the estimated value. If it is excessive. although he is able to pay. if his debts are equal to or exceed his property. Article 999. the Court shall do so. Article 1001. and the amount thereof is not excessive. is invalid. and the creditors ask the Court to sell the property of the debtor and pay his debts therefrom. SECTION IV Interdiction debtors of Article 998. an admission that he will make payment therefrom is executory. . that is to say. however. If the interdicted prodigal reforms. It does not apply to any property accruing to the debtor after the interdiction. the Court shall repay such money from the prodigal's property. however. Article 1002. and the creditors fear that his property will be lost by trading. Article 1000. One or two suits of clothes shall be left for the debtor. Any expenditure necessary for the maintenanceof an insolvent debtor during the period of his interdiction. The Court shall first deal with the cash assets and if these are not sufficient tlle merchandise. Should the debtor himself refuse to sell his propertyand pay his debts therefrom. or that he will dispose of his property in fraud of his creditors. Any claim which any person may have against an interdicted prodigal shall be paid from the prodigal's property.304 ARAB LAW QUARTERLY Article 995. or for persons dependent upon him for support. If it is clear to the Court that the debtor is putting off paying his creditors. and if that is not sufficient. and other dispositions of propertyand gifts. in respect to property acquired after the interdictionwas pronounced. such clothes shall be sold and a suit of cheap clothes shall be bought from the sum realizedand the balance shall be paid to the creditors. Any admission made to any other person in respect to a debt relaiing to any propertyin existence at the time the interdiction was pronounced. If the debtor's clothes. Article 997. Consequently. If the debtor is bankrupt. or that he will make it over to some other person.

andthe persondestroying is suchproperty alonemaybe calleduponto makegoodthe loss. release. But if a persontells anothertOdestroy propertyof a certainperson. Constraint considered be effective the personwho is the subjectof such is to if constraint performs act he has been forcedto do. Article1004. to Article1005.the constraint effectiveand the personresponsible the conis for straintalonemaybe calledupon to makegoodthe loss. in the presenceof the personcausingthe the constraint.the constraint not effective. is Article1007. gift. invalid.THE MEJELLE: INTERDICTION.or he will strikehim or imprisonhim and he does destroysuch property.settlementin of regardto property. threatof any personwhois unableto put such threatinto execution. sale is considered be validand the The to constraint ineffective. adniission. (2) Wherea personis partownerof a servitude thethingsold. The personwho is the subjectof the constraint must be afraidof the occurrenceof the eventwith whichhe is threatened. transfer realproperty. Contracts sale. of and of by Consequently. Therearethreecausesof pre-emption. Ariicle 1006. the personsubjectto constraint or If ratifies contract the afterthe cessation the constraint. to of by however. of hire. actis not considered havebeencausedby or such to constraint sincehe has performed act freelyafterthe cessation the constraint.but alsoto dispositions property conduct. Majorconstraint appliesnot only to casesof formaldispositions property of as referred above.is conthe sideredto be of no effect. the of Example: A bringsconstraint bearon B to obligehim to sell property C.postponemenl debtandrenunciation a rightof preof of empiion.As wheretwopersonsjointly sold own an undividedshareof realproperty. B sells the property to to to C in the absenceof A or of his representative.CONSTRAINT AND PRE-EMPTION 305 CHAP TER II CONSTRAINT Article1003. if he performs But such act in the absenceof the person causingeheconstraint of his representative. The personwho causesconstraint must be capable carrying his threat. of such contract valid. (1) Wherea personis the jointownerof theproperty itself.Minorconstraint. a persontells anotherto destroythe propertyof a certainpersonor he will if murderhim.if enteredinto as a resultof effectiveconstraint. purchase. CHAPTER III PRE-EMPTION SECTlON I Degrees pre-emption of Ariicle 1008. only appliesto formaldispositions property not to dispositions property conduct. or destroyone of his limbs.or of his representative. . he must havebecomeconvinced thatthe personcausingthe constraint wouldcarry his threatin the eventof his failingto do out whathe was beingconstrained do. Thatis to say. and the personwho is the subjectof such constraint does destroythe property.whether are causedby major constraint minorconstraint. As wherea personshares in in a privaterightof takingwateror in a privateroad. of out Consequently.

thatis. the beamsof his own houserestuponhis neighbour's wall.B. to Article1009. otherslosetheirs. suchpersonpossesses rightof pre-emption. Wherethe upperportion. a Shouldtherebe no personhaving a servitude thethingsold.The rightof pre-emption belongsto suchperson. beinga jointowner. the ownersof the otherhousestakingwaterfromsuch river.andB andC claiming rightof pre-emption. thirdpersonloseshis. neighbours not.to the person whois a jointownerof the thingsold. Wherea personis jointownerof thewallof a house.to the personwhois a jointownerof a servitude the thingsold. suchpersonenjoysthe rightof putting endsof his beams that the uponsuchwall doesnot entitlehim to be considered a jointowneror as a person as sharing a servitude in over suchproperty. Eachof the ownersof the othergardens obtainsa rightof pre-emption. Article1011. Example: A holdsa half sharein a house. sellshis undivided jointlyownedshare thereinand his partner relinquishes rightof pre-emption such real property. mere The fact.or whichgiveon to the publicroad.or A. In the eventof the ownersof the halfsharesellingsuchshareto another person.do not possessanyrightof pre-emption. The rightof pre-emption belongs: First. or Butif a housetakingwaterfroma riverwhichis opento the useof the publicor the doorsof whichgive on to a publicroadis sold.If the secondperson the claimshis rightof pre-emption. whether they are adjoining . half shareis dividedbetweenthemequally. the top storeybelongs one personandthe to lowerportion.and his to thereis a personenjoying privaterightof takingwaterwhois partownerin a servitude a overa privateroad.or. Example: A sells realproperty whichhe owns in absoluteownership the exclusion any other to of person.306 ARAB LAW QUARTERLY Examples: (1) One of severalgardenseach havingsharesin a privaterightof takingwateris sold. the Article1010.to the adjoining neighbour. over Third. beinga jointownerof realproperty. whetherthey are adjoining neighbours not.he hasrenounced rightof pre-emption. Shouldtherebe several persons enjoying rightof pre-emption. Second.he is considered be joint to ownerof such house. while not beingjointownerof the wall.thatpersonrelinquishes his rightthereto. If thefirstpersonclaimshis rightof pre-emption. thereis a personwhohasa sharein a servitude his and in the thingsold.thatis the lowerstoreyof a buildingbelongsto another.Shouldtherebe no such person. the the the . (3) Wherea personis adjoining neighbour the thingsold. he is considered be an adjoining to neighbour.or if. If a personis not a jointownerof the thingsold. in the event of therebeing such a person. suchpersonsareconsideredto be adjoining neighbours. the rightof pre-emption accrues the adjoining to neighbour. shouldtherebe one.the rightof pre-emption accrues theadjoining to neighbour. or (2) A houseopeningon to a privateroadis sold. Eachof the ownersof the otherhouses givingon to the privateroadobtainsa rightof pre-emption. And if. aredealt a they withaccording theirnumbers not according thenumber parts. and B andC holda thirdandsixthsharerespectively.or.thatis shares. Article1013. however. Article1012. andsuchperson in renounces righttherehis to.which to and to of theyhold.

since they follow the land. those persons having a right of taking water from the creek have a prior right of pre-emption. Consequently. since these are regarded as movable property. Ariicle 1015. Therefore. the trustee or tenant of adjacentreal property which has been dedicated to pious purposes cannot clairn a right of pre-emption. The property on account of which the right of pre-emption is claimed must also be held in absolute ownership. nor to real property which has been dedicated to pious purposes. Article 1019. Article 1020. Therefore. situated on land enjoying the right of taking water from a creek opening from a small river to which a right of taking water is also attached selis such garden. Ariicle 1021. no right of pre-emption can attach to a ship or other movable property. SECTION II ettachzng theright pre-emption to of Conditions Ariicle 1017. nor to state land. Ariicle 1022. those persons who share in the right of taking water cannot claim a right of pre-emption. whether over the principal or the branch blind alley. The sarneprinciple is applied in the case of a private road. are also subject to the right of pre-emption. No right of pre-emption may be claimed in respect to trees and buildings held in absolute ownership and situated on land dedicated to pious purposes. or from the creek. if upon the sale of a garden in respect of which one person is the joint owner of a private right of taking water and another of a private right of way attaching thereto. upon the sale of real property held in absolute ownership. possess a right of pre-emption.AND PRE-EMPTION 307 THE lWlEJELLE: INTERDICTION. Consequently. sells such house. But if the owner of a house the door of which opens on to the principal blind alley sells such house. such trees and buildings. A right of taking water is preferred to a right of way. Those persons the door of whose houses open on to the branch blind alley possess a right of pre-emption. But if such trees and buildings alone are sold. Examples: (I) Where a person who is the owner of a garden owned in absolute ownership. Pre-empiion can only be established by a contract of sale. the particular take precedence over the general. Article 1018. or on state land. The property to which the right of pre-empiion attaches must be real property held in absolute ownership. may not claim to have a larger share granted to him on the basis of his prior holding. If the owner of a garden possessing a private right of taking water sells such garden without the right of taking water. all persons enjoying the right of taking water. Article 1014. no right of pre-emption can be claimed. sells his garden. if a person who is the owner of a house in absolute ownership bestows such house upon another by way of . Where two classes of persons having joint shares in a servitude come together.CONSTRAINT owner of the share of one third. the owner of the right of laking water is preferred to the owner of the right of way. (2) A person who is the owner of a house held in absolute ownership the door of which opens on to a blind alley which branches off from another blind alley. A gift subject to compensation is regarded as a sale. But if a person who is owner of a garden owned in absolute ownership situated on land enjoying the right of taking water from such river. In the event of a piece of land held in absolute ownership being sold together with the trees and buildings standing thereon. ail persons having a right of way. possess a right of pre-emption. whether from the river. Article 1016.

he his concurrence of of (1) If A. adjoining SECTION III of Theclaim pre-emption Article1028.1026. so long as the vendorretainsthe right to in sold. of whichis clearly the Article1025. is therightof pre-emption entitledto bringanactionand (3) A claimthatthepersonalleging of ownership the property. Examples: therein. The personclaiming rightof pre-emption or eitherexpressly by implication. uponhearing the conclusion the saleexpresses anysuchright. The vendormusthavedivested sale. of uponhearing the sale. claim and loseshis rightof pre-emption. afterhavingheardof the conclusion he fromthe purchaser. No rightof pre-emption or inheritance. purchaser of But the existence an optionfor uniilthe vendorhas divestedhimselfof his rightof option. (l) A claimmadeimmediately of and (2) A claimmadeformally in the presence witnesses.however. If the vendorhas a rightof option. Threeclaimsmustbe madein casesof pre-emption.the If the joint ownersof a house jointlyowneddivide such has neighbour no rightof pre-emption.) ascertained. absolute to be granted mustat the momenthe heardof the Article1029. he maynot thereafter of the sale. andwhichis givenas a marriage in ownership the thing himselfof his absolute Article.his adjoining and subjectto compensation givesdelivery gift pre-emption. the possessing optionis the person if toan option. withoutpayment. is no right for ownership a pricewhichdoesnot consistof property. mustnot haveagreedto the sale the Article1024.308 LAW QUARTERLY ARAB has neighbour a rightof thereof.No rightof pre-emption be of nature aninterest. rightof pre-emption be claimed a person for agent someotherperson. ute Examples: fromthe for ownership the rentaccruing (1) A sells a housewhichhe ownsin absolute in because this casethe priceof claimed can lettingof a bath. the case of a voidable In the caseof salesubject the demand returnof the thingsold. as who has soldrealproperty by can no Similarly. is rentwhichis in the ownership heldin absolute to in (2) Thereis no rightof pre-emption respect realproperty portion. but the houseis notclearlyascertained. is defector for inspection no barto uponthe divisionof realproperty.as in casesof gift withoutnght ownership bequest.thereis a rightof pre-emption the thereis no rightof pre-emption only. of the assertion a rightof pre-emption. givento othersin absolute to attaches realproperty Article1023. seeksto buy or to hirethe prop(2) If A.(SeeArticlelO0. The pricemustconsistof property amount in transferred absolin of pre-emption respectof realproperty there Consequently.Consequently. Thereis no rightof pre-empiion Example: house amongthemselves. Article1027. loses his rightof attaches erty to which the rightof pre-emption pre-emption. has which beenconcluded. of compensation. thereis no rightof pre-empiion.however. The personclaiming rightof pre-emption .

is equivalent to buying such property in the first instance. as where he is in some other country. Article 1034. such as the option of inspection and the option for defect. such person must say in the presence of two witnesses. If he is unable to find an agent. or by virtue of a judgment issued by the Court. he may appoint a person as his agent to do so. SECTION IV Theeffectof pre-emption Article 1036. After having made a claim formally and in the presence of witnesses. or if he goes away without making any claim to pre-emption whatsoever. but that he has a right of pre-emption thereto.THE MEJELLE: INTERDICTION. If the person claiming the right of pre-emption delays without any legal excuse. Article 1032. or engaging in conversation regarding a different subject. Article 1035. but without becoming the owner of the property to which the . such person loses his right of pre-emption Article 1033. Article 1031. If the person claiming the right of pre-emption dies after having made both the immediate and formal claims. either by the purchaser handing over such property as the result of mutual agreement. being by the side of the purchaser. and by the side of the property sold. but behaves in a manner tending to show that he does not intend to pursue his claim such as dealing with some other matter. CONSTRAINT AND PRE-EMPTION 309 the conclusion of the sale. such person loses his right of pre-emption. and that he has made a clann by way of pre-emption and that he calls such person to witness that he has made a further claim at that moment. for more than one month in making a claim to bring an action. the person claiming the right of pre-emption must make a claim before the Court and bring an action. are also valid in the case of pre-emption. make a statement showing that he claims the right of pre-emption. Arecle 1030. by way of preemption. The person who is entitled to a right of pre-emption becomes owner of the property to which such right atlaches. rights which are valid in the case of an original purchase. if he fails to claim the right of pre-emption at the moment he hears of the sale. if the property sold is still in the possession of the vendor. Thus. he loses his right of pre-emption. This claim is referred to as the claim made immediately upon hearing of the sale. The tutor of an interdicted person may claim the right of pre-emption on behalf of such person. Article 1037. must say that such person has bought such and such a piece of real property or. After having made a claim imrnediatelyupon hearing of the sale. Article 1038. after having made his claim formally and in the presence of witnesses. as to by saying that he is the person who has right to the property sold subXect pre-emption. even though it be by letter. the person claiming the right of pre-emption must make a claim formally and in the presence of witnesses. such person loses his right of pre-emption. must say by the side of the vendor that the latter has sold the real property in question to such and such a person. If the person claiming the right of pre-emption delays in making his claim immediately upon hearing of the sale. or that he claims the property by way of pre-emption. If a tutor fails to claim a right of pre-empiion on behalf of a minor. such minor is not entitled to claim by way of pre-emption after he has reached the age of puberty. If the person claiming the right of pre-emption delays in making his claim formally and in the presence of witnesses for any time longer than is necessary for him to act. Thus. The act of taking over property held in absolute ownership. This is called a claim to bring an action and to be granted absolute ownership of the property. he may send a letter. Consequently. that such and such a person has bought the real property in question. or. If the person claiming the right of pre-emption is in some distant place and is not in a position personally to make a claim formally and in the presence of witnesses.

Consequently. Article 1039. such as paint. he cannot force the purchaserto pull down the buildings and uproot the trees. any other person possessing a right of pre-emptionmay take the whole of the real property to which the right of pre-empiion attaches. the person possessing the right of pre-emption has the option either leaving such building or of taking of it and paying the price of such addition. If the the purchaserhas erected buildings upon the real property to which right of pre-emption attaches. If the purchaser adds something to the building to which the right of preemption attaches. Promulgated Royal Iradah. together with price of the building. such person loses his right of pre-emption. by 1290 . Pre-emption does not admit of division. If any holder of a right of pre-emption relinquishes right of pre-emption after his judgment by the Court. or the has planted trees thereon.310 ARAB LAW QUARTERLY right of pre-emption attaches owing to such propertyhaving been handed over by the purchaser either by way of mutual agreement or as the result of a judgment of the Court. Article 1040. their right of pre-emption is lost. Article 1042. such person cannot claim a right of pre-emptionin the second piece of real property. 16th. the right of preemption is not transferredto his heirs. such person's right does not accrue any other person holding a right of to pre-emption. If a piece of real property held in absolute ownership adjoining the property subject to the right of pre-emption is sold before the person clainiing the right of pre-emption has become the owner of the property to which the right of pre-emption attaches as set out above. the person claiming the rightof pre-emption has no right to reject a portion of the property to which the right of preemptionattaches and take the rest. or of taking it and paying the price thereof together with the value of such buildings and trees. the holder of the right of pre-emption an option of leaving such real has property. but without having become owner of the property to which the right of pre-emption attaches. Article 1044. If they do so. Rebi ul Akhir. If the person claiming the right of pre-emption sells the property by virtue of which he holds a right of pre-empiion after having made the two claims as set out above. If any holder of a right of pre-emptionrelinquishessuch right prior to the judgmentof the Court. If he does not do so. None of the holders of a right of pre-emption may bestow their right upon otherholders by way of gift. Ariicle 1041. Article 1043.

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is and The pledgor may. denounce suchcontract before deliveryof the pledge. Example: A person having purchasedan article for so much. .It is not an essentialcondition that the word pledge should be mentioned. The person who gives his propertyas securityis called the pledgor. to of suchcontract incomplete revocable. Article705. A contract pledgeis concludedby the offerandacceptance the pledgorand of of the pledgee. Article 702.however. Such property then said to be pledged. Ariicle707.THE MEJELLE BOOK V PLEDGES INTRODUCTION TERMS OF A1UHAMMADAN JURISPRUDENCE RELATING TO PLEDGES Article701. In a contractof pledge. Article 704. where the pledgorstates that he has given such and such propertyas as security his debt to the pledgee. Suchproperty then validlygiven is in pledge. hands the vendor certainof his property. The personwithwhomthe pledgor the pledgeedepositthe pledgeon trustis and called the bailee.or similarwordsto thateffect. tellinghim to keep it until the priceis paid. Article 703.or wordsindicating consent. The act of acceptingpropertyas a pledge is called taking on pledge.or given in of is pledge. A pledgeconsistsof setting aside property fromwhich it is possibleto obtain paymentor satisfaction some claim. offer and acceptance madeby wordspurporting is to imply agreement.therefore. The person who accepts propertyas securityis called the pledgee.If the pledgeis not transferred the effectivepossession the pledgee.andwherethe pledgeestates for thathe hasacceptedsuch pledgeor has assentedthereto. CHAPTER I MATTERS RELATING TO THE CONTRACT OF PLEDGE SECTION I Fundamental basis of the contractof pledge Article706.

Ariicle 712.)roperty be addedto the first Thatis to say. as it stood at the time in be validlyincreased respectto the samc Article714. musthavesomespecific the contract. The of the contract pledgeby agreement. be something of 709. SECTION III allachedto lhe pledge:changeand increase Matters in in salearealsoirlcluded pledge.316 LAS QUARTERLY ARAB SECTION II of to incidenlal a contract pledge Conditions soundmind. Article 716. such sword thereuponbecomesthe pledge for by may be increased the pledgorafter the Article713.They neednot havereached 708. a secondpieceof of conclusion the contract. The pledgee may of his own accord of the contract pledgewithoutthe consentof the Article717. thoughtheoriginal pledgeis addedto the pledgeof theoriginal additional one pledgefor the debt to with reference the two pledges bothbecoming beenconcluded had the pledge was increased. Any increasearisingout of the pledge CHAP TER II PLEDGOR AND PLEDGEE cancel the contractof pledge. a pledgetakenin respectto property wrongfully property invalid. the pledge is given must be capableof Article710. suchpersoncontracts further five hundredpiastres.Consequently. though not explicitlymenlioned. Article The pledgorand pledgeemustbe of may understanding be eitherpledgoror of a age the of puberty. even plants and growingcrops are includedtherein aLl A pledge may be exchangedfor anotherpledge. The subjectmatterof the pledge may .the first pledge the after contract contract as contract. the watch becomes a pledge for one thousand is part of the originalpledge. Thingswhichareunplicitly included and with the fruitsthereof together thereon) all treesgrowing a whenpieceof landis pledged. whichmaybe validlysold. The pledgorand pledgeemaycancel .The remaining relatingtheretohas been concluded. Article The subjectmatter the pledgemust value. The propertyin respectof which a pledgemaybe takenin respectto a claimin respectto suchpledge.Thus) Article711. sustaining held on trust is But appropriated. Ariicle 715. at it must Consequently7 be in existence the timeof also and be capableof delivery. The debt securedby the pledgemay pledge. The pledgormay not cancel pledgee. Example: piastresto securea debt of one thousand A personpledgesa watchworthtwo thousand piastres of loanfromthe creditor five hundred a If piastres.Consequently IIiinor perfect pledgee. Article718. intact. Example: mayask the pledgeeto takea piastres who A persors has pledgedhis watchfor so many returnsthe watchand acceptsthe sword swordinsteadof the watchand if the pledgee the debt in question.

with regard is of to which no subsequentclaim may be made. A creditor may validlytakea pledgein respectto sumsdue fromtwo persons. A pledgemay be validlytalrenfrom a debtorby two creditors.or thatthe pledgeis to of to be made to a certainperson. or in a certaintown. Article 723. Article727.whethersuch creditorsare partnersor not.or the nature the property be secured. Article725. such as rent of the premisesand wages of the watchman. Article728. Shouldthe ownerof property his permission give unconditionally. A personmaymakea validpledgeof property borrowed fromsomethirdperson. such as repairs. . borrower the may pledge such propertyin any way whatsoever.or a servant.may retainthe pledgeafterthe cancellation the contract.such as membersof his family. If the pledgeconsistsof an animal. CHAPTER III THE PLEDGE SECTION I Preservation the pledgeand expenses of connected therewith Article722. grafting. A principaldebtor may validly give a pledge to his guarantor. however.suchpayment in the nature a gift. the borrower must strictlyobservesuch concltlon.weeding. Ariicle 720.THE MEJELLE: BOOK V: PLEDGES 317 pledgee. If the pledge consists of immovableproperty. or a partner.This is knownas a pledgeof a borrowed he of ariicle. Shouldeitherthe pledgoror the pledgeeof theirown accorddefrayexpenses whichshouldrightlybe met by the other. irrigation.and the cleansing watercourses of mustbe borneby the pledgor. provided hasreceivedthe permission thatperson.the cost of forageandthe wagesof the keeper must be paid by the pledgor. Ariicle721. Ariicle 719. The pledgeemaykeep the pledgehimselfor mayhaveit keptby somepersonin whom he has confidence. . of Article724. It is a fundamental that the pledgeehas the rightof retaining rule possession of . such pledge securingboth debts. The pledgee is responsiblefor expenses incurredin connectionwith the preservation the pledge.until the sum of secured by such pledge has been paid. SECTION II Pledgeof borrowed articles Ariicle726. CHAPTER IV FUNDAMENTAL RULES RELATING TO A PLEDGE SECTION I General Article729.all expenses incurredin connectionwith the improvement and maintenancethereof. such pledge securingboth debts. Shouldthe ownerof suchproperty havegivenpermission subjectto a condition as to the amountof money.

They must Article 734. the person lending to unable repay his debt by reason of lack of thus redeem the property pledged. in respect to debts due tO tWO persons. and repay Article 739. or damaging the pledge. repaid. the pledgee pledge one in two things have been pledged. a sum such destruction or damage. In the event of the of the lender of the pledge may redeem such the sale of such pledge. such pledgor may not repaid in full the debt due to both creditors. such person shall make good Article 742. In the event of a pledgor destroying destroy or damage the pledge. the pledge. or if. however. corresponding to the amount of such destruction the pledge. In the event of the death of either intact.If the value of the pledge is not sufficient the consent of the pledgee. if the value creditors of the lender of the pledge clairning it sold regardlessof the consent of the pledgee. having the debt of one of them. however. possession of the pledge preserves intact his right taking is no necessity to return a portion of the Article 731. In the event the obtain payment of the debt from the pledge. The pledgee after Article730. the pledgee pledge until the redemption thereof. heirs of age stand in his stead. Should the lender of the pledge pledgeeand cannot be sold without the consent sale of the pledge. Should the borrowerof such property to pledgor redeem the pledge and return it such property may funds. are heirs may sell the pledge subject to the such of course a long journey. debt. may only be sold is insufficient to repay the debt. Upon part payment of the debt there having a right to retain the entire pledge equivalent to such part paymeIlt. When specified portion has the sum relating to one such to respect a specified portion of the debt. the borrowed property continues as a pledge pledge by repaying the debt. a hasprior right over other creditors and may right to claim the debt. Should he be in the possession of the pledgee. Should a pledgee or damage shall be deducted from the debt. pay the debt and himself the pledgor or the pledgee. however. Should a pledgor give a pledge demand the return of half of the pledge. and repay the debt not claim which has been given as security for a debt may Article 735. In the event of the death in a state continues as a pledge in the possession of the borrowedproperty. and may claim the return of such thing only. In the event of the death of the lender personally to pay his debt and to redeem the than his estate. no right to redeem the pledge until he has debtors may retain such pledge until the debt Article 740. however. such pledge may not to meet the debt. the pledge Article 738.318 LAW QUARTERLY ARAB of the death of the pledgor. The lender of property it has been given as security to which property from the pledgee until the debt in respect such property be alive or has died and this whether the pledgor of the borrowed been repaid. A person taking a pledge from two of both has been paid in full. such pledge shall bc sold seek to repay the debt by means of the the provided the value thereof is sufficient tO meet of independently the consent of the pledgee. of bankruptcy of a person who has pledged Ariicle 736. The heirs means. Upon the death of the pledgee. the pledgor been which has been pledged may call upon the Article 732. of permission the pledgee. being of age. his the estate of the deceased person. the guardian of from the sum realised. be sold without of a pledge and of his debts being greater Article 737. they are absent. the pledgor shall be called upon unable to do so. shall be with the consent of the pledgee. each the until whole debt is repaid. In the event of a third person destroying . such borrowed property of the lender. has beforethe redemption of the pledge. by reason of lack of pledge which he has borrowed. The pledge does not extingiish the to demand payment from the pledgor. the pledge remains Article 733. If the heirs the redeem pledge by payment of the debt from that is to say. they are elsewhere in the minors. he must make good Article 741. The owner of borrowed property be to him. such pledge devolves upon his heirs. If thereof is sufficient to repay the debt. Upon the death of the pledgor.

Artide 754. by to by should the pledgorand pledgeeagreeto depositthe pledgewith some personin whom they have confidence.Thatis to S3y. being in the natureof a pledge made of a borrowedobject.however. Shouldhe do so) the return .such as fruitand milk.mayuse the pledgewith the permission the pledgor may of and takethe producethereof.The sum in quesiionshallbe heldas a pledge by the pledgee. Articie748. provided the road is safe.The bailee then stands in the place of the pledgee. In the event of the pledgorselling the pledge withoutthe permission the of pledgee. the pledgormay either adopt or cancel such sale. Ariicle744. Article745.THE MEJELLE: BOOK V: PLEDGES 319 the valuethereofas on eheday it was destroyed. SECTION II Rightsof pledgor and piedgeeover the pledge Article743. In such casethereis no reduction the debt of in consideration thereof. The pledgee. unless the permissionof either the pledgoror pledgeehas been obtained. Article753. Shouldthe pledgeenot agree.or apply to the Courtfor an order cancellingthe sale. The pledgeemay not make use of the pledge withoutthe permissionof the pledgor. The pledgeemay lend the pledgetO the pledgor. which becomes null and void. Article 747. Provided permission mutuallygiven both the pledgorand the pledgeemay is lend the pledgeto a thirdperson.andthe secondpledgeis of valid. The baileemay not give the pledgeto eitherthe pledgoror the pledgeeduring the continuanceof the debt without the consent of the other. In caseswhereat the time of the conclusionof the contract has been agreed it that the pledgeeshalltakepossession the pledge.such saleis invalidand the pledgeemayretainpossession the pledge.the pledgorandthe pledgeemayby mutllal of consent deposit the pledge with a bailee.however. Article 746. and such person agrees to take possessionthereof. Moreover) the pledgeeadoptssuchsaleit is valid)thesale if acting as a releaseof the pledge.with the permission the pledgor)the firstpledgebecomesnull and void. it Article749.suchsaleis valid. the pledgeehasa rightof preference over othercreditors the pledgorin respectto the of pledge.If he does so and the pledgor dles. A pledgeby eitherpledgoror pledgeeof the original pledgeto somethirdperson is null and void.The pledgee. the debt being unaffected. SECTION III Depositof the pledgewith a bailee Article752. In the eventof a pledgeof the originalpledgebeingmadeby the pledgee. the pledge becomes irrevocable.Eitherof themmayafierwards restore tO a stareof pledge. Possession a baileeis equivalent possession the pledgee.The pricerealisedby the sale becomesthe pledgefor the thing sold. Article751.however) purchaser the may either walt until the pledge has been redeemed. In theeventof a pledgeof the original pledgebeingmadeby the pledgor some to third personwith the permission the pledgee. upon removingto anotherplace may take the pledgewith him.If the debt is of repaid. In the event of the pledgee selling the pledge withoutthe permission the of pledgor.the secondpledgestandsin the placeof the of first pledge. Article 750.

The pledgor may validly appoint the pledgee or the bailee. if there is good ground believing that the for ripe fruit and vegetables of an orchard and garden been pledged are likely to perish. pledge be sold by the shall such Court. the bailee make good the valuethereof. Should he refuse to do so. Should he still persist in his the pledge shall be sold by the refusal. Should the pledgee. consent of Article 757. Neither the pledgor nor the pledgee may sell the pledge without the theother. In the event of the death of the bailee the pledge the two contraciing parties. he shall directed the Court to sell the by be pledge and pay the debt. An agent for the sale of a pledge shall. must Ariicle 755. them on his own Court. Should the pledgor refuse to make payment when the debt falls due. If there is good ground for belieYingthat the pledge is likely to deteriorate) pledgee apply to the Court may the for an order directing him to sell the pledge and he holds proceeds of the sale the thereupon as the pledge. pledgee may apply the uncertain whether he is alive or to the Court for an order for the sale of the pledge satisfaction the debt from the of and the proceeds.thereof may be demanded. Article 761. he becomes responsible therefor. Article 758. Court and the debt repaid. Article 760. the pledge shall deposited with some other bailee) and in the event of their be deposited with a bailee failing appointed by the Court. Should the pledge be destroyed before it is returned. such pledge shall be Court sold by the Sale of the pledge Promulgated Iradahy by Royal 25 Sefer. Should the pledgor be absent and should it be dead. Ariicle 759. they which have may be sold by order of the however. Should either the pledgor or his heirs be absent. nor can he be removed either pledgor or the in the event of the death of the pledgee. The pledgor thereafter revoke the power of such may not agent. pledge sell proceeds to the pledgee. sell initiative) he is liable to make incurred good any loss which may be thereby. shall be obliged to sell the the agent pledge. when the such and hand the debt falls due for payment. may. the be to sell the pledge forced pledgor shall himself. Should he refuse to do so. subject to the consent of be to agree. Thus. Should the pledgee sell the pledge without obtained order from the an having Court. 1288 . SECTION IY 320 ARAB LAW QUARTERLY Article 756. his for the sale of the agent or some third person pledge when the debt falls due for payment. In the event of the pledgor likewise refusing to sell..

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butis heldby himon trust. If anypersonfindsanything the highway in anyotherplaceandkeepssuch in or thing as his own.The personhandingover such property calledthe person is deliveringand the personacceptingsuch propertyis called the custodianor keeper. to Article763 By depositforsafekeepingis meanthanding property anyparticular to person in order that it may be kept safely. he is consideredto be a person wrongfullyappropriating property. if the trusteeis not guilty of anywrongful or negligence the subjectof the trustis destroyed lost)the trusteeis act and or not obliged to make good the loss. suchas a contract depositforsafekeeping.or by implication. that is to say. without payment.whetherplacedon trustforsafekeepingin pursuance for of anexpress contract. Ariicle769. Thatis to say. Article764. By loan for use is meant conferring upon somebodythe usufructof a thing gratuitously. By taking loanforuse is meantaccepiing loanin order the usufruct the a a that of thing borrowedmay be enjoyed. Suchproperty does not becomeproperty deposited safekeeping for withtheownerof thehouse. CHAP TER I GEN ERA L Article768. Article765.sincethereis no contract thateffect. suchproperty destroyed lost. in the of as case of a thing takenon hire or borrowed)or whetherentrustedto someonewithoutany contract intention. By delivery safekeepingis meanthanding for overone'sown property some to other personfor safe keepirlg. Article766. Ariicle767.as wherewind blowsinto the houseof a certainpersonthe property or of such person's neighbour. Consequently. evenwithoutsuchperson's if is or wrongful or act .THE MEJELLE BOOK VI TRUSTS AND TRUSTEESHIP INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE RELATING TO TRUSTS AND TRUSTEESHIP Article762. A trustis not subjectto compensation. By loaningfor use is meantgivingon loanin orderthatthe usufruct the loan of may be enjoyed. The subjectmatterof the trust is the thing entrustedto the personwho is responsible the safekeepingthereof.

If the ownerthereofis unkIlown. permission any given by implication of no effect. . If he takesit with the permission the owner.and it of is accidentally destroyed fallingfromA's handwhilein the act of inspecting cUpJ by the A is not obligedto makegood the loss. The finderof lost propertymust makeknownthe fact thathe has found such property) must keep it in hls possessionon trustuniil such iime as the ownerappears. Examples: (l) A takesa cup froma chinashop of his own accord. and A does in fact takeit in his handand it fallsto the groundand is broken A must make good the loss.the personso takingthe property is of is underno obligation makegoodthe loss. (2) A is drinkingsherbetand while doing so drops the glass belongingto the sherbet vendor. and such person has taken such propertywithout the perniissionof the ownerJthe Ioss must in any case be made good by the former.The cup fallsfromhis handand is broken.If and any personappearsand proves that such propertyis his. Butif he takesit with theinteniionof restoring it to the ownerthereof. In the event of propertybelongingto one personbeing destroyed accidentally while in the possessionof another. AriicIe770. But if the glass was droppedas a result of some improperuse. the properwin questionmust be handed over to him. If such property takenwith the perrxiission the ownerthereof. such propertyis lost propertyand is held in trust by the finder. sincehe held suchproperty trust. A is obliged to make good the loss.If the glassfallsfromA's handwhile he is drinleing waterand it is broken. since the glass is in his possessionon trust as a loan for use. A contract depositfor safekeepingmaybe concluded offerandacceptance of by either expresslycsrby implication.and the shopkeeper informshim of the pricethereof and tells him to takeit.he is obligedto makegood the loss. But if the owner the of the housetellsA not to touchthe glassandA doesso in spiteof the prohibition) the and glass falls and is broken.A mustmakegood the loss. If A enquires the priceof the however. since it washeld on trust. But if suchcup fallsupona number othercupsand of the latterare also broken. Article771. CHAP TER SI DEPOSIT FOR SAFE KEEPING SECTION I Conclusion of the contrsot of deposit for safe keeping and conditions relalingthereto Ariicle773.A is not obligedto makegood the loss.andit is knownwho suchpersonis. Permission given by implication the sameas permission is given explicitly.A is permittedby implicationto drink waterby meansof a glasswhichhe findsin the house. is Example: A enters B's house with the latter'spermission.Rut in the presenceof an expressprohibitiorl. suchproperty held on trustwhile is in his possessionand mustbe restoredto its rightfulowner. CUp3 Arucle772.But in the case to on of property purchased approval to price)the priceof whichhas beenfixed)the loss must on as be made good.A neednot makegoodthe loss. A must make good the loss.THE MEJELLE: BOOK VI: TRUSTS AND TRUSTEESHIP 391 negligence.and it is broken.the loss thereofmust be madegood. As regardsthe first cup) however thereis no need to makegood the loss.

The personmakingthe depositfor safekeepingand the personso receiving it may eitherof them cancelthe contractof depositfor safe keepingat any time they wish. The thingdepositedfor safe keepingis a trustin the possession the person of receiving such thing. who is responsible its for preservation.Consequently. The thingdeposited safekeepingmustbe capable possession delivery. it is destroyed lost withoutthe faultor negligence if or of the personkeepingsuchthing. is SECTION II Effect of makinga deposit safe keepang of making for and good any loss ansingthereCrom Article777. Examples: (1) A watchis entrusted A for safe keeping. deposit for safe keepingof a bird in the air is invalid. A cannot be calledupon to make good the loss.The property quesiionis deposited safekeepingwiththe shopkeeper. suchproperty is depositedfor safe keepingwith the last remaining person.or thathe hasplacedsuchproperty withhimon trust.But if suchpersonsleavethe placein questionone by one.andthepersonwith whomsuch property depositedagreesthereto.The personreceiving is suchproperty mustmakegoodthe loss. for of and Consequently. (3) A leavescertainproperty with a shopkeeper.the loss must be made or good. . and the thing has been of destroyed lost owingto somecausewhichmighthavebeenavoided.The latterare aware of thereof. If the servant the personreceiving of property safekeeping for dropssomething on to such propertyand it is destroyed. The latter showshilI}a censin placeand A iies his animalup there. A must make good the loss.and A accidently to dropsand breaksit. (4) A leavesproperty his with certainpersonsfor safe keeping.Consequently.thereis no necessity to makegoodtheloss. however)who has been duly authorized thereunto.A depositforsafekeepingor thereceiptthereofby a minorof perfectunderslanding.A contract depositfor safe for keeping has been concludedby implication. valid. madmanor a minorof imperfectunderstanding a cannotvalidly makeor receivea depositforsafekeeping. since it arose from a cause which could have been avoided. The personreceiving property safekeepingmaynotperform actwith the for any regardto such propertywhich he is not authorisedto do by the owner thereof.L ater) to arld the property stolen.declinestO keep the property. Ariicle774.392 ARAB LAW QUARTERLY Examples: (1) A irlforms thathe has deposited B withhim forsafekeepingcertain property which of he is the owner. But if A treadson the watchor drops somethingon it and it is broken.the servantmust make good the loss. a Article776. (2) A entrusts certain property B forsafekeeping payshima feeforso doing. however.butkeepsilence. Ariicle778. contract safekeepingis no for concluded. Article779. The shopkeeper awarethereof. Butif suchthinghas been depositedfor safekeepingin consideraiion payment of a fee.arld is keepssilence. in for If the shopkeeper.An expresscontract the depositof a is for thing for safe keepinghas been concluded. (2) A entersan ilm andasksthe inn-keeper wherehe shouldiie up his al.The property question deposited safekeeping in is for withall of suchpersons. The personmakingthe depositfor safe keepingand the personso receiving it mustbe of soundmindandperfectunderstanding thoughtheyneednothavearrived theage at of puberty. Article775.

and the property to be transferred anotherplace The has tO conditionbecomesinvalid. Ariicle 781. placingproperty such as cashand jewelsin suchplaces as stablesandbarnsamounts negligence. The personreceivingpropertyfor safe keepingmay keep such property the in place where he keeps his own property. however. If the owner of the propertydepositedfor safe keepingis absent. If the property entrustedfor safe keepingin thesecircumstances destroyed is withoutany faultor negligence.thereis no is need to makegood the loss. Article783.however. If not. Consequently. Examples: (1) A contract depositfor the safekeepingof certainproperty drawnup subjectto the of is condition that such propertyis to be kept in the house of the personreceivingsuch property. Article784. but theformer the may be called upon to do so in respect to his share. The person receiaring such propertystoresit in anotherroom If such roomsareideniicalthe one with the otheryas regardssafety the conditionis irlvalid. the condiiion is validand the personto whomthe property entrusted boundto storethe property is is in the roomagreedupon:andif he pUtS suchproperty a roomwhichis inferior the room in to agreedupon as regards safety andthe property destroyed.the loss must be made good.No one of them may give his shareto any other personfor safe keepingunlesshe obtains{he permission the personwho has depositedhis of property with him. If anycondition contained the contract depositforsafekeeping capable in of is of execution and beneficial. withoutany fault or negligence. (2) A personentrustspropertyto anotherfor safe keeping.such condition is valid. thereis no need tO makegood the loss. if the propertyentrustedfor safe keepingis and destroyedirlthesecircumstances. It he was underno necessitytO do so.thereis no obligation make to good the loss. (3) A contractof depositfor safe keepingis concludedsubjectto the conditionthat the propertyshall be kept in a particular room of the house.instructing latterto keep the such property7 forbidshim tO entrustit to his wife or his son. or they may keep it in turn.THE hlEJELLE: BOOK VI: TRUSTS AND TRUSTEESHIP 393 Article 780 The person receivingpropertyfor safe keeping must keep such property personally and as thoughit were his own property.andif theyaredestroyed 105t whilethere.is capableof division. If he does so) andit iS destroyed lost withoutfaultor negligence or whilein suchotherpersonns possession) latteris not llableto makegoodthe loss. or to a servant) to a and or personto whomhe has entrustedhis own property.the loss mustbe madegood.the loss to or must be made good.and if the property afterhavingbeentransferred suchother to place is destroyedor lost withoutany fault or negligence. Ariicle782.or causeit to be kept by some personin whom he has confidence. If the personsreceivingproperty safe keepingareseveral) the property for and depositedfor safekeepingis not capableof divisionn of them maykeepsuchproperty one with the perniissionof the others. is Article 785.If the property entrusted suchperson to in these circumstances destroyedor lost.A fire breaksout.and such personis forcedto disobey his instructions.as whereone is madeof stoneand the otherof wood. the persons receivingsuch propertymay divide it among themselves equally. But if one room differsfromthe other. The property entrusted safekeepingmust be keptin the samewayas articles for similartheretoarekept. neitherhe nor the personreceivingthe propertyfor safe keeping may be called upon to make good the loss. noneof themmay be calledupon to makegood the loss If the propertydepositedfor safe keeping.If sllch propertyis destroyedor lost while in the possessionof the latterwithout any defaultor negligenceon his part. prohibition The becomesinvalid. and it is . it is null and void.each personkeepinghis own share.

Consequently. If he incurs such expenditure without the sanction of the Court. If it is not capable of being let on hire. or after having provided for the mainenance thereof from his own property for a period of three days. and such property is destroyed by the fire. that it would spoil by being kept. Article 786. If the person to whom property has been entrusted for safe keeping mLxessuch property without the permission of the owner with other property in such a manner that it cannot be disiinguished therefrom. If the property deposited for safe keeping is destroyed or the value thereof diminished by the fault or negligence of the person entrusted therewith. the person receiving the propertymay let it on hire. In the event of the absence of the owner.where a purse of money which is delivered for safe keeping is put in a box and the purse is torn and the gold coins therein are mixed with other gold coins. If he spends a purse of money in this manner which has been left with him on trust. however. as. if the property can be let on hire. The owner of a thing deposited for safe keeping which requires maintenance. Article 788. Such person must make good the loss. he is nevertheless liable to make good the loss. or if. and it is later lost without any fault or negligence on his part. and such person may then keep the proceedson trust. such person must make good the loss. the person receiving such thing must keep it until such time as it is proved that he is dead. without any fault on his part two pieces of propertyare mixed together in such a way that they cannot be distinguished the one from the other. for exarnple. however. the expenses incurred in connection with the three days upkeep being charged to the owner. or for no reason at all. if the person to whom a quaniity of gold pounds have been entrusted for safe keeping niixes them without permission with gold pounds of his own. there is no need to make good the loss. he may. or such animal is stolen while on the road. sell such thing for an estimated price forthwith. Such person must make good the loss. such person must made good the loss. If the property is of such a nature. it may be sold by order of the Court. and such animal is destroyed either by riding it in some unusual manner. or may sell it for an estimated price. the person to whom they have been . Again. Article 787. such person is guilty of negligence. (3) A person to whom property has been entrusted for safe keeping fails to transport the property entrusted to him to some other place upon the outbreakof a fire. and they are lost or stolen. Thus. If the property is not sold and is ruined. He must make good the loss. if any other than the person to whom they have been entrusted for safe keeping so mixes them. or with gold pounds delivered to him for safe keeping by some other person. he cannot recover it from the person depositing the property for safe keeping. such as a horse or a cow. subject to the approval of the Court. he must make good the loss. Article 789. although able tO do so. and afterwardsreplaces it with money of his own. is responsible for the maintenance thereof. which will decide upon the most suitable and useful manner for the owner in which to deal with the matter. the person receiving such thing for safe keeping may apply to the Court. If the person to whom property has been entrusted for safe keeping mixes such property with the permission of the owner thereof with other property as is stated in the preceding Article. subject to the approval of the Court. and may provide for its maintenance out of the proceeds. Examples: (1) The person to whom money is entrusted for safe keeping uses such money for his own purposes. or for some other reason.394 ARAB LAW QUARTERLY unknown whether he is alive or dead. (2) A person to whom an animal has been entrusted for safe keeping rides the animal without the permission of the owner.

or the borrower.Again. the latter has a right of recourseagainst the second. Ariicle 796. If the personto whommoneyhas beendelivered trustlendsanddeliverssuch on money to some otherpersonwithoutpermission. not otherwise.andthe ownerof the property adoptsthe transaciionn first the person is replacedby the second. Article793. such personmust makegood the loss. as for examplewherethe property in someremote by is placewhen itS returnis askedfor and it is destroyed lost.the person to whom the money has been entrustedmust make good any loss incurred.delivered was handed over for safe keeping.providingthey are things the like of which can be found in the market) Ariicle but 797. If theproperty destroyed is he is owingto the faultor negligenceof the secondperson)the ownerof the property mayat his optionclaim to have the loss made good from either the secondor the first. with the has for permissionof the ownerthereof. The person to whom propertyhas been entrustedfor safe keepingmay not transfersuch property safe keepingto any otherpersonwithoutperlIiission.and the ownerthereofdoes not adoptsuch transaction. if he repays a debt owiIlg to some other person by the person who has entrusted moneyto him out of such money. If he does so without the permissionof the owner. Article 794.use such propertyor let it on hire.THE MEJELLE: BOOK VI: TRUSTS AND TRUSTEESHIP 395 entrllsted safekeepingandthe ownerbecomejointownersof the totalamountof suchcoins for in proporiion theirshares. or lend it. The personto whompropertyhas been entrustedfor safe keepingmay restore suchproperty himselfor by meansof some person whomhe relies. the coins aredestroyed lost without to if or fault or negligenceathere IS no need to make good the 1QSS Ariicle 790.and the ownerdoes not agree. Article791.or the valuethereofis decreased. Article798. Arecle 792. Upon the owner of the propertyentrustedfor safe keeping asking for the returnthereof. and the property destroyedor lost. Any chargesand expensesoccasioned therebymust be borneby the ownerof the property. If he recoversfrom the f1rst person. he does so. If two personswho are joint ownersof variouspiecesof property depositsuch propertywith any personfor safekeeping) one of the joint ownersin the absenceof the and other.requestsdelivery his sharefromsuchperson.suchproperty destroyed lost wlthout is or any fault or negligence. for If andthe property destroyed.If he returrls property on the throughthe latter. Ariible795. Example: Goodshandedoverfor safekeepingat Constantinople mustbe returned Corlstantinople. mustmakegoodthe loss.he mustmakegood the loss. But if the property not is is restored reasonof somelawfulexcuse. . however)and such propertyis destroyed lost whilein the possession the persontakingit on hire. the or of or pledgee. thereis then no liabilityto make or good the loss.such propertymust be restoredto him. in The person to whom they have been entrustedcannotbe obligedto hand them over at Adrianople.II1thesecircumstances.thelattermayrestoreto suchjointowner of his share of the property. If the personto whomproperty beenentrusted safekeepingdepositssuch has for property with someotherperson. The personto whomproperty beenentrusted safekeepingmay. or give it on pledge. for safe keeping must be returned at the place where it The property.If the ownerasks for the returnof his propertyand the person to whom it has been entrustedfails to restoreit to him.and beforedeliveryto the owner. there is no liability to make good the loss. personto whomthe property been entrusted the has for safe keeping must make good the loss. Any usufructof the propertydepositedfor safe keepingbelongsto the owner.

and if the person with whom such money has been so deposited pays such sum to him by way of maintenance. without any fault or negligence on their part. there is no need to make good the loss. and describe it. If it is a thing the like of which cannot be found in the market. the value of such thing at the iirne it was lost must be made good. and should such statement be confirmed on oath.396 Example: ARAB LAW QUARTERLY The young. such thing must be handed to the heirs. Article 803. a similar thing must be given. If the estate is overwhelmed with debts. however. Article 799.the person to whom it has been entrusted for safe keeping must make good the loss. and must be returned to the owner. If the person to whom the thing has been entrusted dies without making any statement as to the condition of the property entrusted to him. and the heirs are able to prove that such person during his lifetime had stated that he had returned such thing to the owner thereof. Ariicle 800. in the same manner as other debts. and such thing is one the like of which can be found in the market. Should it be necessary to make good the loss of the thing entrusted for safe keeping. and the person to whom such thing has been entrusted hands it over to the heirs. however. and such statement is confirmed on oath. and if the thing deposited for safe keeping prior to such person's madness is itself no longer in existence. however. upon producing a reliable guarantor. Article 802. there is no need to make good the loss. or that such property has been destroyed or lost without any fault or negligence on his part. have the loss made good from the mad person's property. such statement. He is liable. Should he recover from his madness. Similarly. who consume the sarne. any person dependent upon such person for support may apply to the Court for an order that a certain sum may be set aside therefrom for him. the owner of such property may. however. if the heirs fail tO describe the thing which has been entrusted for safe keeping and merely state that they know of such thing and that it was lost. Article 801. is of no effect. A contract of loan for use is concluded by offer and acceptanceand by conduct. he is in no way liable. if he does so without the order of the Court. if the heirs state that they know the thing that was handed over for safe keeping. and the value of such thing must be paid from the estate. If upon the death of the person to whom a thing has been entrusted for safe keeping such thing is found among the estate of the deceased. and there is little hope of his recovery. If the matter is not so referred. .or the wool of an animalhanded over for safe keeping belongs to the owner of such animal. the value thereof must be paid out of the estate. CHAPTER III PROPERTY LENT SECTION I FOR USE The contract loanfor use and conditions of relating thereto Article 804. the matter must be referred to the Court. or the miLk. or that it had been lost without any wrongful act on his part. the money which has been taken must be returned. If a person who has deposited money for safe keeping is absent. and allege that the property deposited has been returned to the owner thereof. and allege that it was lost after the death of the person to whom it had been entrusted. it is held on trust by the heir. If it cannot be found in the estate of the deceased person. Upon the death of the person who has entrusted a thing for safe keeping. If the person to whom propertyis entrusted for safe keeping goes mad. Again. unless proved.

