AI en Translation, Pages 176-200
Page 176
- 65 -
1 - Pump number 38900 NX, National type, 70 horsepower, with a 16 x 14 size centrifugal pump, with a National
air compressor, with an English motor for the compressor, 5 horsepower, with an Alton feed pump, pipe diameter 1 1/2 inches.
2 - A secondary pump, National type, number 3752, 38 horsepower, with a Flag brand centrifugal pump, size 14 x 12,
operating on black oil and used as a secondary unit, with a National air compressor, a 1 1/2 inch feed pump, an air cylinder, and a
disassembled motor for the air compressor.
Sixth - The annual share of Adnan Nashat Al-Sanawi in plots 1/14 and 1/15 of District 7/ Al-Majman,
Al-Tarmiyah and its adjacent areas, totaling 24/999/- dunams, is insured with the Agricultural Bank for an amount
of 1220 Dinars according to the Bank Directorate's letter numbered and dated 2-1-962. Accordingly, the area seized
from Adnan Al-Sanawi is free from mortgage.
The decision was issued based on Articles One, Four, and Twenty-Eight of the Agrarian Reform Law, subject
to objection within 30 days from the date of its publication in the Official Gazette.
Signed | Signed | Signed
First Surveyor | Director of Al-Tarmiyah Sub-district | Saleh Hamoudi Obeida
Abdul Latif Abdul Karim | Thabit Nayef Al-Hudaib | Chairman of the Baghdad Seizure Committee
| | First
Page 178
Dr. Hamid Al-Obaidi
Number
1034
Seventh Year
Republic of Iraq
Al-Waqai' Al-Iraqiya
The Official Gazette of the Republic of Iraq issued by the Ministry of Culture and Guidance in Iraq
Registered at the Central Post Office in Baghdad under number (1)
Wednesday 22 Rajab year 1384 and 25 November year 1964
In the name of God, the Most Gracious, the Most Merciful
Number (169) for the year 1964
Law
Ratification of the Economic Cooperation Agreement between the Government of
the Republic of Iraq and the Government of the State of Kuwait
and the Protocol supplementing it
In the name of the People
Presidency of the Republic
Based on the provisions of the Interim Constitution and with the approval of the Council of Ministers and the National Council for the Command of the Revolution.
The following law is ratified: -
Article One - This law ratifies the Economic | and investments between the two countries and the exchanged letter attached to the agreement
Cooperation Agreement between the Government of the Republic of Iraq and the Government of the State of | signed in Kuwait by the Government of the Republic of Iraq
Kuwait and the protocol for encouraging the movement of capital | and the Government of the State of Kuwait on October 25, 1964.
| Article Two - This law shall be implemented from the date of its publication
| in the Official Gazette.
| Article Three - The Ministers shall implement this law.
Page 179
Iraqi Gazette Issue 1034 3 25 / 11 / 1964
Article Three
All goods enjoying customs exemption and reduction under this
agreement must be accompanied by a certificate of origin issued by the competent authorities in each of the two countries. Industrial
products shall not be considered of Iraqi or Kuwaiti origin unless the Iraqi
or Kuwaiti raw materials and local production costs involved in the manufacture are not less than 25% of the total production
costs. The certificate of origin shall be according to the following model: -
(I certify that the goods listed here are of origin ⟦line⟧ and that the percentage of raw
materials and local production costs in them is not less than 25% of the total production costs).
Article Four
Current transactions between natural and legal persons residing in
the Republic of Iraq and in the State of Kuwait shall be settled in any convertible currency agreed upon by the two parties.
Article Five
Subject to the laws and regulations in the two countries, the two parties agree on the following: -
First paragraph: The competent authorities in the countries of the two parties shall grant the necessary facilities for the passage of goods
across their territories by way of transit, including exemption from fees.
Second paragraph: Means of transporting passengers and goods belonging to one of the contracting parties shall be granted
the necessary facilities to enter and cross the territory of the other party, provided that this does not
include engaging in internal transport, and the customs authorities in the two countries shall work to organize
the passage of goods and means of transport in transit, according to the arrangements
established by the Committee for Commercial, Customs and Transit Affairs referred to in
Article Eight of this agreement.