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Example: br property useor thathe hasmadehi} a loanforuse A tellsB thathe haslent hitncertain or and B acceptsn withoutmakingarlystatementtakes such thig. A contracthas been concludedfor a loan for use. Again)A asks B to lend him certainpropertyto use and B lends hfin such property.A contractof loan for use is concluded. Article805. The silenceof the persongiving the loan is not consideredto be acceptance. if Consequenlly) one personasks anotherto lend him a thing for use, and the ownerof such thing keeps silence, and the other takes it) such person becomes a person wrongilly property. approprlatmg Article 806. The person lending the thing for use may at any iirne withdrawfrom the contract. of Article807. A contract loanfor use is cancelleduponthe deathof eitherthe persongiving or the person taking the thing on loan for use. Ariicle808. The thing given on loan for use must be capableof enjoyment.Consequently) the giving or taking of a runawayariimalon loan for use is invalid. Aricle 809. The persongifiring and the persontakinga thingon loanfor use mustbe of sound Iriind and perfect understanding.They need not have arrived at the age of puberty. cannot concludea valid Consequently,a madmanor a minor of imperfectunderstanding from contract givingor takinga thingon loanfor use. A minorwho hasreceivedperITiission for his tutor, however, may do so. Ariicle 810. Takingdeliveryis essentiaIto the validityof a contractof loan for use. The contractis devoid of effect before delivery. Article 811 The thing given on loan for use must be clearly defined. Example: A contractis concludedfor a Ioanfor the use of one of two horseswithoutstaiingwhlch is one or withoutgivingan optionfor selection.The contract invalid.The personmaking the loanmllststatewhichone he giveson loan. But if he gives the persontakingthe horse on loan the option of selecting whicheverone he likes, the contractis valid.
SECTION II

in of Effect of a contracl loanfor use a?d compensatton for loss sustained connecrtort therewith A}iicle812. The personto whoma thinghas beenlent for use becomesownerof the usufruct the thereofwithoutgivinganythingin return.Consequently, persongiving the thing on loun cannotdemandany paymentfromthe persontakingsuch thing on loan afterhe has used it. of Article813. The thinglent for use is on trustwhilein the possession the personto whomit has been lent. If it is destroyedwithout any fault or negligence,or if the value thereofis decreased,there is no need to make good the loss. Examples: drops it or slips and has (1) A personto whom a rnirror been lent for use accidentally knocks it with his foot and it is broken. There is no need to make good the loss dropping it so thatits value on stainedby something (2) A carpetlentfor use is accidentally is decreased.There is no need to make good the loss.

owingto any or Article814. If the thinglent for use is destroyed the valuethereofdecreased sllch thing) on faultor negligence,or for anyreasonwhatsoever the partof the personreceiving the loss must be made good.

398 Examples:

ARAB LAW QUARTERLY

(1) An aal is lent to A to go to a certain place with the proviso that he shall take two days to reach that place. He arrives there in one day and the animal is destroyed or is rendered so weak that its value is diminished. A must make good the loss. (2) A borrowsan animal to go to a certain place. On arrivalthere he continues his journey on the animal and it dies a natural death. A must make good the loss. (3) A borrows a necklace and puts it round the neck of a child. A leaves the child without anyone to look after it and the necklace is stolen. If the child is able to look after the thing which it is wearing, there is no need to make good the loss. If the child is incapable of doing so, the loss must be made good. Article 815. Expenses occasioned by the upkeep of the thing lent must be borne by the prerson whom it is lent. Consequently, if the person who borrows an animal fails to provide to fodder for such animaland it dies, such person must make good the loss. Article 816. In the case of an absolute contract of loan for use, that is to say, when the person granting the loan makes no siipulation as to time or place or the use to which the thing lent is to be put, the person borrowing the thing may use such thing at any time or in any place he wishes, subject, however, to custom.

Examples:
(1) A lends B his horse absolutely as stated above. B can ride the horse whenever he likes, and to whichever place he likes. He may not ride it to a place in one hour, however, which by custom takes two hours to reach. (2) A lends B the room of an inn absolutely. B may, if he wishes, live in it or store goods in it. But he may not, contrary to custom, carry on the trade of a blacksmith thertin. Article 817. If the loan for use is restricted as to iirneand place, the restrictionis valid and the person to whom the loan is made may not act in contraveniion thereof.

Example:
An animal borrowedfor riding for a period of three hours, may rlot be ridden for four; and an animal borrowed to go to a specific place may not be taken to some other place. Article 818. If the loan for use is restricted as tO the use to which it may be put, the person to whom it is lent may not put it to any more exaciing use. But if it is put to a similar or less exacting use, the breach of the restriction is valid.

Examples:
(1) An ariimalis borrowed to carry a load of corn. Iron or stone may not be loaded on him A load equal to or lighter than the weight of corn may, however, be loaded on him (2) A load may not be placed upon an animal which has been borrowed for riding An aliimal which has been borrowed to carry loads, however, may be used for riding Article 819. If the person making the loan makes it absolutely, without specifying the person who is to enjoy the benefit thereof, the person ro whom it is lent may use it as he likes. That is tO say, he may use it himself or he may lend it to another person to use, and this, whether the thing lent is one which is not changed by the person using it, such as a room, or one that is so changed, such as a horse for riding.

Examples:
(1) A tells B that he has lent him his room. The person to whom the room is lent may either live in the room himself or let some other person live therein. (2) A tells B that he has lent him a certain horse. B may either ride the horse himself or let some other person ride him.

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Ariicle820. The personwho is to enjoythe benefitof the loanmayvalidlybe specifiedin the case of thingswhichchangewith the changeof personsusingsuch things.This is not the case withthingswhichdo not so change.If the personmakingthe loan,however,statesthatit is not to be given to any otherperson,the personto whomsuch thingis loanedmay not underany cause it to be used by another. circumstances Example: A tells B thathe haslent him a certainhorseto ride. The personto whomit is lent maynot to give it to his servant ride. But if A tells B thathe has lent hirna roomin whichto live, B canlive in it himselfor let someotherpersonlive in it. He maynotdo so, however,if A has told him not to allow any other person to live there. Article821. If an animalis borrowedto go to a certainplace, and there are severalroads of can leadingthereto,the borrower proceedalongwhichever the roadshe likes in accordance to withcustom.But if he proceedsalonga roadwhichit is not customary use, andthe animalis uses a road other than that destroyed,he must make good the loss. Again, if the borrower mustmakegood the loss if by prescribed the lenderand the animalis destroyed,the borrower the road used by him is longer or less secure than that prescribedby the lender, or not customarilyused. Article822. If a personasks a womanto make him a loan for use of a thing which is the permission, of property her husband,and she gives such thingon loanwithouther husband's to andit is lost, thereis no needfor eitherthe womanor the borrower makegoodthe loss, if it is of one of thosethingswhicharefoundin the women'squarter the house,andwhichby custom is of is in the possession thewife. If the thingborrowed not one of suchthings,however,but is a may, at his option, of thingwhichis not in the possession women,suchas a horse,the husband have the loss made good by the wife or the borrower. on may Article823. The borrower not give the thingborrowed hire,norpledgeit withoutthe whichhas been lent pledgea pieceof property of permission the lender,nor may the borrower town. If he does so, and the thing to securea loanin one town as securityfor a loanin another lent for use is destroyedor lost, the loss must be made good. for maydepositthe thing borrowed safekeepingwithsome other Article824. The borrower of person.If it is destroyedwithoutany faultor negligencewhilein the possession the latter, there is no need to make good the loss Example: froma certainplace. a A borrows horsefromB for the purposeof going to andreturning Upon arrivalat that place, the horse is found to be tired and unableto proceed,and B death. A need not make entruststhe horse to C to mind. Laterthe horsedied a natural good the loss. to Ariicle825. Upon the lenderaskingthe borrower returnthe thinglent, the lattermustdo it so forthwith.If he keepsit and delaysreturning withoutanyvalidexcuseandit is destroyed must make good the loss. or lost, or there is a decreasein the value thereof, the borrower Article826. A thingwhichhas beenlent for use fora definiteperiodof time, whetherexpress of or irnplied,must be returnedto the lenderon the expiration such period. But any delay which is sanctionedby custom is excused. Examples: are (1) Ornaments borrowedto be used on a certainday until the afternoon.When that iime arrivesthey must be returned. wedding.Whenthe wedding to are (2) Ornaments borrowed be used at a certainperson's

400

ARAB LAW QUARTERLY is over the ornamentsmust be returned. But the time ordinarilynecessaryfor the return of the ornaments is allowed.

Ariicle 827. If a thing is borrowed for use in connection with any particularpiece of work, such thing, on the completion of such work is regardedas propertyentrustedfor safe keeping to the borrower. He may not use it in any way whatsoever and may not retain it for any period longer than is allowed by custom. If he does so and such property is destroyed, he must make good the loss. Article 828. The borrowermust return the thing borrowed to the lender either personally or through some reliable person. If he returns such thing through a person who is not reliable, and it is destroyed or lost, he must make good the loss. Article 829. Things borrowed for use which are of great value, such as jewels, must be returned to the lender personally. In other cases, however, it is sufficient to return them at the place where it is customary to do so, or to deliver them to the servant of the lender. Example: Return of an al borrowed for use may be effected by delivering it at the stable of the lender or by handing it over to his groom. Arecle 830. Upon the return of a thing borrowed for use which is in the possession of the borrower, all expenses occasioned thereby, incIuding cost of transport, must be borne by the borrower. Ariicle 831. A piece of land may validly be lent for use for the purpose of erecting buildings or planting trees. The lender, however, may at any time go back on the loan and oblige the borrower to pull down the buildings or uproot the trees. However, if the loan is for a definite period, the lender must make good the difference between the value of the buildings and trees at the tirne they were pulled down or uprooted and what would have been the value thereof at the end of the period, had they remained standing. Example: Should the pulled down and uprooted value of buildings and trees which are pulled down and uprooted forlhwith be twelve gold pounds, and the value therof if left standing up to the end of the period be twenty gold pounds, and should the lender cause them to be pulled down or uprooted forthwith, he is obliged to pay a sum of eight gold pounds. Article 832. If land is lent for cultivation, whether for a fixed period or not, the lender cannot withdraw from the contract and demand the return of the land from the borrower before the harvest.

Promulgated Royal Iradah,24 Zil Hijja 1288. by

A.jstor. 2. For more information about JSTOR. We use information technology and tools to increase productivity and facilitate new forms of scholarship. use. researchers. available at . 4 (Nov. and students discover. preserve and extend access to Arab Law Quarterly. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use.jstor. http://www.org/page/info/about/policies/terms. 401-405 Published by: BRILL Stable URL: http://www. No.org/stable/3381609 .org . please contact support@jstor. Hooper Reviewed work(s): Source: Arab Law Quarterly. JSTOR is a not-for-profit service that helps scholars.. BRILL is collaborating with JSTOR to digitize. pp.jsp .The Mejelle: Book VII: Gift Author(s): C.org. . 1987). and build upon a wide range of content in a trusted digital archive. Vol. http://www.jstor.

the property in given is called the propertybestowedby way of gift. A contract gift is concluded offerandacceptance.as regards donation. Receiptin the caseof gift is like acceptance the caseof sale. Allowing another persontO eatanddrinkwithoutreceiving anything exchange in is called gratuitousfeeding. tellingherto takesuch or thing and wear it.suchas "I havegivenfor nothing": havegiven of in "I by way of gift": "I have given as a present". Article840. Article 839.as wherea husband handsa pairof earrings someotherjewelto his wife. Alms consists of propertygiven for some charitableobject.An offer of a gift is also made by the use of expressionsimportingthe intention of transferring ownershipin propertygratuitously. A contractof gift may also be concludedby conduct. Consequently.consistsof the employment wordsimporting of the gratuitous transfer ownership property. Article 834. A gift consistsof bestowingthe ownership property of uponsomeotherperson withoutreceiving anything return. A present is propertybroughtor sent to someone by way of gratificaiion. Article836. Ariicle841. Article838. Article 835.THE MEJELLE BOOK VII GIFT INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE RELATING TO GIFT Article833. and the personwho receivessuch property is called the recipient. The despatch receiptof a gift andof almsaretantamount verbal and to offerand acceptance.The persongivingis calledthe donor. in if . Offer. of by Upontakingdelivery the contractbecomes complete. CHA P TER I MATTERS RELATING TO THE CONTRACT OF GIFT SECTION I Fundamental basis and receipt a gift of Article837.

shouldthe gift itself go to he that has givensomething someoneandinviteshim to be there when the pariiesmeet. recipient Article844. evenbefore having taken deliverythereof from the in who is already possession Article846. deliveredby the donor and deliverymust be taken thereof of in charge his upbringing Ariicle851. A purchaser makea validgift tO a thirdparty vendor. A gift madeby the ownerof a thing to a person (Jf withoutthe necessity of the mereacceptance the recipient. has the to have authorized by The donor.as when he statesthathe has donor meet. or releasesthe debtorfrom that provided thedebtordoesnotdeclineto agree extinguished) valid.andthedebtis forthwith thereto. may Ariicle845. receivedpayment. The recipient expressor implied) of the donor. recipient present are property.or afterthey by bestowed wayof gift eitherat the meetingplaceof the the of property onlyvalidso longas theparties it is If separated. of a thinghe haspurchased. In the caseof gift madeby a fatherto a son who of puberty.Aftertheyhaveseparated.howevern is have of maynot validlytakedelivery the together. not maytakedelivery the authority. of the thinggivenis in the possession the donor)or in the in whenthe tutoror person charge Article852. The recipient The donorstatesthathe has bestoweda certainthing by but presenttogether. of beforethe transfer thegift makessuch Ariicle849.whenthe Thereis an expressauthority. however. such Example: may wayof gift.or thepariies when invitesthatpersonto takeitain theeventof thegift beingpresent arsd andget it. the of thing given) at the iime it was he of maynot takedelivery the thinggivenby wayof gift.of such person'sproperty complete ownerthereofwithoutany1leedbr takingdelivery. Whenthedonorhadgivenhis express parties. to givensomething someone makesuse of founalwords. A gift madeby a personto a childis complete of such gift. the recipient deliverythereof. Shoulda personto whommoneyis due make the such money. thatis.the thing bestowedby way of gift must be at mind and who has arrived the age by the recipient. remain so longas the parties of validlytakedelivery the thinggiven madea gift of thathe has If he may not do so once they haveseparated. siniilar the offeredX gift thereuponbecomescomplete. the recipient. theauthority merelyimplied. a gift of the sum due to him tO Article848. is of age. of to recipient takedelivery the thinggiven. expresslyauthorizing some person other than the personwho owes him the gift is completeas soon as the recipienthas recipientto take paymentfrom the latter. unless Ariicle842. the donorstates to the to himwhichis in a certainplace withoutrequesting recipient belonging something placewheresuch thingis and take may not validlygo to the go and get it. receivedthe perrriission.such gift or releaseis whomthe moneyis due.402 LAW QUARTERLY ARAB by wayof gift or by usingsome donormakeshis offerby staiingthathe has giventhe thing the merelytakesdelivery his acceptance. The deathof thedonoror therecipient gift null and void. from of suchmoneytO theperson Ariicle847.whether and the niinorbecomesabsolute safe keepingof some thirdperson. of the upbringingor educationof the child takes delivery . of is thereof completeby reason anyfurtherdelivery. is considered implication Ariicle 843. whois of sound Article850. withoutsignifying and expression. by his offer. If a personto whommoneyis due makesa gift paymentthereof. A gift madeto a niinorby his tutoror by the person by reasononlyof the offerof the donor) is and educaiion.

If the recipient to fulfilsthe condition the gift becomesirrevocable. Consequently. the foal of a if or mare not yet born) such gift is invalid. SECTION I I Conditions altachingto a gift Article856. and the recipient the timethe gift is madestateswhichone of the twohe selects.sucha gift is valid. Article 858. gift becomes the complete when the niinor himself takes delivery thereof. The donormust be of soundmindand must havearrived the age of puberty. Article860. CHAPTER II FUNDAMENTAL RULES RELATING TO GIFT SECTION I Revocation of a gift Article 861. The recipientbecomesowner of the propertybestowedby way of gift upon taking delivery thereof. ipient selects the one he wants after the meeting at which the gift has been made. a gift is madeof grapesto be producedin a vineyard. thereafter ratifies the gift. In such in for a case the contractis valid and the condition binding upon the recipient. Examples: (1) The donormakesa conditionthatthe recipient shallgive him someparticular thingin return.THE MEJELLE: BOOK VII: GIFT 403 Ariicle 853.If at the re. however)such selection is invalid. Consequently. gift madeby a minor. the donor has the right of revokingit. If the owner. Example: A donorstatesthathe has madea gift of a certainthingwitheffectas fromthe firstof next month. at Consequently. If the recipientis a rninorwho is of perfectunderstanding. The thing bestowedby way of gift must be in existenceat the time the gift is made. The thing bestowed by way of gift must be the propertyof the donor. Article855. Ariicle859.or a madrnan) an imbecileis invalid. even though he has a tutor. such gift is valid. and Consequently.If the donormakesa gift of a horse by telling the recipientthat he may take whicheverhe likes of two horses. not. The gift is invalid. the donormakesa gift of a certainportionof his property if withoutspecifying which. however.or if he makesa gift of one of twohorses. Ariicle 857. A gift which is to take effect in the future is invalid. such gift is invalid. a or may validly be bestowedupon such person.A gift however. Consequentlya gift madeas a resultof force or constraintis invalid. The donormayvalidlydemandsomecompensaiion return his gift.suchgift is invalid.or thathe shallpay his debt amounting a certainsum. If for for such person changeshis mind. a personmakesa gift to someotherpersonof property if whichis not his own. . he cannotrevokehis gift and claim the returnof such propertyso long as the recipientcontinuesto comply with the condition. Article 854. if (2) A personmakesa gift of his real property held in absoluteownership upon condition that the recipient shallmakeprovision his maintenance the wholeof his life iime. The donormust assentto the gift. The thing bestowedby way of gift must be clearlyascertained defined.

If the donor takes back the gift after delivery has been taken thereof without the assent of the recipient. the gift may not validly be revoked. or where the gift is altered in such a way that its name is changed. Consequently. eat such food. he must make good the loss. or by making a gift of it to some third person. the gift may be revoked. and if the gift is destroyed or lost while in his possession. if something is given to the donor on account of the gift. Consequently. he revokes the gift. . he becomes a person wrongfully appropriatingproperty. the donor may not revoke the gift. Article 871. the latter. Article 863.ift. Article 866. and if the donor dies his heirs cannot claim the return of the gift. Consequently. Ariicle 864. they may in no way revoke such gift. may not deal with it in a manner indicative of a right of ownership. he can in no case revoke the gift. If the gift has been destroyed while in the possession of the person in whose favour the gift has been made. If a creditor makes a gift of a sum owing to him by a person who is indebted to him. If a person allows some other person to consume certain food. A gift made by way of alrns cannot be revoked once delivery thereof has been talten. the owner may apply to the Court. Example: A eats a quantity of grapes in a vineyard with the permission of the owner thereof. In that case the foal belongs to the person in whose favour the gift has been made. and the owner cannot later claim the value thereof. If a person makes a gift of anythiIlg to his ascendants or descendants. he may not revoke such gift. after receiving it. if a mare which is bestowed by way of gift to a certain person becomes in foal. Article 869. and the donor takes delivery thereof. the donor has no right of revoking the g. The donor may revoke the gift of his own accord before delivery thereof is taken. provideel the recipient agrees thereto. Article 867. as where the property bestowed by way of gift consists of land. But after the mare has foaled. If something is given on account of the gift and is received by the donor. (See Articles 51 and 848. The donor may revoke the gift or present after delivery has been taken. but not otherwise. or to their children or to his uncle and aunt. Article 872. The owner may not later claim the value of such grapes. the gift may not be revoked. But an increase which is not part of the gift in no way prevents revocation. and the Court may cancel the gift in the absence of any prohibition contained in the following Articles. as by selling it. In the event of the death of either the donor or the person in whose favour the gift has been made. Article 868. If the person in whose favour the gift has been made divests himself of the ownership therein by selling such gift or making a gift thereof. the gift may not be revoked. In cases where something is added to and becomes part of the gift. If the donor forbids the recipient to take delivery after making an offer of the property. Article 873.) Article 874. Article 870. however. as where corn is ground into flour.404 ARAB LAW QUARTERLY Article 862. if the person in whose favour the gift has been made dies. the donor may not revoke such gift. such gift may not be revoked. Article 875. and delivering the same. he may not revoke such gift. If the recipient does not agree. whether by the recipient or by some other person. or where the gift consists of a lean anirnaland the person in whose favour the gift is made fattens such animal. He may. and the person in whose favour the gifi is made erects buildings or plants trees thereon. sister. or to his brother. Article 865. or of an order of the Court. If either husband or wife make a gift to each other during the subsistence of the marriage and hand such gift over.

such giS is sralid respectto one thirdof the estate. If a personwhose estateis overwhelmed debts makesa gift of his property by duringthe courseof a mortalsicknessto his heir.whether the child.suchgift is valid. SECTIONII Gifts made dunng the course of a mortal sickness Ariicle877. If it exceedsone third? however. and then dies. to Promulgated Royal Iradsh 29th M?wharrsm by 1289. or to someotherperson.If they fail to state for whom they were broughtand the pointcannotbe settledby inquiryfromthem. .or the for bride.is madeanddelivered somepersonotherthanan heirn the gift does not exceed to and one thirdof the estate. Article880. or the father. If any personmakes a gift to one of his heirs duringthe courseof a mortal sickness.and the personin whose in favour the gift is made must return the balance. If a husband who hasno heirapartfromhis wife. or a wifewhohasno heirother than her husbandn makesa gift of the whole of his or her possessions the wife or husband to respeciively duringthe courseof a mortalsicknessanddeliversthe sarne. Presents madeon the occasionof circumcision marriage or ceremonies belongto thosepersonsfor whomtheywereintendedby the ownersthereof. Article 879. Ariicle878.THE MEJELLE: BOOK VII: GIFT 405 Article876. and the Treasuryhas I1O right of interferingwith the estate after his decease. the quesiionwill be dealtwithin accordance with local custom.such gift is valid.and the heirsdo not ratifythe gift.or the mother.anddelivers sarne the and then dies. such gift is not valid unless raiifiedby the other heirs. If a personwhe is withoutan heirmakesa gift of the wholeof his possessions to some other personduringthe courseof a mortalsicknessand deZversthe same such gift is valid.and the Treasuryhas no rightof interfering with the estateof eitherof them aftertheir decease. If the gift) however. the creditors maydisregard gift andmaydieride the suchproperty betweenthem in proportiors their claims.

available at . and build upon a wide range of content in a trusted digital archive. 1988). . http://www.The Mejelle: Book VIII: Wrongful Appropriation and Destruction Author(s): C. We use information technology and tools to increase productivity and facilitate new forms of scholarship. 219-227 Published by: BRILL Stable URL: http://www. pp.jstor.jsp . Accessed: 28/06/2012 05:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use.org. Hooper Reviewed work(s): Source: Arab Law Quarterly. No. preserve and extend access to Arab Law Quarterly. please contact support@jstor. For more information about JSTOR. 3. researchers. http://www. use. Vol.org . BRILL is collaborating with JSTOR to digitize. 2 (May. and students discover.org/page/info/about/policies/terms.org/stable/3381873 .jstor. JSTOR is a not-for-profit service that helps scholars.jstor. A.

THE MEJELLE

BOOK VIII WRON&FUL APPROPRIATION AND DESTRUCTION
INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE Ariicle881. Wrongful appropriation consislsof takingandkeepingthe property another) of withoutthatpersonXs permission. person The taking suchproperty calledtheperson is wrongfully appropriating property. The property itselfis calIedthe property wrongfully appropriated. The ownerof suchproperty calledthe personwhoseproperty beenwrongfully is has appropriated. Article882. Standing valueis the valueof buildingsand treesas they standin the ground. The valueof the landis estimated firsttogether with the buildings treesand then without and the buildingsandtrees. The difference betweenthe twQ valuations calledthe standingvalue is of the buildingsand trees. Article883. The buildingvalueis the standing valueof buildings. Ariicle884. The pulled-down valueis the valueof the debrisof the buildings afterthey have been pulleddownandof the treesaftertheyhavebeenuprooted. Ariicle885. The pulling-down valueis the pulled-down valueafterdeducting therefrom the cost of pullingdownbuildings uprooting or trees. Ariicle886. The minusvalueof landconsistsof the difference betweenthe rentof a pieceof landbeforecultivation afterculiivation. and Article887. Direct destruction consistsof the destruction a thing by a personhimself. of The persondestroying thingis calledthe actualdoerof the act. the Article 888. Indirectdestruction consistsof being the causeof the destruction a thing. of Thatis to say, to do anactwhichcausesthe destruction another of thingin thenormal courseof events. The personperforming suchact is calledthe personcausingthe destruction. Exampks: (1) The cordof a hanginglampis cut. The lampfalls to the groundand is broken.The personcuttingthe cordis the directcauseof the destruciion the cordandis the indirect of causeof the destruction the lamp. of (2) A personsplitsa water-skin halfandoil contained in thereinescapesandis lost. Such personis the directcauseof the destruciion the water-skin the indirectcallseof the of and destruction the oil. of Ariicle 889. Priorwarningconsistsof giving warningand recommendation beforetaking action,with a view to preventing occurrence anyprobable the of injury.
219

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CHAP TER I WRONGFIJL APPROPRIATION
SECTION I

Wronul approprialiongeneral in Article890 If the wrongfully appropriated property existsin its original state,suchproperty mustbe restored the ownerthereofat the placewhereit waswrongfully to taken.If the owner meets the personwho has wrongfully appropriated property someotherplace,and the the in wrongfully appropriated property withhimn ownermay,if he wishes7 is the demand return the of the propertythere. If he asks for the property be handedover at the placewhere the to wrongful appropriation occurred,the expensesoccasioned handing by overand transport fall uponthe personwho haswrongfully appropriated property. the Ariicle891. If the personwho has wrongfully appropriated property destroys samen the he must makegood the loss occasioned thereby.He is also liableto makegood the loss if such property destroyed lost with or withouthis fault.Thus, he mustpaythe va}uethereofit is or suchproperty of the sortthe like of whichcannotbe foundin the market, at the timeand is as placeat whichthewrongful appropriation occurred, givea siniilar and article thelikeof it can if be foundin the marker. Article892. If the personwrongfully appropriating property returns identicalproperty the to the ownerthereefat the placewherethe wrongful appropriation occurred, is freefromall he liability makecompensation. to Ariicle893. If the personwho has wrongfully appropriated property placessuch property before ownerthereof sucha waythathe cantakepossession itntheproperty question the in of in is deemedto havebeen restored) even thoughthe ownermaynot actually havetakendelivery thereof. If such personplaces the value of property which has been wrongfully appropriated and whichhas been destroyed beforethe ownerthereof,he is not freefromliabilityto makegood theloss untilthe ownerhas takendelivery thereof. Article894. If the personwho has wrongfully appropriated somespecificpieceof property delivers such property the ownerthereofin a dangerous to place, the ownerhas the right of refusing acceptit. In suchcase, the personwhohaswrongfully to appropriated property the is notfreedfromthe liabilityof makinggoodanyloss. Ariicle895. If the personwho has wrongfully appropriated property whichhas been destroyed, tenders valuethereofto the owner,whorefuses acceptthesame,suchpersonmay the to apply the Courtfor an orderfor acceptance. to Article896. If the personwhoseproperty beenwrongfully has appropriated a minor,the is person has wrongfully who appropriated validlyrestore may suehproperty the minor,proto videdthe latteris of perfeetunderstanding eapableof preserving property,but not and the otherwise. Ariiele 897. If the propertywrongfullyappropriated consistsof fruit and the condiiion thereof ehangeswhile in the possessionof the personwho has wrongfully appropriated such property, as by beeoming sueh dry, theownerhastheoptioneitherof elaiming return the the of identieal property wrongfully appropriated, of askingfor the valuethereof be paid. or to Ariiele898. If the personwrongfully appropriating property anywayehangesthe nature in ofsueh property addingtheretoanything his ownnthe personwhoseproperty been by of has wrongfully appropriated the optioneitherof elainiIng valueof suehproperty, of askhas the or ing the returnof the identieal for property afterpayingthe valueof the increase.

THE MEJELLE

221

Examples: eloth and dyes the same. The owner thereofhas the Ophon appropriates A wrongfially eitherof elaimingthe valueof the elothor of askingfor the returnof the eloth itself after payingthe prieeof the dye. in alterssuehproperty sueh a property Arecle 899. If the personwrongfilllyappropriaiing way thatthe namethereofis ehanged,he is boundto makegoodtheloss andkeepthe property himself. Examples: eertainwheatandginds it intoflour.He is obligedto make appropriates (1) A wrongfillly good the loss andthe flourbeeomeshis property. wheatand sows it in his own field. He is obligedto make appropriates (2) A wrongfully good the Iossand the cropsbeeomehis property. Artiele 900. If the price and value of a thing deereaseafter the wrongfulappropriaiion at thereof,the ownermaynot refuseto aeeeptit andelaimthe valuethereof the time sueh thing by But was wrongfullyappropriated. if the valueof sueh thing decreases reasonof the use suehloss must be made sueh appropriated property, thereofby the personwho haswrongfully good. Examples: sueh aal to its ownerin a weakan appropriates animalandrestores (1) A wrongfully in ened eondition.A is boundto makegood the deerease the valueof the animal. their value. If elothesand tearsthem, therebydecreasing appropriates (2) A wrongfully that the deereaseis of smallarnounta is to say, if it does not atnountto one fourthof the such appropriating the wrongfullyappropriated personwrongfulIy valueof the property in is property liableto makegood the loss. Butif the decrease valueis of greatamount,that is to say if it is equalto or exceedsone fourthof the valuethereof,the personfromwhom has has such property been wrongfullyappropriated the opiioneitherof claimingto have to the in the amountof the decrease valuemadegood)or of abandoning property the perthe it appropriating andclaiming full valuethereof. son wrongfully of Ariicle901. Anyactwherebya personis deprived his powerto dealwithhis own property is and which resultsin a situationequivalentto that createdby wrongfulappropriation conThus) if a personto whompropertyhas been sideredto amountto wrongfulappropriation. and appropriation, if to for entrusted safekeepingdeniessuch trust,suchactarnounts wrongful withouthis fault,he is liableto makegood to entrusted himis destroyed the thereafter property the loss. held in abselllteownerof Ariicle902. If any personis deprivedof possession his property of being so deprived,as wherea gardensituatedupon a mountain ship withoutany inteniion whichis of lesservalueis belowit, the property subsidesandfallsuponanothergardensituated in subject to thatwhichis of greater value.Thatis to say, theowner of property whichis greater whichis of lesservalue)andbecomesowner the valueis boundto indemnify owner of property of such property. Examples: and piastres thatof the (1) If the valueof the gardensituatedaboveis worthfivehundred beforethe collapseof the mourltain, piastres gardensituatedbelowis worthone thousand piastres,maytake five the ownerof the latter,by payingthe ownerof the former hundred overthe firstgarden. by (2) The ownerof a pearlworthfifty piastresdropsit and it is swallowed a hen worth

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ARAB LAW QUARTERLY five piastres. The owner of the pearl may take the hen upon payment of five piastres. (See Articles 27, 28 and 29).

Article 903. Any increase in the property wrongfully appropriated belongs to the owner thereof. If the person wrongfully appropriatingsuch property consumes such increase, he is bound to make good the loss.

Examples:
(1) The IIiilk and young of an ariimalwrongfully appropriatedand which are produced while in the possession of the person wrongfully appropriatingthem, and the fruit produced in a garden while in the possession of a person who has wrongfully appropriated such garden, are the property of the owner of the things wrongfully appropriated;and if the person wrongfully appropriatingthem consurnes them, he is liable to make good the loss. (2) A wrongfully appropriatesa hive belonging to B together with the bees therein. The owner, when recovering the hive together with the bees, is also entitled to take the honey produced while in the possession of A. Article 904. The honey of bees which make their home in a garden belongs to the owner of the garden. If any other person takes and consumes such honey, he is liable to make good the loss.
SECTION II

Wrongful approprialionrealproperly of
Article 905 If the property wrongfully appropriatedis real property, the person wrongfully appropriatingsuch property is bound to restore it to the owner thereof without any change or decrease. If the real property wrongfully appropriatedis decreased in value by the act of the person wrongfully appropriatingsuch property, he is bound to make good the decrease in value.

Examples:
(1) A wrongfully appropriatesa house and destroys a part thereof, or ruins it by living in it. If the value thereof is decreased, he is bound to make good the arnountof such decrease. (2) If a person wrongfully appropriatinga house destroys it by lighting a fire therein, he is bound to make good the building value of such house. Article 906. If the property wrongfully appropriated is land and the person wrongfully appropriatingsuch property constructs buildings or plants trees thereon, such person shall be ordered to restore such land after uprooting the trees or pulling down the buildings. If the fact of pulling down the buildings or of uprooting the trees causes injury to the land, the person whose land has been wrongfully appropriatedmay take possession of such buildings or trees upon paying the pulling down value thereof. If the value of the buildings and trees is greater than that of the land, however, and such buildings or trees have been constructed or planted under the belief that there was some legal justification for so doing, the owner of the buildings or trees may claim to be vested with the ownership of the land, upon paying the price thereof.

Example:
A inherits a piece of land from his father and erects buildings thereon for a cash expenditure exceeding the value of the land. Thereupon, a person who has a right to that land appears and claims it. A is entitled to take possession of the land upon paying the price thereof.

Similarly. If the first person wrongfully appropriating such property makes good the loss thereof. both persons are free from liability. He also has the option of claiming a portion of the value of the property from the first and a portion from the second person wrongfully appropriating such property. such person has no right of claiming the cost of clearing the land from the owner thereof. If any person destroys property of another. the former alone is free from liability in connection therewith. and whether in his own possession or in that of some person to whom it has been entrusted. Article 911 If the second person wrongfully appropriating property restores it to the first person who has wrongfully appropriated such property. with another of a piece of land culiivates that land without the permission of the other. Ariicle 908. such person has no right of recourse against the first. CHA P TER I I DESTRUCTION OF PROPERTY SECTION I Directdestnction properly of Article 912. if a person who is joint owner. the latter is also entitled to be indemnified for any decrease in the value of the land arising out of such cultivation. such person has a right of recourse against the second. Consequently. in respect to his share. Any person who wrongfully appropriates property from a person who has already wrongfully appropriated such property is considered to be in the same position as the first person wrongfully appropriating the property. if property already wrongfully appropriated is again wrongfully appropriatedfrom the first person by some other person and is destroyed by him or while in his possession. however. to be compensated. If any person occupies a piece of land belonging to another and places sweepings of similar refuse thereon. makes good the loss. however. such person shall be obliged to remove such matter. If a person wrongfully appropriatesa place of land belonging to another and cultivates it. and the owner obtains the return thereof. such person must make good the loss occasioned thereby. the person from whom the property has been wrongfully appropriatedhas the option of claiming to have his loss made good either by the first or second person who has wrongfully appropriated such property. and to evacuate the land. for any decrease in the value of the land caused by the other co-owner's cultivation. or he can claim to . such person's co-owner is entitled. If a person wrongfully appropriates a field belonging to another and clears it. whether intentionally or uninteniionally.THE MEJELLE 223 Article 907. SECTION III Wrongful appropnation a person hasalready from who wrongfully appropnated property Article 910. and the owner thereafter retakes possession of such field. Article 909. who in turn has a right of recourse against the person who destroyed the property. the owner of the property may claim to have the loss made good by the person who has wrongfully appropriatedsuch property. If any person destroys property which has been wrongfully appropriated while in the possession of the person who has wrongfully appropriatedit. If he returns it to the person from whom the property has been wrongfully appropriated. If the second person. upon taking his share of the land.

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have the loss made good by him. The latter, however, hasno right of recourse against the person wrongfully appropriatingthe property. Article 913. If a person slips and falls upon and destroys any propertybelonging to another, he is bound to make good the loss. Article 914. If any person destroys the property of any other person under the mistaken belief that it is his own, he must make good the loss occasioned thereby. Article 915. If any person drags the clothes of another and tears them, he must make good the full value thereof. If a person takes hold of the clothes of another, and the owner of such clothes drags them and tears them, however, such person is liable to make good half the value thereof. Similarly, if any person sits upon the skirt of another, and the owner, unawarethereof, gets up, and tears his clothes, such person must make good half the value of the clothes. Article 916. If a niinor destroys the propertyof another, he must make good the loss thereof out of this own property. If he is not possessed of any property, payment may be postponed until he is in a position to pay. His tutor may not be called upon to make good the loss. Article 917. If any person causes any diminution in value of the propertyof another, he must make good the amount of such loss. Article 918. If any person without justificationknocks down the real property of another, such as a house or a shop, the owner of such property has the option either of abandoning the debris such real property to the person who has knocked it down and of clairningthe building of value thereof from him, or of deducting the value of the debns from the building value of such real property and of claiming the value of the remainder, keeping the debris. the person If wrongfully appropriating such property rebuilds the property and restores it to its original state, he is not liable to make compensation. Article 919. Should fire break out in any particularplace and should any person pull down a house without the permission of the owner thereof, and the fire is stopped, such person is not liable to make good the loss occasioned thereby, provided he has pulled down the house by order of the authorities. If he pulls down the house of his own initiative, however, he must make good the loss. Article 920. If any person without any justification cuts down the trees in the garden of another, the owner has the option of claiming the standing value of such trees and of abandoning them to the person who has cut them down, or of deducting the cut-down value from the standing value and of clairningthe balance together with the trees cut down.

Example:
If the value of the garden with the trees standing amounts to ten thousand piastres and without the trees to five thousand piastres, and the value of the tree when cut down to two thousand piastres, the owner has the option of leaving the trees cul down to the person who has felled them, and of taking five thousand piastres, or of taking three thousand piastres, keeping the trees cut down. Article 921. The fact that a person has suffered an injury does not authorize that persc)nto inflict an injury upon another person.

Examples:
(1) A destroys the property of B. If B in turn destroys the propertyof A, both persons are liable to make good the loss they have caused. (2) A member of one tribe destroys the propertyof a member of another tribe. The latter destroys the property of another member of the first tribe. Both persons are liable to make good the loss they have caused. (3) A is given counterfeited money by B. B may not pass the money on to another person.

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THE MEJELLE
SECTION I I

225

Indirect destmstion property of
Article 922. If a person is the cause of the destruction of the property of another, or of any decrease in the value thereof, that is to say, if his own act is the cause leading to the destruction or decrease in value of such property, such person must make good the loss. Examples: (1) A quarrels with B. I)uring the quarrelA seizes hold of B's clothes, and an object in B's clothes falls to the ground and is destroyed or damaged. A is bound to make good the loss. (2) A without any justification cuts off the water in B's field or garden. If the crops and plantation dry up and are destroyed, or if A lets the water overflow into the garden of another and swamps his crops, causing them to be destroyed, A must make good the loss. (3) A opens the door of B's stable. An animal therein runs away and is lost. A must make good the loss. (4) A opens the door of a caging belonging to B. A bird therein flies away. A must make good the loss. Article 923. If an animal takes fright at a particular person and runs away and is lost, such personis not obliged to make good the loss. But if such person intentionally frightens such animal, he is bound to make good the loss. Similarly, if an animal takes fright at the noise of a gun firedby a huntsman when hunting and runs away, and while doing so, falls and is killed or breaksits leg, the huntsman is not liable to make good the loss But if the latter fires his gun withthe intention of frightening the animal, he is bound to make good the loss. (See Article 93). Article 924. The liability of a person who is the cause of an act, as referred to above, to make goodany loss sustained thereby, depends upon such act being of a wrongful nature. That is to say,the liability of a person who causes an injury to be sustained to make good the loss caused thereby,is dependent upon the act which led to such injury being performed by him without any ustlAcatlon.

Example:
A without permission from any public authority digs a well in the public highway. An animal belonging to B falls therein and is destroyed. A must make good the loss. But if A digs a well in his own land held in absolute ownership and B's animal falls therein and is destroyed, A is not liable to make good the loss. Article 925. If a person performs any act which is the cause of the destruction of a thing and meanwhile some voluntary act supervenes, that is to say, if some other person directly destroys that thing) the author of such voluntary act is liable to make good the loss. (See Article 90).
SECTION III

Mattersoccumngin lhe public highway Article 926. Every person has a right of way on the public highway, subject to the safety of others. That is to say, provided no harm is caused to others in circumstances which can be avoided.

Examples:
(1) If a porter drops the load he is carrying on the public highway and destroys the property of another, the porter must make good the loss. (2) If sparks fly from the blacksmith's shop while he is working iron and set fire to the clothes of a passer-by in the public highway, the blacksmith must make good the loss.

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Article927. No personmayset up iIl the publichighway the purpose buyingandsellfor of ing withoutthe perIIiission the publicauthorities, may he placeor produceanything of nor therewithoutpession. If he doesso, he is boundto makegoodanyinjury losswhichmay or be causedthereby. Examples: (1) A pilesup woodor stonesin thepublichighway. animal B's treads thereon slipsandis destroyed. mustmakegoodthe loss. A (2) A drops a slipperysubstancesuch as oil on the public highway.B's animalslips thereonandis destroyed. mustmakegoodthe loss. A Article928. If a wallbelongingto a particular personfallsdownandcausesdamage any to otherperson)the ownerof the wall is underno necessityto makegood the loss. But if some otherpersonhaspreviously warned ownerto }cnock the downthewallas it is likelyto collapse, and sufficient iime has elapsedfor the wallto be knockeddown, the owneris then obligedto makegoodtheloss. Provided always the person that givingsuchwarning therightto do so. has Thus, if the wallhas collapsed to a neighbour's on house,the persongivingthe warning must be one of the inhabitants thaehouse.A warning of givenby a personoutsideIS of no effect. If the wallcollapses to a private on road,the person givingthe warriing mustbe a personhavinga rightof wayoversuchroad.If it collapses the publichighway,any personwhalsoever on has the rightof givingthe warning.
SECTION IV

Injury caused animals by Ariicle929. The ownerof an animalis not liableto makegood any damage causedby the animalof its own voliiion. (See Article94). But if an animalconsumesthe property some of otherpersonarldthe ownerof the animal cognizant is thereofandtakesno stepstO prevent the injury,the owneris boundto makegoodthe loss. Butif the ownerof ananimal knownto be of a destructive character as a bullwhichgores,or a dogwhichbites,is warned one of the such by inhabitants the districtor villageto iie up suchanimal,andthe ownernevertheless him of lets go loose and he destroysthe animalor property someotherperson)the owneris boundto of makegoodthe loss. Ariicle930. If an aIiimal, whetherriddenby its owneror not, andwhileon landownedby hhn in absolute ownership, injuresanyotherpersonby striking suchperson withhis forefeet, or withhis head)or tail,or by kickingwithhislind legs, the ownerof suchanimal not liable is to madegoodthe loss. Ariicle931. If anypersoncausesanyaiunalto entertheproperty in absolute held ownership belongingto another,havingobtained pemiission the ownerof suchproperty do so, the of to suchariimal regarded beingon suchperson's is as land,andtheowneris notliabletO makegood the loss m respectto anyinjurycausedby suchal) as set forthin the preceding Ariicle.If the ownerhas causedthe animalto enterwithoutsuchpermission, is liablein any case tO he makegood any darnage caused)whetherriding,leadingor driving)or even when not nearto suchal. But if an axiunal breaksloose andentersthe property another of held in absolute ownership anddoesdamage thereon its ownaccord,theowneris not liableto makegoodthe loss. of Ariicle932. Everypersonhasa rightof waywithhis aIiimal thepublichighway. over Consequently,if anyonerideshis ariimal the publichighway,he is not liableto makegood any on

THE MEJELLE

227

Example: If dirt andmud arescattered aboutby the hoofsof an ariimal another and person's clothes are splashedtherewith; if such animalkicks with his or hind legs or swisheshis tail and inflictsinjurythereby,thereis no need to makegood the loss. But a personridingan animalis responsible collisionor for blowsinflictedby for the forefeet or the head. Ariicle933. Any personleadingand any persondrivingan animalin the publichighwayis considered be the sameas a personridingsuchanimal.Thatis to to say, theyareonlyobligedto makegood anyloss sustained the extentthatthe person to ridingthe animal so obliged. is Article934. No personhasthe rightof stoppingor of tying up his animal the publichighirl way. Consequently, anypersonstopshis axiimal ties if or it up in the publichighway such and animalkicks with his foreor hind legs, or inflictsinjuries in any otherwayasuch personis in every case obligedto makegood the loss causedby such animal.An excepiion,however,is madein the case of placesspecially asidefor animals, set such as horse-markets placesfor and animals sent out on hire. Article935. If any personturnshis animallooseon the publichighway is responsible he for anyinjurycausedby suchanimal. Article936. If any animalriddenby aIlypersontramples uponanything with eitherhis fore orhind legs)whetheruponhis ownproperty upon or thatof anyotherpersonandsuchthingis destroyed) suchpersonis considered havedirectlydestroyed and to it in everycaseis boundto make good the loss. Article937. If the animal doesnot takethe bit) andthe rideris unableto hold his head,and injury causedby suchanimal,the rideris not responsible is therefor. Ariicle938. If any personties his animalup in his own property a secondpersonarrives and and likewiseties up his animal therewithoutpermission) the animal and belonging the owner to ofthe property kiclcsanddestroys animal the belonging suchsecondperson,the ownerof the to Srst animalneednot makegood the loss. If the animalbelongingto the secondpersondestroys the animalof the ownerof the property, secondpersonmustmakegood the loss. the Article939. If two personshavethe rightof tyingup their animals one place)andhaving in done one of themdestroys other,thereis no need so, the to makegood the loss. Example: Two personswho arejointownersof a housetie up their animals a certain in placein such houseandwhile therethe animalbelongingto one of them destroys animalbelonging the to the other. The ownerof the animalirflictingthe injuryis not liabletO makegood the loss. Article940. If two personstie up theiranimals a place in wherethey haveno rightto do so and animalbelonging the firstpersonwho ties up the to his animaldestroys animalbelongthe ing the second,the firstpersonis not obligedto make to goodthe loss. But if the animal belonging the secondpersonwhoso ties up his anunal to destroys animal the belonging the first,the to second personmustmakegoodthe loss. Promulgated byRoyalIradah,23rdRabiul Akhra,1289

We use information technology and tools to increase productivity and facilitate new forms of scholarship.jstor. Hooper Reviewed work(s): Source: Arab Law Quarterly. preserve and extend access to Arab Law Quarterly. 2 (May. 4. use. researchers.org . Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use.jstor. please contact support@jstor. http://www. For more information about JSTOR.org/page/info/about/policies/terms. and students discover.org. A. No.The Mejelle: Book X: Joint Ownership (Continued) Author(s): C.org/stable/3381807 . BRILL is collaborating with JSTOR to digitize.jstor. and build upon a wide range of content in a trusted digital archive. available at . JSTOR is a not-for-profit service that helps scholars.jsp . . Vol. 1989). pp. 157-171 Published by: BRILL Stable URL: http://www. http://www.

is rare. requesting to give a thousand to B piastresalsoand buy certainproperty. (2) A gives a thousand piastres B. A partnership with equalshares a partnership is whichis formedwhenthe partners enterinto a contractof partnership stipulating completeequalitybetweenthem. afterthey have for contributed property the whichis to formthe capitalof the partnership. and Article1330. where of of thereis completeequality. A contractof partnership consistsof a contractfor jointownershipwhereby two or morepersonsjointlysharein capital profit. and.however. Examples: (1) A informsB thathe has becomehis partner wherebytheywill carryon businesswith a certainamountof capital.andtheirsharesof the profit. and his if sons take overthe wholeof his property to themandmakeit theircapitalon the termsthat left theymaybuy andsell property allkindsandsharethe profitequallybetweenthem. . has Article 1331. Contractual partnership dividedinto two categories: is (1) Partnership with equalshares.Similarly. maintain they equality in the amountof theircapital. theymay of therebyform a partnership with equalshares.An expresspartnership been formedby offer and has acceptance. express or implied. a persondies. A partnership beenformedby his impliedacceptance. The basisof a contract partnership of consistsof offerandacceptance.B does so.THE MEJELLE BOOK X JOINT OWNERSHIP (CONTINUED) CHAP TER VI PARTNERS HIP S E CT I O N I Dehnitionclass2fication and ofpartnership Article 1329.Formaiion a partnership this type.B agrees.

the are of Consequendy. If this is vagueor ualknown. a parmership work. It mustbe statedin whatwaythe profitis to be dividedamongthe partners.Thus if thepartners or in on contnbute a quaniityof property be the capitaleitherjointly.ora partnership credit.If not.158 ARAB LAW QUARTERLY (2) Parcnership unequal with shares A parmership with unequalsharesis formedwhen a contractual partnership concluded is withoutsiipulating completeequality.A debtX is to say. in the caseof agency. is on SECTION II General conditlons at%cting a contractual partnership Article1333.Consequently. of Consequently. The capitalmust consistof somespeciScobject. such partnership is a partnership property. an artisans or partnership.If they agreethattheirlabourshallbe theircapitaland that in they shallundertake do workfor someotherperson. Consewith of quently. or a quarter. If it is customary amongpeopleto transact busitless withgoldandsilverwhich has not beencoined.and to or forma partnership a viewto trading sharing profits with and the betweenthem. tO buy or sell.suchgold andsilveris considered be cash. the is Aracle 1337. absolutely. The capital mustbe somekindof cash. a contract madewherebyone of the If is partners to receivea fixedamount the profit. or of as.andthatthe remuneration receive to they shallbe dividedbetweenthemandforma partnership thateffect. Everycontractual partnership includes contract agency. or to work is that for a wagefor someotherperson. whereone tailergoesinto partnershipwithanother tailor. partners not guarantors eachother. to a of Ariicle1335. of . whetherone of equalor of unequalsharesn eithera partneris shipin property. for example. The sharesof the profitto be dividedbetweenthe partners must consistof undividedpartssuch as a half.If a partnership conwith is cludedill whichthereis no capital the partners andsellon crediton the termsthatthey and buy shalldividethe profits.the partners mustbe competent conclude contract guaranlee. Article1339.But if at the time of the conclusion a partnership unequalshares. parmership voidable.A partnership thisnanlreis alsocalleda personal of partnership. a partnership wage-earners.a minor who has receivedauthontymay also enter into a partnership with unequalshares. is of is SECTION III Conditions affecting partnershipproperw a in Amicle1338.or separately.cannotbe the capital a partnership. is to say. Article1341. all partnerships in thereis a condiiionthatthe partners shallbe of soundxnind perfectunderstanding. it is considered be to to merchandise. A partnership.suchpartnership a partto is nershipof work.Thus. Copper coinswhicharein current areconsidered customto be cash use by Article1340.suchpartnership a partnership credit. at the eimeof the conclusion the conif of tracttherehas been no mentionof a guarantee. A partnership equalsharesalsoincludesa contract parantee. of has the are of Ariicle1336. for Ariicle1332. partners guarantors eachother. a sum that due to be receivedfromanyone. a ird.or a tailorgoesintopartnership a dyer. and as Ariicle1334.the partnership null andvoid. eachof the a of partners the agentof the otherto dealwith property. A partIlership unequal with shares includes contract agencyonlyand does a of not includea contract guarantee.the of with contract guarantee beenmentioned.

and afterthey have becomejointownersthereof.The ownerof the animalis eniitled to an estimatedpayment. the partnership invalid. for example.Consequently. is Article 1342. Ariicle 1347. and this includeshis right to and the makeuse of the shop. S E CT I O N I V Rulesrelating a cmtractusl tO partnaship Ariicle 1345.andthe moneyobtainedbelongsto the ownerof the horse.they may concludea partnership respectto the jointlyowned property. they can and concludea partnership withthe mixedproperty theircapital.as. and Article 1346. by liabilityin respectthereto. Nevertheless. or Thatis to say. The rightof the ownerof the shop to a half shareaccruesmerely by reason of his havingguaranteed undertaken work.the partnership voidable the profitderivedfrom is and the goodsbelongto the owner.Theircapital subscribed is in equalsharesandit is siipulated bothof themshallworkin the business. the profitbeingsharedbetweenthem)such partnership voidable. asis shownin Ariicle or 85. Ariicle1344.Siniilarly. work.The workof one personmay is be proportionately morevaluable thanthe workof someotherperson. labouris vgalued whenthe worththereof assessed. Workbecomespossessed specificvaluewhenthe valuethereofis esiimated. A partnership not be validlyconcludedwith regardto property may which is not consideredtQ be cash)suchas merchandise realproperty. The rightto profitmayariseout of property. contractof parta nershipin workmayvalidlybe madewherebya personputs an ariisanin his shop and has the workwhichhe has undertaken do performed him on the termsthattheyareto dividethe to by profitequallybetweenthem.if two personsmLY in together property theirsthe like of whichcan be foundin the market.If two personsenter into a partnership whereby of themsellshis goodsin the shopof the otheron the termsthat one the profitshallbe shared betweenthern.and since the harnessis a necessary the horse.on the termsthatthe animalshallbe taken roundand the goodssold. in a casewhereone suppliesthe capitaland the other . Example: Two personsarepartners a partnership unequal in of shares.Thus.or.a quaniityof of wheat. is and the profitearnedbelongsto the ownerof the goods. they then becomejointownersof property ownedin absoluteownership. A partnership formedwherebyone personprovidesa horseand the other the harnesson the terms that the money obtainedby letiing the horse on hire is to be shared betweenthem is voidable.It mayvalidly that be agreedthatone of themshallhavea greater shareof the profitsthanthe othersince the skill of one in wadingmaybe greater his outputof worklargerandmorevaluable.THE MEJELLE: BOOK X: JOINT OWNERSHIP 159 Example: Two personscannotform a partnership with capitalconsistingof somethingdue from some otherperson. it cannotbe the capitalof the partnership. each of them may sell the half of his propertyto the other. of Thatis to say. If two persons enterintoa partnership whereby whois theownerof an anione mal loadsthe goodsof the otheron to suchanimal.The ownerof the shopis entitledto receiveanesiimated rentfor the shop.If the capitalof one consistsof somespecificproperty of the other and of a debt. twopersonsdesireto makethe capital the partnerif of ship out of propertywhichis not in the natureof cash.The case of a shop is similarto thatof an animal. as Ariicle 1343. A liabilityfor workis m the natureof work.the ownerthereefis not eniitledto a shareof the money of receivedbuemayonly claiman esiimatedsum for the harness.

such that to capital.thereis no rightto profit. Article1350. the it is a loan. No partnership is formed. If noneof the threeelements mentioned above.the division invalid.while iIl the possession the workman.fails to do so.An ariisan to may alsoengagean apprentice and validlycausesuchapprentice perforul to workwhichhe hasundertaken do for half the norto malwages. it therearethreeormorepartners. Article 1352. on Article1351. he is presumed havedonesuchwork. Partners trusteesthe one forthe other.If the propfor ertyof the partnership destroyed is whilein the possession one of themwithoutany faultor of negligence his part. his master entitledto the otherhalf.profitis earned property by beingsupplied the ownerthereof the labourfurby and nishedby the personwho undertakes work. sincehe is liablefor the and is workbeingproperly performed. The partnership also be dissolved one of the partners.he is not liableto makegoodthelossto the shareof his partner. thoughthe partner even whois boundto do certain workfailsto do so. capital in the maybe subscribed equalor in unequalsharesby the partners.If he is such. his afflictionby permanent or madness.by reasonof his beingthe agentof the forrner.) .Cancellation one withoutthe knowledge the othersdoes not by of brirlg aboutthe dissoluiion the partnership.This type of partthe the nershipwill be dealtwithin the relevant Chapter.the partnership one is whereone partner subscribes capitaland the otherfurnishes labour. causesthe dissolution the partnership. considered have is to performed work. Should profitgo eniirelyto the workman. In a caseof partIlership property. It is not in proporiion the business to done. to Example: If it is stipulated a validparttlership the two partners in that shallboth performcertain workandone of themdoesso andthe otherwithsomeexcuse.it is agreedthatthe profitshallbe sharedjointlybetweenthem. the Article 1353.160 ARAB LAW QUARTERLY the labour. he is considered be an agentworkingfor to nothing. Article1349. property. (SeeArticle1123.(SeeArticle801.The apprentice entitledto halfthewagereceived is fromthe employers reason by of the workhe hasperformed. of Article1354. Ariicle1348. If the partners dissolvethe partnership the termsthatthe cashill handis to on go to one of themanddebtsdue to the other. calledintrested of is capitaland the workman is calleda personemployingcapital. if in a casewhereonesuppliesthe capital the otherthe But and labour.andif it is stipulated the profitshallgo entirely the ownerof the capital.or withoutanyexcuse.Debtsdue arejointly ownedin the sameway.andA cannottherebytakea shareof theproSt. The death of one of the partners.andprofitandloss fall uponthe ownerof the property. dissolution of But the of the partnership only affectsthe one who dies or goesmad and the partnership subsistsas regards others.andthe property the partnership are of in the possession eitheris corlsidered be property of to entrusted safekeeping. Example: A asks B to tradewith his propertyand sharethe profitwith him.Consequently.andanysums receivedin is thiswayfromcashin handby one of themis jointly ownedwiththeother.work.and the profitis dividedbetween the themin themanner agreedupon. shareof the lattershallbe to the paidout of the estateof the deceased.) Ariicle 1355. The righttO profitis entirelylimitedby the termsof the contractof partnership. If one of the parmers receivesa quaniity the partnership of property dies and whiledealingwithit in a manner unknown the otherpartner. andliabilityarepresent. the latter.providedthe may by othersareinformedthereof.thatis to say.

a partnership creditis formedwith equalshares. If it is agreed a partnership workthateachof thepartners undertake and workof anynaturewhatsoever.the wagesof an employeeand the hire of a shop may be claimedfrom any one of them.in excessof the capitalof the partnership. such as merchandise realproperty.If a contractfor partnership madein generalterms. thattheyareliablefortheworkequally. and if any person claims goods from them and one of them admits the claim. If two persons and erty on creditand that the propertypurchased the pricereceivedand the profitshall be of jointlyowned by themin equalsharesand thateachone shallbe the guarantor the other. by The vendor.mayclaimthe pricethereoffromthe otherpartner virtueof the guaranteealso. with unequalshares. with unequalsharesis Article 1363. cashor property the nature cash. Any food.the partnership changed a partnership as the capitalof thepartnership.andthatthey shall of be equalas regardsprofitand loss. must in with equalshares. As is statedin SectionII. on with of Article1361. merchandise. abovein this Sectionis absent. Upon the formation a partnership equalshares. the admission bindingeven thoughthe otherdeniessuchclaim. hire. Consequently. is whereby theyagreeto buy andsell propconcludea partnership Article1360. If suchproperty capableof being used into is suchas cash.purchase. sequently.such partnership one with unequalshares. admissionmade by one of the partners identicallythe same with regardto a debt. by other. ship with equalsharesis changed Example: acquiresposin withequalshares.however.Conwhichmayhappento thepartnership. may in for Article1359.however. or the wholeof the termsof suchpartnership is is merated. partners has an the other. If one of the conditions meniioned with into a partnership unequalshares.the sharesof the partners Article 1358. Any loan contracted. Any conditionessentialto the validityof a partnership with alsoesseniialto the validityof a partnership equalshares.If it is property. clothingand othernecessaries has and are equal sharesfor himselfand his farriily his property his partner no right therein.is not affectedif one of the partnersintroin duces propertywhich cannotbecome capitalof the partnership excess of the partnership or or capital.Neitherof the partners introduce property in of by wayof capital.THE MEJELLE: BOOK X: JOINT OWNERSHIP SE CTI ON V 161 shares Partnership equal with the with equalsharesareguarantors one of Article1356.one of thepartners In the caseof a partnership property is by sessionof property wayof inhentanceor gift. to a ing on the otheralso.no injuryis causedtO the partnership with equalshares. If one of them makesan admission personin whose favourthe admissionis made may demandpaymentfrom whicheverof the by of partnershe wishes. is bindof accountof the businesstransactions the partnership.however. Anythingsold by one of themcontaining defectmaybe returned the by brought one of themmaybe returned the otheron accountof defect. and that the one is the guarantor the otherfor anything with is suchpartnership a partnership equalshares.thatis to say. any naturewhatsoever. realproperty. debtsdue fromsomeotherperson. In partnerships property any may be equalin respectto capitalandto profit.whichcannotbecomethe capitalof the or partnership.thatis to say.eitherthe actualword must be enudenotingequalsharesmustbe used. one of the partnerson or suchas sale. . the effect with regardto the other.a partneras Article1362.andanything with broughtby one of the partners Article 1357. The equalityof shares.

the to of additional amountto be received the partner performs workis not sufficient comby who no to .suchagreement valid. Article 1371.whetherthe capitalhas been is subscribed equalorunequal in shares.The partnership. trade. If it is stipulated that the work shall be performed the partner by whose sharein the profitsis smaller.the partnershipis validandeffectshallbe givento the condition.andit hasbeen agreed that that the workshallbe performed the partner by whoseshareof the profitsis greater. profitmustbe dividedin accordance the with the arnount the shares capital. no Article1370.theprovision of as.as for or example. whichmay becomecapitalof and the partnership.the reasonbeingthatif the profitis dividedas agreed. Article 1369.shallgo to one thanto the other.and the profitshallbe dividedbetweenthem in is proportion the amount capital.andthat. In a voidablepartnership. whetherit with has been agreedthatboth of them or only one of them shallworktherein.If anystipulation beenmadeto to of of has the contrary. Any damagesufferedwithoutany fault or negligenceshall in any case be dividedin proportion the amount the shares capital.the capitalof the otheris considered be to investedcapitalin suchperson's possession. effectshallbe giventhereto.apartfromthe capitalof the partnership.resembles a partnership wherecapital furnished one andlabourby another. the The capital onemaybe greater of thanthe capital another. on of however.both the partnership the stipulation valid.thatonly one of themshallworktherein. Anyact performed partners a partnership unequalsharesmayalso by in with be performed partners a partnership equalshares.(See that and are Article1345). Article 1368.162 ARAB LAW QUARTERLY Article1364.forexample. however.andanyparticular branch commerce.money.such stipulation invalid. by of he to and alsoto an additional amount account his work.no effectshallbe giventhereto. A contract partnership be entered bothwithregard coITlmerce of may into to in general. is by sincethe capitalof the otherpartner suchperson's in possession in thenature capital is of subscribed sucha partnerto ship. Article1367. partner the beingentitledto a shareof the profitsarisingout of the capital reason the amount hassubscribed the business. forexample.twothirds.they mayhaveproperty. of Noneof themis obligedto subscribethe wholeof his moneyto the capital fund. It is not essentialto the validityof a partnership unequalsharesthatthe with partners shouldsubscribe capitalin equalshares. If thepartners agreethatthe profitshallbe dividedamongthemin proportion to the amountof theirsharesof capital.If it is stipulated.For this reason.andtheprofitshallbe dividedbetween themin the manner agreedupon. If the capitalsubscribed the partners equaland it is stipulatedthat a by is largershareof theprofit. in accordance the amountof theirsharesof capital. by in with SECTION VI Partnership anequal unlh shares SUB-SECTION I Parlnership properw in Article1365.butmayforma partnership regard the with tO whole of theirproperty a portionthereof.If it is stipulated onlyone of themshallworktherein. Anycondition whichhasbeenlaiddownwithregard the divisionof profitin to a validpartnership mustbe observed. Article1366.andit is also stipulated both shallworktherein.If a stipulation beenmadethatmoreshallgo to one thanto of of has the other.

Eachof the partners may sell the partnership property readymoneyor on for creditn anypricehe thinksfit.The horsebecomeshis ownproperty. the reasonbeingthatit has been agreedthat the partner with the lessercapitalshallhavea shareof the profitgreater thanthe sharein proportion the capital.workandliability. . the partner if who has concluded the contract appointssomeotherpersonto be his agentto receivethe priceof the propertysold. if one of the partnerssells property.the partnership validandeffectshallbe givento the condition. If one of the partnersbuys anythingwhichis not of the type used in their branch cornmerce his ownmoney.) Article 1372. of Article 1375. has Article1377. anyclaimmadeby anypersonas to the priceof the propertypurchased may be madeagst suchpartner only. whosecapitalis greater. is to say. Contractual rightsbelongto the contracting partyonly. purchase hire. property such becomeshis own andis not the property the partnership.for example.if the capitalof one amountsto one hundredthousandpiastresand of the otherto one hundredand fifty thousand piastres.suchproperty his ownandhis partner of with is cannotclaim a sharetherein. If the sharesof the partnersare unequal. if the purchaser gives the price to the otherpartner.(See Articles1347and 1348. Moreover. Each of the partnersmay depositthe partnership propertyfor safe keeping. whosecapitalis that greater.he is only liberatedin respectto the shareof the partnerwho has receivedthe price.he aloneis entitledto receivethe price thereof.shallperformthe work.that is to say.a of are stipulation havingbeen madefor a greatershareof the profitsto be given to one of them.Again. The rightof rejection accountof defectbeinga contractual on right.EDut one of the partners if while in possession the capitalof the partnership of buysproperty the typeusedin theirbranch commerce of of withhis ownmoney. he does so.Butif he buyscloth.If it is has been stipulatedthat only the partnerwhose shareof the profitsis smaller. Propertymay be boughtfor the partnership eitherwith readymoney or on creditby whomsoever the partners in possession the capital the partnership. to on Ariicle 1379. one of the partners may not rejectproperty purchased one of the otherpartners accolmtof defect. suchagreement resembles caseof a partnership the wherethe shares thepartners equal. of and Ariicle 1378.If thereis a rightto profitit is onlyin respectto one of thesethreethings. it has been stiputo if latedthat both the partners whoseshareof the profitsis greater.andhis partner cannotclaima sharein suchhorse. suchproperty for If becomes own.and the profitshall is be dividedamongthemin proportion the amountof theirsharesof the capital.the transand actionis bindingon him alone.it becomesthe property the partnership.and it has been agreedthat the profitsshallbe dividedamongthemin equal shares.THE MEJELLE: BOOK X: JOINT OWNERSHIP 163 pensatefor property. of Example: One of two personswho haveenteredinto a partnership carryon the businessof cloth to merchants buysa horsewithhis ownmoney. suchperson'spartner cannotdismissthe agent. Consequently. for Articlel1374.Butthe partner remove agentappointed may an by the otherin respectto contracts sale. Thus. his Ariicle 1376. andmaynot be claimedfromthe other partner. to Article 1373. he hasno rightof mailltaining he hasboughtthe clothfor himself and that and thathis partner no sharetherein.it becomesthe propertyof the partnership. shalldo the work.but is not releasedin respectto the shareof the partner with whomhe contracted. if he of is of of But buys the propertyas the resultof flagrant misrepresentation.He ownsthe clothjointlywith his partner.Thus. by on Property sold by one maynot be returned another accountof defect.suchstipulaiion invalid.Consequently. No partner who is not in possession the capitalof the partnership of may buy property the partnership. one of if the partners takesdeliveryof propertyhe has purchased paysthe pricethereof.

Thatis to say. maynot. he doesso andhis If partnership property lost. he mustmakegood is the loss suffered his parmer. No parmer maylendthe partnership property atly otherpersonwithoutthe tO perniission de other.he may take of a shopon hireandpaywagesto personsfor the preservaiion the partnership of property.mayplace it in a businesswhereone personsuppliesthe capitaland the otherthe labour. unlesshe obtainsthe express perIriission his partner.Any sumof moneyborrowed onepartner by is a debtforwhichtheotheris jointlyliable. SUB-SECTION II Partnershipfor work Article1385.destroythe partnership property conferthe absolute or ovrnership thereinuponsomeotherpersonwithout consideration. and he hfinselfis responsible the wholeof the debt. He may. of Example: One pannermaynot lend or makea gift of the partnership property any otherperson to withoutthe express permission the otherpartner.orwhether. of Arlicle 1383. Eachpartner the agentof the is otherfor the pllrposeof undertaking work. to sellon credit)andthe latterrlevertheless othercountrywith or doesso he is boundto make anyloss occasioned good thereby. Article 1386. If eachof the partners authorises otherto act in accordance the with his own judgment to do as he likes. for of forexample one of them undertakes responsible one Mrd andtheother to be for for two thirds. Ariicle 1382. however. however.or it with his own 164 ARAB LAW QUARTERLY maygive it to someotherpersonon condiiion thathe obtainsthe wholeof the profit. however. for example. Ariicle 1384. if he admitsthat the debt has arisensolelyin conneciion with his own contracts transactions. tailorswho are partners a parmership irl of skilled workmen mayacceptandcut the rtlatenal the oNer and maysewit.If he he admitsthat the has beenmcurred debt solelyon account sometransaciion of carried by his partner. Any so undertaken one of themmust work by be performed both by him andby his parmer. Eachof the partners obtainand may perform work. Thus.obtain of property loanon behif of the partneron ship. maynot. takea pledgein respect or property. A partnership workconsistsof the for conclusion a parmership of with a view to undertaking work.or proceed some to othercountry with the partnership property. the partnership He mix propertywith his own property enterinto a or partnership someotherpersonwithoutthe conwith sent of the otherpartner. If oneof the partners leavesforsomeothercountry behalfof the on businessof thepartnership.whether or theyhaveconcluded parmership a whereby theyundertake to responsible be equally the performance thework.thereto. .and may conclude contracts hire. eachof themmay or perform workfallingtO his branch comthe of merce. out he isnot obligedto payanything. expenses a charge the are on the partnership property. If he admitsthat for the debthasmsen in connection with a transaciion carriedout in conjunction with his partner. must payhalfthereof. conclude partnership someother or a with person.whetherthey who areliableequallyfor the performance the of worknot.Thus.He. Arecle1387. Article1381.Thus. de partners enterirltoa parmership whereby they undertake and hold themselvesreadyto perform workwhichthey may any be cossioned to performby those employthem and ehat. by Ariicle 1380. If one of the partners forbidsthe otherto proceedto some the parmership property. eachof dem may pledgethe partnership property.Oneof them mayob work the othermay perform One of two and it. Anyadmission debtmadeby oneof of the partners respectto the operaiions in of partnership a with unequalsharesdoesnot bindthe other.

makesa conditionthat the (SeeArticle the the shallperform workhhnself.If they enterinto a partnerto ship wherebyone undertakes performone thirdand the othertwo thirds. thirdor two has been agreedthatthe wagesshallbe dividedin unequal thirds.and his workcorrespondingly are Ariicle 1392.if he falls sick. that one maybe moreexpertin his craft.one of whomowns a shop and the othertools and implements. to whereby theyundertake do work. aloneperforms idle. Two persons.he mustthenperform workpersonally. liabilityfor the performance workin the caseof a partnership workin may in to unequalsharesis considered be thatof a partnership equalshares.or remains agreedupon. mayvalidlyenterinto a partnership to Article 1396.such loss with the amountof the loss they haveto make in beingdividedamongthe partners accordance good. and the one employermaycall uponwhichever he likes to makegoodthe loss to his property. eachof the partners claiInthe wholeof the wages fromall liabis due fromthe employerandon payingany one of themthe employer discharged .No partner is partners obligedto perform to undertook do it.they shallbe dividedaccordingly.They must makegood any loss irlequalshares.(See Article1346.If it one shares. The fact that the load of the . one of them performs work. .) agreed. L blty. Example: to wherebythey undertake performe work in The partnersenter into a partnership equal shares. if are of Ariicle 1390. the other partneris jointlyliable with him to make good the loss. Two personsmay validlyenterinto a parmership do skilledworkwhereby one suppliesthe shop andthe otherthe labour. partner 571. The partners eniitledto theirwagesby reasonof theirliabilityto perform no if the work. Ariicle 1391. Consequently. undertakeon equal termsto transport The earningsand wagesshallbe dividedequallybetweenthem. the loss also of must be madegoodin the proportion two thirdsandone third. He mayperform partneror some other personto do so. and each of the the mayrefuseto perform workby allegsuchwork.for exarnple. ing thathis partner in is for Article1388.Thatis to say.THE MEJELLE: BOOK X: JOINT OWNERSHIP 165 for of the Consequently.but thatthe wages shallbe unequal.the reasonbeing better. Example: in may validlyagreethat the workshallbe performed equalsharesand that The partners of the wagesshall be dividedin the proportion two thirdsand one third. It mayvalidlybe agreedthatworkshallbe in equalshares. The partner such workhimselfif he so desires. If the employer however.) for Ariicle 1397. jointlyto perform Ariicle 1395. If one of the partners be workedupon. The earnings thepartners dividedin the manner it has been agreedthat the wagesshallbe dividedirlequalsharesthey shallbe so divided. Two persons may validly enter into a partnership work whereby they property.as) for example.one supplyinga mule and the othera camel. or such work. wherebythey undertake Article 1394. Portersmay validlyagreeto enterinto a partnership work.or he maycausehis to performsuchwork. A partnership workin unequalshares likea partIlership equalsharesas may the regards rightto wages.sincethe employer of requirethe performance the workby any one of the partnershe selects. to who actuallyundertakes do the workis not obligedpersonally Ariicle 1389. andhis partner has to proceedto someotherplace. the earningsandwagesmust neverieless be dividedin the manner deliveredto or of causesthe destruciion damage property Article1393.Thatis to say.

but thepartners agreeto let theirmuleandcamelon hireas such and to dividethe earnings betweenthem. Article1400. tO Again? a personplantsa treeandis assisted his son. two thirds) andone third. SUB-SECTION III Partnership credit on Article 1399. together with his son livingin his household.the rightto profitarisesout of the liabilityto make on goodany loss. is entitledto an estimated he wagefor his servaces.and the . and the profit shall be divided betweenthemequally.If the partnership was concluded the termsthattheyshouldsharein the property on purchased the proportion in of one thirdandtwo thirdsa lossmustbe dividedbetweenthemin the sameratio.carries any on skilledworkn eniitledto the wholeof the earnings. But if no partnership conthe is cludedfor undertaking work. In a partnership credit. Example: Arl agreementis made that the propertypurchased shall be divided betweenthem in equal shares. the partIlership voidableand the amountof hire is paidin respectto the hiringof eitherthe muleor camelbelongsto the ownerthereof. the treesbelongto suchpersonandthe if by sorxhas no righttherein. The liabilityto make good any loss in respectto the price of the property bought in proportion the shareof the partners is to erein. is sincein a partnership workthe partners eniitled for are to theirwagesby reasotlof theirliabilityto perform work. Ariicle1398. The shareof the profitaccg tO eachof the partners in proportion their is to share the property of purchased.and the profitshallbe dividedbetweenthemin is proporiion theirsharein the property to purchased. If they agreeto dividethe property purchased the proporeion two thirdsand one t}ird. is The son is considered be an assistant. If one of the partners makesa siipulaiionthat he shalireceivemorethan his sharein the property purchased? such stipulation void.Bueif it is agreedthat the property purchased shall be divided in equal sharesand that the profitsshall be dividedin proporiionsof one third and two thirds. Example: The property purchased may be dividedbetweenthemin sharesof one half. Any loss shall be dividedbetweenthe partners any case in proportion in to their sharesin the property purchased this whetherthe contractfor purchasewas made and jointly. The profit must also be dividedbetweenthem in equal shares. Article 1401. Ariicle1402.The in on loss must be sharedby themequally theyentered if iIltothe partnership the termsthat on the properwpurchased shouldbe dividedbetweenthem equally. It is not essenlialthat ehe partners shouldhaveequalsharesin the property purchased.166 ARAB LAW QUARTERLY camelis the greater of no importance.If one of themhelps the otherin loadingand transport. the in of profitshallalso be in the ssne ratio. Any personwho. or Example: Two personswho arepartners a partnership creditsufferloss in theirbusiness. Ariicle 1403. by one of themalone. the latter conditionis invalid.

The owner of the capitalmust possess the requisitecapacityto appoint an agent. Article1406. Partnership capitalandlabourareof two categories: of (1) Absolutepartnerships capitalandlabour. A partnership capitaland labouris a type of partnership of whereone party suppliesthe capitaland the other the labour. of is Example: A personpossessingcapitalasks some other personto take the capitaland use it and to sharethe profitsbetweenthemequally. The personsupplyingthe labourmust possessthe requisite capacity be appointedan to agent. The capitalmust consistof property whichcan be madethe capitalof a partnership. An absolutepartnership capitaland labouris one wherethere is no liIIiiof tationas to time or place)or any particular of commerce. merchandise.THE MEJELLE: BOOK X: JOINT OWNERSHIP 167 this whetherthe property with regardto which the loss has been sufferedwas boughtby the partners jointlyor by one of themon behalfof the partnership. Example: It is stipulated property that shallbe boughtat a certain time. propertyand debts due to be paidmaynot be used as capitalin a real partnership capitalandlabour. (See Seciion III of the Chapterdealingwith the contractof partnership).If thereis any limitation respecttO any of thesematters.But if the ownerof the capital of handsoverto the personsupplyingthe labourcertain merchandise askshim to sell the sanleandtradewith the proceeds and thereof by way of a partnership capitaland labourand the personsupplyingthe labour of .or a certain place or shallbe of a certaintype. anypariicular type or vendoror purchaser. of Article 1407.or in the ratioof two thirdsand one third. CHAP TER VII PARTNERSHIP OF CAPITAL AND LABOUR SECTION I Definition classihcation and ofpartnership ofcapital labour and Article 1404. of has SECTION II Conditions affectingpartnership a ofcapital labour and Article 1408.the partnership a limited in is partnership.or says something indicative an intentionto forma partnership (:apitaland Labour. Article 1409.A partnership capitaland labourhas been of concluded.as when of of he asks such personto takeso muchmoneyanduse it as capital sharethe profitswith and him in a certainranoand the latteraccepts.The personwho owns the capitalis called the ownerof the capitaland the personwho performs workis calledthe workman. The basisof a partnership capitalandlabour offerandacceptance.Corlsequently. of (2) Limitedpartnerships capitalandlabour. the Article1405.A limitedpartnership capitalandlabour beenconcluded. or thatbusinessshallbe donewithcertain persons withthe inhabitants or of a certainplace.

the capithe is tal is considered be entrusted him for safe keeping.He is the agentof the ownerof the to to capitalin respectto any dealingwith the capital.the personsupplyingthe of labouris authorised perform act connected to any withthe partnership. (2) He may sell at high or low prices.or invest it.The profitis dividedby halvesbetween is as the ownerof the capital personsupplying labour.are not mentioned. If the ownerof the capital an absolute in partnership capitalandlabourtells of the personsupplying labourto act as he thinksfit.applying proceeds of and the thereof to the capitaland tradestherewith. is considered haveboughtit for himself.Whilein his possession.the partnership voidable.whetherfor cash or on credit.It is he to not enteredto the accountof the partnership.If the partnership definedin is generalterms. The capitalmustbe delivered the personsupplying labour.as. whetherfundamental or accessory. he mayperform followingacts: the (1) He maybuy property with a view to sellingit at a profit.If he makesany profit. or has authorised to act in accordthe him ancewith his own opinionin the affairsof the partnership. of of (4) He mayauthorise someotherpersonto act as his agentfor buyingand selling. or giveor takeit on hire. may not.however. Likewise. thereis a customof the town.he is the jointowner thereof.the partnership valid. partner an absolute a in partnership capital labourmaydo the same. of and Article1416. Article 1414.and one of themhas beengivena certain sumof moneyfromthe profits. bestowanyof the partnership property wayof gift. of If for partners mix theirown property to with the parmership property. may in any case mix his own he property with the parmership property can give it to the partnership. such partnership regarded beingin equalshares. or give it on for pledge.as in the caseof a contractual partnership. If anyof the conditions mentioned aboveis absent. or contract debtsto an extentgreater thanthe capital. is Article1410.wherethe sharesof the two contracting parties. however. In a partnership capital labour capital of and the mustbe definitely stated. (5) He may depositthe partnership property safe keeping. In an absolutepartnership capitaland labour. Thus.or takea pledgein respectto it.suchas a halfor a third. and the Article1412.as. (6) He mayproceed someotherplacein orderto carry business.But if he buys property a as resultof flagrant misrepresentation.the partnership capitaland labouris valid. solelyby virtueof the contract.thatthe profitshallbe sharedbetweenthe partners. or by give it on loan.if of the ownerof the capital asks the personsupplying labourtO receivea sum due by a certain the personand use the same in the partnership businessand the personsupplyingthe labour agrees. maynot sell for a long He periodof timenot recognised merchants.uIllesshe is specially authorised. In an absolutepartnership capitaland labourthe person supplyingthe of labourmaynot niix his own property with the partnership property give it to the partnerand ship solelyby virtueof the contract partnership. for example. to the Article1411. by (3) He mayacceptpayment the priceof the goodsby meansof a transfer debt. to on Article 1415. howand He ever. for example.withoutthe expresspermissionof the ownerof the capital.beingin undivided parts.but he must give a periodfor paymentwhichis customary amongmerchants. an undivided mustbe fLxed the sharesin the and part of profitsof the two contracting parties. The personsupplying labour a trustee.168 ARAB LAW QUARTERLY acceptsandtakesdelivery the merchandise sellsthe same. is SECTION IIl Effectof a partnership capilal labour of and Article1413. .

with in Article 1426. If any of the partnership propertybe destroyed.If thequantitydestroyed exceedsthe amountof the profitand is madea chargeon the capital. S2pU iatlOn 1S lnVa 1C.andsuch propertyis destroyed. If the ownerof the capitaldismissesthe personwho suppliesthe labour. Consequently. Article 1427.THE MEJELLE: BOOK X: JOINT OWNERSHIP 169 Article1417. he takesthe profitarisingout of his own capital.he is entitledto an estimatedwage. andthis whetherthe partnership validor voidable.the personsupplyingthe labourneed not makegood the loss. If the personsupplyingthe labourmixesthepartnership property with his own property. Article 1420. If the personsupplying labourdies andit is not knownwhathas becomeof the the capital. Article 1423.. on Article 1419. Article 1429.If thereis no profit. If the ownerof the capitalforbidsthe personsupplying labourto go with the the partnership property any particular to place. such workbeingpossessedof valuesolely by virtueof the contract. or is the afflictedwith madnesswithoutanylucidinterval. . and the moneyis lost.and of whichis in excessof the capital. If he has any propertyin his possession otherthancash.Consequently. The ownerof the capitalis entitledto profitin virtueof thecapitalsubscribed. Article 1424. are Ariicle 1421.andthe profitarising fromthe partnership property dividedbetweenhim andthe ownerof the capital the termsagreedupon. is on Article 1418. the partnership cancelled is whensuchdateis passed.If it or has been stipulatedthat the personsupplyingthe labourshallbe jointlyliablewith him. and Article 1425. he must make good the loss. If eitherthe ownerof the capitalor the personsupplying labourdies. in whichcasehe is entitledto anyprofitandresponsible anyloss arising of his busifor out ness transactions. is Article 1428. a in contractof capitaland labour.(SeeArticles801 and 1355. the partnership If property destroyed he mustmakegood the loss. .is jointlyownedbetweenthe two partners thoughit werea as partnership credit.the loss mustbe madegoodfromhis estate. Any damage loss mustin anycasebe borneby the ownerof the capital. .he is not entitledto an estimated wage. is Article 1422.He maynot dealwithanycashassetsin his possession afterhis dismissal has been notifiedto him. mayclaimsuchexpensesas arecushe tomaryfromthe partnership property.or if he sells propertyon credit.That is to say.the profitsrealisedaredividedin accordance with the amountof the capital. is Article1430. Any act perfotllledby him up tO the timehis dismissalwas to notifiedto himis valid. The personsupplyingthe labouris only entitledto profitin respect to his work. Property boughton creditwith the permission the ownerof the capital.) . If the personsupplyingthe labourleavesthe townin whichhe is and proceeds to some othertown on the businessof the partnership. he may sell such property convertit into cash.exceedthe amountagreedupon at the time of the conclusionof the contract.the amountthereofis first deductedfromthe profitandmaynot be madea chargeon thecapital.and the latterin on contravention the prohibition of proceeds suchplacewiththe partnership to property. such .he becomesa person of laid wrongfully appropriating property. In a limitedpartnership capitaland labourthe personsupplyingthe labour of must observewhatever conditions laiddownby the ownerof the capital. If the personsupplyingthe labourexceedsthe limitsof his authority actsin or contravention the conditions down. Such wage may not.andsincethe portionof the personsupplying labouris equivalent the to that of an employeeof the ownerof the capital. however. the personsupplyingthe labouris eniitled to a share of the profitsin accordance whathas been stipulated the contract. . or to sell property credit. If the ownerof the capitalfixes the periodfor the terminaiion the partnerof ship at someparticular date. a voidable in partnership capitalandlabour ownerof the capitalis entitled of the to the wholeof the profit.the partnership cancelled.he must notify such dismissal him.

if he wishes. A partnership treesand workis a type of partnership in wherebyone party suppliesthe treesandthe othertendsthemon the termsthatthe fruiit produced to be shared is betweenthem .the cultivator shallcontinue to workuntil the cropsareripe.170 ARAB LAW QUARTERLY CHAPTER VIII PARTNERSHIP IN LAND AND WORK AND PARTNERSHIP IN TREES AND WORK SECTION I Parmership landandwork in Article1431. If anyof the conditions mentioned aboveareabsentthe partnership landand in workis voidable. or if it is decidedthat something otherthanthe produceshallbe given.that he the the has givenhim the landto be cultivated condition he shallreceivea certainshareof the on that produceand the latterstatesthathe agreesthereto.If the shareis part of not fixed.suchas an undivided consisting a halfor a third. The heirsof the deceased cannotpreventhim from so doiIlg.andtheowner thelandmaynot prevent from of him so doing. Article1439. SECTION II Parship in trees work and Article 1441. if the ownerof the landinfoXllls personsupplying labour.he is entitledtO a rentfor the land. Article1438. of Article1434. partnership land and workis the in invalid. If the otherpartyis the ownerof the land. the Consequently. in Article 1433. on the termsthat the the produce to be dividedbetweenthem. is Article1432. In a voidable partnership landandworkthe wholeof the produce in belongsto the ownerof the seed. makessome or statement fromwhichhis agreement be inferred. his heir standsin his stead. The basisof a partnership landandworkis offerand acceptance. may Article1435. the cultivator. continuethe workof cultivation untilthecropsareripe. A partnership landandworkis a typeof partnership in whereone partysupplies the landand the otherthe work. if the latterinformsthe ownerof the may or land that he is readyto cultivatesuch land on thosetermsand the ownerof the land agrees thereto. in Thus. In a partnership land and workthe contracting in partiesmust be of sound zIiind. Theyneednot havereached ageof puberty. At the time of the conclusion the contract shareof the cultivator the of the in produce mustbe stated. In a validpartnership landandworkthe produce in shallbe dividedbetween the two contraciing partiesin the manner agreedupon. is entitledto an estimated he wage.andmay. Article1437. Article1436.or is contented therewith. or if it is statedthatso manykilesshall be givenfromthe produce.If he is the cultivator. The landmustbe fit forculiivation mustbe handed and overtO the culiivator. cultivates land. The natureof whatis to be sownmustbe stated. If the ownerof the landdies whilethecropsaregreen. minorwho hasreceived a authority mayalsoenterinto a partnership landandwork.or it must be madeknown thatthe cultivator sow whathe likes.thatis.a partnership landandworkhasbeenconcluded. Article1440.If the cultivator dies.thatis to say.

Article1445. his heir standsin his steadandmay. Article1446. in belongsentirely Article1447. They need not have reachedthe age of puberty. The treesmust be handedoverto the cultivator. If the cultivator dies.a partnership treesandworlr been concluded.thefruitmustbe dividedbetweenthe in two contracting partiesas agreed. such as a halfor a third. In a voidable partnership treesandwork. If the omrner the treesdies whilethe fruitis unripe. The basisof a partnership treesand workis offerandacceptance. Ariicle 1444.as in a partnership land andwork. the person in has who is to tendsuch trees. if that the ownerof the treesinformsthe cultivator he hasgivenhim so manytreesto tend on the that termsthathe shallbe entitledto a certainshareof thefruitandthecultivator. Article 1443. The two contractingpartiesmust be of sound niind.X: OWNERSHIP THEMEJELLE: BOOK JOINT 171 in Article 1442.agreesthereto. In a validpartnership treesandwork.the fruitproduced wage. The heirs of the deceasedcannotpreventhim from so doing. to the ownerof the trees. In a partnership trees and workthe sharesof the two contractingparties in in must be stated. is.The ownerof the treescannotpreventhim fromso doing. continueto work.The cultivator entitledto an esiimated is Article1448. that is an undividedpart. 1291 Promulgated RoyalIradah16thffumadi-ul-akAira by .the culiivatormay conof tinue to work until the fruit is ripe.Thus. if he so wishes.

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andthe latteris powerless prevent former to the fromso doing.If thebuildirlg to the falls shareof the otherjOitlt ownerhe mayhavesuchbuilding pulleddown. Article 1163. Uponthe partition a housejointly of ownedhaving nght of wayovera private a road. There is no need for the iIlclusion any pariicular of statement of any generalexpressions. Article1164. If one of the jointownersof a piece of property held in absoluteownership whichis capableof pariition erectsa buildingfor himselfwithoutthe permission the other. Upon the partition eitherlandsor farms.or erecta buildfor ing of anyheighthe wishes. trees are includedthereinwithoutbeing mentioned.THE MEJELLE BOOK X JOINT OWNERSHIP CHAPTER II PARTITION (CONTINUED) SECTION VIII Effectofpartition Article1162. Article 1173. the ownerof the landmaydig wells. the treesandbuildings belongto the personto whosesharetheyfall. one has anyfurther No interestin the shareof the other. whether general any expression cut off unlessa condition beenmadeto thateffectat the was has timethe pariition made. trees and buildingsare also includedwithoutbeing mentioned. Eachof the jointowners becomes independent the ownerof his ownshareafter partition.eachof the jointownersmayconstruct doorsandopenwindows lookingon to suchroad.If the buildingfallsto the shareof the personwhobuiltit.cropsandfniits arenot included of thereinunless specifically mentioned and they remainjointlyownedas heretofore.or makea channel water. of and the otherjointownerasksforpartition.Eachone of themmaydeal with his own shareprecisely he wishes. suchpartition shallbe made. was Article1172.as will be set forthin Chapter So thatif a house as III. or suchas thatthe pariition includesall rightsor all appurtenances. Upon a farmbeing partitioned. suchbllil<1ing remain shall intact. jointlyownedby two persons divided.one of themobtaining buildings the otherthe is the and vacantland. and this.evento the extentof depriving ownerof the buildingof air or the sun-light. The otherownersof the roadmaynot prevent themfromso doing. . Upon the partitionof land. Thatis to say.

(2) The joint owners of a country house agree to live one in one part and the other in the other part thereof. there is no necessity to mention a period of iime in the case of partition of usufruct lfinited as to place. . Consequently. Pariiiion of usufruct is of two categories.THE MEJELLE SECTION IX 65 Partitionof usufmst Ariicle 1174. the place is detertriined by drawing lots. There can be no partition usufruct m the case of things the like of which can of be found in the market.whilethe identical of thmgsremamlrltact. and the other joint owner objects thereto. is decided by drawing lots. and the usufruct of the second joint owner in the other part thereof. such as so many days or months Arcicle 1179. . Ariicle 1176. The first category consists of a parti. They may also agree to share the usufruct of two animals by one using one of them and the otherthe other. it embraces every part of such house. (3) Two persons own two houses jointly. (2) Each of the joinl owners of a country house own such house on the terms that they shall each dwell thereinin turns for a period of one year. one of the jointowners is considered haveexchanged shareof the benefitaccruing his turn to his to for that of the share of the benefit accrliing to the turn of the other.Partition of usufruct maybe had in the caseof thosethingsthe like of whichcannotbe foundin the market. that is to say. Ariicle 1180. Article 1177. the usufruct of one of the joint owners is considered to be concentrated in one part of sush country house. or one in the upper part and the other in the lower part thereof. Similarly. the pariition will not be enforced. If one of the joint owners of several things jointly owned desires a pariition of the usufruct thereof. Consequently) in partition of usufruct limited by time. . Ariicle 1181. Article1178. Theyagree to live one in one house and the other in the other. Examples (1) Two persons are joint owners of land subject to the condition that one shall cultivate the first half and the other the second half.the usufruct whichmaybe enjoyed. deteng who of the joint owners is to enjoy the usufruct first. Upon partiiion. The second category consists of a partition of usufruct limited as to place. partition of usufruct limited by time is in the nature of hire. the usufruct accrliing to two joint owners of a country house is undivided. The joint owners of arl animal may validly agree to share the usufruct thereof by using such mal in turns. Pariition of usufruct consists of the division of benefits. of Thus. iIl the case of a partition of usufruct limited as to place. the commencement of the penodt that is to say. Thus. Partition usufruct of limited by iime is in the nature an exchange. a partiiion will be enforced if the usufruct of the joindy owned property is of the same types If the usufruct is of a different type. From this point of view. tion of usufruct limited by time Examples (1) Two persons are joint owners of land which they hold subject to the condition that one shall cultivate such land one year. Article 1175. In the case of partition of usufruct limited as to time. and the other the second year. Partition of usufruct limited by place is in the nature of separaiion. a period of time must be mentioned.

If of and tion.partitheirshares.If oneof the jointowners with accordance to the shareof one of the jointowners If will of tion the usuEruct be enforced. and the profit out of one of two housesis to go to one jointowner thanthatof the other. the othertheother. ansingout of one is greater caseof anyspecificproperty. But if a partition usufruct madewhereby excessamountis andthe otherto the other.the division the desirespariiof whichis capable partition of Article1182. the otherdesirespariition the usufruct. if onehouseandthe otheris to cultivate be enforced.one of them of Ariicle1188.is invalid.66 Example LAW ARAB QUARTERLY a partitionof the usufruct One of the joint ownersof two housesjointlyowneddesires otherjointownerin the other. the amountin excess is dividedamongthe joint his during turn is disproportionately owners. of objects.suchpartition validif it is by consent. one whereby is But maybe enforced.the latterdoesnot sharein suchexcess. if one of themdesirespartition partition theretothe on hireas a bath.maymakepersonal of the partfalling of thecaseof a pariition usufruct by renttherefor givingit on hireto somethirdparty. If oneof thejointowners property will the claimto partition be upheld. carried makepersonal of the realproperty use limitedas to place. Eachjointownermay. which are let on hire to the public.one of the jointownersdesiresa partition animals otherjointownerobjects If the and one of themshalluse one atiimal.or in the caseof two wherebyhe shalllive in one and the whereby of the usufruct jointlyowned. Theremaybe no ption of usufruct the Example or owned. liited as tO e hasbeen of usufruct Article1185. forexample. tohis own share. however. OUt carried of alonemaynotcancela pariiiion usufruct Ariicle1189.If the jointownersdividethe usufruct their his shareon cancelsuchpariiiion.a coffee-shop. jointly Article1184.aftera pariiiion jointlyowned. of Butif a partition usufruct anothermonth.is objectsto givinghis shareon hire.the latterdoesnot sharetherein.and a bath.or wherebyone is to live in to live in one houseandthe otheris to be let but is land. the is not capableof divIf one of the jointownersof somespecificobjectwhich Article1183.sincetheyrelateto specific sharesby consent. other.andthe property.any and the otherfor jointownersreceivesthe rentof a housefor one month the profitarising is of jointlyheld.theothercannotcancelthe pariiiion nationof the periodof hire.If one of them.has given alonemaysubsequently untilafterthe ter of usufruct hireto someotherperson.He mayalsoobtain made.andin use out. or that one numberof such treesand the otherthe fniit of someother and otherthe rnilk woolof the shalltakethe milk andwoolof one flockof sheep.or of the miLlc wool of of of The partition the usufruct the fniit of treesjointly thatone jointownershallgatherthe fniit of a certain jointlyowned. and of desirespartition the usufruct but of none the jointownersdesirespariition.as. the rentaccrliing large. the joint ownersgive their Article 1186. The rentof realproperty the joint ownersin dividedbetween inn. oneof them will of otherobjects. cannot usufruct of one of the jointownersobjectsthereto.pariition the usufruct be enforced. one whereby of the is out arising of profit made. Oneof the jointowners .on the terms animals numberof trees. andthe revenueaccruing respective of the other.a rnill.suchas a ship. in Ariicle1187.whenhis turncomes. an owned. If after a partitionof usufructhas been thanthat to thereby one of themis greater shareson hire.partiiion the usufructwill be of desirespartition the usufructand the other ision enforced.

or to cut themdownandthusobtaina clearcurrent air. But if the rightsof anyotherpersonareconcerned therein.The whole of the jointowners. over his neighbour's house. raising as highas he wishes. If thereis one doorgivingon to the streetforboththe upperandlowerstoreysn bothownersmaymakeuse thereof.Neithermaypreventtheotherfromcomingin or goingout thereby. Article1194. Article 1197. Any personmay deal with his propertyownedin absoluteownershipas he wishes.the ownerof such property maynot dealwith it as thoughhe werethe independent ownerthereof. of He may not) however. NeithermayperforIn act whichwill prejudice otherwithoutobtaining any the permissionfromhim)and neithermaypull downhis partof the building. Ariicle 1193.however. If one of the jointownerswishest sell }is shareor to divideit. No personmay extend the eavesof a roomwhichhe has constructed his irl house. Article1190. A partition usufructcontinuesto be validafterthe deathof one or all of the of omt owners.But any pariiiionof usufruct whichis soughtto be eancelledwithout any due cause and wherebythe joinelyownedproperty merelyreturnto its foilller state.cut downthe treeon the groundsthatthe shadowsf such treeis inillrious to the culevaiionin his garden. he may cancel the partitionof usufruct. Example The upperstoreyof a buildingis ownedin absoluteownership A and the lowerstorey by similarlyby B. Thatis to say.THE MEJELLE 67 by orderof the Court. he maydealwithit as by erectingbtiildingson a pieceof landhe ownsin absolute ownership. If the branches treesin anyperson's of garden extendinto the houseor garden of his neighbour. such personby so doirlgcausesgreatinjuryto any other if persoIl.the ownermay be madeby the neighbour iie up such branchesand thus to bringthem backinto his owngarden. will will be disallowed the Court. A hasa rightof supportfromB andB hasa rightto be protected fromsun and rain. CHAP TER III WALLS AND NEIGHBOURS SECTION I Rulesof law relaling property to owned absolute in ownership Article 1192. as . No personmay be prevented fromdealingwith his property whichhe owns in absoluteownership. Article1196.he maybe prohibited therefrom. If he does so) the amountwhichso extendsoverhis neighbour's housemaybe removed. Article 1195. by Ariicle 1191. Whoever ownsa pieceof landin absolute ownership likewiseownerof what is is aboveit and whatis belowit.maycancelsuch partiiionby consent. will be set forthin SectionII.Nevertheless.He mayalsodig and it the groundand makestore-rooms thereinanddig wellsas deepas he wishes.

or it becomesimpossible the for Owner suchhouseto dwelltherein reason thegreatquanuty smokegivenoff by of by of of a filrnace a linseedoil factory.This act amounts to greatinjuryandmaybe stoped.B mayhavethe injuryremoved. amounts greatinjury.anduponthe neighbour brinpg an aciion.or the tg of the mill wheel. Anyinterference with benefits whicharenot fundamental necessities. a personconstructs newwindowin his housewherebyhe overlooks if a quarters frequented the womenof an adjoining by neighbour.If lightis entirely off. mustbe removed.or if he overlooks themfroma windowin a newlybuilthouse. whichweakens andcausesit to collapse makesit impossible it to be put to the use it or for forwhichit wasoriginally intended. (2) A constructs waterchannel a pieceof landadjoiliing house. Article1200.whichmustbe removed.68 ARAB LAW QUARTERLY SECTION II Relalions of one neighbour another to Article1198.If the roomhas two windows.an order .thatis to to say. or preventing entranceof sunlight. for t4) A erectsa highbuildiIlg neara threshing floorbelonging B andtherebyCUtSoff the to flowof airto the threshing floor. andthe courtyard a houseareoverlooked.erected closeproty or in thereto Theseactsamountto greatinjury. Anypersonmayraisethe wallof his property ownedin absolute ownership to anyextenthe wishes.sincethe doormustbe keptclosedon account the of the cold and for otherreasons. (3) A constructs threshing a floornearto B's houseandthe dustcomingtherefrom makes it irnpossible B to dwellin his house.and a buildingis erectedandthe lightof one of themis cut off as mentioned above. This amountsto greatinjury.as in the caseof a dwelling house.suchas cutting off the air or the view of a house.Consequently.and it may not be to arguedthatlight cancomein through door. The smoke therefromis depositedon his neighbours goods and causesgreatinjurythereto.however. Great injuryconsistsof anythitlg whichcausesdamage a building. Article 1202. (S) A opens a cook shop in the cloth merchants' market. Examples (1) A forgeor a mill is erectedadjacent a house. .the act amounts greatilljuryandmay be stopped.and. A must repair the sewerandpUt it in order. Great injury.The houseis weakened the hamto by meringfromde forge. .Consecut this to quently.suchact doesnot amountto great lillllry. the roombeingdarkened suchan extentthat it is impossible readanyto to thing writtentherein. (6) The sewerin AXs houseis brokenand the sewageflowsitltO his neighbour's house. considered amountto great of is to injury. The fact that placeswhicharefrequented women.does not the amountto greatinjury. Ariicle1201.The ownerof the housemayhavetheinjuryremoved. any the him Article1199.if a personerectsa building cutsoff thelightfromthe dow of a roombelonging and tO his neighbour.providing he doesnot causehis he that neighbour greatinjurythereby) lattercannotprevent fromdoingso.the by headof a well. such as a kitchen. however.Wateris brought a on B's alongit to a millandthewallsof B'shouseareweakened: A makes rubbish or a heapat the foot of the neighbour's andthrowssweepings wall thereandthewallsbecomerotten.causedin anywaywhatsoever. of the ownerof a houseon the or otherside of the street.The injurymay be stopped.andmaydo anything desires.