Article Six
The two contracting parties agreed on the following: -
First paragraph: Facilitating the transfer of capital and investments between the two countries in accordance with the provisions
of the protocol supplementing this agreement.
Second paragraph: Freedom of movement of persons between the two countries according to the arrangements agreed upon between
the competent authorities in the two countries.
Third paragraph: Freedom of residence, work, employment and practice of economic activity according to
the arrangements agreed upon between the competent authorities in the two countries.
Fourth paragraph: Encouraging the establishment of joint investment institutions that carry out their activities in various
economic fields, provided that the foundations and rules under which this
participation takes place are determined later.
Article Seven
Each of the contracting parties agrees to provide all necessary facilities to the
other party to hold exhibitions and to open a commercial office in the territory of the other party to facilitate commercial exchange
between the two countries, with the exception of selling directly to consumers or importing for its own account.
Article Eight
Desiring the proper implementation of this agreement and ensuring the development of commercial and economic relations
between the two countries, the two contracting parties agree to form joint committees that will meet for the first time in
Baghdad at a date not exceeding two months from the date the agreement is put into effect, and then meet
after that at least once a year or more at the request of one of the contracting parties
in Kuwait and Baghdad alternately, and these committees are: -
1 - Committee for Commercial, Customs and Transit Affairs.
2 - Committee for Labor and Employment Affairs.
3 - Committee for Coordination of Industrial and Petroleum Projects.
4 - Committee for Organizing Investment and Payment Affairs.
5 - Tourism and Summer Resort Committee.
Iraqi Gazette Issue 1034 2 11/25/1964
Written in Baghdad on the twenty-seventh day of the month of Jumada al-Akhira for the year 1384, corresponding to the second day of the month of November for the year 1964.
Field Marshal Staff
Abdul Salam Mohammed Arif
President of the Republic
Abdul Karim Farhan, Minister of Culture and Guidance | Subhi Abdul Hamid, Minister of Foreign Affairs | Rashid Muslih, Minister of Interior | Lieutenant General Tahir Yahya, Prime Minister and Acting Minister of Defense
Abdul Aziz al-Wattari, Minister of Oil | Abdul Aziz al-Hafiz, Minister of Economy | Kamil al-Khatib, Minister of Justice and Acting Minister of Education | Mohammed Jawad al-Abousi, Minister of Finance and Acting Minister of Planning
Abdul Sahib al-Alwan, Minister of Agrarian Reform | Abd al-Fattah al-Alusi, Minister of Works and Housing and Acting Minister of Communications | Abdul Karim Hani, Minister of Labor and Social Affairs | Shamil al-Samarrai, Minister of Health
Abdul Hassan Zalzala, Minister of Industry | Abdul Ghani al-Rawi, Minister of Agriculture | Abdul Razzaq Muhyi al-Din, Minister of Unity | Muslih al-Naqshbandi, Minister of Awqaf
Economic Cooperation Agreement
Between the Government of the Republic of Iraq and the Government of the State of Kuwait
The Government of the Republic of Iraq and the Government of the State of Kuwait, driven by the desire to strengthen the national and natural ties between their two countries and to develop trade exchange and increase economic cooperation between the two countries, have agreed on the following:
Article One
Paragraph One: The Government of the State of Kuwait shall allow the import of agricultural, animal, and industrial products and natural resources of Iraqi origin imported directly to Kuwait, and the Government of the Republic of Iraq shall allow the export of these products.
Paragraph Two: The Government of the Republic of Iraq shall allow the import of agricultural, animal, and industrial products and natural resources of Kuwaiti origin imported directly to the Republic of Iraq, and the Government of the State of Kuwait shall allow the export of these products.
Article Two
Paragraph One: Agricultural and animal products originating from one of the countries of the two contracting parties and imported by the other party shall be exempted from customs duties and internal taxes.