If a personclimbsup the fruit treesin his garden.Suchpersonmayalsobe obligedto removesuch of injuryby buildinga wall or construciing partiiionin such a way that the womencannotbe a seen. If any persondealswith property ownedin absoluteownership some manin nerauthorized law.and therebyoverlooksthe women'squarters his neighbour.Shouldhe fail to give such information)the Courtmayforthwith prohibithim fromclimbingsuchtrees. of suchpersonmustgiveinformaiion he intendsto climb that such trees. (3) A personbuildsa house in a place wherea threshing floorhas been establishedfor soInetime past and allegesthat the dust is being depositedin his house. in orderthat the womenmay coverthemselves.If quarters be occupied by womencan be seen throughthe intersticesof a wall madeof brushwood. Ariicle 1207. If a personwho owns an old house with wmdowslookingon tO a piece of vacantland belonpg to his neighbourhas such house destroyed fire. a person if is unableto see the women'squarters his neighbour's of house. the joint owners shall be orderedto constmcta jointpariiiion. the neighbour of cannotcalluponsuchpersonto stop the view fromthe windows. nor may he erect a kiosk thereonor any similarthing.THE hiEJELLE 69 shallbe givenfor the removal such injury.) Arecle 1204. Areicle 1210. the share falling tO one overlooksthe women'squartersof the other. the injurymustbe removed the ownerof the newhousehimself.or to close themupnbut must removethe injuryhimself.but is ableto see his garden.) Ariicie 1203. (2) A person constralcts house on a piece of land adjoitiitlg blacksmith's a a forge) and allegesthat the hamInering the forgehas causedgreatinjuryto his house. ownerof the the wall may be orderedto close up such interstices. Article 1206. He maynot call uponthe ownerof the old houseto do so. however) forcedto closeup the window. Examples (1) The women'squarters a housenewlyconstructed overlooked the windowsof in are by arlold house. however.and the roomis laterpulleddovvn the neighbour by with the resultt:hat woman's the quarters the lattercan be seen. One of the joint ownersof a wall may not raisesuch wall without the permissionof the other. Ariicle 1205. If a personconstructs new windowsin his houseandis unableto overlookthe women's quartersof his neighbourby reasonof the latterhavingconstructeda high room between.he himselfalonemustremovesuchinjury.He maynot. He cannotcall upon the ownerof the threshing floorto stop work. but merelyon the occasionswhen they go out into the garden. If a windowis constructed a placewhichis of the sameheightas a man. andsomeotherpersonconstructs building the sidethereofwhereby by a by he suffersinjury. to Consequently. and the rleighbour by buildsa houseon the Iandin question.his the neighbour maynot demandthathis viewinto the gardenshallbe stopped.be obligedto tearthe brushwood downandbuilda wall. The ownerof the newlyconstructed housemusthimselfremovethe injury. a in neighbour the personconstructing of such windowmaynot haveit removed allegingthat it by is probablethat he will overlookthe women'squarterof his neighbour placinga ladder by there. He maynot in anycase.and consequently women. A gardenis not considered be women'squarters. wheier causing .andthereafter ownerof theold househasit rebuiltin the its former state and from the windowsthereofoverlooksthe women'squartersof the new house. (See Ariicle22. If upon the pariitionof a countryhouse jointlyownedby two persons. of Article1209.He cannotobligethe by Owner the old houseto removethe injury. He cannot in StOp the forgefromworking. Ariicle 1208. (See Ariicle74.

A private roadis like the jointlyownedproperty in absolute held ownership of personshavinga rightway. Any personwho wishesto repair housemaymakemortar his quicklyon one side of the roadfor use on his buildung.no rightto permanency thecaseof bndgesandresting in placesconstructed the pubover lic highway. Article1218. attachsllch land tO and his house. or . the sewershallbe closed. untilhe hasbeenpaidthe pnce.andcontates the waterthereof. he maynot be prevented fromdoingso.however. Arede 1216.andthe dirtywaterfromsuch sewer flowsinto de channel causesgreatinjurythereto. no otherwaycanbe foundto remove and and suchinjurythanby closingit.Thereisnhowby) ever.he maybe madeto closeup thecesspitor sewer. anypersonrmy ob no any surplus landon the highwayby papg its esiilllated pnce to the Government. Ariicle 1211. may a Ariicle 1219. He may not be deprived ownership of thereof. noneof the ownersof a pnvateroadmaymakeany fresh conswciion cherein withoutthe perssion of the other. (See Article7.whethersuch construction is prejudicial not.70 ARAB LAW QUARTERLY miuryto the otheror not. Provided injuryis done to passersby. One of the jointownersof a wallmaynot havethe posiiionof the beamson suchwallchangedto thenght or to theleft or up ordown. If anypersonwhoownsa hollseon eithersideof a streelwishesto construct a bridgefromthe one to the other. If he does so.he maybe madeto removethe ini If it is impossible removethe injury.Again) to if any personconscts a sewernearto a waterchannel.) Ariicle 1217.he may againbe prevented fromso doiIlg.) Ariicle 1215. AI1Y personwhatsoever construct doorgivingon to the publichighway.suchas low projeciing balconies resting and places.eventhoughtheyhavebeenthere for a longpenodof iime.He maynot. SECTION III Roads Ariicle1213. moretharl the totalnumberof put half beamswhichcanbe supported mayIlOtexceedthatnumber.Consequently. property anyperson the of heldln absolute ownership maybe taken for its value by order of ffie authoniiesand made part of the road. The otherjointowner.If the beans. Consequently. aftera bndge constructed the publichighway meniioned if over as abovehas been pulleddown)and the ownertshes to construct another such bridge. the rightof plachas ing the samenumberof beams. No personwho is IlOt the ownerof a nght of wayin a privateroadmay constructa doorlookingthereon Ariicle1220. Ariicle1214.If bothof themoriginally and had an equalnumberof beamsuponsuchwall. placedir are an elevated partof the wall.the his of othermaypreventhimfromso doiIlg. however.he shallbe prevented fromso doing. provided he doesnot thereby that causeany injuryto the passers by.andone of themincreases number beams. Whennecessary. But if one of themwishesto placebeamson the groundin orderto builda room.thatis to say)if he wishesto placethemupontheedgesof the beamson the wall. (SeeAriicles251 and 262. and the bridgecausesno injuryto the passers suchbridgeshallnot be pulleddown.however. Anything whichcausesgreatinjury passers on thepublichighway to by maybe removed. If anypersonconstructs cesspitor a sewerneara wellof waterbeloIlging a tO someotherperson. he mayput themon a lowerpartthereof. however. Ariicle1212.

(See ArticleS. and has no nght of disputing the matterwith the ownerof the land. the seek Arucle 1230. lattermaynot thereafter to preventsuchflow.) Example If the dirty waterof a house has flowedfromtime imrnemorial the public highway.he does not thereby lose his rightof way thereover. In caseof rightof way.If suchcutiingandwaterchannel in needof improvement repair.to be consumed. on to suchroad. If any personhas a rightof way over a defmedpathwayon de land of some otherperson. are and the owner thereof shall be allowedaccess thereto.the ownerof the landmaynot endeavour preventthe former to fromexercising his rightin the future.the ownerof the land cannotpreventhim frompassingandcrossing overthe land. if a personwho has no rightover the land belonging anotherexercisesa rightof way thereto over for a certainperiod. anduntilsome proofto the contrary produced. to if any act which has beenperformed originally was illegalandhas existedfromtime immemorial.shallbe removed(See Article27. if this is possible.they shallnot be changed. If the rainwaterof a househasflowedon to the houseof a neighbour fromiime imrnemorial. of wheneverhe wishes. Article1229. the Article 1227. the latterloseshis rightof way. or to carry the for out the repairs. If anypersonhasa rightof wayoverthe landof another.because. If anypersonclosesup a doorgivingon to a privateroad. is by Consequently. he sells his houseat some laterdate. A personwho hasgivensomething nothing.nor nor may they close up the entrance thereto.however.and the ownerof the landerectsa buildingon such pathway with the permission of the ownerof the rightof way. Personspassingalong the public highwayhave the right. rightsaredisregarded. if there is a great crowdof peopletherein.withoutthe permission the otherowners. the Article 1223.) Ariicle 1228. it is not possibleto makethe improvements repairs. maytheydivideit amongthemselves.THE MEJELLE 71 Article 1221. Consequently. preventhim fromexercising right.That is to say.Consequently.of enteringa privateroad. SECTION IV Rightof way.suchconsentmaybe withdrawn. One of the ownersof a privateroadmaynot allowwaterto flowfroma house whichhe has newly built. If a cuttingor a waterchannelbelonpg to one personrunsby rightacrossthe landof another. and the ownerof the land will not give the necessaryperrxiission. such act is invalid. into andcausesinjurytO the passers the ancient by. and may make such improvements repairs. is But anythingexistingfromtimeimmemorial whichis contrary law is invalid. nghtof aqueduct. and If and without enteringupon the land.That is to say. ownersof a privateroad the may not sell it by agreement among themselves. anciene and rightsshall be observed. the lattermay. offlow right Article1224. If injury inflicted consent. rightof aqueduct rightof flow. rightsacqiiredin the remotepastareleft as theywere.and.has a rightto for revokethe gift. Courtshallobligehim eitherto grantperniission entryon the land.the owner and . Article1225.as is laid down in Article6. of Article1222. thingswhich have beenin existencefromtime immemorial shall be left as they were.with the permission the ownerof such land only. the purif chasermay againconstruct door. the injurymust and be removed. If waterfroma house situatedin a roadhas flowedinto such roadfrom iime immemorial fromtherehasflowedinto a pieceof landsituatedbelowsuchroad. Ariicle 1226. if it causesgreatinjury.

Grasses consistof vegetation whichhas no trunk and consequently does not includetrees. the Micle 1239. the vegetationproit ducedbecomeshis property no otherperson anyrightthereto. So alsoaregrasses whichow irlanyperson's property ownedin absolute ownership. The owIlerof a sewerthe sewageof whichflowsthroughthe house of some other personmust.Mushrooms considered be grasses. Danubeandthe Tonja. Mud broughtdown by a nver and depositedupon a persorl's land becomes suchperson'sproperty owneditl absolute ownership.flowthrough property persons the of ownedin absolute ownership of tmro are categones.A rightof pre-emption attaches suchland.The publicarejointowners thesethreethings. Ariicle1232. Ariicle 1233. Riverswhicharetheproperty inividuals ownedm absolute of ownershipthat is to say. withoutbeingplanted. disappear do notflowin lracant and land.since of they areat the disposal the public.uponarriving the limitsof such at land.as statedabove. Ariicle1237. Waterflowing underground not the absolute is property any person.No rightof pre-empiion of attaches thesenvers.arethosetiversthe bedof whichdoes not passthrough property of the of a groupof personsownedin absolute ownership.remove suchiIliury. such riversarefree.the berlefit whichmaybe enjoyedby the public. normayanypersonwhopurchases suchhouse. to Article1231. Grasses whichgrowwildirlplaceshag no ownerarefree. Water.Rivers thisclassarecalledpublicrivers. the Ariicle 1242. no otherperson and maymterfere therewith.the watersof whicharedividedbetweenthe landbelongingto a limitednumberof persons. SeasandIarge lakesarefree. Examples such All of nvers arethe Nile. the Courtshallorderthe it barrier be removed de former to and stateof afEairs be restored.But if suchpersonis the indirect causeof theirgrowing. whenhe watersthe landor digs a creek as roundit. If he does so. Wellsw}ch havenot beenmadeby the labourof any pariicular person. therebypreparing andmakingit fit for vegetatonto growin.therebycaus«g greatinjuryto the ownerof the house.he mustmakegoodthe loss. the Euphrates. Ariicle1241. but is not completely exhausted coniinuesits course and through vacant landwhichis freeto thepublic.72 ARAB LAW QUARTERLY of the landmay not stop the flowby blockitlg up. The firstcategory consistsof riversthe waterof whichis dividedbetweeIl jointownersof the the land throughwhich they flow. of Ariicle 1236.grass firearefree. Riverswhichbelongto the Stateand arenot the property ownedm absolute ownership anyperson.andwhich. or breaks. and of Ariicle1235. tO The secondcategory consistsof pnvaterivers. are to .If anyotherpersontakes and has themand consllmes same. if the sewerbecomesfull. to Aracle 1240. The ownerof a housewhichis burdened a nght of sewage by maynot stop the rightof flow. No personmaycausethewaterfroma newlyconstructed roomto flowinto the houseof someotherperson. CHAPTER I V JOINTLY OWNED PROPERTY WHICH IS FREE SECTION I Thangs which freeandthings are which notfree are Ariicle1234. Ariicle 1238.arethe joirdy ownedandfreeproperty the of of public. nvers which.

by meansof a receptacle such as a jug or a canobtainswaterfroma riverand storesit therein. Any personwho obtainspossession a thing of whichis free. for But rain watercollectedin a receptacle intentionally in any pariicular not put place.Thereis no need such to iie theminto bunches.No personmay cut them down for firewood withoutthe owner'spermission. is to be that say.suchas inheritance. to Ariicle 1249. be cut down for firewoodby any person may whatsoever. any perif son puts out a receptacle wid the objectof catchingrainwater. The latteris eitheractual. Gameis free. becomesthe independent ownerthereof.waterwhichleavesone sideof a in the samequantityas it entersthe otherside.and no one mayinterfere therewith.) it. SECTION II Acqusition ownership things of of whicharef ee Article1248. Trees which grow wild in propertyownedby anyonein absoluteownership belongto such person. or construciive.even though ownerhas not madea free vt thereoffor the consumpiion. possessioncannotbe takenof waterfroma wellwhichoozesout fromthe sidesthereof and a persontakes and uses the water. Consequently.are not of alsofree. Ariicle 1246. the flow thereof must be interrupted.Again. Takingpossessionmust be coupledwith irlteniion.suchas saleor gift. the shootsconiing fromthe graftarehis property heldin absoluteownership.or sets a trapto catchgame.as where someone fact appropriates in such thing.the rainwatercaught ln the receptacle becomes that person'sproperty. tank Ariicle 1252. thirdconsists The ofobtaininga thing whichis freeandwhichhas no owner. . Example A. firstconsistsof the The transfer propertyheldin absoluteownership of fromone ownerto another. does not becomethe propertyof the owner thereof. and Ariicle 1253.Similarly. Ariicle 1245.Awly otherpersonmaytakeit andconsllrrxe (SeeArticle2. In takingpossessionof water. Ariicle 1250. Article1247.The waterbecomesthe property A.he is not liableto if makegood the loss thereof. Trees whichgrowwild on mountains whicharefree. Trees growingin a stateof nanlreon mountains whichare the property no of one. Thesecondconsistsof one personsucceeding another. Consequently. No otherperson of maymakeuse of it without A's pession. Possessionmay be taken of wild grassesby colleciingthem and by cutting them makingtheminto bunches. mountains whichhalre yet passedinto the possession anyone. If any otherpersontakesand consumes it withoutA's permission he must makegood the loss.If he does so. Aad by merelycutiing them dowIl personbecomesthe ownerthereof. Ariicle 1244. thatis to say. he mustmakegoodthe loss. All produceansingfromseedssownby anyperson for himselfis suchperson's property.becomesthe propertyof the owner. includingthe frliitthereof.THE MEJELLE 73 Ariicle 1243. therearethreemeansof acquiring absolute ownership. watercollectedin a tank or cistern constructed that purpose. If any persongrantsa tree. possessioncannot takenof watertheflowof whichis regulated. wheresomeoneputs out a as receptacle collectrainwater. Ariicle 1251.

suchinjurymustbe stopped.the woodgathered gamecaughtby such personbelongsto the or personemploying hirn. maysewby thelightthereof. the Article1259.He maytakeandobtainpossession as muchthereof he pleases.provided that he does not therebyinflictinjuryon any other person.thatis to say. Any personmay waterhis landsfromnvers whicharenot ownedin absolute Ownership anypariicular by person. Article1264. no personmay. Otherpersonshavea rightof drinkAgtherefrom. The fruitof treeshavingno ownerandwhicharefoundin mountains are that free. Theymaywarmthemselves it.maybe gathered any personwhatsoby ever.No one. or provided . If any persongatherswood frommountains whichare free.nevertheand less. on Ariicle 1258.belongsto the ownersthereof. Article1255.from such river. however. the wateroverSows causesiD to the public. All personsand snim?ls have a nght of drinkingfromwater.since he has a right of drinkbg water. of as Article1257.and.or froma watercourse. the owner. If a personlightsa firein his own property ownedin absoluteownership. withoutpermission.74 ARAB LAW QUARTERLY SECTION III General conditions attaching things arefree to thal Ariicle1254. Article1263. of whichsuch personis not the indirectcause. and leavessuch woodthereandsomeotherpersontakesit. in orderto irrigate themandto construct mills. If anypersonhiresanyotherpersonto gatherwoodor to catchgamefor him fromuncultivated country. By watering meanttakingone'sturnin makinguse of waterto watercrops is andsninluls. possessionof whichhasnot beentakenby anyotherperson. or boatscannotbe navigated. that Article1256. Consequently. SECTION IV Righlof taking water right drinking and of water Article1262.Consequently.andmaylighttheirlampsthereby from. andin valleysandpasture landshavingno owner. he maypreventanypersonfromentering thereon takingadvantage and thereof. however. water-pipe.or the waterof the if and jury nver is entirelycut off.Otherpersonshavea rightof drinking therefrom. Although wild grasses growing the property a personownedin absolute on of ownership. The rightof drinking consistsof the nght of drinkdgwater.or a waterpipe. the former maydemand returnthereof. The nght of takingwaterfromnverswhicharepnvatelyowned. otherpersonsmaytakeadvantage thereof. He may. Arucle 1260. Aracle 1267. or a well. Anypersonmaymakeuse of airandlightandof seasandbig lakes. waterhis laIldfrom a riverwhich is appropriated a to groupof persons.maytakea live coalfromthe firewithoutthe owner's pession. Article 1266. No personmayprevent otherpersonfromtakingandobtaining any possession of anything is free.arefree. maypreventanyotherpersonfromentering his property.drink watertherefrom.He may also waterhis snimals. the courseof whicharepnvatelyowned. Arsy personmaymakeuse of anythingthatis freeprovided in doingso no that injuryis inflicted uponanyotherperson.water-course.But if anyperson lights a firein a desertplacebelongingto no one. Article1265.The ownerof thefiremaynot prevent themfromso doing. may open a canalor waterchannels. by reasonof the largenumberthereof. Article1261. Anypersonmaypasture beastson wildgrasses his growing placesthathave in no owner.

Nor may he diverthis shareof the waterfrom such riveron to other land not enjoyinga rightof takingwater.such land is consideredto have been vivified.maypreventanyperson who wishesto drinkwaterfromenteringhis property. maydenouncesuchagreement any subsequent at date.Thatis to say. Ariicle 1278.If the Sultanor his representative gives pennissionto any personto vivify landon the termsthat he shallmerely makeuse of such landwithoutbecoItiing ownerthereof.suchpersonmaydealwith the landin the way he has been authorized do. If anypersonbuildswallsrounddeadland. Any personhavingin his propertywhich he owns in absoluteownershipa tank. of Ariicle 1271.Neithermayhe alterthe old established orderin whichhe has his rightof takingwater. if in the middleof the parthe has But culiivatedhe leavesa portionvacant. Article1274.ploughing land.If however) thereis no freewaterto be hadin the neighbourhood. He may also bringthe waterto his house ro to his the gardenby meansof jugsor bllckets.afterobtaining Imperial sanciion vivifiesarldculiivates place any consistingof dead land.a roadshallbe madein the landof the last on comerfor the former. no injurybeingcaused. or sinkingwells thereon.thatis to say. such as destroying edgeof the tank.or thorns.doesnot amolmtto vivificaiion. ownerof the property obligedeitherto drawoff watern to the is or give such personpermission enterhis property takeit. Article1276. or theirheirs. Article 1273.makes a danzroundit by raisingehe sides thereof. Dead landconsistsof landwhichis not the property anyoneownedin absolof ute ownership. Suchlandis calledlandleft to the public. but does not becomethe absolute to ownerthereof. Ariicle 1277. Article1275.nor a placewherewood can be gathered. Article 1268. SECTION V The vivihcationof dead land Article1270. or burxiing the thornson it. a well. If a personvivifiesa pieceof deadlandandthereafter someotherpersonsarrive and vivify the landsituated all foursidesthereof. or opeg watershannels canals. If a personvivifiesa pieceof landandleavesthe rest. or of the river. A personwho is jointownerof a rivermaynot openup another river. This is enclosingland. thereshallbe a roadfor him there. Thatis to say.If the otherjointownersagreetO such things.in orderto irrigate or it. If anyperson. subject.a placewherethe voiceof a person who is shoutingfromthe outskirts a town or villagecannotbe heard. Article1269. to and suchpersonhas the rightof enteringandtakingit.fromwhichwateralternatively entersandleaves. he becomesthe absolute ownerof the parthe vivifies.suchportionbecomeshis. If he doesnot drawoff the water.nor the grazinggroundof any town Qr village.or witha viewto proteciion from it flooding. threshing floors. such personbecomesthe absoluteownerthereof.but not of the remainder.andwhichis remotefromcivilizaiion. puts them round such land and puts eanh iereon. planangtrees.or the deadbranches treesso thatffieysurof round the foalrsides of the land) or clearingaway the grasseson such land. The placingof stones.unlesshe has obtainedthe perrnission the of other jointowners. Ariicle 1272. to thatis to say) providedthatno injuryis done. waterthe itlg it. Vivificaiion consistsof sowingseed.however. Land which is near to civilizaiionis left to the public for grazinggrounds.eitherthey. but does not complete in sucha way that they foun a dam it . or a river.andfor cutiingwood. If any personcuts down the grassesor thornson deadland. a canalor waterchannelleadingtherefrom.THE MEJELLE 75 thereis no dangerof destroying same.or of the the well.

on Arecle 1290. The samerule appliesto land attachingto sprillgs.The amount landattaching to of of to bothsidesof the riveris equalto the breadth the wholeriver.however has the ngh{)when clearling his chael. however.canalsand underground channels. to the nmountnecessary tO holdthe water If thebanksareraised bothsides. The land attachingto waterin chnels mg along the surfaceof the gound amouxlts fivehundred to arshiz2s. such person becomesthe absolute ownerof suchwell.nlrersandwaterchannels. of throg mudtherefrom bod sides. If any persondigs a weHin deadlandwith Imperial permission.trespass uponthe landattaching thefirstwell. The banksof a waterchannel de waterof whichflowsirltothe landof some Other person. Olleachside.consistsof an amountlargeenough for the stonesandmudto be throutn uponwhenbeingcleaned. The landattaching the twosidesof a big riverwhichdoes not require to coniinuallyto be cleanedamounts onehalfthe breadth the river. The landattaching treesplanted deadlandwith Impenalsanciionis five to in arshins eachside.If the banksarenot raiseda thereis no evidence provethateitherthe owner and to Ofthe landor of the waterchatmel takenpossession has thereof. andthe to waterfromthe firstwellSowsinto thesecondwell. Article 1285.no liability incurred.as by plang treestherein. Article1280.suchact doesnot atnount vivificaiion. The landattaching the ownership a wellamounts fortyarshins. he can causeit to be closed.for a periodof threeyears.The ownerof thechannel.If he Salls vivifyit duringthe to periodof threeyears. trees and plAnled Imperial wilh pennass indead land Article1281. as Article1286. is Similarly.belongto the ownerof such chael. water wells brought. he possessesa strongerright to such landthanany otherperson. If any personenclosesa piece of deadland. The landattaching wellsis the absolute to property the ownerof the wells.that tO is to say watercourses. anyotherpersonsinksa well in in If such person'sland. a wellin thevicinityof landattachdigs ing to someotherwell. Article1287. If anypersondigsa welloutsidethe landattachirug someotherwell. is considered be the to but to enclosiIlg land. of No otherpersonmaydealtherewith anywaywhatsoever.in thecaseof springs. of Article1284. to in to Article1282 The landattaching springs wateris fivehundred to of arshins eachside from Article1283.the ballksbelongto the ownerof the land.It maybe givento someotherpersonto vivify. The landattaching smaLl to rivers whichconmuallyrequire be cleaned. If anyperson. Ariicle1289. . SECTION VI Oership ofland stlrroutding znk. on Ariicle1291.76 ARAB LAW QUARTERLY preveniing ilow of water.he losessuchright. and of the formercannotbe obligedto shuthis shop.withImperial sanction. a person if opensa shoprlextdoorto the shopof someotherperson the business the latterdeclines. the Article 1279. neighbour His maydig a well next to it in his own landownedin absoluteownership and the formermay not seek to preventthe latterfrom doing so by allegingthat he is attraciing waterawayfromhis well. No otherpersonmayplanttreeswithinthis disce. to Ariicle1288. the landattachig thereto theothersideamounts fortyarshins. No landattachesto a well dug by a personin his own larsd ownedin absolute ownership. on to He maynot.theraised on landalsobelongsto the ownerof the channel.

they are consideredto be lost property. Article 1300. such anirnal similarly becomesthe jointproperty the ownersof the dogs. fails to obtainpossession the game.THE MEJELLE 77 SECTION VII Funzlamental conditions affecting hunting Article1292. Any personwho deprivesgame of its qualityof gameis consideredto have caughtit. Article1295. Article1299. If anypersonputs downanything suchas a net or a trapin a particular placein . Ariicle 1302. of If eachof themcatchan animal. the latterbecomesthe ownerthereof. the personwho has takenthemmustmakeknownthat he will and restorethem to theirownersuponapplication madeby them.it risesagain. suchfish do not becomethe propertyof to that person. it loses its qualityof game. Gameconsistsof wildanimals whichareafraid man. or with thingssuchas a net or a trap. the gamein question dividedin is equalsharesbetweenthe two. B becomesthe ownerthereof. as. If gameentersthe house of any person.whichcannotbe caughtwithoutfishingforthem.theirmastersbecomeownersof suchaIiimal. But if A woundsit slightlyso thatit canescape. of Article 1294. If two persons eachlet trained dogschaseaftergameandbothcatchan animal. (2) A shootsat gameand afterit has fallen. must be able tO get awayand escapeby meansof its legs or its wings. Gamebelongsto any personwho catchesit.suchas a lanceor a gun.howelrer. Gamemustbe in a positiontO flee frommankind. or a stag if with a collaron its neck.But if by reasonof the largequaniity of waterin that placeit is necessary catchthe fish. If he closesthe door.and suchpersonclosesthe door and catchesthe game. Examples (1) A shootsat gameandwoundsit so thatit cannotescape. Article 1296. Article1303.The gamebecomesthe property of A. suchas a trainedhawk.if two personseachlet trained dogschaseaftergameandone of thembringsdownthe animaland the otherkillsit.Consequently. suchfish belongto thatperson. or with birdsof prey. Again. such personbecomesownerthereof. or with savageanirnals.andwhileescaping caughtby is B. Article1297.suchpersonbecomesthe owner thereof. suchas a traineddog. Article1301. from which it may be inferredthat they arenot wild. the masterof the firstdog becomes ownerof the animal. for tO example. nor wild anirnals which have been tamed. but. If two personsshootat gameandboth hit it.andif anyotherpersoncatchesit.he does not become but of ownerthereof. If anypersonprepares placefor fishingby the waterside.he does not becomethe owner thereofand if any otherpersonhits or catchesit in any otherway.thegnme becomeshis property. if fishedfor and caughtby some otherperson.if the dog has so treatedit thatit couldnot get awayandescape. If any personcatchesfish foundin a waterchannel canalbelongingto some or otherperson.Thatis to say. and on accountof the waterdecreasing fish can be takenwithout the the need of fishingfor them. Article1298. If it is unable escapeandflee. Domestic animalsmay not be hunted. Article1293. Gamemaybe huntedwith implements whichinflictwounds. anypersoncatchesa pigeonor a hawkwitha ringon itS leg.wherea stagfallsinto a well.becomethe propertyof the latter. anda largenumber a of fish come there.

suchperson becomesthe ownerthereof. If beesselecta placein anyperson's garden makea hivethere. the Article1305. he hasno to out free right to claiman amountcorrespondirlg the shareof the otherjointowner. however) A mustbe paidto the Treasury.he is considered haveobtained perssion of the by to the absentjomtownerandhas a rightof recourse against forhis shareof the expenses. part falls Article1310. he cannothaverecourse free That against otherjointownerfor the .he hasa priorrightoverany otherpersonto suchgame.he may have recourse againstthe otherjointownerfor his share.Thatis to say.the honeyis and considered be one of the perquisites the garden becomes property suchperson. him Ariicle 1311. and the ownerof the gardenmaynot demand theirreturn.But if the ownerof the landdug the hole for the purpose catchirlg of game. If property jointlyownedin absolute ownership in needof repairs. andbringforthits youngthere. If one of the ownersof the property jointlyheldin absoluteownership which requiresrepairsis absent.anyotherpersonmaytakeit andthereby becomethe ownerthereof.andcatchessuchgnmetherewith.the ownercandemand returnthereof.it doesIlOtbecomethe property suchperson. to of and the of andno otherpersonmayinterfere therewith. the other may apply to the Courtfor pession to effect such repairs. he mayrecover from the jointowner whatever of the expenditure to his share. If a swannof beesleavethe hiveof onepariicular personandsettlein the house of another suchpersonappropriates and them.he is considered havecarried suchrepairs of charge. of Ariicle1307. If anypersonwishesto carTy repairs property out to jointlyownedin absolute owIlership whichis capable partitionn the otherjointownerobjectsthereto. such personmay takethe eggsandtheyoungof suchbirdandbecomes ownerthereof. joint is the ownersmustjoiDdy repair suchproperty proporiion theirshares. If any personcarries repairs property out to jointlyownedin absoluteownership on his own initiaive withoutobtaining permission the otherjointowner.Thatis to say. If a wild bird buildsits nest in any person's gardenand lays eggs therein.andhe carof and ries out such repairson his own initiative.Perssion givenby the Courtis equivalent permission to given by the absentjoint owner. whethersuch to jomtlyownedproperty capable pariition not. the CHAP TER V JOINT EXPENSES SECTION I Repairs jointly to owned property expenses and connected therewith Arucle1308.(SeeArticle1250.) Ariicle 1304. or its young.78 ARAB LAW QUARTERLY orderto trapgame.Anyotherperson of maytakeits eggs. such gamedoes not becomehis property. is of or Ariicle1312. in to Article1309.such personis considered have carriedout the to repairs of chargeZ is to say. But if anypersonputsout a net in a particular placeto dryandgameis caughttherewith.if gamefallsintoa holein landbelongingto a particularperson.Thatis to say. iithe. Ariicle1306. Beeswhichgatherin a hive belonging anypariicular to personareconsidered to be property whichhe hasobted possession.uponthe jointownerwhois present carrying the repairs the jointly out of ownedproperty orderof the Court. If one of the jointownersspendsa reasonable of his own moneywiththe sum permissionof the other on the repairof the jointlyownedproperty.or of the the of Court.Butif suchpersonhasprepared his gardenso that a wild bird maylay its eggs. Again. honeyproduced themalsobecomes of The by the property thatperson.

of and the women'squarters one two Article1317. weakandit is fearedthatit becomes Article1318. The Court. suchas a mill or a bath. andthe ownerof one of thehouseswishesthe wallto fromthe other.Neithercan repairhis part so that he upperstoreyrequeststhe ownerof the lowerstoreyto of owner the of the lowerstoreyrefuses.he or someothermaterial.MEJELLE THE 79 manner. guardian forcedto repairsuchwalljointlywith the other . If a wall jointlyownedby two neighbours it downandtheotherrefusesto agreethereto. If upon the refusalof the joint ownerin this his of Arucle25. corresponding the valueof the only can obtainpayment buildingat the time the repairswere to according the valueof the joint other ownercalculated havepaid. howno Court. but to is destroyedor burnt. the owner of the build his portionthereon. and repairs the otherrefusesto agree.andone of themwishesto knock with the otherjointowner.the guardian resultto the of fromthe property the minor.If as a resultit proves thensend a reliable who refusesshall be minorif the wall is left in its presentstate. storey the prevent otherfromso doing. expenda reasonable may to corresponding his share. If property of the jointownerswishesto carryout and not is capableof partition.he takingthe rent. andone of themrebuildsthe it. and thereon the otherrefuses remains. and one and wishesto carryout the repairs the otherdoes not. whathe mayactually out. berebuiltjointlyandthe ownerof the otherrefuses.Oneof theguardians thatinjurywill the personto investigate matter.The Court collapse. ordercanbe madefor repairs. as laid down. shallbe obligedto knockdownsuchwalltogether two jointlyownedby twominors. If a wall jointlyownedby two neighbours to belonging thetwo. his with share. he maypreventthe owner and he has paidhis shareof the expenses. If a buildingowned in absoluteownership eitherof themmay restorehis belongingto one personand the lowerstoreyto another.and injurywill which have been dedicatedto pious purposes.is in properties or of the two guardians. If a wall separating housesis destroyed.such personapplies to the share. may orderthemto build jointlya screenmadeof wood however. If he carriesout the repairs and shareof the to of a sum. notwithstanding carried whichare not capableof partiin absoluteownership Article 1314.after such of He becomesa creditor the other amountof moneyon such repairs. the upper Article 1315.he willcollapse. Examples minorsand it is fearedthat it will the (1) A jointlyowned wall separates housesof two will the wishesto repair wallandtheotherrefuses. one of the two resulttheretoif it is left in its presentstate. upon such as a kioskor the endsof beams can preventthe other from placing walland the other refusesto do so. If thingsjointlyowned so thatonlythe landuponwhichtheywere such tion. the one who rebuilds on anything such walluntilhe has paidhis halfof the expenses. agree.is in need of repairs one an obtaining orderfromthe Court. If realproperty need of repair. by the repairs ownerfor a portionof the expensesoccasioned joint the jointlyownedpropertyon hire may He obtainpaymentof the sum owingto him by letting an withoutobtaining orderfromthe Court.and the owner may both lower him to reconstruct storeymay applyto the Courtfor an orderempowering upper lowerstoreyfromdealof the upperstoreysand upondoingso.aretotallydestroyed. as a mill anda bath. which ownership jointlyownedin absolute Article1313.in viewof the terms he likes has Afterpartition beeneffected. If the of poriion such buildingto its originalstate.the former. ofthemcan be overlooked maynot be forcedto do so.suchpersonmaydo what be ever.the lattercannotbe obligedto build.or whichis situatedbetween Article1319. of administrators the pious foundations the lattershallbe obligedto do so. therewithuntil ing and is destroyed thingsare resting Article 1316.andone of the ownerswishesto erecta building erected the landshallbe divided. An ordermay. givenfor partition.

land who sharesiIl the expensesof all. In this way.If it is a private river.the publicmaypassover such land the ownercannot the preventthemfromso doing.Firstof M1.theCourt shallorder jointownerwhorefusesto feed the him eithertOsell his share. of Article1320.if it is a publicriver. andmaypreventthosewho to refusefrommakinguse of the riveruntilsuchtimeas theyhavepaidthe amountwhichfallsto theirshareof the expenses. If tWQ personsze jointownersof an anirnsl.This procedureis thencontinued untilthe jointowner's whichis lowestdownis reached. Example A riverjointlyownedby ten personsis beingcleaned.whethersuch riveris ownedin absoluteownership not. The clg of riversjointlyownedin absolute ownership incumbent is upon the ownersthereof.In .proceed do so. Article1324. uponthosewhohavethe rightof taking watertherefrom. If some of the ownersof a rightof takingwaterfroma jointlyowned river desireto cleansuch riverandthe othersrefuseto do so. all the jOlIlt ownerscontribute towards payment theexpensesof e poriion the of of the sewerwhichis situatedon the land of the jOlNt ownerwho is lowest. the persons whorefusewill be madeto cleansuchriverjointlywiththe others. Expensesconnectedwith the cleaning and improvement a joindy owned of riverbeginfromabove. The last jointownerdoes his sharealone.The expensescox}nected the with jointowner'slax}d whichis highestup mustbe borneby the wholeof the joinlownersand thereafter the xiineothers. andthe expensesof the jomtownerwhois lowestdownarethe greatest all. the expensesof the jointownerwhois highestup arethe leastof all. the publicmaybe forcedto do so. SECTION II Thecleaning improvementrivers walercourses and of and Article1321.the expensesbeingdividedamongthe eight others. Article 1326. of is One of the aciministrators wishesto carry the repairs the otherdoesnot. If any personownslandon the banksof a publicriver. by orderof the Court. Shouldall the ownersof a rightof taking waterrefuseto cleana riverwhichis jointlyowned. one of them refusesto feed and himandthe otherappliesto the Court. wholeof thejointowners the mustsharetherein. Article 1323.thatis to say. and SQ on until they have all paid their shares.the jointownerwhois highestup paying expenses the connected withhis sharealone. the reasonbeingthatdisadvantage an obligaiion is accompanying enjoyment. The expensesoccasioned the clg by of a jOiIldy ownedsewerbegin from below.Thus.80 ARAB LAW QUARTERLY (2) A housewhichis the jointproperty twopiousfoundanons in needof repairs.theymaybe forcedto do so.The sameprocedure thenfollowed the caseof the land by is in of the secondjointowner. of Article1327. if it is a publicriver.beginIiing with the jointownerwhoselandcomesfirstandendirlg withthe jointownerwhoselandcomes last. The ownersof a rightof drinking watermaynot be calledupontO sharein the expensesof cleaning andimprovement.but not if it is a privateriver. to Ariicle1322. it is not in the powerof the If Treasury do so. On proceeding higherup) the latterhas no furtherexpensesto pay.or feedthe al jointly withthe otherowner. The cleaning improvement rivers and of whichdo not belongto anyparticular personin absoluteownership mcumbent is uponthe Treasury. The latterwill out and be forcedto do so by the Courtfromthe property the piousfoundation. and thereis no otherroadfor satisfyingsuch needs as or drinkingwateror irnproving river.thosepersons who wish to cleanit may. Article1325.

and the termination highestpart. andthe expensesof the jointownerwho is highestup aregreater Article1328.beginsfrombelow. The repairof a privateroad. the expensesof the jointownerwho is lowestdownarelowerthanthoseof any other.payshis own sharealone. The entranceis the to considered be the lowestpart.like a sewer.A jointownerwho is at connected withhis sharealone.besidessharingin the expensesattachingto the sharesof all the jointowners.The jointowner sharesin the expensesof repairing the entrance of who is at the termination the privateroad. thanthoseof the rest.THE MEJELLE 81 thisway. to be continued .

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are with Article1057. By expenditure meantdisbursing is property. Article1053. By capital meantmoneyinvestedin anything.suchas water.so thatsuchpersons enjoya specialpositionin relaiion suchthing. ownership joint is generally dividedinlo two classes. By passersby is meantgenerally those who pass alongand cross the public highway. Thedescription definition and thereof be given will in the relevanlChapter. Partiiion meansto splitup. Profitconsistsof interest benefit.It is alsocustomto ary to apply this expression the contractwherebythe stateof joint ownership brought to is about. or Article 1048. By damis meantanyboundary waterdamandthe sidesof anywaterchanor nel. Article 1049.or partition madeof boards a fenceof brushwood. By accepting responsibility meantundertaking do andcarryout anyparis to ticularpieceof work. Article1046. Article1047. Consequently. By wallis meantanywall.goodsand provisions of for upkeepandsustenance. Article1056. Article1050. By waterchannelsis meantpipes and underground channelsfor conducting water. suchas purchase.The firstconsistsof jointownership property of held in absolute ownership brought aboutby oneof themodesof acquiring property. By fencingis meantputtingstonesandothermatterroundlandin orderthat otherpersons maynot takepossession thereof. or theacceptance a gift. Article1052.andit is usedin thissensein technical legalphraseology. Partners withequalshares thosewhoforma partnership equalshares.the detailsconcerning of bothof whichare dealtwith in the relevant Chapters. is Article1058. and 366 . Article1051. By vivification meantcultivation is whereby landis madefit for agriculture. Article 1054. Maintenance consistsof the expenditure money.THE MEJELLE BOOK X JOINT OWNERSHIP INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE Article1045. Jointownership consistsof a thingitselfbelonging absolutely morethanone to person. Another classconsistsof gratuitous jointownership which is brought aboutby the jointacquisition ownership the publicof thingswhicharefreeand of by themselves belongabsolutely no particular to person. Article1055. The secondconsists jointownership a resultof contract of of as brought aboutby the offerandacceptance the jointowners.

Joint ownershipof propertyowned in absoluteownershipis divided into voluntary obligatory and jointownership. CHAP TER I JOINT OWNERSHIP OF PROPERTY OWNED IN ABSOLUTE OWNERSHIP SECTION I Descraption classification and ofJoint ownership properly of 02tmed absolute in ownership Ariicle 1060. Ariicle 1063.or mixingproperty a together referred above. a personbestowsproperty or uponthemby way of gift or by bequestand they acceptthe same:or tWOpersonstakea pieceof property by wayof inheritance. (2) Two personsmix theircorntogether. Obligatory joint ownershipis joint ownership broughtabout by some cause other than the acts of the joint owners. thatis to say. Article1065.The cornmixedtogether this waybecomestheirjOitlt in property. takingby wayof gift.andeachone pariicipates thereinwiththe other.or or of inheritance by rnixing causingto mix one property or or withanother. Ariicle 1061.THE 1WEJELLE: BOOK X: JOINT OWNERSHIP 367 Ariicle1059. Voluntary jointownership jointownership is broughtaboutby the acts of the joint ownersthemselves. by uniiing thernin sucha way thatthey cannotbe distinguished separated one fromthe other. The jointresponsibility various of persons whoma thinghas beenentrusted to for safekeepingis in the natureof roluntary jointownership. if a gustof windcarries But away a persons garment. and two of them are lost. where such thing belongsto them.in the proportion one third and two thirds.or acceptance a gift. Whereone personsuppliescapital another condition the wholeof the to on that profitis to belongto him. or by of acceptirlg bequest.as where it arisesthroughpurchase.as whereit arisesthroughinheritance throughtwo or properiies beingmixedtogether. the remaining gold coin becomesthe joint propertyof the two persons. the capitalis calledthe investedcapital:the personsupplyingsuch capitalis calledthe investorand the persontakingsuchcapitalis caHed personemploying the capital. Joint ownershipof propertyowned in absoluteownershipis broughtabout when morethanone personjoinin the ownership anypariiclllar of thing.and it fallsin a housewhichis jointlyowned the jointresponsibility the of ownersof the house for the preservation the garmentis in the natureof obligatoryjoint of ownership.thatis to say. or the Examples: (1) Two personsbuy a pieceof property. Article 1062. orby acceptance a bequest. the two thirds of belongingto the ownerof the two gold coins. . Suchproperty jointlyownedby themand they becomejointowners is in thatproperty.or theircornbecomesmixedtogetherby reason of therebeing holesin the sacks. If a gold coin belongingto one particular personis xed with two othergold coins of the same type belongingto some otherpersonin such a way that it cannotbe disiinguishedfrom them. as whereownershipthereinis acquiredby any of the causesof acquiring ownership suchas purchase. the one thirdbelongingto the ownerof the one coin. as to Article 1064.

If it is not capable divisiontheymay may of sharethe usufructthereof.suchas comingin andgoingout. The jointownersof property held in absolute ownership may by agreement dealwith theirproperty aIlywaytheywish. Ariicle1072.Neitheris the agentof the other. The jointownersof property heldin absolute ownership strangers one are to anotheras regardstheirshares. The jointownersof a housemaydwelltogether suchhouse. . One of the jointownersof property in absolute held ownership dealwith may such property alone. however)deal with it in of suchwayas to causeinjuryto the otherjointowner.The youngbelongto the ownerof the female pigeons.368 ARAB LAW QUARTERLY Ariicle1066.in the samewayas a singleownerof suchpropin erty. The produceof property jointly ownedin absolute ownership maybe divided amongthe ownersin accordance theirshares. Examples: (1) One of the ownersof a jointlyownedhorselendsor givessuch horseon hire without the perssion of the other. The property the youngof animals in followsthe mother.suchproperty be divided.Consequently. in the caseof But dwellirlg a house whichis joindyownedandas regards ill matters pertg thereto. Jointownership property of ownedin absolute ownership alsodividedinto is jointownership specific of property jointownership debtX and of Ariicle 1067*Joint ownershipof a specificpropertyconsistsof joint ownershipof some specific property whichis in existence. stipulation the milk with any that of an aIiimal whichis jointlyowned. The foalbelongsto the owner to to of the mare. Examples: (1) A stallionbelonging A coversa marebelonging B. Ar{icle1073.The secondjointownermayclaimto havethe lossof his share madegoodby the first.Consequently.If one of them. Neitherof the jointownersmayforcetheotherto sell or purchase share.as wheretwo personsarejointownersof a certain sumof moneyowningto themby someotherperson.He may not. eachof the jointowners considered be an absolute is to ownerof such property. Joint ownershipof debt consistsof joint ownershipof somethingto be received. in however. Ariicle1074. (2) A owns male and B femalepigeons. the othercan preventhim fromso doing. neitherjoint ownermay deal with the shareof the otherwithoutthe latter's perIxiission.If his the property held in absoluteownership jointlyby themis capableof division.Detailsaregivenin Chapler II.wishes to introducea stranger into the house. Arucle1070. Ariicle1071.and the other joinowneris not absent.as wheretwopersons hareundivided jointownership of a sheepor of a flockof sheep.andit is destroyed whilein thepossession theborrower of of or the persontakillgit on hire.or the youngthereofshallgo to one of the jointownersin excessof his shareis invalid. with the permission the other. Ariicle 1068. Ariicle 1075. SECTION II Themannerof dealingwith specific jointly owned property Ariicle 1069.

If one of two joint ownersof property such property hire and receives he the renttherefor3 is obligedto paythe otherhis sharethereof.THE MEJELLE: BOOK X: 30INT OWNERSHIP 369 (2) Onejointownerridesa jointlyownedhorse)or placesa loaduponhimwithoutthe perwhilebeingriddenor driven.he mayclaimto havethe by valueof the landis decreased reasonof the cultivauonn the in gnount of the decrease valueof his sharemadegood by the jointownerculiivating land. providedthe consent of the other is given by implicaiion. bersof suchperson's natureas to changeit by reasonthereof and the absentjoint ownercannotbe held to have assentedtheretoby implication.suchas a thirdor a fourth.The secondjoint missionof the other)the horseis destroyed ownermayclain to havethe loss of his sharemadegoodby the first.He maydo so. of Ariicle 1083. In the event of the sharesof a house jointlyowned by two persons)one of the whomis absent.Again.The otherjoint owner may claim to have the decrease valuewhichis representedby his sharemadegood. suchland the othermaynot cl Article1076.the Courtmay let such separate hire andkeep the renton behalfof the absentjointowner. everyotherday. one of the ownersof a jointlyownedhouselives alonein such periodwithoutpayingany rentin respectto the shareof the other the latter housefor a certain cannotclaimrent in respectto his sharefor that period)or claimthathe will dwell in it for a .if thelattercausesno harmin so heldirsabsoluteownership.beingseparated one fromthe other the jointownerwhois presentmaynot dwell in the partof the jointownerwho is absent.If the memin however theirdwelling the houseis of sucha are household numerous. Ariicle 1082.one of two jointownersmaynot ride up a jointlyownedhorsein the absenceof the other.however.If the a shareof the produce however.as is set forth in the following Ariicles. doing to the jointlyownedproperty of Article 1080. The absentjointowneris considered havegivenhis consentby implicaiion who by of to enjoyment the usufruct the joint-owner is present. If one of the jointownersof property tO of the one who is presentmaytakethe usufruct suchproperty theextentof his sharethereof. enjoythe servicesof a servant of Ariicle 1081.by reasonof its beingleft vacant. Ariicle 1078. to Ariicle 1079. Partiison usufructcan only be had andis onlyvalidafterbeingsettledby ar if actionat law. Consequently.If thereis dangerof the house fallinginto parton disrepair. Again. however. Habitation a housein not changedby a changeof personsdwellingtherein. (4) One of two jointownersof a house lives in such house for a certainperiodwithout to of the obtaixiing permission the other. There can be no consentby implicationto the enjoyment the usufructof is wheresuch property changedby use by held in absoluteownership jointlyownedproperty one usingit. on lets Ariicle 1077. If the house is burnt down by accident. to the extentof his personusingitnsuchas carrying sharein caseswherethereis no changeby use of the pariicular or burdensv ploughingland. in equalsharesis absent) if Consequently. is ownedin absoluteownership absent.he is likewise to underno obliganon makegoodany loss. Consequently) of two jointownersof a pieceof clothingcanpersoIl the particular not wearsuchclothingin the absenceof the other. (3) One jointownerusesa horsefor a certainperiodso thatit becomesweekandits value in decreases. whereone of two jointownersis absent)the othermay who has beentakeninto theirjointserarice. one of two jointownersof a househeld in coon the othermayuse suchhousefor a periodof six monthsandleaveit for six months. He is considered be living in his own property and held in absoluteowrlership) he cannotbe calleduponby the otherjointownerto pay tO rent corresponding his share. If one of two jointownersof landcultivates with thereofin accordance localcustom.

In such a case. and the absent joint owner returns. he may not bring an action on account of any decrease in the value of the land. Should he cultivate the land again in the following year. or of rejecting the sale and claiming to be given the value of his share. takes and uses a quantity of money belonging to the estate prior to the division thereof. however. But if one of the joint owners is absent. has the option of either ratifying the sale and taking the price set aside. and the other. he must bear any loss occasioned thereby. he must make good the loss of the share of the other joint owner. however. should the absent joint owner return. One of the owners of a jointly owned house who is present may validly let such house on hire. If one of them sows his own seed. a joint owner who is present may only cultivate the amount of his own share of such land. If one of a number of heirs. If he cultivates the whole of such land and the absent joint owner returns. Consequently. (See Article 907. He may also sell the share of the absent joint owner and set aside the price thereof. (See Article 790.370 ARAB LAW QUARTERLY corresponding penod. divide such house if it is capable of partition. If the absent joint owner returns. on his own initiative. The absent joint owner.the whole of the resulting produce is jointly owned by all of them. taking his own share of the rent and keeping the share of the absent joint owner. the joint owner who is present may cultivate the whole of such land. but is entitled to keep the profits obtained by such transaciion. if one of them. however. the owner who is present stands in the place of the absent joint owner. For example. Article 1087. or he may cause the usufruct thereof to be divided so that it may be valid thereafter. deposits the jointly owned property with some other person for safe keeping and such property is destroyed. as mentioned in Section I. On the return of the latter. The share of one of the joint owners is consideredto be deposited for safe keeping with the other. Article 1086. if such land is jointly owned in equal shares. If some of a number of heirs to land which has devolved upon them by way of inheritance sow seed therein which is their joint propertywith the permission of the other heirs. or if such other heirs are minors. . Article 1085. (See Article 215. with the permission of their guardians. If one of the joint owners of an orchard is absent. Article 1089. sell his share to the other joint owner. without the perrIiissionof the others. he may obtain his share from the former. he may cultivate a half thereof. The details as set out above apply. and it is known that cultivation will be beneficial to such land and will not result in any decreasein the value thereof. Article 1084. if he wishes. no persons may sell his share of the niixed property to another unless he has obtained the permission of the other joint owner. if the joint owner who is present does not make any application to the Court. the Court shall give permission for him to culovate the whole of such land in order that the tithe and land tax shall not be lost. He may. he may cultivate the land for a correspondingperiod. as stated in the preceding Article. he may dwell in such house for a corresponding period.) Article 1088. One of the joint owners may. he may only cultivate his own half. Should one of the joint owners of land be absent. He may not cultivate one half in one year and the other half in the following year. Should he apply to the Court. the absent joint owner cannot be held to have agreedby implication to the cultivation of such land. he must malregood to him the decrease in value of his share of the land.) In the case of mixed property. the resulting produce is his own.) Article 1090. on return. dwells therein for a certain period. Consequently. He must. make good any loss accruing to the share of the other heirs by reason of any decrease in the value of the land caused by the cultivation thereof. however. or he may also sell it to some other person without the permission of the other joint owner. If it is known that cultivation of the land will result in a diminution of the value thereof and that leaving the land fallow will be beneficialthereto and will result in the increased fertility thereof. and when the fruit ripens may take and consume his own share.

In the same way. Again. Article 1094. the sum which they re entitled to receive from such person is a debt jointly owned. Siniilarly. but each becomes a separate creditor. The other creditoris not entitled to share therein. and the total value of their animals does not become a debt jointly owned. A debt owed by a persons and arising by reason of such person having to make good loss caused by the destruction by him of property jointly owned. Article 1097. If a person gives an order to two other persons to pay a debt amounting to a certain sum and the latter pay such debt from property which they jointly own. the surn of money to be paid by the purchaser becomes a debt jointly owned. If two persons who jointly own a certain sum of money lend such money to some other person. If two persons each sell their property en blocto some other person. the arnountwhich they are entitled to recover from the principal debtor is a debt jointly owned. Any specific property left by a deceased person is jointly owned by his heirs in proportion to their shares. Article 1092. Article 1095. sums owing to him by any other person are jointly owned by the heirs in proportion to their shares. and the other also sells his undivided share to that person separately. the debt is jointly owned by such two persons. is jointly owned by the owners of such property. If the amount of the share-ofthe price of the thing sold of each one of them is mentioned at the time of the sale. each one becomes a separate creditor. where it is stated that the share of one of them consists of so much money and the share of the other of so much. if two persons each separately sell property to some other person.THE MEJELLE: BOOK X: JOINT OWNERSHIP SECTION III 371 iointlyowned debts Article 1091. they each become separate creditors. but each of them becomes a separate creditor. if one of them sells his undivided share to some other person. Article 1098. for example. the amount in question becomes a debt jointly owned by the vendors. These matters will be dealt with in the following Articles. Article 1096. each of the creditors may demand payment separately from the debtor of the sum he is entitled to receive and whatever sum either of them receives) is credited to such person's account.and the share of none of the joint owners is mentioned at the time of the sale. If two or more persons are owed a sum of money by some other person and that debt arises from a single cause. Article 1093. as. it is not a joint debt. If the debt is a joint one. If the debt is not jointly owned. If property jointly owned is sold en bloc. the total value of the things sold does not become jointly owned. or where the share of one is said to consist of sound coin and the share of the other of base coin. and the debts are not jointly owned by the two persons. the mere fact that they have paid at one and the same time does rlot make the amount they are entitled to claim from such person a debt jointly owned Ariicle 1099. If two persons lend money separately to some other person. If each one of them names the price of his own aIiimal as being so much. such persons do not jointly own the price of the thing sold. or the nature thereof. and the share of each of them is in fact clearly distinguished. but each one becomes a separate creditor. such debt is a debt jointly owned by the two creditors. If one of the creditors applies to the Court in . If the debt does not arise from a single cause. Article 1100. the vendors do not jointly own the price of the thing sold. whereby their shares are defirled. for a certain sum of money. If the money they have paid is not jointly owned by them. when one sells a horse and the other a mare at one and the same e. as for example. If two persons in their capacity as guarantorspay the debt of some other person from property which they jointly own. each of the creditors may demand and receive payment of his own share from the debtor separately.

Example: The amount of the joint debt held in equal shares is one thousand piastres. as is set forth in the preceding Articles. If he fails to obtain anything from the debtor. Ariicle 1101. he has the right of receiving his share from him. the other creditor in any case has the option of either adopting the transactionof the other joint creditor. the other joint creditor may claim to have the loss he has suffered made good. since half the joint debt has been lost. The amount remaining to be paid by the debtor belongs to the joint creditor. the other joint creditor may call upon the follller to make good to him the amount representedby his share therein. however. receives a part of the whole of a joint debt. Article 1106. The other joint creditor may claim from hin the sum of two hundred and fifty piastres for the loss he has suffered. Article 1104. Article 1105. the Court shall make an order to this effect. Article 1108. Whatever sum is received by one of the creditors in respect to a joint debt is jointly owned by him and the other creditors who are entitled to receive their share therefrom. or of refusing to adopt the transaction and claiming his share from the debtor. and the pledge is destroyed while in his possession. If one of the creditors employs the debtor for a wage to be reckoned against his share of the joint debt. The creditor who receives such sum may not deduct it from his own share alone. If one of the creditors receives his share of the joint debt from the debtor. Article 1103. If one of the joint creditors comes to a settlement with the debtor as to his share in the joint debt. The other creditor may call upon the forrnerto make good to him a sum of two hundred and fifty piastres. as for example. he may either hand to the other joint creditor an amount of cloth corresponding to the latter's share. If one of the joint creditors receives a pledge from the debtor in respect to his own share. The five hundred piastres still remaining due continues to be jointly owned by the two creditors. or he may deliver him a sum of money corresponding to the amount of the share of the joint debt which he has forgone. out of the cloth he has received. or if he buys property to the value of his share. the other does not become a joint owner of the goods. or if he comes to a settlement with the debtor as to certain property against his claim. Example: One of two persons who are joint creditors in equal shares for a sum of one thousand piastres receives his share of five hundred piastres for the debtor and disposes of it. as mentioned above. He may. Article 1107. the goods are held jointly between them. when. If one of the joint creditors while receiving nothing in respect to the joint debt buys goods from the debtor against his share. If one of the creditors. he has a right of recourse against the creditor who has obtained his share. One of the creditors receives a pledge in respect to his share of five hundred piastres. . claim to have his share made good by the other creditor out of the price of the goods. If one of the creditors receives his share of a joint debt and disposes of it. If they come to an agreement as to their shares.372 ARAB LAW QUARTERLY the absence of another and asks for payment of his sharefrom the debtor. where he agrees to accept from the debtor a certain quantity of cloth and does in fact do so. and it is accidentally destroyed while in his possession. He is regarded as having received payment of his own share. and the fact that he has not previously adopted the transactionis no bar to his right of recourse. The pledge is destroyed while in his possession. he is not liable to make good the loss to the other joint creditor in respect to the amount representedby such joint creditor's share therein. Article 1102. the other joint creditor may call upon the former to make good to him the amount represented by his share therein.

If any personsells any property two otherpersons. other.Eachhas a half sharein each by grain. the other joint creditor has the nghtof receivinghis sharefromin respect thereto. If one of the debtorsmakesa gift of his sharein the jointdebt to the debtoror suchgift or releaseis valid.unlessthey CHAPTER II PARTITION SECTION I of and Nature categones partition share Thatis to say. may not clairn amountowingby one of themfromthe of areguarantors eachother.This is calledpartition units. Ariicle 1112. The firstconsistsof specificobjectsowned into and jointly. wherethirty a The secondconsistsof dividinga specificthingownedjointlyandof allotting partin respect as pariiiionby allotment. MEJELLE: BOOK X: JOINT OWNERSHIP THE 373 from the debtorin respectto his Article 1109.the twoclaimsareset off into oneagainstthe other and the other joint creditorcannotclaimfrom him anythingin respect thereto. to his share. other Article1110.Eachone is thenconsidered have given his his separated halfshareandto haveexchanged ownhalfwiththehalfshareof theother. individual and Ariicle 1116. in creditor respect for in Article1111.and the sum represented was Butif one of the jointcreditors in the debt of the debtorirlrespectto a debt whichcame existencepriorto the jointdebtin respectto whichhe hasa claim. sharesfrom andseparate weight. Examples: (1) Two personsown a kile of corn jointlyin equalshares. Pariiiionconsistson the one handof separaiion on the otherof exchange. Supplemetat to Article 1113.as wherea pieceof landis dividedinto two parts. Partiiion of such as a measure capacity eachotherby meansof somestandard.he mayclaimhis share the He foreach one of them separately. Neitherof the jointcreditorsmay extend the due date or postponethe joint of debtwithoutthe perrriission the other. If one of the creditorsobtainsa guarantor by his shareto someotherperson any sum obtained such of share the jointdebt.that is.He is not liableon thataccountto the other him releases therefrom.The landis dividedinto two by partiiion allotment.debl. the undivided by umtedin one part.or to the undividedsharesrelaiingto each portion. If one of the jointcreditors respectto a jointdebt is responsible the destherebyis set off againstthe of of truciion the property the debtors.anda partis . as being sharesbelongingto eachindividual sheepwhicharejointlyownedbetweenthreepersonsaredividedup into tens. Pariitionis effectedin two ways. or of length.onepartbeing to to one andthe otherpartto the otherjointowner. Ilumerous jointlyowned thingsbeing separated parts. or transfers by has or the guarantor the personto whomthe transfer been madeis shared the from creditor creditor. or of Article 1115. (2) Two personsare joint ownersof a piece of land which they hold in equalsharesin by respectto everypart.This is known partition.Whenit is dividedinto two parts)thedivisionis by partiiion units. to distinguish consistsof definingan llndivided Article 1114.

The thingdividedmustbe somespecific is a debt jointlyownedpriorto beingreceived invalid. and whichis obligatory by Article1122. l1S perIIllSSlOIl.things estiated by weight and and suchas walnuts one and by thingsmeasured enumeraiion whichcloselyresemble another. The allocaiion so much of of his heirsandso muchowingto himby B to another moneyowingto himby A to one . Partition consentconsistsof paroiionmadeby agreement the two joint in absoluteownership. . the sharewhich handed them. or whereby Courtmakesa divisionwith the assentof all parties.Consequently. Example: of A deceasedpersonhas varioussums of moneyowingto him. and linengoodsproduced a of a pariicular the undivideduIlitsthereof. and which is madeupon the jointlyownedproperty. In thecaseof thingsthe likeof whichcannotbe foundin themarket.in the absence theotherand objectthe like specific .therebeingno difference by type.Thingswhicharesirnilar in together sucha waythatthey mLxed nature. .however.arethingsthe like of whichcannot Bookswrittenby handare thingsthe like of whichcannotbe foundin the market. melonsand watermelons. of thejointowners of of whichCatlnOt be foundin themarket. SECTION II Conditions altaching to partition of any object.are thingsthe like of whichcannotbe foundin the market. Partition unitsandpartition allotment eachdivided orderof theCourt.Consequently. the in which thereis a difference valueas regards undivided be foundin themarket.thoughof a different and fromeachother. of maynottakehis share any one by ofa judgrnent the Court. beforebeing If the shareof the absentjoint owneris destroyed beenhandedover to . Wlt.arei1 thingsthelikeof pOtsuch of with andwhichchangein accordance the difference craftsmanship. or the parties maybe madeas the result of may Exchange takeplaceby agreement ispreferred. Things esiimatedby measureof capacity.Printed booksarethingsthe likeof whichcanbe foundin the market. between by But thingsmeasured lengthandsoldat so muchperyard. fromeachotherandin respectto and by Thingsmeasured enumeraiion whicharedissimilar units thereof.arethingsthe and cannotbe disiinguished separated be foundin the market. lOUt . Pariition orderof the Courtconsistsof a partinon of applicaiion cert of the ownersof the has the force of law. into twocategorare by by Article1120. by whichcanbe foundin themarket. partiiion Article1123.wherebythey mutuallyagreeto a division ownersof propertyheld the betweenthem.The secondis partition of by Article1121. likeof whichcannot by Thingsmeasured lengtharealso thingsthe like of whichcannotbe foundin the market. may takehis own sharein the absenceof the otherand withouthis perin found the rnarket The division. Separation preferred the caseof thingsthe like of whichcan be foundin each jointownerof jointlyownedthingsthe like of whichcan be themarket.is not completeuntil the shareof the absentjointownerhas niission.such as cloth arethingsthe like of whichcanbe foundin the market. between exchange Article1118. .Consequently.Eachone is considered haveseparated owrlhalfshareand it to haveexchanged withthe halfshareof the otherjointowner.Butthingsestumated weight eggs.suchas barley corn. by by ies. in is Article1117. The firstis pariiiion consent. Article 1119. of process manufacture. has beeIlreceivedby the other joint owneris jointlyowned over.374 LAW QUARTERLY ARAB his tQ givento eachoneof them.such as animals.andwhichare eachother. as hand-made tO tery.

Example: is A piece of land measuring one hundred and sixty arshuns divided into two equal shares. No partition is valid until the shares have been identified and separated. the greater amount only is held to be valid. or may exercise a right of recourse against the other joint owner to the extent of a quarter of his share. he may take from his share a If portion measuring twenty arshuns. and no one may in any way be deprived of the full amount to which he is entitled. his admission is a bar to an action for flagrantmisrepresentation. Partition by an unauthorized person is subject to ratification. it must be made in accordance with the shares due to each joint owner. and of exercising a right of recourse against the other joint owner in respect to the amount short. or of agreeing thereto. If the person in whose favour the partition has been made. admits that he has received what he is entitled to. the partition is invalid and the property must be divided again. the tutor or guardian stands in his place. The thing divided must be the property of the joint owners held in absolute ownership at the time of partition. Again. the matter being regarded as though only one person had appeared entitied to a fixed portion of one share. if someone appears who is entitled to an undivided share therein such as a half or a third. Article 1127. if some person appears who is entitled to the whole of the property after the partition has been made. The partition must be equitable.THE MEJELLE: BOOK X: JOINT OWNERSHIP 375 his heirs is invalid. Consequently. Article 1126. E:xample: A divides jointly owned property on his own initiative. Sirnilarly. cancel the partition. the partition is invalid. or an undivided part. that is to say. The person to whose share the greater amount is attributed as stated above has the option either of cancelling the partition. (See Chapter I. Consequently. at his option. adding that he will take the other. such partition becomes null and void. if they perform any act indicative of a right of ownership. or in writing. and the remainder is jointly owned by the other persons holding shares in the property. an action for flagrantmisrepresentationwill lie in a case of partition. if one of them is absent. such as sale or hire.) Article 1124. If one of them is a minor. however. The partition is neither permissible nor executory. In the absence of a tutor or . In pariition by consent. But if the owners ratify by signifying their assent. Consequently. If one has received less and the other more. the partition cannot be cancelled if it has been made in egual shares. someone appears who is entitled to a specific part of each share. That is to say. pariition by consent is invalid. or of having recourse against the other joint owner in respect to the amount which he has lost. if someone appears who is entitled to the whole of a share. Example: One of the joint owners of a heap of corn requests the other joint owrlerto take one half of the heap. The partition is invalid. The owner of such share may. Should one of the heirs obtain any surn of money in this way. that is to say. If someone appears who is entitled to some specific part of a share only. Article 1125. the partition is valid and executory. Article 1128. the other heirs become joint owners therein. which may be oral. Section IV. the owner of such undivided share has the option of either cancelling the partition. or by conduct. Someone appears who is entitled to a half of one share. the consent of each of the persons sharing in the pariition must be given. or if they deal with their separate shares by way of absolute ownership.

The sameappliesin the caseof a number dirhems bargold. Thatis to say. is set forthin Section3 andSection Otherwise partitiotl as 4. the benefitto be derivedfromsuchproperty mustnot be lostby the pariiiion.in accordance theirshares.whetherthe property question of in consistsof thingsthe like of whichcan be foundin the market not. If a difference existsbetweenthingsthe like of whichcannotbe foundin the market. to of as to Example: Five hundred sheepownedjointlyby twopersons dividedbetweenthemln accordance are with theirshares. suchthingsareconsidered be capable partition referred above.Eachone is considered havereceiered ideniicalthillgS tO whichhe to the is eniitled.The sarne thingappliesin the caseof so manyhundreds camelsandso many of hundreds cows. to the other a set of saddlery. Example: An orderof the Courtforthepartition property of whereby of the jointownersreceives one so manykilesof corn.Thatis to say.the Courtshallmakea compulsory partition the property if jointlyownedis eapable of pariition. uponthe partition a of quantityof corn jointlyownedby two persons.but suchdifference so smallthatit maybe saidnot to exist and is at all.to one so manysheep. wiX Article1129. SECTION III Partition byunits Ariicle1132.whetherconsisting thingsthe like of which can be of foundin the market not. In the caseof partition ehings likeof whichcanbe foundin the market.as if by meniionedabove.is valid. and another manykilesof barely.Anycompulsory pariition madeby theCourt the absence anyrequest in of madeby one of the parties invalid.376 ARAB LAS QUARTERLY guardian.Thus. Pariition madeby orderof theCourtis subject to a request beingmadeto that effect. eachof the jointownersreceives whathe is entitledto andbecomes absoluteowner thereof since there is no differencebetweenthe variousundividedunits thereof. whichareof one type.as beingeqliivalent SQ thereto. theCourtwillnotgiveanorderfortheircompulsory or divisionby unitsuponthe application oneof the jointowners of only. . one a countryhouse.or of barcopperor iron. or Article1133.as beingequivalerlt so thereto.or of a number okesof of of of barsilver. or a quantity eggs. of Ariicle 1135.13ut the jointownersagreethereto.is invalid. one to a sword. If someof the jointownersapplyfor partition othersopposesuch appliand caiion.theCourt by of willorderthepartition suchpropof erty upon the application someonly of the jointowners.which will appointa guardian through whomthe pariition be camed out. Capable pariiiionrefersto jointlyownedproperty of whichis fit for partiiion. Article1131.to another manycamelsor cows. of the andwhichareof one type.and parlition cannotinjureanyone of the jointowners.eachof them with receiveswhat he is entitledto) and becomesthe independent ownerof the corn fallingto his share. to the othera shop or a to farm. nt shallbe made.the pariiiionis subjecttOthe orderof the Court.or of a number piecesof woollenclothof one type. Specific objectswhicharejointly ownedandwhichareof one type)aresubject to partition order the Court. Thus.a partiton orderof the Court. Specificobjectswhichare jointlyownedandwhichareof different types are not subjectto pariitionby the Court. of of Ariicle 1134.or of a of number piecesof linen. is Ariicle 1130.

A number of country houses. Article 1137. trees are planted and wells sunk. SECTION IV by Partition allotment Article 1139. Consequently. shops and fartns. the Court will not order the partition of the mill upon the applieaiion of one of the joint owners only. provided such pariition does not injure any of the owners thereof. which was to dwell therein. the Court may give an order for compulsory partition. so that it becomes two separate houses. such as tiny pearls and small diamonds known as counting stones. (2) A country house is divided into men's and women's quarters. Examples: (1) A piece of land is divided and buildings erected on each portion. Baths. In this way. The benefit tO be derived from the country house.THE MEJELLE: BOOK X: JOINT OWNERSHIP 377 Arucle 1136. it ean no longer be used as a mill. and should the person deriving some advantage therefrom desire partition. Should the partition of some specific piece of property jointly owned be advanto one of the owners thereofn and disadvantageous to the other. Any specific piece of property which is jointly owned is capable of partition. Article 1138. The Court will give an order for partition. a eloak. be divided by eonsent. large pearls and jewellery are also specific objects of different types. Each of them may be divided by partiiion by allotmene as set out below. But small jewels not differing from each other iIl value. if one of the owners desires partition and the other does not. Partiiion may not be ordered by the Court of some speeifie property which is jointly owned in eases where sueh partition would be injurious to eaeh of the joint owners of sueh property. the Court may give an order for pariition. is not lost. Article 1141. the stone for a ring. and for this reason the benefit to be derived therefrom is lost. water pipes. Pots which differ in accordance with the craftsmanslip are considered to be of different types. are also of different types and by units. It may. Article 1140. are of the same type. Ornaments. Consequently. both in the case of the land and of the country house. cannot be divided by ption Example: One of a number of country houses may not be given to one joint owner and another to a second in pursuance of an order for partition given by the Court. a small room. a saddle. that is to say. are considered to be of the sarnetype. Example: If a mill is divided. tageous Example: A house is jointly owned and the share of one of the joint owners is so small that after partiiion he is unable to derive benefit therefrom by dwelling therein. a division by order of the Court is valid. the benefit to be derived from the land is preserved. Merehandise sueh as a horse and a earriage. The joint owner holding the greater share desires partition. should the benefit to be derived therefrom be lost to him. That is to say. however. wells. . Each of the joint owners becomes the independent owner of a separate house. a wall between two houses. even though made from metal of one type.

the second nsme gets the second share. Article 1146. partition may be made. SECTION V Methodof partition Article 1147. Upon the partition of a house. they are levied in . Should it be found upon the partition of a country house that the building represented by one share is more valuable than the building of the other. A person may sell a road which he owns in absolute ownership. and there is sufficient room for each one for the flow of water after partition. Article 1143. and added thereto. If there are more than three. a wall separatingthe two shares may remain in the joint ownership of the owners thereof. the sarneprocedure is followed. Article 1145. the parti^ tion may be made. it must first be ascertainedas to whether. in the same way that upon the partition of a piece of real property jointly owned by two person. Article 1150. are also of this nature. the absolute ownership of a road jointly owned may be retained by one. if it is estimated by weight. If a country house is to be divided. If so. If possible he must divide any right of way. land in addition is taken from the site of the other share. Article 1149. They must be called share number one. and the others object. But trees and buildings situated thereon are divided by estimating the value thereof. the road will be divided. if partition is effected. each of the joint owners will have a road. Nevertheless. Article 1151. if this course is possible. In no case may division be ordered by the Court. it is divided by length. and make a settlement and adjustment in accordancewith the shares of the owners thereof. no order will be made for compulsorypartition. lots must be drawn. Article 1142. If taxes levied by the State are for the protection of the interests of the people. The partition of the pages of a book jointly owned is invalid: and the partition volume by volume of a book in several volumes is likewise invalid. it is divided by weight. If property jointly owned is esiimated by measure of capacity. is divided by length. Land being measured by length. so that they are completely independent the one from the other. If two persons who are joint owners of a house desire partition thereof so that one receives the upper portion and the other the lower portion. Article 1144. If they are levied for the protection of property. the person carryingout the partition must first make a plan thereof on paper. or there is some other place to which the water may flow. or right of taking water. Article 1152. If one of the owners desires partition and the other objects. If this is not possible. Afterwards. or right of flow. it is divided by such measure. both the upper and the lower portions are valued. or such house may be divided in such manner that the wall becomes the property in absolute ownership of one of them only. two and three respectively. The first narne turned up gets the first share. subject to his retaining a right of way thereover. equivalent to the difference in value. if it is estimated by length. Article 1148. must measure the land upon which it is built. they must be levied in accordance with the amount of the population. A right of flow jointly owned is similar to a road jointly owned. value the buildings thereof. but not otherwise.378 ARAB LAW QUARTERLY which must be broken or split. and the third narnegets the third share. If one of the joint owners of a road owned by two or more person to which no other person has the right of access desires partition. Women and children are not included in the register. if each one has a separateroad and entrance. a proportionateamount of money is added. and the partition is made on the basis of the value. it is divided by number. if it is estimated by number. If not. and the other may be given a right of way thereover only.

however.and an optionfor defect are also attachedtQ things the like of which cannotbe foundin the market)upon the thereof.If one of them has not seen the corn. from. If one of themhas not has he yet seen the dividedproperty.exercisean option if shares. tageis arlobligaiionaccompanying SECTION Vl Options Ariicle 1153. while the partiiionis beingcarAriicle 1158.THE ME3ELLE: BOOK X: JOINT OWNERSHIP 319 in because.he mayeitheracceptit or rejectit. An option conferredby contract. . If the shareof orle of them provesto be defective. Whellthe pariiiionhasbeencompleted.he sheepand the otherso manycows. however. partition Example: to Upon the partiiionof one hundredsheepamongthe ownerthereofin proportion their by therefor contract. as for example.theracceptthemor rejectthem.One receives jointlyownedis dividedby agreement Property so manykilesof cornandthe otherso manykilesof barley.and or by whichare of the sametype. An option conferredby contract. If one of the jointownerswishesto withdraw one of ried out. and the lower portionprovesto be rotten)the ownerhas the optionof rejeciingor accepiingit.an opiion of inspection)and an option for defectareattachedto the varioustypesof pariition. duringthat period)eitheragreeto the partiiion) cancelit.It IS invalid.An option. Article 1154.the partition complete. Example: by A heapof cornbelongingto two persons jointly is divided. SECTION VII of and Cancellation rescission partition is Article1156. If he has not yet of acceptingor rejeciingthe parti{ion may exercisean opiion uponseeingthem. disadvanwith the amountof suchproperty. no opiion is conferred contract uponinspection. If one of the jointownershas a contractual or may.he cannotexerciseanoptionuponseeingit. Article1lSS.An opiionconferred contract to be exercisedwithina certainnumberof daysis invalid.one of the ownersmayn he has stipulated withina periodof so manydays. theretherecannotbe anywithdrawal Article1157. he likewisehas a optionand maye. Whenthe lots haveall beendrawn. similarly an optionuponseeingit.or one of themreceivesso many option. he similarly in standingis revealed the sheepwhichfall tO the shareof one of them.as is mentioned Article87.if it is madeby orderof the Court. accordance enjoyment. If a defectof long seen the sheep. Example: betweenthe ownersthereof. Upon the divisionof thingsthe like of whichcan be foundin the market.wherethe majority the lots havebeendrawnand thereremains is only7the withdrawal validif the pariiiionis one madeby consent.as in the caseof sale. Butif one of themis giventhe upperpart and the other the lower.an optionof inspection.existsfor defect.

the partition is not cancelled. the partition is cancelled. or if the creditors relinquish their claims. Nevertheless. Article 1160. If after the partition of an estate it proves that the deceased person was in debt. the partition is cancelled. If flagrantmisrepresentationis apparent during the partition. and an equitable partition is made afresh. If the joint owners cancel and rescind the partition by agreement after such partition has been carried out. To be continued . they may again become joint owners of the property as heretofore. Article 1161.380 ARAB LAW QUARTERLY Article 1159. if the heirs pay the debt. or if there is other property belonging to the deceased and the debt is saiisfied therefrom.

org/page/info/about/policies/terms. No. For more information about JSTOR.The Mejelle: Book XI: Agency Author(s): C.jstor.jstor.org . http://www. BRILL is collaborating with JSTOR to digitize. pp. and students discover.org. Vol.org/stable/3381325 . JSTOR is a not-for-profit service that helps scholars. use. A. please contact support@jstor. and build upon a wide range of content in a trusted digital archive. researchers. We use information technology and tools to increase productivity and facilitate new forms of scholarship. 3 (Aug.jsp . Hooper Reviewed work(s): Source: Arab Law Quarterly.. preserve and extend access to Arab Law Quarterly. 1989). available at . 244-253 Published by: BRILL Stable URL: http://www. 4. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. http://www.jstor. .

But if the agentrefusesafterthe offeris made. Subsequent agent.the offeris of no effect him informsa personthat he has appointed agentfor a certain Consequently. to and amollnt an authority actas agent. cona latterstatesthat he has accepted. Permission ratification authorization act as to ratification the sameeffectas a previous has Article1453. Messengership not of the samenature agency. the principal if matter. to the sale. and A is considered have performed act as thoughhe had previouslybeen appointed agentby B. the is information.B ratifiesthe A. if of Article1451. withoutauthority. the agentremainssilent.but laterbeginsto dealwith the matter. as is Ariicle1454. The basisof appointment a personas agentis offerandacceptance. is considered haveaccepted agencyby implication to and his acts are valid. personto whomthe information The messageis calledthe persontransniitting of transmitted calledthe recipient the infollllation. Agencyconsistsof one person in to act for him. Messengership some otherpersonby meansof somethirdpersonwho is not privyto the matterin question.all his acts in that respectareinvalid. personwhostands' his steadis calledthe agent. but attemptsto act in the the he to matterreferred by the principal. . to Article1452.THE MEJELLE BOOK XI AGENCY INTRO DUCTION TERMS OF MUHAMMADAN JURISPRUDENCE some someotherpersonto perform empowering Article1449. is CHAP TER I FUNDAMENTAL BASIS AND CLASSIFICATION OF AGENCY Thus. Example: sells property belongingto B.and such persondeclines. The first the the in personis calledtheprincipal. The personwho sends the is The persontransmitting information calledthe messenger. of by consistsof the transmission information one persontO Article 1450. him agentfor a certainmatterand the the pnncipalinforrns agentthat he has appointed the importing acceptance.andthe act is calledthe authorized act.or uses someotherexpression if tractof agencyis concluded.Similarly. whereby latterstandsin the steadof the former regard suchact. and inforinsB therof.

The basisof arlauthority act as agentis sometimes to subjectto a limitation. Ariicle 1456. The principal must be ableto perform actwhichis the subjectmatterof the the agency.B can sell the animalsas agentwhen the monthof Aprilcomesor thereafter. or by . The butcherdoes so. The senant is his mastersmessenger not his agent. authorityto act as agentconferred a minorof imperfectunderany by standing. B's authorityto act as agentis subjectto the limitationthathe maynot sell for less than a thousandpiastes. andnot an agent.or a lunaiic.i5 invalid.and B agrees. The horsedealer informsB that he has sold A the horsefor so much moneyandasksB to informA of this fact. to Example: A informsB thathe hasmadehhn his agentto sell his animals the monthof AprilandB in accepts. it is not dependentupona condition. . (3) A asks the butcherto give his servantwho does the markeiing manyokesof meat so everyday. senant is his master's the messenger and not his agent. B does as requestedand handsthe horseover to A. has merelybeen a messenger intennediary B and between the two. If he comes. Example: A informsB thathe has appointed him his agentto sell his watchfor a thousandpiastres. the agentcan sell the horse)but not otherwise.A minorof perfectunderstanding not conferany powerto may act as agent upon any otherpersonin such mattersas bestowalof property way of gift. A acceptsforthwith. The basisof an authority act as agentis sometimes to conditional.B tells the horsedealer A wishesto buy to that a certainhorse fromhim. sends But and his servantto fetchandbringthe property purchased. The basisof an authority actas agentis sometimes to absolute.or madewith reference any particular to iime or subjectto any }mtanons. and Article1455. The servantis his master's agentforpurchase. Consequently. if the masterdoesbusinesswitha merchant. but not before. Example: A servantactingon ordersfromhis master buysproperty froma merchant. . An orderis sometimesin the natureof agencyand someiimesin the natureof messengership.A salehas been concluded betweenA and the horsedealer.Thatis to say. andto deliverthe horseto him. .The authority act as agentis concludedsubject to to the merchantcomingto such place. The basisof an authority act as agentis someiimessubjectto a certaintime. CHAP TER I I CONDITIONS ATTACHING TO AGENCY Ariicle 1457. The servantis A's messenger) his agentto borrowmoney.THE MEJELLE 245 Examples: (1) A sends his servantto fetch him moneywhich his bankeris going to lend him. not (2) A sendsB to a horsedealer buy a horse. Example: A informsB that he has madehim his agentto sell his horsein the eventof a certainmerchantcomingto his place.

eventhoughhis tutorauthorof izes him to do so.the rightsunderthe contract belongto the contracting party. in respectto any or transaction whichhe himselfis liableor entitled. The subjectmatterof the agency. Any personmayappointanyotherpersonhis agenttO perform act which any he can himselfperform. discharge. it Article1461.payingand receiving payment debtsand takingdeliveryof of property.if he hasbeenauthorized engagein trade.If the matter not so referred by is to the principal.and settlement wayof admission. pledge. to of mustdeliverthe propertysold to the purchaser. The agentmust be of soundmind and perfectunderstanding. is invalid.Consequently. rightsunder is tO the the contract belongto the principal. to Example: A mayvalidlyappoint his agentfor buyingandselling.however. partnershipof capitalandlabour. settlement.bestowing receivingby for and way of gift. andseizethe same. Examples: (1) An agentfor saleconcludes contract the withoutreference his principal.may becomean agent. by Suchcontract is validif merelyconcluded the agentalone.withoutreference his principal. CHAPTER III ESSENTIAL ELEMENTS OF AGENCY SECTION I General Article1460.authorize someotherpersonto act as agentfor him for the purposeof accepting such thingsas giftsor altns. merely to but with reference himself.partnership.do not affecthim. instituting actionat law.whichcan only be for his advantage.the purchaser haverecourse may against agentforsale. admission. the position the agentis similarto thatof a In of messenger.ownership passesto the principal alone. by to In however.lendingmoney. A contract concluded an agentmustbe madeby reference his principal by to in thecaseof gift. thatcase. uponsellingthe property his principal. A niinormay.depositforsafekeeping. thatis to say. but his principal.giving B and takingon pledge. minormayauthorize or such the some otherpersonto act as agent.givingandtakingon hire. even withoutthe permission his tutor.however.or to fulfilany obligation. to acquireany right. may claimand receivethe pricefromthe purchaser.whichcanonly be to the disadvantage the minor. minorof perfectunderstanding. loanforuse. the agent. a even thoughnot authorized act on his own behalf.If not.246 ARAB LAW QUARTERLY givingalms. Article1459.andsettlement wayof denial. mayclaimthe pricewhichhe hasgivexl him. to (2) An agentfor purchase concludes contract thiswaywithoutreference his princia in to . hire.and. mustbe known.If the contract madewithreference the principal.givingand receiving safe keeping. by Article 1458. partition. need not He have arrivedat the age of puberty. obtainjudgrnent therefor. eithercase.Shouldthe contract madewithoutreferbe ence to the principal.thatis the to say.As regards of dispositions property of whichmayeither be to his advantage disadvantage as saleandpurchase. A contract concluded an agentneednot be madeby reference his princiby to pal in the caseof saleandpurchase.The rightsunderthe to contract. He Shouldanypersonappear is entitledto theproperty who purchased.however. however. claiming right an a of pre-emption. the authorizato tion to act as agentis dependent uponratification the tutor.

and he cannotdemand payment. If the messenger the creditor's.THE MEJELLE 247 pal.the loss need not be madegood.is consideredto be propertydepositedwith him for safe keeping.He mustalsostatethe sort of cloth he wants.mayact alonein aciionsat law. In the case of messengership.The messenger in no wayconcerned is therewith. Property the possession an agentwhichhe has receivedin his capacityas in of agentfor sale.it has been agreedthata salaryshall be of paid to him) the agentis entitledto such salaryuporlfulfillingthe termsof the agency. If no stipulaiion beenmadeforpayment. but the pariicular sort or priceof such thingmustbe mentioned. Propertyin the possessionof a messengerin virtueof his duties as messenger also considered be property is to depositedfor safe keeping. not the agent to and of the agent.If it is destroyed without fault or negligence. or as Ariicle 1467.that is to say. asks for the he .or payingor receivingpaymentof debt. A personwho has been appointedagent for any particular mattermay not appointmy otherpersonas agent. to Example: A appointsB his agentto purchasea horse. Article 1464. In this case.the subject of matterof the agencymust be sufficiently well knownto enableit to be carried out. his servicesarefree. is obligedto payit to the vendor he from his own property. If a debtorsends the sum of moneyhe is owing to his creditorand it is destroyed while in the possessionof the messengerbefore being receivedby the creditorn the debtormust bearthe loss if the messenger lis. In accordance with the termsof the last paragraph Ariicle 1459.and therearevarioussortsof thatnatureand the pariicular or the pricethereofis sort not mentioned)the agencyis invalid.Nevertheless) his principal authorized to do so) or if has him tO act as he thinksfit. Article 1466.one of them to alonemay not act as agent.it is not enoughmerelyto statethe natureof such thing. or purchase. If upon the appointment the agent.the agenthas the rightof bringingan actionto secureitS return. therearevarious If sortsof thingsof the nature. or where. He maytakedelivery the property of purchased. The appointment valid. even thoughhe has not received the priceof the property purchased fromhis principal. But if one personhas been appointedagentfor any particular matterandthe otherhas also been directlyappointedagent br the samematter.for exaunple. suchas Damascusor Indiancloth. One of them. or for somecloth.the posiiionof the agentbeingsimilarto thatof a messenger.such as so manypiastres the roIl.A muststatethe naturethereof. the principal must statethe narre of the thingto be purchased. A appointsB his is agent to purchase clothfor makinginto clothes.andtheagentis notone of thosepersorls workfor a has who wage. (3) An agentconcludes contract a withreference his principal) wherehe statesthathe to as has sold or bought as agent for A.or for payinga debt.If the nature not statedX wherethe principal for is as merelyasksfor the purchaseof a pieceof cloth. whetherhe wantsstripedclothor clothof anyothernature. SECTION II Ageng for purchase Ariicle 1468. the secondagentremains agent. and. Article 1463. or statethe pricethereof. If any personappointsrwopersonssimultaneously be his agent. rightsunderthe contractbelongto the person the sendingthe messenger. or for the returnof things depositedfor safe keeping.eitherof themmayact as agent. however. the contractual rights referredto above belongto the principal. and Arecle 1465. the agentcan appointsomeotherpersonas agent. Thus. Article1462.The personwhom the agentauthorizes act as agentin thiswaybecomesthe agentof the prirlcipal.Shouldsome defectof long standingappearin the propertypurchased. if the firstagentis removed dies.unlessthe authority act as agentis of a generalnature. thenature thethingto be boughtis not stated. Thus. is is however)it is the creditor'sproperty whichis destroyed the debtoris freefromthe debt. or receivingany specific property.or if it If of is stated.

the agency or is general the agentmaypurehase and whatever nature sorthe ehooses. But if the prineipal instruetsthe agentto buy a roll of eloth to be madeinlo elothesor somestripedelothof whatever nature sorttheagentmaythinkfit. the prineipal shallbe understood meanthe mi1tc to whichit iS the customtO use in the .eorrespond the posof to ition the prineipal.he must state the distrietin whieh it is situatedand the pricethereof. If the prineipalinstruetsthe agentto purchase eertainpiece of land.If he does not do so. In the easeof thingsestimated quaniity. and the wool to makethreadto weaveearpets. The nature a thingis ehanged of withanyehangein the substanee sueh thing. The subjeetmatter the ageney of neednot be deseribed. appoints his agentto buy a horse. Example: Cottoneloth andlinen eloth areof different nature. prineipal notboundthereby.andsuehhouseis plastered. of or the objeetfor whiehit wasintended.A muststatethe number kiles.Sharkot differsfromUshak felt felt. Artiele1478. Example: It need not be statedwhetherof the best qualityor of mediumquality.The agentmay not purB ehasean Arabhorseat twentythousand piastres. although botharemadefromwool.however of the is mueh more advantageous thing may be whiehthe agenthas bought.the skin being used to makebags. however.That is to say. and a buildingsareereetedon suehland. in Artiele1470.the the a prineipal not boundthereby.the agenteannotthereafter purehase suehlandon behalfof his prineipal. the ageney invalid.the appointment agent the as is invalid.or the manufaeture thereof. is to say. the ageney on is invalid. he doesso. purehase striped of elothwithoutstating sortor pricethereof.andthe sheepbelongsto the agent. sineethereis a differenee theirmanufaeture.If he failsto do so. If anypersonintendsto appoint someotherpersonas agentto buy a house.or of the lowest quality. If the prineipal instruets agentto purehase ram. If the agentaetsin eontravention his instructions to the natureof the thing of as to be purehased.sineethe substance fromwhich they aremadeis different.248 ARAB LAW QUARTERLY c lstrlct. of by stamg the amountof moneyto be expended theeorn. Artiele1473. to for and Artiele1471. the the agentis eonsidered haveboughtthe property hirnself not forhis prineipal. The woolandskinof a sheepareof a different naturesincethe object for whieh they are used is different. If any personintendsto appointsome otherpersonhis agent to purchase a pearlor a redruby.andhe buysproperty someothernature. Artiele1477. of Example: A apposts B his agentto buyeorn. Artiele1474.the agentmaypurehase sort the any of rieesold in the market. or Artiele1469. The deseription the subjeetmatterof the ageneymust. is Artiele 1476.the agentmaypurehase suehhouseon behalfof his prineipal. is Artiele 1472. Ariiele1475.or the prieethereof. the prineipal not bound If is .andhe buysa sheep.the quantity priceof the subject by or matter the ageneymustbe stated. . withoutindieating what milk. the agency tO is invalid. or another wallis addedthereto. if theprineipal theagentto purchase that tells something a eertain of nature. who lets horseson hire. if he instruets to purehase eertain But him a house. of Example: A. If the prineipal instruetsthe agentto purehase milk.he muststatethe prieehe is prepared pay. If he failstO do so.twototallydifferent things. If theprineipal instruets agenttO buyrice.

Ariicle 1484.If not.B buysandpayscash. and the clolh becomesthe propertyof the agent.the cornis presumed havebeenboughtfor the principal. is tO Ariicle 1480. to such actis not considered amountto conto travention. he buys such thing for a of if higherprice than that fixed by the principal. A is not boundthereby. the horseis not boughtfor the principal.the principal in no case boundby the puris chasen the property and belongsto the agent. If a personbuys half the thing he is appointed agenttO purchase. If the appointment agentis madesubjectto a limitation.But if the agentactsin contraveniion his appointof mentin a way moreadvantageous the principal.If the principal instructshis agentto buy himclothto makea cloak. of Ariicle 1485.Thus. he if by is boundthereby.the principalis not bound thereby.If he does SQ. Purchase outrightis understood be purchase cash.to buy a roll of cloth. it it nevertheless becomesthe property the principal. Article 1486.Thatis to say. B buysit forless than ten If thousandpiastres.to buy on credit. to Example: A appointsB his agentto purchase cloakmadeof goathairin the springseason.and any is propertypurchased belongsto the agent. Article 1482. Example: A instructsB.A is not boundandthe housebecomesB's property.If B exceeds this price.the horsebecomesthe property his principalif at of . property thatcasebelongsto the agent.or at a pricesubjectto minormisrepresentation.however.if the the in principal presentandthe agentstatesthathe has boughtsuchthingfor himself.the personwho is appointedagent to purchase Inaybuy suchthingfor the esiimatedvaluethereof. Thingsthe priceand valueof whicharefixed. the principalis not boundby suchpurchaseand the cloakbecomesthe property the agent. Article 1479.B is cona sideredto be appointed agentto purchase sucha cloakfor use in the summerseasonv he If buys after the seasonhas passedor buys irl the springof next year. If the priceof a thing is not mentioned. his agent. the property considered be boughtfor the principal.the principal not bound by is therebyand the cloth belongsto the agent. and B buys threekiles. If a personappointssomeotherpersonhis agentto buy a horse.or.such purchaseis not bindinguponthe principal such thingwill be injured beingdivided. Ariicle 1483. act may be peras no formedby the agentin contravention thereof.and thereis not sufficientclothin thatpurchased the agentto makethe cloak. becomesthe property but of the agentonly. If a personappointssomeotherpersonhis agentto purchase somethingwhich is necessary somepariicular for seasonit is considered relateto thatseason. the principal not bound.But if A instructsB to buy for readymoneyandthe agentbuyson credit. if no pricehas been fixed and he buys as a resultof flagrant niisrepresentation. Examples: (1) A instructshis agent)B. to (2) A instructsB.The property belongs to the agent.If whenbuyingsuchthg he statesthathe haspurchased for himself. But if A tells B to buy six kilesof corn.it is considered be boughtfor the principal.and the latter withoutmakinganyreplybuyssuchhorse.THE MEJELLE 249 thereby. B buyshalfa roll. the agentbuyssuch things as If a result of flagrant misrepresentationn however.Again. to Ariicle 1481.suchas meatandbread) maynot be boughtat evensubjectto Iriinor misrepresentaiion.and such thing belongs to the agent. A personwho is appointedagentto buy somespecifiedthingcannotpurchase such thingfor himself. to buy a certainhousefor ten thousand piastres.Nevertheless.the property is belongsto the agent. if a personwho to for has been appointedagent for the purchaseof anythingpurchases such thing by exchanging other propertytherefor. his agent.

If he he statesthathe hasboughtforhimself. the same conto ditionas to payment affectsthe principal.If he has not already paid the priceof the property purchased the vendor. has Article1492. Article1495. the sale is valid. to Article 1488. he merelystatesthathe his If has purchased horsewithoutstatingfor whom. canexercise rightof recourse he a against principal. An agentwho hasbeengranted absolute an powerto conclude contracts sale of maysell his principal's property anypricehe thinksfit. If twopersonsseparately appoint person agentto purchase certainthing.If he doesso.the agentcan demandpaymentforthwith the fromthe principal.thatis to say.and to mayexercisea rightof retention overthe property untilsuchtimeas the principal paid. .the horsebecomes property. suchstatement of no effect. however. If the agenthasbeenappointed. He maynot rejectit afterdelivery.If he sellsformorethanthe valueof the property. such purfor chaseis invalid.If the agenthasexercised rightof retention a oversuchproperty ordertO in obtainpayment the price. If the agentbuys property be paidfor at somefuturedate.he may sell his principal's propertyfor cash or on creditfor a periodrecognized merchants respectto such by in property. no reduction of and is madein the price. the principal instructing to sell to whomsoever maythinkfit. principal to the may call uponhirnto makegoodthe loss. his that is to say. eitherexpressly by implication. If the agent becomesawareof a defect in the propertypurchasedbefore delivering tOhis principal.250 ARAB LAW QUARTERLY the time he madethe purchase statedthathe has boughton behalfof his principal.withoutan orderandauthority fromhis principal do so. the saleis concludedsubjectto ratification theprirlcipal. if he makessuchstatement But afterthehorseis destroyed aftersomedefect or appears. Article 1491.such sale is to invalid.if he hasinstructed agent has the to sell for so much. An agentfor sale maynot sell the property his principal personswhose of to evidencegivenon his behalfis invalid. If an agentfor sale purchases principal's his property himself. If an agenthas beengranted absolute an powerof sale.and deliversthe property the purchaser. however.the lossmustbe borneby theprincipal. the agentsellsit on hisowninitiative a price by If for lowerthanthatmentioned. mayhimselfrejectit. sell forcash.however.sell on creditfor a longerperiodthanthatrecognized cusby tom. If the agent is appointedin virtueof a generalpower.andlaterstatesthathe has purchased on the it behalfof his principal. An agent for purchasemay no-trescinda contractof sale without the perniissionof his principal.theagentmaynot sell forless thansuchprice. is Article1487.purchases an immediate by cash payment. Ariiele 1498. Article 1489.however.and the vendorthereafter adjourns date for payment. If an agent for purchase sells his own property his principal.If the agent. Article 1496. he can recoverfromhumthe pricewhichhe has paid. the agentmaynot askthe principal makepayand to ment forthwith. If property purchased an agentforpurchase accidentally by is destroyed lOSt or whilein the possession theagent. to Article 1490. the agentmayvalidlysell to such perhim he sonsfor an esiimated price. Article 1497.andsuchproperty destroyed lost. If an agent for purchasepays the price from his own propertyand takes deliveryof the property purchased. Article 1493. he may or to not sell on credit.He maynot. If the principal fixedthe price.howit he ever. whether at greator small. the pricemustbe of is or paidby the agent.he mayclaimthe pricefromhis principal. suchstatement effective madebeforethe horseis destroyed some is if or defectappears. a as a the property belongsto the personfor whomthe agentintended effectthe purchase. SECTION III Agency sale for Article1494.