Paragraph Two: Natural resources and industrial products originating from one of the countries of the two contracting parties and imported by the other party shall be exempted from customs duties and internal taxes, with the exception of products listed in the schedules established by each of the parties. Each party has the right to introduce amendments to the schedules by including the goods it deems appropriate, provided that these goods are presented to the Committee for Commercial, Customs, and Transit Affairs referred to in Article Eight of this agreement for discussion. The amended schedules shall continue to be in effect unless the aforementioned committee takes a contrary decision.
Paragraph Three: Each of the contracting parties shall grant local products imported from the other party "most favored nation" treatment in terms of import procedures.
Page 180
Iraqi Gazette No. 2034
5
11/25/1964
Article Three
Natural and legal persons belonging to the two contracting parties who are investors
in the other country have the right to transfer annual interests and profits on time in accordance with the regulations and laws of foreign
transfer observed in each of the two parties. These investors also have the right to transfer capital
and liquidation amounts upon completion of liquidation operations in accordance with the provisions of this Protocol.
The transfer of profits, capital, and liquidation amounts shall be in the same type of currency in which
the capital was originally received for the purpose of investment.
Article Four
Neither of the contracting parties may expropriate investments belonging to natural
and legal persons belonging to the other party and invested within the borders of its country except for
public interest and in exchange for fair and immediate compensation. The value of the compensation shall be estimated at the value of the investments
seized at the time of seizure. Compensation shall be paid as soon as those investments are evaluated,
provided that this does not exceed a period of one year. The value of the compensation shall be transferred in the same currency or currencies
in which they were received for investment purposes.
Article Five
For the purposes of this Protocol, the exchange rate is determined according to the official rates agreed upon
in the International Monetary Fund, and in the event that they are not available, the official exchange rate in gold,
dollars, or any convertible currency shall be used.
Article Six
After satisfying the compensation amounts, each of the contracting parties recognizes the transfer of ownership
of investments belonging to natural and legal persons belonging to it that have been expropriated
to the government of the other party, and the government of the other party becomes the sole owner of those investments.
Article Seven
First paragraph: Every dispute arising from the interpretation or application of this Protocol that the two parties cannot
settle through direct negotiations between them shall be referred to an arbitration committee.
Second paragraph: The arbitration committee consists of three arbitrators, each of the contracting parties appoints
one of them, and the Secretary-General of the Arab League appoints the third arbitrator, provided that
he is not a citizen of one of the contracting parties, that he does not have economic interests
in the subject of the dispute, and that he is not a citizen of a state that does not have diplomatic relations
with one of the contracting parties. The third arbitrator shall be the chairman of the arbitration committee.
Third paragraph: The arbitration committee shall apply, in the arbitration procedures and in deciding on the subject of the dispute,
the provisions and rules of international law and custom in general and the provisions of commercial custom
related to the subject of the dispute.
Fourth paragraph: The decisions of the arbitration committee are considered binding on the two contracting parties.
Article Eight
The provisions of this Protocol shall be valid for a period of five years starting from the date it is put into
effect and shall be automatically renewed for another period of ten years unless one of the contracting parties
notifies the other party in writing before twelve months have passed from the expiration of the first period or the
subsequent period of its desire not to renew, provided that its provisions apply to the transfer of capital
and investments established during the period of its operation until the rights related to them
are liquidated, provided that this does not exceed a period of twenty years from the date of the end of work with this Protocol.
Article Nine
This Protocol is considered complementary to the Economic Cooperation Agreement between the Government of the Iraqi
Republic and the Government of the State of Kuwait and is subject to ratification by both contracting parties,
each according to its constitutional systems, and shall be put into effect as of the date of the exchange of
ratification documents.
Written in Kuwait on the nineteenth day of the month of Jumada al-Akhira in the year 1384 AH,
corresponding to the twenty-fifth of the month of October 1964. In two
original copies in the Arabic language.
On behalf of the Government of the Iraqi Republic
On behalf of the Government of the State of Kuwait
Iraqi Gazette Issue 1034 4 11/25/1964
Article Nine
This agreement is subject to ratification by both contracting parties, each according to its constitutional systems
and shall be put into effect as of the date of the exchange of the instruments of ratification thereof, and shall remain in force
for a period of one year, automatically renewed year after year unless one of the contracting parties notifies
the other party in writing, three months before its expiration, of its desire to cancel or amend it.
This agreement was drafted on Sunday, the nineteenth of Jumada al-Akhirah in the year 1384 AH
corresponding to the twenty-fifth of the month of Tishrin al-Awwal (October) in the year 1964, in two
original copies in the Arabic language.
On behalf of the Government of the Republic of Iraq | On behalf of the Government of the State of Kuwait
Protocol
Between the Government of the Republic of Iraq
And the Government of the State of Kuwait
Regarding the encouragement of capital movement and investments between the two countries
The governments of the Republic of Iraq and the State of Kuwait, out of their desire to strengthen the bonds
of economic cooperation between them and to consolidate them on bases that achieve the best conditions for the prosperity
of each of their economies, for the development of wealth, and to ensure appropriate conditions for investments belonging
to natural and legal persons in each of the two states within the borders of the other state, and to achieve
protection and care for these investments, have agreed on the following:
Article One
For the purposes of this protocol, the following expressions shall have the meanings shown opposite them:
Paragraph One: Investment means:
A - Movable and immovable property
B - Company shares
C - Copyrights, industrial property rights, and technical processes.
Paragraph Two: Returns mean: The amounts generated by the investment for a specific period and include profits
and interest.
Paragraph Three: Natural persons mean:
A - Regarding the Republic of Iraq - Iraqis according to the definition of the Iraqi Nationality
and Naturalization Law.
B - Regarding the State of Kuwait - Kuwaitis according to the Kuwaiti Nationality Law.
Paragraph Four: Legal persons mean:
A - Regarding the Republic of Iraq - any legal person as well as any company
or commercial institution with a legal personality established within the borders of the Republic
of Iraq and established in accordance with the laws in force in the Republic of Iraq, regardless
of whether it is of limited or unlimited liability or a partnership.
B - Regarding Kuwait - commercial companies according to the Kuwaiti Commercial Companies Law
as well as any legal person or any institution or body established in accordance
with the laws in force in Kuwait.
Article Two
Each of the contracting parties shall encourage natural and legal persons belonging
to the other party to invest in its country in accordance with local legislation, by guaranteeing
fair and equitable treatment and full protection and care for their investments according to the details contained
in this protocol.
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11/25/1964
7
Al-Waqai' al-Iraqiya Issue No. 1034
No. 1040
Republican Decree
Based on what was presented by the Minister of Justice
We have decreed the following:-
Kadhim Nasser al-Hassan, Director of Al-Yusufiya Sub-district, is granted the authority of a Peace Judge for the purpose of exercising the powers set forth in paragraph (a) of Article (45) of the Law Amending the Agrarian Reform Law No. 30 of 1958, No. 143 of 1963, as well as the authority of a Second-Class Criminal Judge according to paragraph (b) of the aforementioned article to hear cases arising from violations of the provisions of Article 46 of the aforementioned law, to be exercised within the area of his sub-district.
The Minister of Justice shall implement this decree.
Written in Baghdad on the twenty-sixth day of the month of Jumada al-Akhira for the year 1384, corresponding to the first day of the month of November for the year 1964.
Staff Marshal
Abdul Salam Muhammad Arif
President of the Republic
Lieutenant General
Tahir Yahya Kamil al-Khatib
Prime Minister and Minister of Justice
No. 1041
Republican Decree
Based on what was presented by the Minister of Justice
We have decreed the following:-
Rushdi Hassan Akah, District Officer of Halabja District, is granted the authority of a Second-Class Criminal Judge in his capacity as a Border Commissioner according to the agreement concluded between the Iraqi and Iranian governments, provided that he exercises his authority when performing his duty as a Border Commissioner only within the area of his district.
The Minister of Justice shall implement this decree.
Written in Baghdad on the twenty-fifth day of the month of Jumada al-Akhira for the year 1384, corresponding to the thirty-first day of the month of October for the year 1964.