If he sells his that own property the creditor an amountgreater to for thanthevaluethereof.he may thereafter exercisea rightof recourseagainstthe personwho gavethe instruction. however. suchpersonmayrecovera reasonable amountof expensesfromthe person who gavethe instruction whetherthe latterhasexpressly authorized to do so or not. basecoinonly canbe recovered in from the personwho gavethe instruction. the agent cannot sell half of thereof. has Article1509.even thoughno agreement beenmadeto thateffect.he must appointhis principal be his agentto obtainpayment the price. If an agentfor sale fails to obtainthe priceof the property sold fromthe purchaser. the persongivingthe instruction. Agaun him one personinstructsanotherto havehis houserepaired thelatterdoesso.however.or to makehim a presentof money.and suchpersonpayssuch sum of money from his own property.The agentmaynot sell on credit. staungthathe will repayhim later. but paysthe If to debt in base coin. SECTION IV Irlstructions byoneperson another given lO Article 1506.the personwho gave the instruction the debt to be paidcannotdeductthe balance for fromthe debt. and such person does so.and the agentmustpay the pricethereofto the the principal. suchpersonis instructed payin soundcoin. . out Article 1503. If one persongives an instructionto anotherpersonto pay a sum of money owingby him to some thirdperson. The priceof the thing sold may validlybe received both by the agentand the . Article 1501. Article1508. he can recoverbase coin only. has whetherhe uses expressions whichimply a rightof recourse. If the agentis workingwithoutremuneration. wherehe instructsa personto as pay a sum of moneyowingby h and thereafter recover to such sum fromhim. Article 1499. Article 1502. Article 1504.The rescission. If anypersoninstructs otherpersonto makea loanof moneyto some third any person. or to give himalms.If the pledgeis destroyed the suretybecomesbankrupt. Article1500. whethersuchrightof recourse beenagreeduponor not.is not executoryas regards principal.or to the State.THE MEJELLE 251 Example: A principalinstructshis agentto sell certainproperty cash or to sell certainproperty for and pay a debt of his with the proceeds. If any personinstructsanyotherpersonto incurexpenditure himselfor his for relaiionsandfly. obliged to are obtainpaymentof the priceof the thingsold. whatever amountmaybe. If however. If one personinstructsanotherto pay a sumof moneyowingby him from his own property base coin and he paysin soundcoin. Article 1505. He mayrecovera and reasonable sum fromsuchperson. or wherehe instructshumto pay and recoverfromhim later. If a personwho has been instructedby some otherpersonto pay a sum of moneyowingby him.the personwho pays the debt may recoverthe amount thereoffromthe personwho gavethe instruction. is not obligedto obtainpayhe mentof the priceof the property sold. he may recoversuch money from the person who gave the instruction. An agentmaytakea pledgeor a suretyin respectto the priceof property which he has sold on credit. If injuryis caused by the separation a thing.he cannotbe forcedto pay the pricethereofto his principal of his own property. Thatis to say. the agentmaynot sell suchproperty withouttakinga pledgeor a surety. Article 1507. sells his own propertyto the creditorand pays such person'sdebt therefrom. or whetherhe merelyinstructshim to pay a sum of moneyowingby him. If he does not do so of his own accord. . If a principal instructshis agentto takea pledgeor a suretyin respectto propertysold. or that the personpayingthe money may later . prmclpal.But personssuchas brokers to of and auctioneers who are appointedas agentsfor sale subjectto remuneration. An agent for sale may rescindthe sale on his own initiative. agentis not or the liableto makegood the loss. makesno supulation to recourse as as by stating that he will give him the money.

he is obligedto sell suchproperty pay the debt of the person agent. it is customary suchmattersto haverecourse recourse.beingunableto prove calluponthe personto whomhe gavethe moneyto makegoodthe loss SE CTI ON V Agency for litigation any may and Article1516. that withinstructions Article1515.such personis boundto pay the the to of his property be sold and the debt to be paid therefrom. Any personwho appointsanother agentfor litigationmay validlyforbid madeby the agentagainst againsthim. the lattermay debtor.If he is instruction givenis not obligedto paysuchdebteventhoughhe is an unsalaried and however. The owner is the loss. his Article 1518.it is invalidand the agent agentfor litigation maybe disrriissed.Conse- . If anypersongivesa sumof moneyto someotherperson haveno right tO of it to a creditorof his. If the personto whoman instruction paya debtis givenowesmoneyto the with him for safe to or persongivingthe instruction. he shallbe dismissed. in whichcasean admission him to makeanyadmission of Article1456.unlesshe usedcompulsion. the othercreditors the persongivingthe instruction has claima sharethereinand the personto whomthe instruction beengivenmayonly pay the in mentioned the instruction. but fails to amounting a certain be cannot madeto paythedebtby reasonmerelyof his to pay the sumin question. and the or acknowledgment receipt. such personhas no right of againstthe person in if Nevertheless. a mayexercise rightof suchperson or of family the persongivingthe instruction. If any personinstructsany other personto pay a debt owing to hirn. The personwho gavethe instruction not liable. is his partner. personis only effectivein regardto Article 1510.and such personhands over the moneywithout obtainingany laterdenieshavingreceivedthe money. But if the persongivingthe instruction keeping. Article 1511. even thoughno stipulation recourse. An agencyfor litigationdoes not includean agencyto take delivery.andit is knownthatthepersonto whomthemoneybelongshas died before such money has been made over to the creditor. is wherethe personto whomthe instruction givenis a memberof the as the giving instruction.) hasbeenmadetherefor. personto whom the certain agent. theiragentfor to madeagainsthis clientby the personauthorized act as his Article1517.but merely gives an instructionto pay. hasmoneybelonging the latterdeposited orders debt. who gavethe instruction him instructing to pay Article1513. Article 1519. and to and sum.the moneyin questionmust be paid tO the against musthaverecourse and estateof the personto whomthe moneybelonged. is a salaried fromthe proceeds. moneyto the creditor Article1514. to Article1512. litigation. obligedto paythedebta secondtime.andis not authorized do so. BothplaiIltiff defendant authorize persontheymaywish to actas Neitherpartyneedobtainthe consentof the other.if theagentmakesan admission his clientis invalid. fromhis ownproperty suchpersonpromises do so. If anypersongivesanyotherpersona sumfromwhichto pay a debt owingto somethirdperson.(Seelastparagraph to in Court.suchperson to havingpromised do so. Any inswction givenby any particular property. the creditor the estate. If anypersongivesa sumof moneyto payto his creditor is the sum in questionshallnot be handedoverunlessan acknowledgment indorsedon the bill or a receipt given therefor.252 LAW QUARTERLY ARAB it recover from hion.)Again. (SeeArticle36. thatperson's Example: in that into property the sea.If madeout of Court. Any admission is validif madein Court. B doesso knowing the property B A instructs to throwcertain can of the property calluponB to makegood questionbelongsto someone else.and the creditor is payment.

of he Article 1526. he appointsa personas his agentto sell the pledgewhenthe debtfallsdue.a defendantappointsa personhis agentfor litigation. The principalmay not dismissthe agentwithoutthe consentof the pledgee.naturally. as statedabove.Sgnilarly.the agencyis null and void. Ariicle 1525.any agent appointedby the agent is dischargedfromthe agency. Ariicle 1520.and the agent is responsiblefor performinghis duties as agent uniil the principalhas been so informed.but mustperform duties.or at some as of laterdate.Thus. Agencyis not transssible by way of inheritance. An agencyto receivedoes not includean agencyfor litigation. If the principal the agentareafflicted or withmadness. That. Upon a principaldismissingan agentfromhis agency. Uponthe agentgivingup the agency. Article1530. discharged is therefrom. The agentis discharged uponthe deathof the principal. The agenthimselfmayrelinqliish agency.Thus.He cannotdismisshim in the absenceof the plaintiff.(SeeAriicle760. Promulgated RoyalIradsh.he may not the do so if the rightsof thirdpersonsareaffected.s to say. if the agent dies.the disnussaldoes not becomeeffectiveuntil information thereofhas been given to the agent. his Article 1523.THE MEJELLE 253 quently. He however.if the rightsof any thirdpartyareaffectedthereby.and the agent. the validityof the agencyexpiresand consequently heirof the agentdoes not standin the his stead. the requestof at the plaintiff. is freefromliabilityfor the debt.he cannotact as agentto takedeliveryof is the subjectmatterof the judgment.but.20th3rumudi-ul-Ula.if an advocate not an agentto takedelivery. by 1291 .and any dispositionof property madeby him up to thattime is valid. Ariicle1524. The principal may dismisshis agentfromhis agency. The agencyterminates upon the completion the dutiesfor whichthe agent of was appointed. SECTION VI Dismissal agenls of Ariicle 1521.If the principal appointed as agentin the presence the debtor.) Ariicle 1528. if the debtorpays of the debt to him while unaware his disrxiissal. Upon the death of the principal. him of anydismissalis invalidif madewithoutthe knowledge the debtor.) Article1529. Articie1522.he mustinformhis principal thereof. is not discharged.He maynot do so. however. a personowinga sum of moneygives his property a pledgefor the debt. At the e the contract pledgewasconcluded. The principal maydismissa personappointed agenttO receivea debtduring as the absenceof the debtor. Article1527. if the rightsof thirdpartiesareaffected.(See Article1466.

326-331 Published by: BRILL Stable URL: http://www. For more information about JSTOR.org/page/info/about/policies/terms.jsp .The Mejelle: Book XII: Settlement and Release Author(s): C.jstor. 4 (Nov. . available at . preserve and extend access to Arab Law Quarterly.org . and build upon a wide range of content in a trusted digital archive. use. http://www. please contact support@jstor.org. 4. and students discover. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use.jstor. We use information technology and tools to increase productivity and facilitate new forms of scholarship.jstor. http://www. researchers. BRILL is collaborating with JSTOR to digitize. JSTOR is a not-for-profit service that helps scholars. No. Hooper Reviewed work(s): Source: Arab Law Quarterly. 1989). A. pp.org/stable/3381945 . Vol..

Consequently. of CHAPTER I CONCLUSION OF A CONTRACT OF SETTLEMENT AND RELEASE Article1539.Release consistsof twoparts: firstpartconsistsof release wayof renuncithe of Releaseby way of ation of a right: the secondconsistsof releaseby admission payrnent. is Ariicle1533. a consequent uponthe absenceof any settlementbroughtaboutby the silenceof the defendant admission denial.The priceof the settlement calledthe consideration.or a minor madeby a niinorwhohasbeenauthof imperfect understanding always is invalid.A general releaseis a release a personfromall aciions. a settlement brought aboutby the admission the defendant. the renunciaiion occurswhereone personreleases another personby relinquishing wholeof the a number them. It is of claimshe has againstsuchperson. consistsof by settlinga disputeby mutual consent. second partconsistsof a settlementby way of denial.that is.or an imbecile. is in Article1534 The subjectmatterof the settlement the matter dispute.or by subtracting reducing certain or of is this formof releasewhichis dealtwithin thisBook. is by Article1535.A settlement dividedintothreeparts:the firstpartconsistsof a settlement is of The way of admission. that is.A settlement . in Ariicle1537.He neednot havearrived at the ageof puberty.Releaseby admission payment in the natureof an admission consistsof the confession one personthathe has receivedwhat and by wasdue to him fromanother person.suchas a house. A settlement a contract is concluded offerand acceptance. The thirdpartconsistsof a settlement way of silence. Article1532.thatis. settlement a madeby a lunaiic.or someothermatter. Ariicle1538.A personmakinga settlement calleda settlor. a settlementbroughtaboutby by denialof the defendants.A specialreleaseis a release a personfromanaciioninstituted respectto a of cl relatingto someparticular matter.A person makinga settlement mustbe of soundmind. or by Article1536.or farm.THE MEJELLE BOOK XII SETTLEMENT AND RELEASE INTRODU CTI ON TERMS OF MUHAMMADAN JURISPRUDENCE and Ariicle 1531.

If no suchevidenceexists. Article 1541.THE MEJELLE: BOOK XII: SETTLEhtENT AND RELEASE 327 orisedby his tutoris valid. A settlementby him is for an arnount considerably smallerthanthe valueof the property invalid.such settlement by a is invalidif evidenceexistsin supportof the sumdue.If thereis a clearloss. however. But if an agentarranges settlement a certainsum of moneyand he guarana for tees such sum.A releaseby a minor.however) his opponent knownto be readyto takean oath. the latterpreservinga rightof recourse againsthis principal. is valid.in whichcasehe is liable. A validsettlementof an actionbroughtby a minormay be made by his tutor providedthat such settlementdoes not resultin clearloss to the minor. if a personbrings an action againsta minorwho has been authorised. unlesshe hasmadehimselfa guarantor therefor.makesa settlementfor a certainamountof money. . (2) In the eventof a settlement beingmadeby wayof admission uponthe termsthatproperty shallbe exchanged property. is Article 1540. such minor makes an and admissionrelatingthereto. and is such settlementis valid. the money in that case is recoverable fromthe agent.A rtiinor by who has been authorised maymakea validcontract settlement the effectthathe will give time of to for the satisfaction his claim. such settlementis invalid.who has a rightof recourse againstthe principal. Article1544. Article1542. Thus.providedthatthe settlement doesnot resultin a clearloss.suchsettlement invalid.such settlement valid.the settlement invalid. a personbringsan actionfor the recovery a certain if of amountof money froma minorand the fatherof suchminorhas madea settlementupon the termsthatpaymentshallbe madefromthe property theminor. an agentmakesa settlementby way if of admissionto the effectthathe will give property property. Examples: (1) An agent. Arucle 1543.Moreover.The agentis is in no wayresponsible anyclaimmadein connection for therewith.proof is vided that the plaintiffis in possession evidencein support his claim.and makesa settlementin respectto the valueof such claim. the settlementis invalid. the amountcoveredby the settlement maybe recovered fromthe agent.suchsettlement valid.and the other personis knownto be willingto take an oath. . But if such consideraiion involvesflagrant misrepresentation. .a lunaticor an imbecileis absolutely invalid. If any personappointsany otherpersonhis agent to settle an actionand the agentaccordingly makesa settlement. the settlementis invalid.if a personis appointedagent to bring an action against anotherpersonand such personsettlesthe actionwithoutobtaining permission his printhe of cipal.If the plaintiffis not of of in possessionof such evidence. who has a right of recourse agalnst llSprmclpal.Shouldmoneybe due to a minorfrom is anotherpersonand the fathermakesa settlement deducting partthereof.Consequently.the agentinducingthe otherpartyto settle with him for in respectto the actionof his principal.if he is rlot of is in possessionof such evidence. thatis to say.that is to say. A settlement madeby a tutorin respectof a sum due to the minor. who acts with- . If such minoragreesto a settlementin respectto partof his of claimandis in possession evidenceto supportthe same. .the resultis a validsettiement wayof admission. sumin respectto whichthe settlementis made the may be recovered fromthe agent. he makessuch settlement for and in his own name.The principal not the agentwill be obligedto pay and such sum. If a thirdpersonwho is not authorised thereunto.Consequently. suchagentbecomesliablefor anycl madein connection therewith.in consideration property of equivalent to the value of the claim.aciingin accordance withthe termsof his powerof attorney.owing to the transaction beingin the natureof a sale.the principal boundby such settlement. If he bringsan actionto recover property fromanother. the settlementis valid.A powerof attorneyto carryon litigation doesnot implya powerof attorneyto make a settlement.

a certainsum of moneyandthatthe plaintiff sumof a givesthedefendant certain plaintiff the is valid.andthereis an optionfor is suchsettlement in to relating specificproperty.Conseas sidered an articlewhichhas beensold. it need not suchthingmustbe clearly or settlement the subjectmatterthereof. for as property the consideration the setdement. actionremaining is If ment. settlement valid in the followingcases. of upontheadoption the transaction is settlement dependent such thenpaythe sum coveredby such settlewho must by is ment validif adopted the defendant.andtheycometo a settlement the termsthatthedefendant The settlement is the aciion. he allowsthe sum to by allowsthe sllmcovered the settlement attach he at moneyor goodspresent the iime. undisturbed. of mustbe the property the personmaking of Article1546.the CHAPTER II THE CONSIDERATION ANI:) SUBJECT MATTER OF THE SETTLEMENT object. If it is a debt.Consequently.suchobjectis conis of Article1545.If a settlement wayof admission madewith of the nature a sale.may of whichmaybe thesubject saleor anything quently.If the consideraiion the settlement somespecific to considered be the price. in the eventaf eitherie subject defect. the if his owninitiative: suchpersonguarantees sumcovered acted have on if to his ownproperty. the is suchsettlement invalid. for be also the consideration a settlement. B bringsan (1) A brmgsan aciionagainstB withrerd to a housein the of A. out personis held to unauthorized is such them.anda contactualopiion)and.If not. If it is necessaryto take and give defined. he doesnot do so.But if a settlement madewhereby such settlementis thereofgives up his cl. CHAPTER III THE SUBJECT MATTER OF THE SETTLEMENT SECTION I Settltment in respect to specific property in to regard property an aciion is by Article1548. fail shouldsuchpartyintentetiing to deliverthe sumof money case. The settleby thedefendanl. definingthe natureof the to (2) A bringsan aciionagainstB with regard a housewithout shallpaythe plainon dispute. the settlement nullandvoid. be Examples: of possession B. of deliveryof eitherthe consideration the Article 1547. .The consideration the settlement offerssome otherperson's if the personmakingthe settlement settlement. shalldrop tiff. but the if by the settlement. Bothagreeto a settlement in actionagainstA withregardto a garden the possession of of theiraciionswitout dehing the nature the dispute. or if specific to by covered the settlement attachto certain that sumof moneyanddelivers sumof money. is moneyand the defendant consideraiion invalid. clearlydefined.In the latter for makesa settlement a certain he by covered the settlement.an optionof inspeciion. it is of in thepricethereof a contract sale.328 LAW QUARTERLY ARAB withone of and two in illtervenes an actionbetween persons makesa settlement perniission.

to have released suchpersonfromthe remainder.the plaintiffmayagainbringarlactionin respectthereto. eitherthe wholeor a portionthereof.If the wholeof the considerahon of the settlementor partthereofis seizedby someonewhois entitledthereto. Consequently. he is considered haverelinquished right to paymentforthwith.The houseis confor A and the two partners is sideredto havebeen sold to the defendant. If the whole or part of the subject matterof the settlementis seized by from someonewho is eniitledthereto. Example: a A bringsan actionagainstB claiming housefromhim.the plaintiff thatis to say. as statedabove.a right of pre-empiion attaches thereto.A is considered havetaken for the house on hirein exchange the gardenin respectto suchperiod.but does not attachto realproperty for of the settlement. partthereof. Ariicie 1550. the wholeor a portionthereof.and.andagreesto a settlement respectto a poriionthereofandreleases defendant to respectto the remainder the action. makesa settlement to the terms that A is to live in his housefor a certainperiod. A settlementby way of denialor silenceamountsto receivingsatisfacoonin the wherebythe point fromswearing oathby the defendant.the transaciion treated as thoughit werea sale.such personis considered havereceiveda partof his of his claim and to have foregonethe rest.the plainiiffmayrecovertheamountof the consideration the defendanl.thatis to say. .thatis of to say.and maybringan aciion againstthe is personwho claimsto be so entitled. B abits thatthe housebelongsto agreeto a settlement a certainsumof money. as) Article1551. in the in a garden. such personis considered haverelinquished rightto paymentin sound coin. that is to say to have relinqwshed right to bring an aciionin respectto the remder. rightof pre-emption whichis the subjectmatter consideration a settlement.the personeffectingthe settlemerlt considered have receivedpayment partof the claimandto haveforegonehis rightto the balance. in wherebya debt repayable soundcoin may Ariicle 1554. for exarnple. If any personeffectsa settlementwherebya debt repayable to his at vertedinto a debt repayable somefuturedate.If eitherthe wholeor partof the consideraiion seizedby someoneeniitledthereto. of Example: B with A on a A bringsan actionagainstB claiming gardenfromhiITl. If any personeffectsa settlement his to be repaidin base coin.the plaintiffmust returnto the defendantthe amountof the consideraiion the settlement)that is to say. If anypersoneffectsa settSement anyotherpersonin respectto a portion to is of a cl that he has againstsuch person. If any personwho is entitledtheretoseizes the whole or part of such real for property. the caseof the plainiiff andabstention to whichis the a attaches realproperty at issue is decided.THE MEJELLE: BOOK XII: SETTLEMENT AND RELEASE 329 of matter or the consideration the settlementbeing real property.If anypersonbringsan actionto recoveranyspecificproperty. SECTION II matters with to Settlement regard debtandother with Ariicle 1552. to by is Article1549. forthwithis COx1Ariicle 1553. such settlementis in the natureof hire and is treatedas thoughit werea contract hire. the wholeor the may recoverfromthe defendant subjectmatterof the settlement. If a settlement wayof admission madein an aciionwith regard property in respect to the usufructthereof.

Such person to may.he is considered havereleased to suchperson.He no longerpossessesanyrightto bringan action.it iS is considered be in the natureof a thingseizedby someone to entitledthereto. By agreeing the settlement. Ariicle 1564.If the settlement of does not takesuch form.the heirsmaynot cancelthe settlement.) Article1563.That is to say. of the twoparties is one maynot go backtherefrom.A release does notextendto anything happening the future. A settlement may validlybe effectedin actionsrelatingtO the rightof taking water.Thatis to say.If the consideration the settlement destroyed wholeor in partbeforeit for is in has been handedoverto the plaintiff. if in one personreleasesanother.If the settlement takestheformof givingsomething satisfaction.such is as so manypiastres. or thathe hasreceived completesatisfaction fromhirn. an to SECTION II Fundamental conslitions governing release Article1561. or thathe hasfinishedor givenup a cl he hadagainst him. consistsof thingswhicharenot specified.andsuchconsideration a thingwhichis specified.such obligation ceasesto existandhe canno longermakeanyclaimin connection therewith.If the settlement made by way of denialor is silence. whereby paymentis madein orderto and a avoidswearing oath.)If the considerationfor the settlement a debt.the settlement not thereby is affected. If any personreleasesany otherpersonfroman aciionrelaiingto a pariicular .The defendant maynot claim the returnof the consideration the settlement for fromhim. but consistsof givingup certain rightsanycancellation thereofis invalid. if a settlement madeby wayof adInission. put Article1560.) Article1559. Article1557. twoparin the ties theretomay canceland rescindthe settlement theirown accord.In theeventof thedeathof oneof the two contracting parties. or thathe is no longerentitledto anything fromhim.the rightof pre-emption the rightof way.any nghts antecedent the releasecease to exist.330 ARAB LAW QUARTERLY Article 1555. (See Article51. Article 1562. Article1558. the plaintiff entitledto receive and is fromthe defendant amounteqliivalent the poriionlost. (See Article51.bringan actionwithregard rightswhichaccrue to afterthe release.Whenthe settlement complete.the plaintiff mayproceed withhis action.If anypersonstatesthathe hasno claimagainst disputewith someotherperor son. thatis to say.If a contract settlement concluded of is whereby payment madein ordertO a is avoidswearing oath. plaintiff claimthe wholeor partof the subject is the may matterof the settlemenlfrom the defendant. however.(SeeAriicles1548and 1550. the plaintiffis considered haverelinquished rightof bringing an to his an action.the plaintiff to becomes entitledto the consideration the for settlement.andhe cannothavethe defendant on his oath. If any personreleasesany otherpersonfromany obligation. an CHAPTER I V FUNDAMENTAL CONDITIONS GOVERNING SETTLEMENT AND RELEASE SECTION I Fundamental conditions governing settlemetlt Article1556. or thathe is not entitledto anything fromhim.

If anypersonstatesthathe hasreleased otherperson he has no claim in respectto him. such releaseis of no effect. But if he statesthat he has releasedthe upon any personwhatsoever.or the transferee. If a person sells propertyto some other personand receivesthe price and likewise from all aciions relatingto the thing sold.and he may not bring an actionin respectto any rightwhichaccruedpriorto the release. if a personbringsan action personwassuretyfor somethirdperson.A personwho is deadmayvalidlybe released Article1570. the mayclaimthe returnof the pricefrom the releaseceasesto be of any effect and the purchaser vendor. and the purchaser releasesthe purchaser releasesthe vendor from all actions with regardto the price and a documentis drawn up between them on these lines. if the release disclaimed iS is Article1568. Again. people of a certainplace and the people of such place and the numberthereofare definitely known. the releaseis valid. An action.) Ariicle 1566.(See Article662. however. however.however. by Promulgated RoyalIradah.) if Consequently.6thShual)1291 .But if at the meetingwherethe releaseis made.A release not dependent of no effect.suchrelease not validandexecutory. If a person whose estate is overwhelmed debts releasesa person who is indebtedto him duringthe courseof a mortalsickness.(See Ariicle52. is it But uponacceptance. if a personin whosefavoura transfer debt has been madereleasesthe transthe or a feree or a creditorreleases surety. No actionwill be heardconcerning matters.bringan actionwith regardto anyothermatter. must be knownanddesignated. if one personreleasesanotherthereis no needfor the latterto accept. the suretydisclaims release. Article 1567. Article 1569. such releaseis general. by Article 1571.such releasecontinuesto be effeciive. He may.The personswho arereleased any personstatesthathe has releasedall personswho are in his debt or that he has no claim such releaseis invalid. and the thing sold is seized by someoneentitled thereto. Example: A releasesB froman actionwith regardto a house. to such house.such releaseis a specialreleaseand no actionwill be heardwith regardto that matter.to the extentthatno actionrelatingto a will of by of rightaccruing reason a contract guarantee heard.suchpersonstatesthathe refusesto acceptthe release. If a persondisclaimsa releaseafterhavingacceptedit. fromhis debts. it is of no of effect.THE MEJELLE: BOOK XII: SETTLEMENT AND RELEASE 331 matter.If he releases personwhois not his heirfrom a is his debts.the actionwill not be heard.such releaseis invalidand not executory.If a personreleasesone of his heirsfromhis debtsduringthe courseof a mortal a is sickness.suchrelease effeciiveas regards thirdof his property. Thus.will be heardrelating a farmandsimilar fromall actionsor that any Article1565.Nor allegingthatanother maysuch personallegethatsomeotherpersonwassuretyfor somepersonpriorto thatperson's release.Thus.

1990).jstor. pp. We use information technology and tools to increase productivity and facilitate new forms of scholarship.. http://www.org/stable/3381563 . and build upon a wide range of content in a trusted digital archive.jsp . preserve and extend access to Arab Law Quarterly. 88-95 Published by: BRILL Stable URL: http://www. No. available at .org/page/info/about/policies/terms. .jstor. and students discover. 5. Vol.org .The Mejelle: Book XIII: Admissions Author(s): C. http://www. researchers. A. Hooper Reviewed work(s): Source: Arab Law Quarterly.jstor. BRILL is collaborating with JSTOR to digitize. use. JSTOR is a not-for-profit service that helps scholars. 1 (Feb. For more information about JSTOR. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. please contact support@jstor.org.

The personin is whose favourthe admission madeis calledthe admittee.A minor.whethermale or female.) is Article1576.THE MEJELLE BOOK XIII ADMISSIONS CHAP TER I CONDITIONS GOVERNING ADMISSIONS Article1572. and Ariicle1575.or if he admitsthatthe property belongsto one of the inhabitantsof a certaintown.An admission madeagainstsuch personsby theirtutorsor guardians equally is invalid. A personmaking admission an mustdo so of his own freewill. Sections (See II. Consequently. A personin whosefavouran admission madeneed not be of soundmind. is Consequently. An admission a statement one personadmitting claimof someother is by the personagainsthim.Consequently.Consequently.) Article1577. by to Article1574. whois of perfectunderstanding andhasbeenauthorised regarded a person is as whohasreached ageof puberty respect the in to all actsperformed himwhichhe hasbeenauthorised do.he cannotbe heardto makean admission that he has arrived the age of puberty. In orderto be ableto makea validadmission. A person in whose favouran admissionis made must not be absolutely unknown.if he statesthatthe property is belongstO one of two definite persons to oneof the inhabitants a certain or of quarter.the inhabitants suchtownbeingindeterminate number.however.or a lunaticor at an by an imbecile. person a mustbe of soundmind andhavearrived the ageof puberty. does not invalidatean .is invalid. A personmaking admission an shouldnot be underinterdiction. however.such of in person's admission invalid.On the otherhand. III andIV of the Bookof Interdiction.mere imperfectknowledgeof such person. personmaymakea validadmission a concerning property favourof a minor in of imperfect understanding suchpersonwill be obligedto give up suchproperty. admission a minor. The personmakingthe admission calledan admittor. Article1573.The subjectof the admission is is calledthe thingadmitted. an admission madeas a resultof forceor constraint invalid. .(SeeArticle1006. An admission mustnot be contrary obviousfacts. adslsslon. the inhabiand . Example: If a personpointsto certain property his possession admitsthatit is the property in and of someindeterminate person. the body to if of a minorbearsno signs of puberty. at Article 1578.

If the personmakingthe admissionrefusesto take the oath with regardto one of the persons only.suchas saleandhire. and the Thus.such admissionis null and void. if a personbringsan actionfor the recoveryof one thousand piastresdue undera loan. In the event of a is personstating.however.THE MEJELLE: BOOK XIII: ADMISSIONS 89 tantsof such placeare of a determinate number. thereis an admission madeby suchpersonthatthe propertyis not his. the difference no in wayinvalidates admission. and the defendant admitsone thousand piastresis due for the priceof a thingsold. Article1584. CHAPTER II VALIDITY OF AN ADMISSION Article 1579. If the person makingthe admissiontakes an oath with regardto both such persons. if A requestsB to repaya is in debtof one thousand piastresandB requests to makea settlement sevenhundredpiastres A for in respectto such debt.Thus.such personsmay. takethe property fromthe person makingthe aduiissionand thereupon they becomejointownersof such property.If they do not so agree. A admitsthe thousand piastres claimed. dependsupon the thing with regard to which the admissionis made being determinate.the property continuesto be jointlyownedbetweenthem. Article 1580. the propertygoes absolutelyto the personwhose oath he refuses. the Article 1582. suchadmission invalid is andhe maynot be calledupon to saywhatthinghe hassoldor hired. Shouldsuch persondisclaim by is the admission. the admissionis null and void in regard thatpartonly.Thus.The validityof an admission relatingto contracts whichcan only be madewith regard determinate to objects. A valid admissionmay be madewith regardto a determinate also with and regardto an indeterminate object. The validityof an admissionis not dependentupon the acceptance such of admission the personin whosefavourthe admission made. A requestfor a settlementwith regardto any propertyis equivalentto an admission respectthereto. If a personseeksto buy. and suchpersonagreesto do so. andis validin respectto the remainder.the property belongingto him and remaining in his possession.in regardto any in of property not equivalentto an admission respectthereto.the admission valid. to Article1581. Article1583.A requestfor a settlement an action. or to give hiInsuch property safe keeping.however.thereis no admission the thousand of piastres.or thathe haswrongfully appropriated stolenthe property another or of and he shallbe obligedto makeknownthe natureof suchproperty. If the personmaking admission is the refusesto takethe oathin respectto both persons. A difference to the subjectof the admission as betweenthe personmakingthe admission the personin whosefavourit is madedoesnot invalidate admission.or the latterrequeststhe formerto takeproperty for into his safekeeping. if they agreeto do so. An admission on is depen- .But if A statesthat he will settle the actionin respectto the thousand piastres merelyin orderto avoida dispute. in of or requestssuch personto bestowsuch property uponhim by way of gift. An admission dependent a condition null andvoid.as mentionedabove.the formeris not liableto any actionon the partof the latter.or hiredsomething fromhim. a valid admission maybe madeby a personthata thingbelonging another to personhasbeenentrusted to his safekeeping. hireor borrow property the possession another. that certainproperty belongsto one of two determinatepersons. If the personin whose favourthe admissionis made disclaimspart of such admissiononly.however.eitherof them mayplacethe personmakingthe admission upon his oath thatsuchproperty not his. if a personadmitsthat he But hassold somethingto a certainperson.

of by At the trial. however. the is Article1589. An admission may validlybe madethat a thing is undividedjointly-owned property. Example: A informsB thathe will payhima certainsumof moneyif he reaches certain a placeor if he undertakes certain a business.The admission voidandthe sumof moneyneednot be is paid.90 ARAB LAW QUARTERLY dent upon the arrivalof a generally recognised periodof time.) of Article 1585. A personis boundby his admission accordance the termsof Article79. An admission may validlybe madeby a dumb personusing the recognised signsof suchpersons.A deniesthathe has borrowed suchmoneyin fact.thereis no admission the debt. the purchaser. retraction invalidandhe is boundby his admission.he is not boundby the admission. orderto provehis case. if a person admitsowing a certainsum of money to anotherand later retractshis admission.the fact that the subjectmatterof the admission an undivided is sharein no wayinvalidates suchadmission. or on the twenty-sLxth Octobernext.whichthe latterhas obtained purchase. becausealthough the trialhe at opposedthe personlegallyentitledto the thingby admitting suchthingwastheproperty that of the vendor. statesthat the thing sold belongedto the in vendorandthathe soldit to him.anduponthe arrival such date. such statement considered be an of is to admission a debt repayable a futuredefinitedate. the personmakingthe admission and dies before the division and deliveryof such property. in spiteof his havinggiventhe . if one personasksanother who is ableto speakwhetherhe is owingsomethird persona certain sumof moneyandsuchperson nodshishead.Thus. one person if admitsto another he is in possession an undivided that of shareof certain immovable property in absolute held ownership belonging him.(SeeArticle40.is equivalent an to admission a debtrepayable a futuredefinite of at date. Example: A givesa writtenacknowledgment he has borrowed certainsumof moneyfromB. and the latterconfirms suchadmission.An admission signscannotvalidlybe madeby a personwhois ableto by speak. Article 1586. in the personin whosefavourthe admission madeshallswearan oath that such admission is is true. of at of payment the sumin questionmustbe made. in with unlessthe admission provedto be falseby a judgment the Court. suchas a half to or a third. But if A statesthathe will repayB a certainsum of moneyon the firstof a certain month.The purchaser thereupon actionagainst is may take the vendorand recoverfromhim the priceof the thingsold. Article1588.Thus. Shoulda personallegethathe has not been truthful makingan admission.the Courthavingfoundsuch admission be to devoidof anyfoundation. Consequently. of CHAP TER III EFFECT OF AN ADMISSION SECTION I General Article1587. Thus. No personmayvalidlyretract admission an madewithregard private to rights. a personis legally is of entitledto a thingin the possession another. that a Later. The person legallyentitledto suchthingproveshis claimand judgment givenby the Courtin his favour.

but the rightof receiving of is it belongsto the firstpersonin whosefavourthe admission made. resultis an admission favour his son thatthe property the in of in such shopis the property his son andhe hasdeniedownership of thereof.does not includeproperty acquired A afterthe admission.and such personconfirms that statement.andthe latterstatesthatthe moneyto be paidis not his. to Examples: (1) A statesthatall his property thingsin his possession and belongto B. is SECTI ON I I Denialof ownership titleto a thing and lent Article1591. of whichdeliveryis necessary. (4) A statesthathis shopsituated suchandsucha placebelongsto his wife. but belongsto anotherperson. by in however.THE MEJELLE: BOOK XIII: ADMISSIONS 91 acknowledgment.pays the debt of his own free will to the secondpersonin whosefavourthe admission made.does not includeanyproperty placedin the shopafterwards. The resultis a gift to B of all property thingsin A's possession and at that time anddeliveryand receiptthereofareessential. and that he has no rightto themat all.however. is Article1590. resultis a gift to his eldestson of all his property The and thingsin the shopat thattime. however. the second is if personin whose favourthe admissionis madeclaimsthe moneyfromthe debtor. If a personstatesthat the shop whichhe holds in absoluteownershipand by title deed belongsto some otherperson. if A statesthatall But propertyand thingsin a certainshop of his belongsto his eldest son and that he has no righttheretowhatsoever. and Article1592.the moneyin questionbecomesthe property the secondpersonin whosefavourthe admission made.that he has no connection therewithof any sort. If the debtor.This admission.Consequently.or if a personstatesthata shopwhichhe holdsin absolute ownership boughtby title deed fromsomeotherpersonwaspurchased behalfof a third on . by The person in whose favour the admissionis made shall then take an oath that such adrnission not false. If one personadmitsto another he is in suchpersonSs to the extentof that debt a certainsum of money. the resultis an admission the subject that matterof the admission wasthe property the personin whosefavourthe admission made. by (3) A statesthatall his property thingsin his shopbelongto his eldestson and thathe and has no righttheretowhatsoever.he is released is fromhis debt and the first personin whosefavourthe admission madecannotclaimit againfromthe debtor.the latteris not obligedto pay it to him. if A statesthat such and such a But shop reputedto be his belongsto his wife. the resultis an admission the shopwas his that wife'sproperty beforesuch admission not his ownproperty.If he doesnot do so.but suchgift doesnot becomeabsolute is untilit hasbeenhandedoverand received. of is whichis tantamount a denialof ownership. The resultis in in the natureof a gift. reasonof his not yet havingreceivedthe moneyin questionfromB. The resultis an admission A thatthe property questionbelongsto B. If a personmakingan admission makesit in sucha manneras to showthat the subjectmatterof the admission belongsto him. and thathis nameinscribed the deedwaslentfor convenience in only.priorto such admission. (2) A states that all the propertyand thingsattributed him. the resultis a gift to the personin whosefavour the admission made. Suchadmission. the resultis an admission that the shopbelongsto thatotherperson. andsuchproperty mustbe delivered.belong to B and do not concernhim in any way. with the exceptionof the to clotheshe is wearing.

and.suchadmission validandthe estateof is neitherof the deceased persons maybe touchedby the representative the Treasury. andin the caseof a female.in the caseof a male.andthathis nameon the document beeninscribed convenience has for only.is heldto be valid. of Similarly.wheresuchperson unableto dealwithhis affairs is outsidehis home.to havebeensuffering froma mortalsickness.andhis heirslikewiseafterhis death. is .The effect of an admission madeas abovewhilethe personmakingthe admission suffering is froma mortal sicknessis governed the termsof the following by Chapter. Article1598.and his condition becomeworse resulting deathbeforetheexpiration oneyear. it is invalid.suchadmission valid. Article1596.or admitsthathis namehas been used for convenience only.however. whetherthe sick of personhas been confinedto bed or not.he is considered in of fromthe timeof thechange up to his death. of Article1593. Shoulda person haveno heirat all.and his conditionbecomes as changedfor the worse. of Article1597. theresultis an admission the shop that wasin factthe property the thirdperson.suchadmission valid.if a person of during mora tal sicknessadmitsthathe has received property whichhe has deposited safekeepingwith for his heir.whereshe is unableto dealwithherdomestic duties. the result is an admission the sumin question that belongsto suchthirdperson.Provided if the otherheirshaveagreedtheretoduringthe that lifetimeof the personmakingthe adrnission. Shouldthe sicknessbe of longerduration and the periodof one yearexpirewbilein the samecondition. An admission madeby a personduringan illnessfromwhichhe recovers that property belongsto one of his heirs. or a woman havingno heir otherthanher husbanddisclaums ownership all her property makingan of by admission suchproperty that belongsto herhusband. or shoulda manhaveno heirotherthanhis wife. If a personwhilein goodhealthmakesan admission disclsinling ownership as set out above. Article1594. If a personis in possession a written of acknowledgment admitting claimfora a certainsllm of moneyagainstsome otherpersonand statesthat such sum belongsto a third person. or shoulda womanhaveno heirotherthanherhusband.if not. suchpersonis regarded beingin good as healthand his transactions valid. unlessthe illness increases.andthe is estateof the deceased personmaynot be touchedby the representative the Treasury.if a manhavingno heirotherthanhis wife disclaims ownership his property of duringa mortalsicknessby makingan admission that such property belongsto his wife. the validity such or of admission dependsuponthe ratification the otherheirs.death havingoccurred beforethe expiration one yearby reasonof suchillness. a debt belongsto one of his heirs.Thus.92 ARAB LAW QUARTERLY person. they cannotwithdraw theiragreement the and admission held to be valid. admission any madeduringthe courseof a mortalsicknessis regarded a bequestandwill be upheld.the admission held of is to be good. or thathe has consumed property belonging his heirknownto havebeendeposited to withhim for safekeeping. always may validlybe madein favour anheir. SECTION III Admissiem a person by suffering a mortal fom sickness Article1595. his admission is validandhe is boundby it duringhis lifetime. a peras if son havingno heirsdisclaims ownership his property of duringa mortalsickness making by an admission the wholethereof that belongsto someotherperson. thatthenameof thefirstperand son wasinscribed the titledeedfor convenience in only. A mortalsicknessis a sicknesswherein the majority casesdeathis immiof nent.An admission is with regard something to deposited safekeepfor ing.Consequently.thatthe pricewaspaidout of thatperson's property.Shouldhis illnessincrease. moreover. If a personafterhavingmadean admission duringa mortalsicknessthatcertainspecificproperty.andthendies.If theyagree.

is (2) A personadmitsthatone of his sons has received.the admission the does not becomeexecutory merelybecausethe brother whosefavourthe admission in wasmadehas becomehis heir. Similarly.it being a matterof common is knowledgethat at the time the admission made.but by an old one. gift.If the right to inheritis not producedby such a new cause. Again.Shouldthe son predecease father. debtscontracted whilein a state of healthare paid first out of the sick person'sestate. Debts contracted duringa mortal sickness arisingout of clearlyascertained and causes. Article 1601. eventhoughit includesthe wholeof his property. An admissionmade by a personduringa mortal sicknessto anotherperson who not one of suchperson's is ownheirsis good. such facts must be duly examined. whetherconsistingof some specificobject or of some debt. loan or destruction of property consideredto be debts contracted are while in a stateof good health.Consequently. the admission not is executory. a personadmitsduringa mortalsicknessthathe has if madea gift of certainproperty of his one of his heirswhile in a stateof good health.Suchadmission on is valid. An admission madeduringa mortalsickness relating matters but to concerning aperiodduringwhichthe personmakingthe admission wasin goodhealth.is considered be to an admission madeduringa sickness. shallin no way invalidate this an admission madewhilethatpersonwasnot an heir. a personadmits if duringa mortalsickness that has been paid a certainnumberof piastresdue from he one of his heirswhile he was in a state good health. or transfer on inheritance.by heiris meanta personwho wasan heirat the time of the sick person'sdeath. Article1600. Article 1602. good If iere is any balanceremaining over) contracted debts duringsicknessare paid therefrom. before suchdebtsarepaidin priority thosecontracted hiIn to by by of admission way duringhis mortalsickness. madewhendrawing a will. ADMISSIONS Examples: 93 (1) A personadmitsthat he has receivedproperty his of depositedfor safe keepingwith one of his sons. of If up it is takento be a bequest.The valueof the ring mustbe madegoodfromthe estate. such admission not executory of is unlessthe otherheirsconfirmthe same.suchas purchase. is (3) A persor admitsthat he has sold the property one of of his sons entrustedto him for safekeeping.Provided if a rightto inheritarises that out of a newcauseat the iime of the deathof the personmakingsuch admission not and previously.as agent. Such admission valid. Debts contracted good healthtakepriority in ourer debtscontracted duringill health.THE MEJELLE: BOOK XIII.moneydue to him froma cert personand thathe has handedit overto hhn. Article1599.the subjectmatterof suchabission had was becomethe property the perof son makingthe admissionby way of sale. such admission not executoryunlessconfirmed the otherheirs.In any the admission only validup to one thirdof the case. is to say. whethera bequestor a gift. In this connection.or his diamondringworthfive thousand piastres to him for his use) arld lent has spentthe proceeds his own business.or is by provedby evidence. and delivery suchgift is necessary. Suchadmission validandexecutory.and to thathe has deliveredthe same. Example: A hasa son andmakesan admission favourof one of his in brothers the samefatherand by mother. such admissionis executory.however.marriesher and then dies. was up the resultis a gift. If the subject .Consequently. in the eventof the deathof a personwhose that estateis overwhelmed debts by contracted his mortalsickIless.If the aduiission not madewhendrawing a will. Shouldit appearthat the admission false. is property the personmakingthe of admission. a person if duringthe courseof a mortalsicknessmakesan admission favourof a in womanwho is a stranger him in respect to to certainproperty. however.

if any. An admission writing the sameas an oraladmission.unlessthe debtscontracted has duringgoodhealthhavebeenpaid.arepreferred. document regarded thoughit werewritten his ownhandandis conthe is as in sideredto be a writtenadmission. is Debtscontracted duringa stateof goodhealth. and.He may. Therefore a person if instructs clerkto makeout a document a to the effectthathe is owinganother persona certain sumof money. Suchadmission valid. Ariicle1603.andpersons the is to whomhe became indebted whilein a stateof goodhealthareboundthereby. to it has the forceof an admission. shouldthe occasionarise.andhimselfsignsor seals suchdocument. mayrefuseto be boundby suchadission.it is validup to a of thirdof his property. . CHAPTER *V ADMISSIC)NS IN WRITING Article1606. however.however.the admission validin anycaseandthiswhether is therebe debts whichwerecontracted whilein a stateof goodhealthor not. Suchadmission. a merchant.not beinga member his family. however. if a personadmitsto someotherpersondunngthe courseof a mortal sicknessthatcertain thingsarethatperson's property.If the debtwascontracted suchpersonduring course theillness. Example: A while ill admitsthat he has sold certainproperty receivedthe pricethereofwhile and sick. The entries madeby a merchant his bookswhichareproperly arein the in kept nature writtenadmissions. suchpersonadmitsduringthe courseof a mortalsicknessthathe has If becomesuretyfor a person.is not executory regards as personswho becamecreditors of the sickpersonwhilehe wasin a stateof goodhealth.Thatis to is say. makesan entryin his ownregister he owesB a certain that sumof money. suchperIf son becomessuretyfor someotherperson. dunngthe courseof a mortalsickness.suchadmission receivof is able. suchpersonhasno rightto the property regard which with to the admission beenmade.is conan of sideredas an oraladmission. of Example: A. however.94 ARAB LAW QUARTERLY matterof an admission some specificobject.If the debtwascontracted suchperson by whilein a stateof goodhealth.notbeinga member his family.suchadmission validin anycase. Such entry constitutes adniission the debt.not beinga member his family.it is dealtwith in the samemanner. If A.Persons whomhe became is to indebted whilein a stateof good health.theadmission by the of is valid. Article1608.it is not executory. Article1605. however. Article1604. In this connection.) in is (See Article1607. If a personcauseshis ownadmission be writtendownby someotherperson.mustbe repaid. A personwho paysa debt due to one of his creditors duringthe courseof a mortalsicknessmay not therebydestroythe rightof the othercreditors. of the admission validup to the wholeextentof his property. guarantee property considered the samelight as a of is in the original debt. repaya sumof moneyhe borrowed paythe priceof property boughe and he whilesick. admitsduring the courseof a mortalsicknessthat he has sold certainproperty whilein a stateof good healthandhasreceived pricethereof.whilein a stateof goodhealth. If a personadmitsduringthe courseof a mortal sickness he hasbeenpaid that anysumduefromanyotherperson. a personbecomes if suretyforanydebtcontracted his heirs by or any sum due to him. Article69.Consequently. or debtswhicharein thenature debtscontracted of during goodhealthandwhichforreasons as statedabove.

andif suchacknowledgment is made out in due form.and should thedebtordeny thatthe acknowledgment his.the debt must paidout of the deceased's be estate. If a pursefull of moneyis foundamongthe effectsof a deceasedpersona it and is writtenthereonthatthe purseis the property someparticular of personandhasbeengivento the deceasedon trustfor safekeeping.If they reportthatthe to handwritingin both casesis thatof one andthe sameperson. Article1611. the debt mustbe paid. that is to say. or the denialis disregarded. andalso is denythe original debt. Finally. If a personhimselfwritesor causesa clerk to write an acknowledgment a of debt. If any personas mentioned abovewritesor causesany otherpersonto write.9thffumadiul-ul-Ula by l293 .the personin questionhas a rightto takethe pursefrom the estateof the deceased thereis no needfor anyfurther and proof. he shalla the if plaintiff demand. Article1612. and Shouldhe deny that the acknowledgment his.THE MEJELLE: BOOK XIII: ADMISSIONS 9s Article 1609. If however. in Receiptswhicharenormally givenareof the samecategory Article 1610. of whichshallbe submitted experts. Promulgated RoyalIradah.and shouldhis handwriiing sealbe well known.be madeto swearan oaththatneitherthe so debt nor the acknowledgment is is. such and personshall be causedto write down specimens his handwriting. and the heirs admit that the acknowledgment was made by the deceased.if the acknowledgment freefromanytaintof fraudor is forgery.such personshallbe ordered paythe to debtin question. If the handwriting seal arenot well known. the is handwriting seal being well known.aciionshallbe taken in accordance with the acknowledgment. actionis takenin accordance and with the acknowledgment. it is not freefromsuspicion.suchdenialis disregarded.it constitutesan admission writingand has the sameforceas an oralabission. whichhe signsor sealsanddeliversto someother person. Shouldanypersongivean acknowledgment a of debt as mentioned above and thendie. Shouldthe heirs deny that the acknowledgment madeby was the deceased.actionshallbe takenln and accordance suchacknowledgwith ment. in accordance with the usual practice. anyacknowledgment debt)whichis signedor sealed.and of whichhe admitsto be his andthen deniesthe debt contained therein.

http://www. We use information technology and tools to increase productivity and facilitate new forms of scholarship.jstor. 5. No. please contact support@jstor. JSTOR is a not-for-profit service that helps scholars. 145-156 Published by: BRILL Stable URL: http://www.org/page/info/about/policies/terms. 2 (May. Hooper Reviewed work(s): Source: Arab Law Quarterly. pp.org.org . researchers. Vol. Accessed: 28/06/2012 05:38 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. available at . For more information about JSTOR. 1990).jstor.The Mejelle: Book XIV: Actions Author(s): C.jstor. preserve and extend access to Arab Law Quarterly. http://www. use. .jsp . and students discover. and build upon a wide range of content in a trusted digital archive. A.org/stable/3381371 . BRILL is collaborating with JSTOR to digitize.

specific pieceof movable property. in The person making claim called plaintiff.Thedefendant beknown.in thecaseof some its or it. it is notknown.The defendant mustbe present whenthe action comeson in Court. which he and causes action bedeclared andvoid. is sufficient point out. such to null CHAP TER I CONDITIONS AND FUNDAMENTAL RULES RELATING TO AN ACTION AND THE DEFENCE THERETO SECTION I Conditionsfor validity an action the of Article 1616.Estoppel somestatement is previously madeby the plaintiff whichconflicts withtheaciion hasbrought. an Their tutors guardians act and may on their behalf their in capacity plaintiff defendant.Thethingclaimed thething is about which action brought theplainthe is by tiff. person the is the The against whom claim made the is is called defendant. shallbe taken is set fails or action as forth theBookontheAdministration in of Justice theCourt. by Article 1619.Thesubject matter theaction bemade of may known pointing out. to senda representative. of and Article 1617. who inhabiting a certain lrillage.If the defendant to cometo theCourt. thedefendant be specified. suchproperty present Court.THE MEJELLE BOOK XIV ACTION S INTRODUCTION TERMS OF MUHAMMADAN JURISPRUDENCE Article 1613. the Article 1614.It is alsocalled subject the matter theaction. of Article1615. the is and must Article1618.Thesubject matter theaction of mustbeknown.If it is notso presif is in it to it . action If the is invalid.A lunatic a minor and of imperfect understanding notvalidly may bring action.Thepltiff andthedefendant beof sound must mind. must Consequently. claim invalid. plaintiff if the alleges heis that entitled a certain of money to sum from ormore one persons arenotspecified. Article 1620.orby by it mentioning qualities bydescribing Thus.Anaction consists a claim of made oneperson by against another Court.

the plaintiSmaybringan actionand pointto the thingcled.however.Thereis no need to statethe valueo£eachof themseparately. aciion to the is valid.description. variety. If the subjectmatterof the aciion consistsof specificpiecesof property. the plaintiff of muststatethe nature.If it cannotbe brought beforetheCourt without expense. In an aciionfor the pnce of realproperty.but it can be sent for and produced without expense. plif The mayalsovalidly brillgan actionstaiingthatthe realproperty theboundaries of whichareset forthm a documene produces the he to Court his property is ownedun absolute ownership. it is not esseniialto statethe boundaries thereof.or sweanngthe oath.if a personbringsan aciioncIniming so manypiecesof five.146 ARAB LAW QUARTERLY ent. but illcorrectly states the lengthor areathereof no wayaffectsthe validity in of the acton. If the subjectmatterof the aciionis some specificmovableproperty is and beforethe Court. Article 1621.Again. the circlllaiion standard one and and of is greater thanthe other. description amount and thereof. Article1625. Article1626.or as regards variety the whether consists Ottoman English it of or coinandin respect thedesto cripiionwhether consistsof soundor basecoin. Artide 1624. thatis basecoin. Example: It must be statedas regards natureof d}e debt the whetherit is of gold or silver. askingforit to be restored him.the plaintiffshall gve a descnptionand state ie value thereof.it is not of and necessary statethe value.sortandqualiiies whicharedifferent one of the fromtheother. it maybe madeknownby meniioning the qualities. is of it sufficient statehis nameanddescription. If the subject maeter the acoonis a debt. to whomsuchboundaries belong together wid the namesof theirfathers and grandfathers must be stted whenthe acton is brought when and givingevidence.These matterswill be dealt within the followmg Articles. the nature. however. Micle 1623.descnptionand amountthereofmust be stated. valuethereof. may be designated meniioning it by the boundanes thereof. The it amount mustalsobe stated.In aciionsrelamg to wrongful appropnation property. sincethe defendant to haswrongfully dispossessed thereof.If it is statedin general terms.In the case a personwhois well hown.the amountwill be construed with reference the inferior to currency.the giVitlg of of evidence.it is sufficient thetotal if valueof e wholeof themis stated. in the caseof pledges. to There no needto statethenamesof his father is andgrandfather. Similarly) thedescripiion if of the boundaries be dispensed may xth osving ieir beingso well known. the moneyis takento be the blackpiecesof five. If the subjectmanerof Lhe actionis real the village qurter andof the streetandthe fouror three property.if any.If it is and realproperty. the nature. If therearetwo typesof currency recogmzed.thereis no to needto state boundaries the eitherwhen bringingthe aciionor givingevidencein conneciion therewith. Ariicle 1622.it shallbe placedbeforethe Courtfor the purpose the trialof the action. nameof the townand or boundaries thereof andthe namesof thepersons.variety.If the subhim jectmatterof the actionis not beforethe Court.If it is a debt. to Example: An actionmay validlybe broughtin whichie plaintiffstates thathis emerald ringhas bxn wronghllyappropted.andthe amountin disputewill be considered with reference the customprevailing the locato in lity. in circulaiion the present at iime. consistof so manypiastres. but failsto statethe value or evenstatesthathe doesnot knowthe valuethereof. . The factthattheplaintiff correctly states the boundaries.

the actionmayvalidlybe brought but by statingthat the propertyin questionis ownedin absoluteownership.But if A bringsan aciionallegingthatcertainproperty his because is B. or rent. B repliesthathe has paidA. no jllslgnentcanbe issuedin respectto the defendant. The actionwiXfail. (2) A bringsan actionallegingthatB is owinghim a certainsumof moneyon accountof a loanand thatB has admittedthe debt. The actionwill fail. no actionmay validlybe broughtwith regard anything existenceof whichcan be shownto to the be impossible eitherby a processof reasoning by custom.but is the priceof properwsoldto or is . and even iough the matters he allegedby the plaintiffs maybe we. (2) A appointsB his agentfor a certain purpose. or ansingfromanyotherreason. andthatB hasdispossessed him thereofand in addiiionhas admittedthat such propertybelongs to A. If the subjectmatterof the actionis somespecificpieceof properw. or thattheyhavecome him to a settlement) iat the sumin question not a loan. Ariicle 1629. personmaybringan aciionclsinlinE no something merelyby reasot of ie admission the defendant. who has takenpossessionthereof. Consequently. and may appointwhomsoever pleasesas his agent.has admitted it belongsto A.thereis no need to statehow the ownership thereofwasacqliired.The aciionwill fail. or Example: A allegesthat B is his son. Examples: (1) A gives somethingto B as loanfor use. Consequently. The reasonfor this is that every personmay lend his property use to whomsoever for he wishes. The subjectmatterof the actionmust be capableof proof. SECTION II Thedefence an action to Ariicle 1631.C comesforward allegesthathe is A's and neighbour thathe is a moresuitable and personto be appointed agent. The effect of an admissionis that it bearsupon the subjectmatterof the admissione does not bearuponthe originthereofandtherefore abission is not a causeof It an ownership. andthathe consequently claimsthis sumfromhim.THE MEJELLE: BOOK XIV: ACTIONS 147 Article1627. The aciionwill be heard. the actionwill not be heard. whetherit is the priceof something sold. of Examples: (1) A brirlgs aciionallegingthatcertain an property belongsto him. andthe matterof his birthwell known. or thatA hasreleased fromthe debt. B beingolderthanA. The aciionwill be heard.thatis to say. Examples: (1) A bringsan aciion clsinlinga cert sum of moneyfrom B on accountof a loan. the aciionwill not that be heard. C ien comesforward cls and iat he is a relanveof A requesiingthatsuchthingshallbe lent to him.If it consistsof a debt however.But if A bringsan aciion allegingthat B has admittedthathe owes A a certainsum of moneyon accountof a loan. A defence consists of makingan allegation the defendantm reply to an by aciionbroughtby the pltiff.the originthereofmust be stated. Ariicle 1630. If the action is proved. judgmentmust be given againstthe defendantin respectto someparticular thing. Article 1628.

of SECTION III Psrties to an action Article 1634. in of (4) A bringsan actionagainst heirsto the estateof a deceased the person. which the heirs deny. Uponthe defendant proving defence. judgment given on the admission.If the plaintifftakesthe oath.andthe plaintiff's by evidence. or the . of Example: A bnngsan actionaganst B alleging B senta messenger his to buycertain that of property and claimsthe pnce. B must pay and hand over the priceof the sale. the personto whomthe debt has been If transferred not present.Thus. actionvrillbe heard.and thereupon heirs the allege that the deceasedpaid the debt in his lifetime. If he denies. however. (2) A bringsan actionagainst statingthatB becamesuretyfor the payment a sumof B of money due to him from C.if any personbringsan actionstaiingthatthe property an orphan of a piousfoundation his. Article1632. If anyperson bringsanactionagainst someotherperson claiming certain a sum of moneyfromhim andthe defendant repliesby statingthathe hastransferred payment the of the debt to some thirdpersonand that both pariiesagreedto such transfer provessuch and statement the presence the personto whomhe transferred debt. by is Article1633.the claimof the plainin of the tiff is rejectedand the defendant freedtherefrom. andthatthe sum to in questionwaspaidby A to himin respectof suchtransfer.They may.however.he maycalluponthe plaintiff takethe oath. Thisis B's defence.If the to plaintiffrefusesto take the oath. (3) A bringsan actionagainstB statingthat B is in possession property of belonging to him.If he deniesthe claim. the defendant's defenceis proved. is of he doesnot becomea partyto the actionby reason his denial. A proveshis claim. In to thatcasethe plaintiff3s actionwill not be heard. This is B's defence.If judgment not givenon the admission the defendant. he becomesthe defendant A's claimwhosecase is then to heardandwhomayproduce evidence.will be heard.guardians trustees piousfoundations excepted and of are fromthisrule. the aciionis is heard.the actionbrought the plaintiff maintained.clsiminga certain sum of money. If B admitsthe claim. If he denies. by guardian trusteeof a piousfoundation.the admission of no effectandno judgor is ment may be issued basedthereon. B repliesthatsometimeagoC brought actionagainst in respectto somepropan him ertyandthatat the trialof the actionA gaveevidence favour C.and the defendant admitsthe claim. B repliesthat C has paid the sum in question.the defendant considered haveanswered claimof the plainis is to the tiff pendingthe arrival suchperson.he is boundto payandhandoverthe priceof the thing sold. If any personbringsan actionin respectto any matter.If he failsto provehis defence.If an actionis broughtas the resultof an admission basedupona contract concluded a tutor. of or is andthe tutoror guardian trusteeadmitthe claim.he does not becomedefendant A.This is the heirs' defenceto the action.This is B's defence.and the defendant admitsthe claim.makea valid denialand an action brought the plaintiffas a resultof suchdenial.148 ARAB LAW QUARTERLY A.andevidencemaybe given. Tutors.the actionbrought the plaintiff his by is dismissed. or thathe madea transfer A of a sumof moneydue to himfromC. A bringsan actionalleging B's agentforpurIf that chaseboughtsuch property.

Article 1638. But if propertydepositedfor safe keeping.If A admitsthatC handedthe houseto B for safekeeping.both partiesmust be present.If the purchaser not yet taken has deliveryof the property fromthe vendor. A creditor maynot bringan actionagainst personin debt to the personowing a his money. B repliesthatC handedthe houseoverto himfor safekeeping. mustbringhis actionagainstthe personwho has the he wrongfully appropriated horse.The plaintiff's claimfailsand B is not obligedto provethatC in facthandedthe houseoverto him for safekeeping. In an action relatingto some specificpiece of property.or to a thinglent against personborrowing or a the it.or lent.he maynot obtainpaymentfromthe debtor.If he wishesto the in of recover valueof the horsehowever.He mustbringhis actionagainst person possession the horse. for Article1639. personin possession suchproperty the of maybringthe actionagainst the personwrongfully appropriating thereis no needfor the presenceof the owner. Article 1637. a personwho is entitledto maintenance from some absentpersonmay bringan actionclaimingthat the sum necessary his maintenance for shallbe paidto him frommoneydepositedby the absentperson for safekeeping. Article 1635. he is entitled to take the house from the person to whom it has been entrusted safekeeping. Example: A wrongfully appropriates horseandsellsanddelivers to C. or a pledgeagainstthe pledgee. havinglegal justification so doing. thinghiredagainstthe personhiringit. B wishesto get his horse B's it back. Consequently.THE MEJELLE: BOOK XIV: ACTIONS 149 Example: A tutor sells propertybelongingto a minor.An admissionmade by the tutor is valid.If such and personsarenot present.the owneralonemaynot bringthe action. A personto whoma thinghasbeenentrusted safekeepingcannotbe made for defendant an actionbroughtby the creditor the persondepositing thingfor safekeepin of the ing with him.the personin possessionmust be madedefendant. and A provesthe sale and his appointment as agent.and the vendoras of the personin possessionof the property. Thereis no need for the vendorto be present. anypersonprovesbeforea personin debtto a deceased if personthat he has a claimagainstsuch deceased person.Consequently. a creditorprovesbeforea personto whom propertyhas been if entrusted safe keepingthat a debtis owingto him by the persondepositingsuch property. for he cannotsatisfyhis debtfromsuchproperty but. A personto whom property been entrusted safe keepingmay not be has for madedefendant an actionagainstthe purchaser.but addsthat thereafter soldit to C him and madehim his agentto receiveit fromC. Article1640. The for purchaser brings an action in connectiontherewith. or hired. mustbe presentat the trialof the action.boththe purchaser the property. the defendant the trialof the actionandhearingof the evidencewill be the purat chaseronly. or pledged has been wrongfully appropriated. in Example: A bringsan actionagainstB allegingthathe is in possession a house which he bought of from C for a certair sum of money. If a personbringsan actionclaimingthathe is entitledto property whichhas beenpurchased. . If so. In actionsrelatingto a thg depositedfor safe keepingbroughtagainstthe personwith whomit has beendeposited. as is set forthin Article799. the Article1636. clsimingthat the house be handedover to him. must be ascertained it whetherthe purchaser takendeliveryof suchprophas erty.

) ownedby Article 1643. shallbe givenin accordance onlyandthe judgment of to in is His admission effective respect the amount his ownshare denies If to theplaintiff. He cannotobtainthe claim. of the out arising of some jointowners. and the plaintiffproveshis case in his presencealone.Uponthe plaintiff may not call upon him to provethe debt againin theirpresence.the ownership several to in respect the shareof another.the otherheirs by the of Theyhavethe righthowever. is After provinghis claim. for withthe deceased safe he deposited of priorto partition the estate. defending actionbrought the plaintiff. the in whosepossession property mustbe made of an against heirwhois not in possession suchproperty.If judgment of one of the jointpurchasers sons. judgmentshall be given againstthe of to proceeding collecttheamount thedebtfromthe wholeof the heirs.judgment in any heardagainst otherof theheirs.the heir in possession the admits claim. andhis admission no waybindsthe otherheirs.suchas . with such admission.andwhichhe claims No the horsemay be madedefendant. a (2) A personbringsan actionto recover debtowingby the estateof a deceased of the heirsonly. actions actas the fromthe estate. In thecaseof a deceased person. person. If the heir in question heir is in possessionof property admitsthe debt in an actionbroughtin this way.andproveshis casein thepresence relatesto such jointowner'sshareonly and does not the judgment given in his favour. and this. or thathe claimsthe thing withoutpayingthe priceandthat payment oversuchthinguntilhe hasreceived a soldin orderto exercise rightof retention of the price. In an aciionbrought respectto placesaffecting publicinterest.(SeeArticle78.150 ARABLAW QUARTERLY something a Article1641. judgment given for all the heirsfor the total amountof the as plaintiffcan obtainhis own partalone. or plaintiff. If an actionis broughtclsimingsome specificpiece of property one causeotherthaninheritance. person.If theperson possession whichdoes not affectthe otherheirs. actionwill be of keeping. jointownersmaynot be madedefendant Example: perby jointly several as A bringsan actionclaiming his a housewhichhasbeenpurchased is only.In the caseof suchdeceased on brought behalfof or against in defendant. whethersuch of He maybringthe actionin the presence one belongingto the estateor not. heir pieceof property somespecific anactionbroughtto recover The defendant. estate. B takesdelivery thereof fromhimandhastakendelivery C against allegingthatB hasboughtthe property he claimsthe pricefromC.oneof theheirsalonemaybecome Article1642. the in Article1644. A vendormaynot bringan actionagainst personwho purchased he which has soldto someotherperson.If he doesnotadmitthe debt. he is only liableto payhis shareof the in debt. A maynot bringan action to A sellsproperty B. The heir acting of shares the otherheirs. actionmaynot be brought is. extendto the others. Examples: (1) One of the heirsalonemay bringan actionto recovera debt owingto the deceased.however. theheirin possession shallstatethathis sharein thehorsebelongs the shallbe givenagainst wholeof the his proves case. Example: thereofandsellsit to C. of a (3) If a personbringsan actionto recover horsein thepossession oneof theheirsonly. judgment and the clairn the plaintiff heirs.

such as his agentor guardian. such actioncannotbe heard. A personwho has broughtan actionclsimingpropertyon behalfof another personmay not laterbnng an actionclsimingsuch property his own. If the defendantdenies such statements later)while admitting but havingreceivedthe sum of moneyfordelivery C. nevertheless. Ariicle 1649. the reasonbeingthatan advocate someiimes claimsproperty his own in name)but a personwho is himselfa partyto an actiondoesnot assertthatthe property belongs to another.however.but beforecompletingthe purto a chasebringsan actionclaimingthat such property his own absolutely. subjectto a condition or makingthe contract voidable.the inhabitants whichareindeteate of in number. and seeks to bringan actionin rebuttalof the plaintiffs claim. (2) If a personstatesthathe has no rightto anypariicular thing.he may not later bringan actionclaimingthat suchproperty his) normayhe bringan actionon behalfof any is otherperson. In an actionrelatingto thingsthe benefitof whichis jointlyownedby two villages. If a personreleasesanotherfromall actions. throughtheirrepresentative. statesthathe hasin factdelivered to to it C. suchactioncannotbe heard.If they are determinate in number.B of admitsthat the shop was formerly property. or Ariicle1646. The inhabitants a villagewhicharemorethana hundred numberareconof in sideredto be indeterminate number. The plaintiffestablishes B his case by evidence.it is not enoughfor someof themto be present.such actionwill is not be heard. Article1648. assertsthatA sold it to him on a cerA's but taindate. of the plaintiffcannotlaterbe heardto say thathe did in factsell the shop to B. But afterbringingan as actionon his own behalfhe may bringan actionon behalfof someotherpersonin the capacity of suchperson'sagent.but.but the wholeof themmust be presenteitherpersonally.If B.he maynot laterbringan action against suchpersonciairIlilig fromhim property whichhe asserts be his own. the and thathe instructed to fetch the moneyand payit overto C.TlIE MEJELLE: BOOK XIV: ACTIONS 151 the publichighway. in SECTION IV Estoppel Article1647. but the sale wasa salesubjectto redemption. to will not preventhim from bringingan actionon behalfof arlother person. proveshis case.in the capacityof suchperson'sagentor guardian. Article1645. If a personadmitsthat certainproperty belongsto another. brings an aciionclsimingsuch thing. (3) A bringsan aciionagainstB asseriingthathe gavea certainamountof moneyto B to handto C. an Examples: (1) If a personarranges purchase piece of property.as in the case of a riveror grazing ground. the personin the possession the shop.whereone memberof the publiconly is plaintiff. . however. This. Ariicle 1650. (4) A bringsan actionallegingthata certainshopin the possession B is his property.the presenceof a certainnumberof them is sufficient. A completely deniesthis statement. statingthattheyhadneverconcluded cona tractof sale and purchase. A statement contradicting statement a previously madewithregard the same to matterinvalidates actionfor ownership.the actionshallbe heard andjudgment givenagainstthe defendant. A furtherstatesthatB retained moneyinsteadof givingit to C as directed.

he gets judgment. claimarising by a froma singlecausecannotbe demanded fromtwopersons.Butif A asserts the deceased that persongavehimthe property quesin tionwhilehe wasaninfantandthatat thetimeof thedivision theproperty wasunawof he areof suchfact. therecanbe no estoppel. A laterbringsan actionassertingthat the sum of moneywas by way of guarantee.Similarly. and laterbringsan actionagainstthe lessorasserting his father that boughtthe housefromhimwhenhe wasa child.Thus. sincethe judgment of the Courthasdisregarded admission. thisis regarded a validexcuseandthe casewill be heard. if the and plaintiff in factexplainawayanyapparent does contradiction. If the plaintiffproveshis case. The commencement the divisionof an estateis an admission the propof that erty dividedhas beenheld in common. If one of the parties admitsthe claim. as Article1657. The personagainstwhomjudgment given is has a right of recourseagainstthe vendorfor the priceof the property. the Article1654. If the Courtfindsa statement be false. allegingthatthe property belongsto C fromwhomhe boughtit.addingthatat the timehe hiredthehouse he was not awareof the factsof the case. if estoppelwouldoperateto invalidate claimin an actionby one person. If the matter subject doubt. Article1653.Suchaction will not be heard.the estoppel to ceasesto be operative.The estoppelceasesto be operative. defendant The aduiits this. brillgsan actionafterthe divisionof the estateasserting he boughtone of that the thingsdividedfrom the deceased person. estoppelis removed. Article1656.152 ARAB LAW QUARTERLY Article1651. the Article1655. Example: A bringsan actionclsimingcertainproperty the possession B.Consequently.the estoppel ceasesto be operative. the Examples: (1) A hiresa house. if in an a actionan agentintroduces claimin conflict a withan actionpreviously instituted his pnnciby pal. suchclaimis invalid. plaintiff estopped a is frombringing an action the divisionof the property. Oneclaimcannotbe paidseparately twopersons. after allegitlg the property that dividedbelongsto him.or that the deceased personwhilein good healthbestowed suchthinguponhimby wayof gift andgavedelivery thereof. (2) A hiresa houseandlaterbringsan actionagainst lessorclaiming he hadascerthe that tainedthatsuchhousehaddevolved uponhimsometimepreviously wayof inheritance by fromhis father.andtheplaintiff offera satisfactory is to can explanation. Example: A. If A canproduce documentary evidenceof title the casewill be heard. an heir. .becauseB was estoppedfrom havingrecourseagainstthe vendorby reasonof his admission that such property belongedto the vendor. If it is possibleto reconcile apparently two contradictory statements. as in the caseof an agentandthepersonappointing andanheirandtheperson him fromwhomhe inherits. Estoppeloperatesto preventtwo personsclaimingthe samething. Example: A bringsan actionclaiming he haslenta certain that sumof moneyto B. whereupon estoppelceasesto be operative. The defendant in of disputes the claim.The casewill be heard. Article1652.

andgives deliverythereofto him.the defendant is estoppedfrombringingsuchactionby reasonof the contradiction. the casewill be heard.If A later. Article1658.or his or her husband wife.which he assertsis his own. the actionwill not be or heardin any case.although was presentwhen the sale is he took place and kept silence without any valid excuse for so doing. A to then goes into Courtandmakesan admission the effectthathe has sold his houseto B.B must pay A the price thereof. (3) A bringsan actionagainstB allegingthathe has depositedsomething with B for safe keepingand claimingthe returnthereof.suchsalebeingunconditional perfectly and valid. A personwho admitsbeinga partyto an unconditional perfectly and validcontract. or has been released fromrepayment thereofby the plaintiff.if. uponthe case But being broughtby A.A proveshis case by evidenceand the defendant then seeksto defeatA by allegingthathe has returned the thing to A and given deliverythereof. If it is no longerin existence. If he is a stranger.andproveshis case.his admission beingreducedto writing. A proveshis case.B is not estopped.The defendant repliesdenyingthe allegation and statingthatno such thingwas everdeposited with him for safekeeping.he bringsan actionallegingthat he is the ownerof such house. andB laterbringsan actionalleging thatsuch property his or that he has a sharetherein. and aftersuch admission been reducedto has writing brings an action allegingthat the settlementwas made subjectto a condition makig it voidable.however.suchactionwill not be heard. to the boundaries whereofareas stated.But if A bringsan actionandB repliesalleging no suchthingbelonging the plaintiffhasever that to been depositedwith him for safekeeping.If the thingentrusted B for safekeepingis in the possession B?the plaintifftakesthe thing to of itself. if.does not of itselfpreventthe hearing the action. thereis no estoppel. by The defendantby his replystatesthat he has receivednothingfromhim.suchactionwill not be heard. If so. fact that he was presentat the time the salewas conthe cluded. Later. in additionto of beingpresentwhen the saletook place. If A in the presenceof B sells property held in absoluteownership.) as or Examples: (1) A sells and delivershis houseownedin absolute ownership B for an agreedprice.or thathe doesnot knowthe plainof tiff.for a certainsllln in money.THE MEJELLE: BOOK XIV: ACTIONS 153 Examples: (1) A admitsthathe is the lesseeof a house.or thatA released fromrepayment him thereof.and B admitsthatA depositedthe thingwithhim for safekeeping.and A then proveshis caseby evidence. The casewill not be heard. it (2) If A settlesan actionwhichhe hasbroughtagainst andmakesan admission Court B. or that the two partieshadno businesstransaction together anysort. the defendantrepliesthat he owes nothingand when the plaintiff proveshis case admitsowing the sum. is voidable.On the otherhand. but assertsthathe has since repaidit. in that the settlementhas been validlymade.But if A explainsawaythe contradiction by statingthathe boughtthe housefromthe ownerafterhe hadhiredsuchhouse.but thathe has returned such thingto A and givenA deliverythereof.he keepssilencewithoutany validexcusefor so doing . (2) A bringsan actionclainlingthe returnof a sum of moneyadvanced way of loan. it must be ascertained whetherB is a relativeof the vendor. Article1659. to C. If the defendant laterbringsan actionagainst asserting he has A that repaidthe sumin question.afterhis admission beenreducedto writing)brings has an actionstatingthat the sale was subjectto a conditionas to redemption. that it was or madesubjectto a conditionrendering voidable.B is estoppedfrommakingsuch a defence.is estoppedfromalleginglaterthat the contract wasentereditltosubjectto a condition to redemption.(SeeArticle100.

or planting or treesthereon. disregarded.if theyconcern government land. Example: A has held a pieceof realproperty absolute in ownership a periodof thirty-six for years.The efBuxion timewhichhasoccurred reason somelawfulexcuse.the trusteethereof entitledto bnngan actionrelating is thereto to up a periodof thirty-six years. Limitation whichis effective this connection.or property to deposited safe-keeping. actionsnot relating the of or to public. Article1661. or thathe hasa sharetherein.andthenbringsan actionclaiming thatsuchproperty his own. is to say. however.They shallnot be heardin anyevent.The periodof limitation onlybeginsto run fromthe dateof the cessation the powerof B.Actionsrelating government andactionsrelating private to land to roads. realpropfor or ertyheldin absolute ownership. whichprevents in that an actionbeingheard. shallnot be heardafterthe expiration a periodof fifteenyears. such as actionsrelatingto real property dedicatedto pious purposes leasedfor a singleor doublerent. or to piousfoundations with a condition to the as appointment a trustee. is CHAP TER II Limitation Article1660. . The trusteeof a piousfoundation thereupon bnngsanactionclaitning thepieceof real that property questionis partof the landbelonging his piousfoundation. of in elapsedby reason A's not beingableto bringan actionagainst whilein authority.and that whetherhe has a guardian not.to a rightof fiowand to a rightof takingwater.154 ARAB LAW QUARTERLY while the purchaser dealswith the property thoughit werehis own. inheritance.or the revenueof a piousfoundation.whenrelatingto realproperty held in absolute ownership.If timehas B.or a lunatic. of B this factshallnot preventan actionbeingbrought. actionwill in to The not be heard. aftertheperiodof thirty-six yearshas expired. Actionsrelatingto a privateroad.suchactionwillnot be heard.The period was of limitation onlybeginsas fromthe timehe reaches ageof puberty. has is Consequently. Article1662. or wherethe plaintiff goneto someothercountry the periodof a jouror has for ney.however.or an imbecile. The periodof a journey threedaysat a moderate is speed. Article1663. of Article1664.limitation beginsto runfromthe timeof the cessation removal the excuse.thatis a distance of eighteen hours. the (2) A has an actionagainst a personin authority whomhe stands fear.relates onlyto a penodof timewhichhasbeenallowed elapsewithout to anyexcuse.suchas of by of caseswherethe plaintiffis a minor. to a rightof flow and to a rightof taking water. or of Examples: (1) No attention paidto timewhichhaselapsed is whilea person a minor. or wherethe plaintiff beenin fearof the powerof his opponent.If theyrelateto realproperty of whichhasbeendedicated to piouspurposes.shallnot be heardafterthe expiration a periodof fifteenyearssinceactionwas last of takenin connection therewith. Actionsrelating a debt. such as by erecting as buildings pullingthemdown. actionsnot relating thefundamental or or to constitutionof a pious foundation. shall not be heardafterthe expiration a periodof ten yearssinceactionwaslast takenin connecof tiontherewith. Actionsbrought a trusteeof a piousfoundation by relating the fundamental to constitution thereofor by persons maintained suchfoundation be heardup to a period by may of thirty-six years.

havingrefrained frombnngingthe aciionpreviously owingto B's beingbankrupt. The actionwill not be heard. A vendorandpurchaser. sells The purchaser then bnngs an actionagainstA allegingthat A's land compnsesa pnvate roadleadingto his house. Examples: (1) A bringsan actionagainstB clniming fromhim the priceof a thingsold to him fifteen yearsago.but neitherof themtakesanystepsin the matter. the hearing the actionis not barred.so thatan actionpendingbetweenthemcanbe broughtto trial.suchactionwill not be heard. If any personas mentioned abovefailsto bringan actionwithoutany excuse. Examples: (1) A ownsa piece of landfor a periodof fifteenyears.nor.no actionmaybe brought one against otherin respect by the to anymatterwhicharosebeforethe periodof limitation beganto run. the penod of limitation at only beginsto runas fromthe dateon whichthe debtfell duefor payment.THE MEJELLE: BOOK XIV: ACTIONS 155 Article1665. Limitation respectto a personwho is bankrupt in only beginsto run as from the dateof the cessationof the bankruptcy.Consequently. on his of death. Article1666.will an actionby his heirsbe heard. suchactionis barredby efBuxion iime andwill not be heardduringhis lifeiinze. The periodof limitationbeginsto run as fromthe date at which the plaintiff hadthe rightto bringan actionin respectto the subject matterof his claim. If any personbringsan actionin Courtagainstany otherpersonin respectto some pariicularmatter once in a certainnumberof years. subjectto a penod of threeyearsfor paymentof the price-.meets the other personin one of such places once duringa certain numberof years.and in this way fifteenyearspass by. Ariicle1670. at on Article1668.. The Article1669. Example: A bringsan actionagainstB.B whoownsa houseabutiingon to A's landtakesno aciiondunng thispenod. without the case being finally decided.and in this waythe periodof hitation elapses. Consequently. are (3) In actionsrelatingto a marriage portionpayableat a fuNre date.sinceonly twelveyearshavepassedsincethe dateof paymentarrived.the hearing an actionby the plaintiffis barred. If one of two personslivingin placeswhichare separated from each otherby the period of a journey. If a personentitledto bringan actionfailsduringa certainpenod to do so and on his deathhis heir likewisefails to do so for a certainpenod and the total of both periods amounts the penod of limitation. actionwill be heard. (2) An actionis broughtin regard property to alenlicated piouspurposeslimitedto chilto dren from generationto generation. to if any personmakesa claimin respectto any pariicular matterelsewhereian in Court. periodfor limitaiionin respect to an action The broughtby childrenof the secondgeneration beginsto runas fromthe dateof the extinction of the childrenof the firstgeneration.andwho recently for has come into funds. The actionmay be heard. . in respectto a debt owingfor a periodof fifteenyears. to Ariicle1671.sincethe plaiDtiff no has nght to bringan actionin respectto the debtbeforethe due datehas arrived.But any of claimmadeout of Courtdoesnot causethe penodof limitation ceaseto run. the periodof limitationbegins to run from the date of the divorceor deathof one of the spouses. of Article 1667. andthereafter the houseto a thirdperson. sincethe children the secondgeneration of have no rightto bringan actionwhilethe childrenof the firstgeneration alive. an in actionin respectto a debt repayable somefuturedefinitedate. whohasbeenillsolvent fifteenyears. since a marriage portionpayable a futuredateonlyfallsdue for payment divorceor death. personmakinganda personreceiving gift arelike a a a personleavingproperty a personinheriiing and property.

Example: A hasappropriated helda pasture and groundbelonging a particular to villagefora period of fiftyyearswithouthis rightthereto beingdisputed. No periodof limitation applies actions to concerning placesappropriated the to useof the publicsuchas the publichighway.the question be exaniined the will as to whetherthe leaseis generally knownamongthe people. and suchactionis successful. but Artide 1673.The aciionwillbe heard PromulgatedRoyalIradah.by reasonof somevalidexcuse.the limitation of no effectand judgis mentwill be givenin accordance the admission the defendant.he nzay real on not claimto have becomethe ownerof such property reasonof a periodof morethanfifteen by yearshavingelapsed. an will Article1675.If the totalamountof both periodsamountsto the periodof limitation. suchjudgnentshallnot includethe others. the periodbetween of and thedateon whichsuchdocument drawn andthe dateof bringing actionis less than was up the theperiodof limitation. the defendby of if ant explicitlyadmitsand confessesin Courtin a case in which the penod of limitation has elapsedthatthe plaintiffis entitledto bringhis action. makes no admissionin Court and the plaintiffalleges that he made the admission elsewhere.andif so. If anypersonadmitsthathe hastakencertain property hire.156 ARAB LAW QUARTERLY (2) The vendor remains silentfora period.andthe purchaser similarly remains silentfora period. if the But admission whichis the subjectof the actionwasreducedto writingat someprevious datein a document knownto containthe sealor handwriting the defendant. Article1674. actionon the admission be heard.andthathe hasalways of received rent.suchas thatthey areminors.Consequently. the defendant.But if he deniesthathe has takenit on hireandthe ownerstatesthatthe real property questionbelongsto him absolutely. with of If however. 1293 . but not othervvise. ay 97umadiul Ukhra. riversandpasturing grounds. action an brought thepurchaser not be heard. the actionwill be heard.andothers. plaintiffwill fail both on the original the actionand on the admission. by will Article1672.that he gaveit on hire to him a certain in number yearsago. A rightis not destroyed the effluxion time. judgment shallbe givenin theirfavour theirshareof the for property.Thereafter inhabitants the vilthe of lagebringan actionagainst in respectto the pasture A ground. If someof a number heirsin an actionbrought respectto property the of in of deceasedin the possession some thirdpersonare barred of owingto the periodof limitation havingelapsed.are not.

jstor.org . Hooper Reviewed work(s): Source: Arab Law Quarterly. http://www. and students discover. 223-238 Published by: BRILL Stable URL: http://www. 1990). researchers. Vol. available at . A. use. 3 (Aug.jsp .org/stable/3381526 . pp.jstor. JSTOR is a not-for-profit service that helps scholars. For more information about JSTOR. BRILL is collaborating with JSTOR to digitize.org/page/info/about/policies/terms. No. please contact support@jstor.The Mejelle: Book XV: Evidence and Administration of Oath Author(s): C. http://www.org. We use information technology and tools to increase productivity and facilitate new forms of scholarship.jstor. Accessed: 28/06/2012 05:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. 5.. preserve and extend access to Arab Law Quarterly. . and build upon a wide range of content in a trusted digital archive.

A personin possessionis a personwho effectivelypossessesa specificpiece of held in absoluteownership. is to say. property.Conclusively to of personswhereit wouldbe contrary reasonto concludethatthey had agreedto tell a lie.of the ownership property ownership whichis not is ownedin absolute Article1678. suspected.THE MEJELLE BOOK XV OF EVIDENCEAND ADMINISTRATION OATH INTRODUCTION TERMSOF MUHAMMDANJURISPRUDENCE of Article1676.such as inheritance purchase. made by a number evidenceconsistsof statements substantiated Article1677. as the Article1681.Tenderingthe oathconsistsof administering oathto one of the parties. by sayingformally: .by whichis meantmaintaining CHAPTER I NATURE OF EVIDENCE SECTION I of and of Definition evidence number witnesses by Article1684.Evidenceconsistsof the adduction reliabletestimony. of matter. It is in the natureof confirmation.Property which or causeof ownership.Ownership limitedby a restrictive is lirnited any such causeis alsocalledindirectownership. a personactingas ownerof anddisposingof property or Article 1680.By maintaining existingstateof affairs meantgivingjudgment matters also Confirmation means giving to continueas they are. for is an Article1683. Administration the oath to both partiesconsistsof puttingboth partieson oath. of Article1682. by Article1679.the non-existence which is not of judgment the continuance a well ascertained for mattersas theywere.Evidenceconsistsof the givingof information a personin Courtand in the that presenceof the partiesby employingthe word "evidence". An outsideris a personwho does not exercisepossessionover or disposeof property mentionedabove.

or heardfroma reliablesourcethata certainplacehas been has he heardit thatis to say. in of evidencefemalesalonewill be accepted respectto of the dumbandthe blindis not receivable.Evidence II SECTION of Themanner givingevidence not Article1687. what of to dedicated piouspurposes.Similarly. A statesthat such by of subject investigation him.Should be necessary becomes thestatement neednot by experts. or if he statesthat he gives information.this is whomevidence given. A them. If the witnessfails to employ the formula: to be so.evidence only validwhengivenby Article the information. evidence withhis people. but statesthathe couldindicate andthereindicatethe boundaries. of source. or A statesthathe knowsthatB wasgovernor judgeof the thatB is the son of C.or one maleand is 1685. him sincethe realobjectis to describe in sucha must of the boundaries suchproperty as Article1691. to relates a deceased evidence whois of highrepute But fatheror grandfather.Should witnessrepliesin the affirmative. him wayas to distinguish fromotherpersons.Witnesses evidencethatis to say.if he givesevidenceof suchfactbecause personis dead.however.as forexample the caseof reports and merelycontaininformation not legalevidence. givingof hearsay But if a witnessstatesthathe the witnesshas heardotherpeoplesay. is that to say.If the person the witnesspointsto the threeof andif thingaboutwhichevidenceis beinggiven. if is accepted. is inadmissible.If the witnessis unableto mentionthe boundaries on the spot. his evidence ageis such thathe couldnot haveexamined has suchevidence not beenthe although evidenceand failsto statethathe is givinghearsay if shallbe accepted. witness person. sincesuchreports be mentioned. of cannotbe possessed the necessary females:but in placeswheremales two property.nevertheless. whathe hasheard.Evidence givenat the trialis invalid.andthe or in whosefavour against Article1690. evidence The and evidence must testifyaccordingly. or or thatB died at a certain and suchmatters his eventhoughhe has not investigated withoutstatingthatit is hearsay.suchevidenceis accepted.If the foror against of namesof the fatherandgrandfather the persons muststatethe the or however. thathe is givinghearsay stating without evidence a personmaygivehearsay paternity. anabsentprincipal.In matters state a from reliable evidence. having meaning theEnglish technical of *Thetranslation certain . for no as has tellxls beenorriitted. and of that whether is his manner givingevidence the witness certain to merely verifyorascertain it goodevidence.theword"evidence" furnished in things. orderto provethe existence a right * another. to is suchstatement not considered be evidence.arepresent Thereis no necessityto statethe identification. withoutstatingthathe is saying Example: townat a certaindateor period. in the caseof a person namesof suchperson's nameanddescription.he shallproceedto them whichevidenceis given. the spot reader. a that certain deathand administration. is whomevidence beinggiven.Whengivingevidence to realproperty.224 LAW ARAB QUARTERLY whichone personseeksto establish of in give "I evidence". for it is sufficient the witnessto statesuchperson's andis well known.In civil cases. to haveseen the thingwith regard whichthey give mustpersonally Article1688. to shallbe considered be sufficient them. Article1686. with sayingthat he knowsa thing himself ask thereupon the theCourt. to withregard property of the real be stated. knowledge sucha thingis common "I give evidence"and contents Article 1689. If A givessuchevidencedefinitely time. against twomales.

the evidenceof a fatherand a grandfather of a that and motherand a grandmother behalfof theirchildrenand grandchildren of childrenand on and .is admissible.Thereis no necessity to statethatsuchsumhas beeninherited the heirs. but was elsewhere. as SECTION III Fufulamental conditions to thegivingof aidence as Article1696.which is in the possessionof such person.witnesses with mayvalidlygive evidencethat sucha personis theownerof theproperty. Shouldthe plaintiffbringan actionbasedupon the boundaries forthin his set titledeed.the defendant putsin issuethe questionas to whether debtis stilldue. If. Ariicle1697. purelynegaiive evidence inadmissible.or a househas beenseen to be in goodcondition.the case will be decidedin the samemanner. allegingthat he lent a certainsum of money.or thatsomeoneis not in debt to a certainperson. should a definitepiece of propertybelongingto the testatorbe claimed.evidencethatsuch personis dead. Ariicle1699.it is sufficientif the witnessesgive evidencethat the sum of moneyin questionwas owingto the deceasedby suchperson.It is a conditionprecedent givingevidencethatthe witnessshouldbe entirely to irnpartial. however. to a certainperson. and at a certainplace.witnessesmay validlygive evidencethat such a sum of moneyis due to that personby the deceased. Example: A bringsan action to recovera sum of money advancedas a loan. Ariicle1700. A conditionprecedentto givingevidencein civil casesis the institutionof an action.Elridence whichis contrary obviousfactsis inadmissible.such evidenceis adInissible the plairltiffws will be and case dismissed. when the plaintiffbringsan acoon to recoverproperty his own in the of possession the deceased. in accordance the termsof Article1623. Article 1694. Consequently. evidenceby an ascendant behalfof a descendant of a descendant on or on behalfof an ascendanta is to say. If a personbringsan actionto recovera sum of money from the estate of a deceasedperson.The samerule appliesif an actionis broughtto recovercertainpropertyand not a debt.THE MEJELLE 225 Article1692.or thatsuch househas falleninto disrepair not admissible. Consequently. that is to say. witnesses the maynot validlystatethatthey haveno information to whetherthe debt is still due or not. Conclusively substantiated evidenceof a purelynegaiivecharacter. Shouldsomespecificthingbe the subject by of the claim and not a debt.Thereis no necessityto statethatthe moneywas owingup to the time of his death. of Article1695. however. that is to say. is Article 1698.The legalobjectof evidenceis to provea right. If a personbringsan actionto recovera swn of moneydue from some other person. at a certainiime.If a personbringsan actionto recover sumof moneyowingto the personfrom a whomhe has inheritedby someotherperson. boundaries whicharesetforthin the title-deed. to Example: If A hasbeenseenalive. the of Article1693.witnesses mayvalidlygiveevidencethatsucha sumis owingby the latterto theplaintiff. If conclusivelysubstantiated evidence is given provingthat A was not in that place at that iime. wheresomeonestatesthata certain is as persondid not do a certain piece of work)or thata certainthingdoesnotbelongto a certain person. Evidenceof facts contraryto what is provedby conclusivelysubstantiated endence is inabissible.

evidenceof the suchpersons behalfof one another admissible. on is Arecle 1701. are than Consequently. however. is alsoadmissible theygiveevidence suchproperty is It if that has belonged A for one year. . Examples: (1) A bringsan acton allegingthatcertainproperty belongedto him for the last two has years. the judgeof a if townwho has retiredgivesevidenceas to a judgment delivered him beforehis retirement. on and is Article1704. A witnessmust be an uprightperson. A personmay not give evidenceof his own acts. evidence persons habituaLly the of who behavein a manner inconsistent withhonouranddignity. evidenceof fellowservants behalfof on The on one another. to however. Ety of a temporal nature ascertained reference custom. . to . admissible.suchas dancers comedians. of a suretyin respectto payment the principal and by of the sumfor whichhe stoodsurety.is inadmissible. SECTION IV Relesancy evidence thepoant of to at issue in theactio? Article1706.The evidence admissible. and and persons who areknownto be liars.is inadmissible. In however. is by to Article1703. is Again. has to Suchevidence adInissible.Witnesses give evidencethatsuchproperty belonged A for the last two years. such evidence is inadmissible. Similarly. Consequently.is inadmissible. The (2) A debtorallegesin Courtthat he has paidhis debt. the is Ariicle 1707.An uprightpersonis one whosegood qualities greater hisbadqualities. Examples: (1) The acooncorscerns objectdepositedfor safe-keeping witnessesgive evidence an and thatthe defendant aduiitted deposit.or the actionconcerns has the wrongful appropriaiion of propertyand witnessesgive evidencethat the defendanthas admittedthe wrongful appropriation. mereconformity to thelanguage for as employed.and thatof a personin the salaried employment of another behalfof suchperson. evidenceis admissible.A personcannotbe bothplaintiff witness.the evidenceof partners behalfof eachotherin on respectto the partnership property. the evidenceof relations behalfof one another admissible. othermatters. Witnesses give evidencethat the creditor released debtorfrompayment. agentsand brokers may not give evidenceas to any sales effectedby them. Subject theseexceptions. evidence a manwho is on is The of maintained someotherperson's at expense. one on and and of the spouseson behalfof the other.226 ARABLAWQUARTERLY grandchildren behalfof theirfatherandgrandfather motherandgrandmother. The evidenceof a personon behalfof his friendis admissible.is not admissible. if he givesevidenceafterhis retirement to an admission But as madebeforehim priorto his retirement.But if the bondsof friendship unitingthemaresuch that they use eachother'sproperty. ln . by such evidenceis inadmissible. Ariicle1702. suchevidenee valid. is enoughif It t lere 1Scortormlty tact. is Article1705. of Thereis no necessity. The evidencemust agreewith the claim)whethersuch evidencegoes to the wholeor to partonlyof suchclaim. however.Consequently) evidence a and the of guardian behalfof an orphan of an agenton behalfof his principal inadmissible.Evidence admissible it agrees is if withthenature theclaimandnototherwise. .It is a condition precedent the validity the evidence thereshouldbe no to of that enmityof a temporal nature between witnessandtheperson the against whomhe givesevidence.

A plaintiffmayvalidlybringan actionclaimingownership arisingout of some definitecause.the fruitformerly to produced the by vineyard becomesthe property the plaintiff.that a vineyard belongsto him.If.merelyalleges or thathe hasboughtsucha vineyard froma certain person. Evidencein respectto morethanis claimedis inadmissible. the plaintiff.But if the plaintiff.withoutmentioning If the vendor.The evidenceis inadmissible.statingthat the plaintiffboughtsuch property of froma certain personanddescribe vendor. (2) The plaintiffclaimsthatcertainproperty devolveduponhim by wayof inheritance has fromhis father. withoutstatingthe details.Evidencegivenin an actionwith regardto debt whichis contrary the claim to is inadmissible. rightof absoluteownership more a is extensivethana rightof ownershiparisingout of some definitecauseand thus the witnesses havegivenevidencefor morethanthe plaintiffhas demanded.Thus. Article1709.The has evidenceis inadmissible.as fromthe dateof the sale.If the plaintiffbringsan actionfor absoluteownership withoutstatinghow he becamepossessedof the property.Witnessesgive evidenceas to five hundred. evidenceis admissible. the witnesses.statesthathe haspurchased suchvineyard.such evidenceis admissible. the Courtshallacceptthe evidencegiven by the witnesses. (2) The plaintiff'sclaim is for five hundredpiastres.however.the plaintiffstatesthathis claimis basedupon someothercause.or thatit is not basedon thatcause.Theirevidencein regardto the five hundredis valid. Witnesses give evidencethatsuchproperty belongedto him for the lastthreeyears.of which the witnesseswere unaware. theirevidenceis inadmissible. however. give statingfromwhomthe plaintiff bought the vineyard.If the rightof ownership also of arisesout of some definitecause. Article1710.give If evidenceas to absoluteownership property.the evidenceis admissible. however. Article1711.it can only be effectiveas fromthe dateuponwhichsuch rightarose. by explainingthat at one time one thousandpiastreswere in fact due to him from the defendant. for example.Forexample.shows that the action is in conformitywith the evidenceof the witnesses.for example.Witnessesgive evidenceas to one thousandpiastres.the If.as for example.suchevidence inadmissible.but that five hundredpiastresof that amounthave since been repaid.suchactionshallbe considered be an to actionfor absoluteownership. Examples: (1) The plaintiffclaimspaymentof one thousandpiastresallegedto be due to him as the priceof a sale. if the witnessesgive evidencethat the vineyard question and in is the plaintiff's absoluteproperty. and the plaintiffrepliesthat he does in fact claimthe propertyby reasonof such cause. if the witnessesgive evidenceas to ownership arisingfrom a definitecause and the Courtasks the plaintiffas to whetherhis claim to the propertyarisesfrom that causeor from some other.Witnesses give evidencethatthe property devolveduponhim by wayof has . the Courtshallrejectthe evidenceof the witnesses.THE MEJELLE 227 (2) The plaintiff'sclaim is for one thousandpiastres.alleging. Consequently. reasonforthis the is The is thatonce an absoluterightof ownership established. the evidenceof such witnessesis admissible.however.in the caseof a vineyard. and witnesses evidenceas to theoriginof theownership. the Examples: (1) A bringsan actionallegingthat certainpropertyhas been his for the last two years. Article1708. effectthereofis retrospective is the and will extendto matters incidental suchthing. If the witnessesgive evidenceto the effectthatthe defendant owes such sum in respectto a loan. divergence betweenthe claimandthe evidenceis in factcapable explanation the plaintiff of and does so explainsuch divergence.

andonewitnessgivesevidence the actwasperformed or of that at a certain fixed time. sincean actonceperformed cannotbe repeated. witnessgivesevidence theeffectthattheanimal of A to is a greyhorse. pledge.and one witnessgives evidencethat such property sold in a was certain houseand the otherthatit was sold in a certainshop.As regards to the matters. Consequently. whetherit is of the male or female sex.the evidence is admissible.since as of of suchcontradiction not affectthe subjectmatterof the evidence. but put can Article 1714. SECTION V Contradictoty evidence Article 1712.whileyet another statesthatit is a mare. does Example: A assertsthathe has paida debt due.Contradictions to the amountof the pricein the evidence witnesses an as of in action a contract on renders suchevidence inadmissible. Example: Onewitness givesevidence stating certain that property soldforfivehundred was piastres and another witnessthatit wassoldfor threehundred piastres. is Example: One witnessgives evidencein respectto a thousandpiastresgold.purchase. Shouldwitnessescontradicteach other as regardsthe colour of property wrongfully appropriated.Another witnessstatesthatit is a horse. loan. is But if a personbringsan actionin Courtclaiming property the possession somethird in of person.is inadmissible. suchevidenceis inadmissible. payment a debt.any contradiction of witnesses to circumstances timeor placewill not affectthe validity the evidence. the contradiction regard If with to the incidental matterdoesnot affectthe subjectmatterof the evidence. releaseand testamentary disposition. is Article1715. however.Another witnessstatesthatthe animal a dark-brown is horse.suchaswrongful if is to appropriation. One witnessgives evidencethatA paidsuchdebtin his house.If thereis a contradiction the evidencegivenby witnesses in regarding matters incidental the subject to matterof theirevidenceandsuchcontradiction extendsto the subject matterof the evidence itself. theevidence givenwithregard a merefact.228 ARABLAWQUARTERLY inheritance fromhis mother. in is Article1713.Theirevidence inadmissible. Theirevidence inadmissible.The evidenceis inadmissible.suchas sale. a matter on record be repeated. whichareplacedon record. or at a certainplace. is . The evidenceof witnesseswhich is contradictory respectto the matter in regarding whichthe evidence given. Example: Wrongful appropriation ananimal. suchevidenceis admissible. their evidence is or inadmissible. hire. suretyship. debt. transfer of debt. since the conflictof evidenceshowsa discrepancy exist concerning subjectmatterof the action.The evidenceof thesewitnesses inadmissible.The evidence of the witnesses inadmissible.Another witnessgivesevidencethatA paidthe debtin his shop.asserting that such personsold him the property a certainsum of moneyand for clairns deliverythereof.and another witnessgivesevidencethatthe thing was done at anothertirneor anotherplace.Another witness statesthatit is a chestnuthorse. such evidenceis admissible.however. gift. anotherwitnessgives evidence to one thousand as piastres silvermeidies.

or that they do not knowthem. A privateinquiryas to the credibilityof a witnessis calledin technicallegal language sealedwritingandis conducted writing. and judgmentis given on his admission.The documentshallthen be sealedand placedin an envelopeand sent to the persons selectedto give information to the credibility the witnesses. from the officers and clerks of their battalion. Upon the occurrence suchan event.the inquiryshallbe addressed the teacher the school to of in which they are carryingon their studies.If such persons. the Article 1719.or if they returnthe of documents the Courtduly sealed)but withouthavingwrittenanythingthereon. and sealingthe envelopewithoutallowingthe personwho has broughtthe document. both publiclyand privately.the effect of whichis that they are unableto certifythe uprightness the witnesses. he states that the witnesseshave given false evidence. If the personsto whom the documentis addressed the purposeof giving for the information to certifyin writingthat the witnesssare uprightand that their evidence fail is admissible. if in fact they statethatthey arenot upright. If a merchant.whetherthe witnesses areuprightor not.however.If the witness is a clerk. fromthe wardenof such a guild and the members If of the committeethereof. If the documentstates. or or that they knownothingof the conditionof such persons. If such person states that he considersthe witnesses are truthfulor straight-forward regardsthe evidencethey have given. they shallstatethat they do not and If considerthemto be trustworthy.the Courtshall ask the personagainst whom evidencehas been given whetherhe considersthat the witnessestold the truth when giving their evidence. Theyshallthen sign the document returnit to the Court.THE MEJELLE 229 SECTION VI Inquiry thecredibiliw witnesses into of Article 1716. judgment shallnot be given.considerthatthe witnesseswhosenamesarewrittenthereinaretrustworthy.The Courtshallinsertin the document a in the nameof the plaintiffanddefendant. not.If.they are mistaken in regardto such matters.their identity.If they are soldiers. while being uprightpersons. but the Courtshalltake steps to ascertain.afterperusal as of of the document. from his superiorsand from his fellow clerksin the office. as well as from reliableinhabitants.at the sametime deniesthe matterin issue.to ascertain contentsthereof. subject the matterof the action. Article 1718. their place of residence.or that it is a matterbeyondtheir knowledge.or make some similarstatementeither directlyor by implication.the Courtshallnot tell the plaintiffthathis witnesses of aredisqualified fromgivingevidence.thatthe witnessesaretrustworthy thattheir and .but shallmerelyinstructhim to produceotherwitnesses if he has any.the namesanddescriptions of the witnesses.or while admittingthat the witnesses areuprightpersons. they shallstatein writingunderthe namesof the witnessesin questionthatthey considerthem to be trustworthy thattheirevidenceis admissible.If he belongsto any otherclass. then fromreliableinhabitants the of districtor village.from reliablepersonswho arealso merchants. addingfinallyanything whichwill differentiate witnessesfromany other the persons. if the witnessesarestudents.or that.the namesof their fathersand their grandfathers. Thus.or any other person. theirnamesonly if they are personsof note.or have forgottenthe matter. however.the Court to shallnot acceptsuch evidence. togetherwith or theirdescription.their profession. When witnesseshave given evidence.The inquiryas to the credibility witnessesshallbe addressed of eitherpublicly or privately the personhavingauthority to over suchwitnesses. Article1717. he is taken to have admittedthe as matter in issue. a memberof a guild.

publicinquiryshallthereupon instituted to the credibility the is a be as of witnesses.but beforejudgment. Shouldwitnessesaftergivingtheirevidence.230 ARABLAWQUARTERLY evidence admissible.Althoughin the case of a privateinquiryone personmayvalidlybe selected to give information to the credibility witnesses.if it to on is deemsit necessary.If not. withdraw the evidencein Court.the credibility the witnesses beenproved of has in oneparticular theCourt case. strengthen theirevidence aciministering oath. the Courtshallgive judgment accordance the evidence. such personis able to provehis case by If evidence.to as of use the wordevidence.allegingthat they are givingtheir evidencefor someulteriormotive. this hasnot already of if beendone. put the witnesses theiroaththattheirevidence not false. In the event of the deceaseor disappearance witnesseswho have given of evidencein civil matters.Shouldthe personagainst whomevidence givenaskthe Court.the person of againstwhom the evidenceis given attacksthe witnesses. Article1721. neednotagain inquire thecredibility thesamewitnesses.If. .A publicinquiryis in the natureof evidence. It is unnecessary. APPENDIX Swearing wilnesses Article1727. to Article1724. the Courtshallhold an inquiry into the credibility the witnesses. In the event of some of the personsselectedto give information to the as credibility witnessesreportingagainstthem and of othersreportingin their favour.beforegiving is judgment.for the personsselectedto give information to the credibility the witnesses.If an inquiryhas in factbeenheld.If eitherbeforeor afterthe inquiryinto the credibility witnesses. Article1723. rulesrelating the to evidenceand the numberof witnessesare applicable this case also. into of if they give evidencewith regardto someothermatterbeforethe expiration a periodof six of monthsfromthe date on whichtheylast gaveevidence. in with Article 1725.such as avoidinga loss or realising gain.accompanied a person of or by specially deputed for that purpose. in however. the Courtshall a call upon him to furnishproofof his allegations.the Courtshallrejectthe evidenceof suchwitnesses.proceedto the placewherethe personscalledupon to give the information reside.the of Court shall give preferenceto the hostile reportand shall refrainfrom giving judgment thereon.Consequently.andthe inquirytakesplacepubliclyin theirpresence. Article1720.at least two shouldbe appointed of as of out considerations prudence. in the opinionof the Court.the Courtmust againproceed the inquiry.The Court by the mayinform the witnesses theirevidencewill not be accepted that unlesstheyswearthe oath. of Article1722.such evidenceis considered to have been givenand the witnesses not shallbe reprimanded. thetwoparties.theCourtmay. SECTION VII Withdrawal evidence of Article1728.Thepublicinquiry to the credibility witnesses conducted follows:the as of is as persons calleduponto givetheinformation brought are beforetheCourt theinquiry made and is in thepresence the twoparties.the Courtmay still hold an inquiryinto the credibilityof their evidence give judgment and accordingly. Article 1726.If morethanSLx monthshavepassed however.

Their numbermust be so considerable.it becomesa validgroundfor action.to be valid. the evidencerequiredbeing given by the others. but shall be reprimanded only.No actionmaybe takenon writingor a sealalone.Conclusively substantiated evidenceis tantamount positiveknowledge. Documentsinstitutinga piousfoundation not in themselvesconsidered are to be conclusive.half the valueof the subjectmatterof the actionmust be paidby the witnesswho has withdrawn.is not enoughto give the evidencerequired.No proofis required any otherway. Article1733. in Article 1737. to Ariicle1734.they arethenconsidered be conclusive.that is to say) that if is one of the partieshas more witnessesthan the other)he will not be preferred that reason for alone.mustbe madein Court. Consequently.If registered.thatis to say.Thereis no necessityforthe word"evidence" be usedin casesof conclusively to substantiated evidenceandthereis alsono needto insistthatthe witnessesshouldbe of upright character. (See Article80).THE MEJELLE 231 Article 1729. Ariicle1731. his SECTION VIII Conclusively substantiated evidence Arucle 1732.and entriesin the land registersare consideredto be conclusive.A witnesswho hasgivenevidencein one Courtmayvalidlywithdraw evidencein anotherCourt. to . The Sultan'srescript.since they arenot taintedby fraud. If the numberof witnesses. Shouldany of the witnesseswithdraw theirevidenceas mentionedabove.however.registers keptby the Courts sucha wayas to be freefromanyirregular in practice or deceptionareconsidered be conclusive. or if thereare if morethanone. Article1738. however in Courtregisters whicharereliableas statedabove.As is set forthhereinafter the Bookrelatingto the Aduiinistration Justice in of by the Courts. those who withdrawneed not pay the value of the subjectmatterof the action. to CHAPTERII DOCUMENTARY EVIDENCE AND PRESUMPTIVE EVIDENCE SECTION I Documentary evidence Article1736.however. then by themall in equalshares. personagainstwhomevidenceis given will not be a heardto allegethat the witnesseshavewithdrawn theirevidenceout of Court.Consequently. however.A withdrawal evidence. Article1730.is so largethat they conclusively substantiate the evidence. to Ariicle 1739.but the witnessesmust pay the value of the subjectmatterof the actionto the partyagainstwhom judgmenthas been given. No definite number of persons is necessary to constitute conclusively substantiated evidence.Any withdrawal of madeelsewhereis invalid. No importance paid to the merenumberof witnesses.the judgment has stands. thereis one only. If the numberof witnesses. judgment may be given thereon. however.they will be preferred. Shouldwitnesseswho have given evidencein Courtwithdrawsuch evidence afterjudgment been delivered. that it would be contrary reasonto concludethat theyhadagreedto tell a lie. thereis no needfor an inquiryas to the credibility such persons of Article 1735.If suchwritingor sealis free fromanytaintof fraudor forgery.

B thereupon entersthe houseand findsC. It is certainthat A is the murderer C. Courtshallrequire is in the the person claiming rightof pre-empiion swearanoaththathe hasnotwaivedtherightof the to pre-emptlon anywaywnatsoever. the defendant be shalltakean oathat the instance the of plaintiff. (4)WhentheCourt aboutto givejudgment a caseof pre-emption. and that in of C lateradmitsthathe has soldthe property one thembut joinsissuewiththe other.however. to Example: A is seen leavingan emptyhouse precipitately with a blood-stained knife in his hand. should is the plaintiff unableto provehis case.One groundof judgment takingor refusingto takethe oath. nordivestedhimselfin anywayof the property of therein. he shallbe caused to takethe oathin the nameof God. the Courtshall on of requirehim to take an oath that he did not. eitherexpresslyor impliedly.but whenhis clientis put uponhis oath. Article1745. to Article1743.bringsan actionagainstB asserting B is the agentof somethird that person. and his Article1746.such clientmllstswearthe oathpersonally not through advocate. advocate a partyin an is in an the of actionmayplacethe otherpartyuponhis oath.the oath of shallnot be administered him.A refusalto takethe oathbeforeanyotherpersonis of no effect.Suchformof oathis knownas istizhar. The oath is only ariministered upon the application the oppositeparty.andB joinsissue. is Article1741. Shouldit be intendedto put one of the partieson his oath.the and Courtshallrequire oathto be takenby suchpersonthathe has not sold suchproperty.Similarly.A presurnption an inference is whichamounts positiveknowledge.eitherdirectly or indirectly. andreceiving pledgeor a gift.A presumption alsoa groundfor judgment.Theoathmaybe sworn onlybefore Court before the or someperson representing the Court.232 ARAB LAW QUARTERLY SECTION II Presumptive evidence Article1740. CHAPTER III ADMINISTERING THE OATH Article1742.If A. an nor disposed it by wayof gift. (3) Whena personwishesto returna thingpurchased account defect.In of fourcases. who had just hadhis throatcut.nor that he has given a releasethereof. No attention paidto any merepossibility of is suchas the possibility thatC killedhimself.nor it receivedanythingin satisfaction thereoffrom any otherperson.it is notessential B to be puton oath.(SeeArticle74).the Courtshallrequire plaintiff swearan oaththathe has not received the to anything in anywaywhatsoever satisfaction his interestfromsuchdeceased in of person. for shouldtwopersons bringanactionbothasserting theyhaveboughtfromC property the possession C.by reasonof any disposiiion sucha thingas if it werehis ownproperty as is set forthin Ariicle344 assent of to the defectin the thingpurchased. m . are a assimilated purchase. to hire.but no may to substitution permissible swearing oath. Article1744. however. (2) Whena personappears claiming be entitledto certain to property proveshis case.nor receivedany pledgeby wayof security his interest for fromthedeceased person.A representative validlybe employed placea personuponoath. Consequently. In this connection.the oathis admiriistered the Courtwithoutanyapplication:by (1) Whena personlaysclaimto andprovesthathe has an interest the estateof a deceased in person. Thus.nor transferred to any person.

or thata certain personhaswrongfully deprived the plaintiff possession of thereof.In the eventof a disputearising betweentwopersons respectto realproperty.If the defendant swearsthe oathat the instance the plaintiffwithoutthe oath of beingadministered the Court.thereis no needfor the defendant proveby evidencethathe is to in possessionof such property. recogmzec .Whena personis aboutto swearan oathconcerning own act.The oath has reference eitherto causeor to effect.he is of is the possessor thereof.the Courtshallgivejudgrnent suchrefusal. by on If suchpersonseeks to swearan oathafterjudgment beendelivered. slgns.and thereis no need for proofof thatfactby evidenceas statedabove.possessionthereofmust be provedby evidence.bringsan actionallegingthat he has bought certain property real froma certainperson. Supplement Article1753. an oaththat a certain thinghas or has not happenedis an oath as to cause. A plaintiffwho has statedthat he has no witnesseswill not be heardto say later that he intendsto call witnesses.A dumbmanmayvalidlytakeor refuseto takethe oathby the use of generally .thatis to say. thathe does not knowsuch thing. Article1752.Judgment not be giventhatthe defendant in possession will is merelyas the resultof the affirmation the two parties. eitherexpressly refusingto swear.however.THE MEJELLE 233 Article1747.he will not be allowedto call any otherwitness.Thereis no necessityfor a separate oathin eachcase.if movableproperty in the possession a person. he must swear his such oath positively. . Thus. an admission of madeby the defendant reply in to the plaintiff'sclaim.he must be madeto swearthat he has the no knowledge such matter. Article1750. or Example: An oath in an actionfor sale and purchaseto the effect that the contractof sale was never madeat all is an oath as to cause.Whenin a civil actionthe oathis dulytendered a personwhois calleduponto to takethe oathand suchpersonrefusesto takethe oath. If the plaintiff. of Article1755.or by impliedly keepingsilencewithoutanyexcuse. CHAPTER IV PREFERRED EVIDENCE AND ADMINISTRATION OATH TO BOTH PARTIES SECTION I OF THE Aclions regarding possession Article 1754.but an oath as to whetherthe contractis still continuing is an oathas to effect.such oath is of no effectand must againbe administered by by the Court.the Courtshallpayno has attentionthereto. in .Again. The statement the two partieson this pointis sufficient. Article1751.thatis.and an oath as to whethera thingis still continuing not is an oathas to effect. of Article1749.When differentactionsare joinedtogether.one oathis sufficient. or is not so.and the judgment shallremainintact.And if he has statedthat he intendsto call a certainwitness andno other.statingthat the matteris so. But when a personis about to swearan oath concerning act of some otherperson. In the case of a disputerelatingto real property. Article1748.

Actions relatingto ownershiparising from causes which are capableof repetition. Article1757. partiesshallfirstof all be required of the to proveby evidencewhich of them is in possession.such proof is taken to mean that they are in joint possession.In such cases. Article 1758.while the other producessatisfactory proof thereof.however) claimthattheirrightof ownership heldfromone andthe sameperson5 is the evidence the personin possession preferred.If two personsarejointownersof certain property.if thenvopariies produce evidence support theircase. of is Example: A bringsan actionclaiming shopin the possession B) alleging he boughtsuchshop a of that fromone VeliAgha. evidence the person in possession the of not is preferred no dateis mentioned.If neither party is able to prove that he is in possession. also. the ea/idence the of personwho is not in possession preferred thatof the personin possession. allegingthat the house of is his property that B is wrongfully possession and in thereofand askingthat B shouldbe evictedand the houserestored him. judgment shallbe given that the latteris sole ownerof suchproperty. judgmentis given for possessionin favour of the latter.In anactionforabsolute ownership.as for examplepurchase.andbringan aciion.onepartyalleging suchproperty that belongsto himalone)theotheralleging he is jointownerthereof.the in of evidenceof the personclaing absolute ownership preferred thatof the personclainiing is to jointownership. they are taken to be jointly in possessionof such property.234 ARABLAWQUARTERLY eachallegingthathe is in possession suchproperty.are regardedas identicalwith actions arisingout of absoluteownership.the evidenceof A will be preferred and heard. and the foriner is consideredto be out of possession.and thatB in this conneciion wrongfully took possession the shop.Should one of the partiesbe unable to prove that he is in possession.If both refuse to take the oath.If one person takes an oath.judgment shallbe given that they are jointownersthereof. if the two are that in jointpossession thereof.if the date is not mentioned.Shouldboth is to parties.If both personstake the oath. it for The evidenceof A) the personnot in possessionn preferred heard But if B) the personin possession is and . of B comesinto Courtand allegesthathe boughtthe shopfromone BakirEffendi)or thathe inherited fromhis father. SECTION II Preferred evidettce Article1756.whichis the reason his beingin possession. both of themclaimto be absolute If ownersandproduce evidencein support thereof. if Example: A bringsan actionwith regardto a housein the possession B.Shouldboth partiesproduceevidence provingthat they are in possession. judgment shall be given that neither is in possession.and the realproperty questionshall be seizeduntil such time as the true in factsareestablished.either may demandthat the oath be administered to his opponentto the effect that he is not in possessionof such real property. the other refusingts do so) judgmentshall be given that the persontaking the oath is in sole possessionof such propertyand the oocher considered is to be out of possession.If one of the partiescan produceno evidenceand the otherproveshis case. is to say. If B allegesthatthe houseis his ptopertyand that to consequently is lawfullyin possession he thereof. Thatis to say.theevidence that givenof soleownership shallbe preferred.

and the animalshallnot be takenawayfromthe personin possession. The horsedies while in the possession B. andthe to evidenceof hireto the evidenceof pledge. the evidenceof the personin possessionis preferred. Article1762. eachof the two is If partiesallegesthat he has boughtthe subjectmatterof the actionfrom differentpersons. In actionsrelatingto the young of animals. the age If of the animalis unknown. Example: A demandspaymentfor certainproperty fromB. Article 1759. The evidenceof the personin possessionis preferred. the evidence of the person in possession being preferred. Example: Vendorand purchaser disagreeas to the quantityor priceof the thing sold. is to Example: A claimsthe returnof property the possessionof B. The evidence givenby the partyclaimingmost will be preferred.or if it is differentfromeitherdategiven. The evidenceas to the sale or the gift is preferred. the evidenceof the personnot in possession preferred.as stated above. A sues B for the of valueof the horse. the evidenceof the persongiving the earliestdatewill be preferred.In casesof a loanfor use. In actionsrelatingto ownershiparisingout of a cause which is incapableof repetition.Evidenceas to saleis preferred evidenceas to gift.no attentionis paid to date. allegingthathe lent the propertyto in B for B's use. B by his replyallegesthatA sold the property him or bestowedit uponhim to by wayof gift.Consequently. allegingthat he bought of such land a yearago from C.who died five yearsago.however. But if there is a discrepancy between the age of the animalwhich is the subjectof the action and the date givenby the personwho is not in possession. B repliesthat A made a gift of such propertyto him and gave deliverythereof.THE MEJELLE 235 allegesthat he boughtthe shop from VeliAgha. the to personnot m possesslon.allegingthathe lent B the horsefor a periodof fourdaysandon the fifth dayit diedwithouthavingbeenreturned. and eachgives the date at which the personsellingto themacquired thingin question. Example: A bringsan actionrelatingto a plot of landin the possession B. B's evidenceis preferred that of A. or pledge.The greater claimis preferred. Article1765. the the evidencegivenby the persongivingthe earliest datewill be preferred. the evidenceof neitheris accepted. Article1763.In a claimfor ownership dependenton date. by his replyallegesthatA did not limitthe loan B . the event of a disputerelatingto a colt betweena in personnot in possessionand one who is. Article 1761. B by his answerstatesthat the land devolvedupon him by way of inheritance fromhis father. if B statesthat he inheritedthe landfrom his fatherwho died But SLx monthsago. whichA allegeshe sold B.the evidenceof the personin possession preferred.the evidenceof the latteris preferred.The evidenceof sale is preferred. Article1764. is Article1760.or hire. Example: A lendshis horseto B to use. the evidencein favourof a generalloanis preferred. and each partyallegesthat the colt is his property bornfromhis own mare.Evidenceas to ownership preferred evidenceas to loan for use.as in the case of an animalgiving birth to young.

aresuitable the other.evidenceis askedfor by of fromthe personwhoseevidencehas not beenpreferred. the of The ownerof therightof flowclaimsthatsuchrightis of ancient origin. case on Example: An earring a pieceof jewellery is suitable a woman.The evidence the of ownerof houseis preferred.thatperson for in any maymakea statement oath. Article1768.his evidenceshallbe If accepted. such as domestic utensils furniture. on .The evidence the of personto whomthe horsewaslent is preferred. Article1769. bothareunableto advance and If anyproof. is ffudgment based circumstantial on evidence Article 1771. ARAB Example: A makesa gift to oneof his heirsanddies. both are unableto advance If any proof. SECTION III Persons whose evidence preferred. suchas for clothing jewellery. if he states on oath the things in questiondo not belong to his that wife.the evidenceof the wife is and preferred. Article 1767. Example: A possessesa right of flow upon the landsof B held in absoluteownership. Another heirallegesthatthegiftwasmadeduring the courseof a mortalsickness.Evidence givenas to good healthis preferred evidencegivenas to to a mortal sickness.In theeventof evidence beinggivenconcurrently regards andold things. he failsto do so. If a husbandand wife disagreeas to the thingsin the house in which they dwell. the if oath be atitninistered him. he proveshis case. shall to Article1770.judgment shallbe givenin his favour. suitablefor both. suchevidenceshallnot be heard. Article1766. may for is he makea statement oath.In theeventof the personwhoseevidence is preferred beingunableto provehis case the production evidence.The personin whose favourthe gift wasmadeallegesthat the gift wasmadewhilein goodhealth.butmadethe loan in general terms.In the the case of things suitablefor the husband such as a gun or a sword. the husbandmay make a statementon oath.If the personwhose evidence beenpreferred has wishesto produce evidencethereafter. difference A of opinionarisesbetweenthemas to whethersuchright is of ancientor recentorigin. or of things only.The ownerof the houseallegesthatit is of recentoriginand demands extinction the right.LAW QUARTERLY 236 of the horseto a periodof fourdays.thewifemaymakea statement on If one of the twomakesandsellsthingswhich oath. natureof the things must be examined. That is to say. judgment shall be given in his favour. Evidenceof soundnessof mind is preferredto evidence of madnessor imbecility. of and if the partywhose evidenceis not preferred producesevidence.In the event of the personwhoseevidenceis preferred beingunableto prove his case by the production evidenceas statedabove. Theevidenceof the husband preferred regards is as thingssuitable womenonly.The evidence of the personin whosefavourthe gift wasmadeis preferred. as new theevidenceas to the new thingsis preferred.If the husband a jeweller.

on Article1777.the beneficiary may makea statement on oath. Article1775. the debtorshallmakea statement. Shoulda donorwish to revokea gift and the beneficiary allegesat the trialof the actionthat the subjectmatterof the gift has been destroyed. the to such personshallmakea statement oath. If at the iime the casewas institutedtherewas no waterrunningin the channeland it is not knownwhetherwaterflowedthereformerly. Thus. or as to the descriptionor type thereof. If the pointat issueis as to whetherthe waterhasbeencut off at all. the lessorshallmakea statement oath. judgment shallbe givenbasedon the circumstantial evidenceof the case. he shallbe causedto takean oaththatthe on channelis not new. his to for bringsan actionagainstsuchperson.if the lesseeclaimsthatit was ten daysand the lessorfive only.If the two parties. if a personwho any hasentrusted property another safe-keeping.If a personis indebtedto another respectto various in sumsof moneyand such personmakesa payment the creditor anactionis brought determine respectto which to and to in particular debt the paymenthas been made. thatis to say. But if he wishesto bringevidencein ordernot to on swearan oath. and the ownerof the house allegesthat it is new and wishes to removeit andneitherpartycanproduceanyevidence.The ownerof the channelmaymakea statement oath. If both of them is produce evidence.the ownerof the housemaymakea statement on oath.If a lessee of a mill seeks to deducta portionof the rent of such mill afterthe expiration the term of the lease by reasonof the waterharring of been cut off for a certain periodduringthe currencyof the lease and the lessorand lessee disagreethereon. suchevidenceshallbe heard. the If the pointat issue is the periodof time duringwhichthe waterwas cut off. for example. not Article 1774. natureof the casemust be exarnined.Upon the deathof one of the spouses.the heirstandsin the placeof the person fromwhomhe inherits. the survivingspousemay makea statementon oath. the lesseeshall on makea statement oath. Should bothspouseshavedied at the sametime. If a dispute occurs betweenvendorand purchaser to the amountof the as price.and there be no evidenceavailable. .or if it is a well-knownfact that the waterwas flowingthereformerly. or the amountof the thing sold.no changeshallbe madein such channel. If the wateris not runningat the time.THE MEJELLE 237 Article1772.Thus.the natureof the casemustbe examined. SECTION IV Administration theoalhto both of parties Article 1778. Article1776. the heirof the husband maymakea statement oath on as regards thingssuitablefor both of them. if the lessor absolutely deniesthatthe waterwascut off. or both. If the wateris flowingat the time the case is instituted. Article1773.as statedabove.and the latterby his replyallegesthathe has returned thingentrusted him for safe-keeping. the lesseemaymakea statement on oath. If a disputearisesas to whetherthe channelalongwhich wateris flowingto a person'shouse is old or new. if the wateris runningat the timethe actionis institutedandheard. judgment given in favourof whicheverof the two producesevidence. A personto whom a thing has been entrustedfor safe-keeping shall makea statementon oath as regards questionof his releasefromliability.areunableto produceany proofas regardsthingssuitablefor both. judgmentis given in favourof the partywho producesevidencefor the greater amount. thatis to say.

The persontakingthe thingon hirealone to maymakea statement oath.the persongivingthe thingon hireshallfirstbe put on oath.the Courtshallput eachpartyuponhis oathas to the claimof the other party. both of them areput on oath.judgment shallbe givenin favourof the person produces who evidence.thatis to say. If neitherof the partiescan provetheircase.but in thesethreecasesonlyto thepersonwhodenies. orwithregard a the of or to rightof option.orasto whether wholeamount partonlyof thepricehasbeenreceived. If both produceevidence. the to but to the purchaser only.The as the of persontakingthe thing on hiremaymakea statement to the portionrelating the period as to whichhas elapsed. the Courtshalldeclarethe contract hireto be void.thatif bothparties produce evidence.If bothpartiesswearan oath.If a disputearisesbetweenvendorand purchaser to a thingsoldwhichhas as beendestroyed whilein the possession the purchaser.the Courtshalldeclare salevoid. both parties of shallbe put on oath. Article1783. eitherpartyrefusesto takethe oath. forexample.If the persongivinga thingon hireandthe persontakinga thingon hirehave a disputeas to the amountof the rent duringthe periodof the contract hire. and the contract cancelled regards remainder the period. Article1782. they shall be informedthat eitherone party must admitthe claimof the other.aftertheperiod thecontract hirehas of of expired.238 ARABLAWQUARTERLY If neitherof the partiescan provetheircase. beginning with the persontakingthe thing on hire. as.the mattershallbe dealtwith in the samemanner. judgment beinggiven againstthe personwho refusesto takethe oath.In theeventof a disputearising between person the givingandtheperson taking a thingon hire. the or the oathis not administered bothparties. oathis notadministered bothparties. the Article1779. on Article1781.as is set forthin the preceding Article. If bothparties takethe oath. of Shoulda disputeariseas to anyquestionof time or distance. by 26thShaaban.Provided.judgment shallbe givenin favourof the persongivingthe thing on hire. or the sale will be declared void.1293 .If a persontakinga thingon hirehas a disputewitha persongivinga thingon hirewith regard the amountof the rentbeforetakingpossession the thinghired. wheretheperson taking thingon hirealleges the thatthe rentis so muchandthe persongivingthe thingon hireallegesthatthe rentis so much. however.the otheris taken If to haveprovedhis case. if a defectof recentoriginhasbeen of or revealed whichprevents suchthingbeingreturned. If the oathis administered to bothparties. to Promulgated RoyalIradah.judgment shall be givenon the evidenceof the persontakingthe thingon hire. Article1780.If anactionis brought withregard the duedateof anyparticular to thing.the oathis not administered bothparties.beginning with the purchaser.whether timeforthe performance suchthinghasarrived not. If neitherpartyadmits the claimof the other.and an to of actionis instituted Courtin connection in therewith.

We use information technology and tools to increase productivity and facilitate new forms of scholarship. A.org/stable/3381938 . use. 5. and students discover. Accessed: 28/06/2012 05:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use. Vol.org/page/info/about/policies/terms. please contact support@jstor. pp. and build upon a wide range of content in a trusted digital archive. BRILL is collaborating with JSTOR to digitize.jstor.jstor. 1990). Hooper Reviewed work(s): Source: Arab Law Quarterly. http://www. JSTOR is a not-for-profit service that helps scholars. researchers. preserve and extend access to Arab Law Quarterly. available at .jstor. 305-311 Published by: BRILL Stable URL: http://www.org . No.The Mejelle: Book XVI: Administration of Justice by the Court Author(s): C.. . For more information about JSTOR. 4 (Nov. http://www.jsp .org.

The losingpartyis the personagainstwhomjudgment given. Article1791. are The first ciass consists of the Court giving judgmentwherebyie person againstwhom judgmenthas been given is forced to give up the subjectmatterof ie action as where he ordersthe thing claimedto be given.and thathe is forbiddento do so. is Ariicle1789.andin an actionby wayof dismissal the consistsof obliging the plaintiffto give up his action. The judgeis a personappointedby the Sovereign the purposeof dealirlg for with and settlingactionsanddisputesarisingbetweenthe peoplein accordance with the terms of law.The subjectmatterof the judgment consistsof the obligaiionimposedby the Courtupon the partyagainstwhomjudgrnent given.The judgment consistsof the stoppmgandsettlement disputesby the judge. who is calledan arbitrator.THE MEJELLE BOOK XVI ADMINISTRATION JUSTICE THECOURT OF BY INTRODUCTION TERMS MUHADA OF JUESPRUDENCE Ariicle 1784. Thus. is Article1790.Arbitration consistsof the partiesto an actionagreeing eogether select some to thirdpersonto settlethe questionat issue benveeniem. The secondclassconsistsof the Courtforbidding plaintiffto bringan actionas whereit the iSerms the plaintiffthat he has no rightto bringan action. or a judgment something for whichis due. of Judgements of two classes.The successfulpartyis the personin whosefavourjudgment given. Ariicle 1785.The phrasealnlinislraiionof jusiiceembraces judgmentand the duiies of the the judge. is by Article1787. This classof judgment calleda judgment wayof dismissal. Article1786. in . an obligatory is judgment consists of recogliizing nght of the plaintiff. Article1788. This classof judgment calledan obligatory is judgment.A deputydefendant an agentappointed the Courtto represent defexldant is by a who fiils to appear Court.

and whenlookingtowards addressing or themandthiswhether of theparties a personof high one is rankandthe otherof low estate. Consequently.The judgemustabstain fromanyactor deedof a nature injurious thedigiity to of the Court.A judgeappointed give judgment to in a particular Court may only give judgmentin that Court. and Article1793.The judgemustbe impartial towards two parties. judge the the mustobservecomplete impariiality equality and towards two parties everything the in relating to the trialof the action. Article1796.The judgemustbe intelligent. of Article1798. or not by Article1799.and must be able to decideand settle actionsin accordance therewith. He may not give judgment elsewhere. The judgemust have a knowledgeof Muhnnlmalan and jurisprudence law and of the rules of procedure.is invalid. Article1794.The judgeis the representative the Sovereign the purpose carrying of for of on the trialandgivingjudgment. The judgemust be of perfectunderstancling.306 ARABLAWQUARTERLY CHAPTER JUDGE S SECTION I I Qualittes requisite a judge in Article1792.The judgemaynot accepta present fromeitherof the parties. judicialact any performed a minoror an imbecileor a blindman or a personso deaf thathe cannothear by the statements the pariieswhenspeaking of loudly.He maynot give judgment beforethe yearcommences afterthe expiration or thereof. Article1797. SECIwION III Dutiesofjudges Article1800.suchas engagngin buyingor selling. as receiving of the parties such one alonein his house. however.or makingjokeswhilein Court.The judgemustabstain fromanyactduring tnallikelyto arouse the suspicion or causemisunderstanding. of Examples: (1) A judgeappointed a penodof one yearmayonlygive judgment for ding thatyear.such as causingthemto sit downduringthe courseof the trial. Article1801.Consequently.or slxalcingto one of themsecretly in a language understood the other. SECTION II Condtcl jtzdges of Article1795. (3) If an orderis issuedby the sovereign authority actionsrelating a particular that to matter .reliable firm. upright.The judgemaynot acceptthe hospitality eitherof the parties.or retinngwith one of themto consider juflgrnent. makingsignsto one of themwith his handor his eye the or or his head. in He may not. (2) A judgeappointed a certain for districtmaygive judgment anyplacein suchdistrict. The jurisdiction powersof the judgeare limitedby time and placeand and certain matters exception.give judgment elsewhere.

If a judge is removedfrom his post. the in of caseshallbe heardby someotherjudgein the town. if the judgehas heardevidencein an action and communicates to his deputy. to (4) An orderis issuedby sovereign authority the effectthatin a certainmatterthe opinion to of a certainjuristis most in the interestof the people.The judge mayonly try thosecaseshe is authorised hearandgive judgmentthereon. Article1806.if one is to be foundthere. Article 1804.The personin whosefavourjudgment givenmust not be an ascendant is or descendant the wife of the judge. mayhearevidenceon if to he a certainmatterand referit to the judge. judgemay not heara case relatingto one of such persons. to . by Article1808. if he is not duly authorized.Again. If there are variousjudgesin one pariicular place. Article1805.Consequently. Article 1809.the judge maybe authorised hearcertainmatters to onlyin a particular Courtandno other. the deputyof a judgeis authorized give judgment.but only to hearevidence thepurposeof investigating inquiring a matter.THE MEJELLE 307 shallnot be heardin the publicinterest. case shall be heardby him or to the the casemaybe triedby the judgeof an adjoining district. .Consequently.A judgment issuedby him afterthe news of his removal been communiciated has to him is invalid. a judgein if a certaindistrictdies.If thereis no otherjudgein the town.If two judgesare appointedjointlyto hearand give judgment an action.(See Article1466).norhis partner. his deputyis not likewisedismissed.they mayaskthe sovereign authority to delegatesomepersonempowered dealwith the question.refersa question for and into to the judge. and a differenceof opinionoccursbetweenthem in the matter. and one of the parties desiresthe caseto be triedby one judgeandthe otherwishesthe caseto be triedby another. Article1807. the norglve uc gmentm llS tavour. * * .the judgemaynot try such action.If he does so. If the judgeof a town or the personsconnectedwith him as statedin the preceding Article. and most suitedto the needs of the moment. he does so. the to however. the boundaries thereofmust be set forth as required law. will Article1802. but the news of his removalis not communiciated himfor sometime.the casemaybe triedby an arbitrator be appointed the parties.are concerned an actionwith any of the inhabitants such town. he himselfis dismissed If or dies. anycasesheardanddecidedby him dunngthatperiod to arevalid.The judgemay not act in suchmatterin accordance with the opinionof a juristwhichis in conflictwith thatof the juristin question.the judge selectedby the defendant shallbe preferred.the lattermaynot give judgment. if the judgeis authorized appointa representative. Article 1803. to by or.the lattermaygive judgment it withoutrehearing evidence.and that actionshouldbe takenin accordance therewith. the judgment If is not executory. He maynot do so. But as stated in the Book on Actions. the Similarly.If a personwhois notauthorized givejudgment. Thus.A judgeof the districtmay hearactionsrelating landsituatedin another to district.but must hearthe evidencehimself.untilthe arnvalof a new judge.If the partiesdo not agreeto settle the matterin anyone of the watys mentioned above.and the lattermaygive judgment thereonwithout rehearing evidence. the judgment not be executory.The judgemaydecidea caseon evidenceheardby his deputyandthe deputy on evidenceheardby the judge. the actionin thatdistnct shallbe triedby the deputyof the deceased judge.(See Article1465).A judgewho is duly authorized mayappointa personas deputyjudgeand maydisniisshim. a private or nor employeein respectto the property whichis the subjectmatterof the judgment. a personwho lives at the expense nor of the judge. in one of themalonemaynot try suchactionanddeliverjudgment.

Ariicle1811. the opinionof someotherpersonon a ask pointof law.afterbeing questionedas statedabove. the judge shall give judgment accordingly. Article 1814. to Article 1817.Whenthe pariiesarepresentin Courtfor the purposes the tnal. Micle 1812.If the defendant swearsthe oath.maybe acteduponand or judgment giventhereon. If the defendantadmits the cl. when necessary. expedite heanagof anaction the whenit is Ln interests justice the of to do so. he has a rightto the oath. the to Article1820.Neitherpartymayinterrupt otherwhilehe is making statement.the Courtshalldealwiththemin orderof pnonty.or if the plaintiff doesnot ask for the oathto be a(1ministered) judgeshallorderthe plaintiff give up his claimuponthe defendant.He maynot. If for Arucle 1818. and shallask ehedefendant reply. a aciionshallbe takeniIl accordance the mattermeQiioned the with iIl Bookon Aciionsandthe Bookon Endence. afterjudgment to hasbeenso delivered.If he haspreviously to reduced claimto his writing shallbe readoverandconfumedby theplaisltiff. If the plaintiffproveshis case by endence. shallthencalluponthedefendant it He to answer.If the defendant refusesto takethe oath. revealthenature of the judgment beforeit is pronounced. to If he statesthat he neithercorlfesses dexiies.In the hing of actions.his silenceis considered or to amount a denial. the judge of shallfirstof all calluponthe plaintiff statehis case. Article1816.the judgeshallaccordingly texlder oathto the defendant. by .If the defendant statesthathe is prepared swearan oath. judgment the shallremain Imdisulrbed. The judge is responsible keepinga registerin Courtand recording for thereinall judgments givenand documents issuedin sucha manner to be freefromany as irregularity. SECTION IV Theheanag an act of Areicle 1815. A judgemay not delaya case undulyby reasonof investigations to the as facts. Article 1822. he cannotproveit. puts forward counterclaim. the judge shall give judgmenton the admission. TheCourt may.the judgeshallcalluponthe plaintiff his evidence.The contentsof a judgment of a document or issuedby the judgeof a Courtin the ordinary andwhichis freefromanyt way of forgery fraud. he does the a If SQ. and if he asks to exercisesuch If right.or suffering as fromhungeror sleeplessness. A judgemay not give judgment when in such a conditionthat he cannot thinkclearly) wherehe is in trouble. the eventof the judgebeingremoved. the Aricle 1819. Article1824. musthandoversuchregister his In he to successor eitherpersonally through or somepersonin whomhe hasconfidence. however.Thus) he shallinformthe defendant the plaintiff that makessuchand sucha cl against him.withoutthe necessity axly for proofby evidence.the judgeshalldeliverjudgment based uponsuchrefusal. he denies. Article1813.The judgemustholdthe trialm public.however.308 ARABLAWQUARTERLY Article1810. If the defendantinsteadof admitiingor denyingthe plaintiffss claim. Arucle 1823.A judgemay. he shallbe prohibited therefrom the Court.his answeris considered amountto a nor to denial. If the defendmt persistsin keepingsilenceand refusesto answereitherin the afElrmative negative. Article1821. In bothcasesthe plaintiffshallbe calleduponto produce evidence.

Thus. in Article1831.a copy to the partylosingthe action. Article1832. If Article 1827. After the judge has concludedthe tnal. the parties is havingbeen presentdunng the hearingof the action.the judgeshalladvisethe partiesonce or twiceto cometo a settlement.The partiesmustbe presentwhenjudgment given.Any judgment in issuedwhichis not basedupon an actionis invalid.Oncethe judgeis fully in possession the factsandreasonsfor the judgment.and evidencehas been given in the presenceof one of them. and the defendant leavesthe Courtbeforethe enqliiryas to the credibility the witnessis commenced before of and judgment given. and such heir leavesbeforejudgment is pronounced. On the otherhand. he shall give judgmentand make it knownto the parties.if the representative the defendant presentandevidencehasbeengiven of is in the presenceof the defendant. is of andpronounce judgment his absence. and the plaintiffcomes into Courtand bringsevidenceto provehis claim. judgemaypronounce is the jllslgrnent in his absence.If an actionis broughtagainstthe wholeof the heirsof a deceasedperson. No judgment may be issued unlessan actionhas been instituted.a settlementshallbe drawnup in accordance with the termsof the Bookon Settlements.Thereis no need for the evidenceto be repeated. for a judgeto give a judgmentin any matterwherethe rightsof the public are affected. CHAPTER II JUDGEMENTS SECTION I Condinons attaching a judgment to Article1829.the caseshallbe triedout. the judgemay proceedto the enqliiryas to the credibility the witnesses. judgemaygive judgment the againstany otherheirwho may be summoned to be presenton such evidence.If they agree.The Courtshallprovidea competent reliable and interpreter the translation for of statements madeby anypersonwho does not know the language the parties. A copy thereofshall be given to the successfulpartyand.andleavesthe Courtbeforejudgment pronounced.The defendant shallbe summoned appear to beforethe Courtby the judgeupon .an action musthavebeenbroughtby one personagainstanother respectto thatmatter.basedupon the admission. of he maynot delaypromulgation thereof. of Article1826. He shallthen drawup a formaljudgment containing reasonsfor the decisionand orders full given. judgemaygive judgment of the againsthim on such evidence. SECTION II udgment bydefault Arucle1833.the judgemaygive judgment againstthe representative after hearingthe evidence. Article1828.Butif anypersonbringsanactionagainst someotherpersonandthedefendant admitsthe claim.In the caseof actionsbroughtby relatives in caseswherethereis a possibility or of the partiescomingto a settlement. Article1830.Thatis to say. they do not so agree.If the defendant personally is presentin Courtafterevidencehas been givenin the presence his representative. Again.THE MEJELLE 309 Article1825.must be presentalso when judgment is given. if necessary.if the defendant deniesthe plaintiff's action.

andthatthe will for casefor the plaintifftogether with his evidence. he failsto of If appear. and the mattershe has been appointed to decide.B's defencewill be beard.thatis to say. If Article1840. and Consequently.and. or a the judgeshallappoint person a as his representative orderto safeguard in his interests.shallthenbe heardin the presence the representative if proved.Actionsrelating rightsconcerning to property maybe settledby arbitration.If the personagainstwhom judgment beengivenis dissatisfied has with such judgment. showsthathe has has a sounddefencethereto.or if he bringsa defence whichfails. foundto be in accordance the if withlaw.his defence asks of shallbe heard thepresence theperson in of in whose favour judgrnent beengiven. CHAPTER *V ARBITRATION Article 1841.he maybe forcedto appear. Judgment given in his favour. not. be Article1839.He may .If anyperson against whomjudgment beengivenalleges such has that judgment is contrary the rulesof law andgivesthe reasons to therefor. to the Courtshall. if any personagainst whomjudgrnent beengiven. and that he inheritedit fromhis fatherand proves his case.A defencemaybe validbefore juxigrnent afterjudgment. to eitherpersonally through representative. askingfor the caseto be heardin appeal. shallbe confirmed. Article1834. thecase If will heardin appeal.together with his evidence.If the defendant persists his in refusal appear. judgeshallinformhim thata the representative be appointed him. of and.An aciionin respectto whicha judgment validlybeengiven. issuea summons him on threeseparate to occasions appear Court.his defenceshallbe heardand actiontakenas may be necessary. The decisionof an arbitrator valid is and executoryonly in respectto the persons haveappointed who him. not. andthe mattertriedout. he has no If defenceto the claim. has ajudgment whichcontains reasons grounds the and therefor. CHAPTER III RETRIAL Article1837.if it is found be in accordance law.and. the original judgment be reversed will andhis actiondismissed.The casefor theplaintiff.on theapplication the of plaintiff. Article 1842. has Example: A bringsan actionagainstB allegiDg that a house in B's possession belongsto him. it shallbe reversed. A judgment issued by defaultas mentionedaboveshallbe servedupon the defendant. asksfor the rectification and thereof. through representative. judgment shallbe issuedaccordingly.ARABLAWQUARTERLY 310 theapplication theplaintiff.will be heard. fails eitherpersonally.suchjudgment shallbe exz nined. If a personagainstwhoma judgment been issued by defaultappears has in Courtand showsthathe has a defenceto the plaintiffss claim. and forretrial theaction. judgment. shallbe to with confirmed. Article1836. the judgment givenshallbe put into execution. maynot be heardagain.uponhis failingto to in appear. eitherpersonally through representative.andif proved. or a andit is not possible bringhimintoCourt. Article1835. Article1838. or a in the absenceof anyvalidexcuse.If the defendant to appear. is B thensets up the defencetbatA's father sold the houseto his fatherand produces valid a title-deed.

and such appointment has been confirmedby a Courtduly authorized thereunto. Article1850. may only decide such matterwithin that period. Article 1845.Morethanone arbitrator be appointed. if they are duly authorizedthereuntoby the parties. may thatis to say.He cannotgive a decisionafterthe expiration thatmonth. Promulgated RoyalIradah.If the partieshave appointedan arbitrator.THE MEJELLE 311 not have referenceto any personor deal with any mattersother than those includedin the termsof reference.1293 hy . Consequently. Article1843. they the may the if think flt. Thus.All decisionsby arbitrators regards personsandmattersin respectto as the whichtheyhavebeenappointed bindingandexecutory the sameextentasthe decisions are to by the Courtsconcernung personswithintheirjurisdiction. shallbe accepted confirmed. decisionvalidly a givenby the arbitrators accordance in with the rlllesof law is bindingon all parties. uponsubmission a properly to constituted Court.Both plaintiffanddefendant to may eachvalidlyappointan arbitrator.Shouldan authorized personactas arbieraeor a disputeandgive a decision in and the partieslater agree to adopthis decision.If the arbitration limitedas to timeit ceasesto be of effectafterthe expiration is of such time. two or morepersons maybe appointed give a decisionin respectto one matter.In the eventof several arbitrators beingappointed above. givenin accordance law.and such arbitrators arriveat a settlement duly in conformity with the termsof the Bookon Settlements. if each of the partiesappointa personto act as arbitrator with powerto disposeof the matterin disputeby way of settlement. the judgment not be executory. Article1849. of Article1848. If he does so. Article1844.(see Article 1453). of will Article 1847. such serclement arrangement and is bindingon both parties. The arbitrators may. Areicle1851. They maynot do so otherwise. Either of the partiesmay dismiss the arbitrator before he has given his decision.26 Shaaban.theirdecisionmust as be unanimous.The partiesappointing arbitrators authorize arbitrators. appointanotherpersonto act as arbitrator. Article1846. shallnot be so and if with it confirmed. One alonemaynot give a decision. such decisionis executory.and such arbitrators may then make a valid settlement. however. to make a settlement. Otherwise.A decisionby anarbitrator. Example: An arbitrator appointedto decidea matterwithina periodof one month as froma certain date.the arbitrator consideredto be a is representative the Courtandcannotbe dismissed.