Staff Marshal
Abdul Salam Muhammad Arif
President of the Republic
Lieutenant General
Tahir Yahya Kamil al-Khatib
Prime Minister and Minister of Justice
Statement No. (17)
In accordance with the provisions of paragraph (2) of Article (37) of the Income Tax Law No. (95) of 1959, Mr. Baiz Abdullah, Judge of the Kirkuk Court of First Instance (Unlimited), is appointed as an additional official member of the Audit Committee formed in Kirkuk.
Minister of Finance
Instructions regarding the training course
for court employees and Notary Public offices
Reference to the two statements of this Ministry numbered D/92 and dated 8-23- and 9-23-1964. The number of sessions for the subject of Execution mentioned in the ninth paragraph of this Ministry's instructions numbered D/92 and dated 8-23-1964 shall be one session per week instead of two. The number of lectures on one of the days of the week shall be two lectures instead of three.
Minister of Justice
Statement
Based on what was stated in the letter of the Karrada Court of First Instance No. 2075 dated 11-12-1964, we have decided to suspend the work of the Karrada Court of First Instance for a period of five days in view of the transfer of the mentioned department from its old building to the new building as of the date 11-21-1964.
Minister of Justice
University Order
Subject/ Formation of a negotiating delegation
Based on the telephone conversation with the Director of Technical Assistance at the Ministry of Foreign Affairs and the copy of the memorandum of the Embassy of the Federal Republic of Germany in Baghdad No. (2) 2-88-13 dated 11-16-1964.
The negotiating delegation is formed to organize the annex to the German Technical Assistance Agreement for the development of the Forestry Department in the College of Agriculture and Forestry in Mosul, in participation with the delegation coming from West Germany, consisting of the gentlemen whose names are listed below:-
1 - Dr. Ibrahim Shaukat - Secretary General of the University of Baghdad and Acting President of the University (Chairman).
2 - Dr. Muhammad Wasil al-Dhahir - Acting Assistant President for Scientific Affairs (Member).
3 - Dr. Hussein al-Ani - Dean of the College of Agriculture (Member).
4 - Dr. Ismail al-Azzawi - Acting Dean of the College of Agriculture and Forestry in Mosul (Member).
5 - Dr. Hassan Kittani - Director General of Forestry and Afforestation (Member).
6 - Dr. Muhammad Said Kittaneh - Assistant Dean of the College of Agriculture and Forestry in Mosul (Member).
7 - Mr. Salim al-Mudallal - Director of Legal Affairs at the University of Baghdad Bureau (Member).
Dr. Ibrahim Shaukat
Acting President of the University of Baghdad
Iraqi Gazette Issue 1034 6 11/25/1964
State of Kuwait
Ministry of Commerce
Kuwait on October 25, 1964
Mr. Minister
(1) I am pleased to refer to the Economic Cooperation Agreement signed today between
our two brotherly countries and to the attached protocol regarding the encouragement of capital
movement and investments between the two countries, which is considered a major step toward strengthening
economic ties and encouraging investments and organizing their protection and care in
the future.
(2) It is important to me on this occasion that you confirm to me that investments belonging to natural
and legal persons whose ownership was expropriated before the implementation of the aforementioned agreement and protocol
will have the rights related to them settled at the earliest possible opportunity in accordance with the laws and regulations
in force in Iraq at the time of expropriation.
(3) I suggest that this memorandum and your government's response of approval be considered an agreement between
our governments in this regard, complementing the Economic Cooperation Agreement and the attached protocol
which were signed today.
Please accept, Excellency, my highest thanks and appreciation
Mr. Aziz Al-Hafiz
Minister of Economy Minister of Economy
Baghdad
Embassy of the Republic of Iraq
Kuwait
Kuwait on October 25, 1964
Your Excellency,
(1) I have the honor to inform you of the receipt of your memorandum dated today, which stated:
1 - I am pleased to refer to the Economic Cooperation Agreement signed today between
our two brotherly countries and to the attached protocol regarding the encouragement of capital
movement and investments between the two countries, which is considered a major step toward strengthening
economic ties and encouraging investments and organizing their protection and care
in the future.
2 - It is important to me on this occasion that you confirm to me that investments belonging to natural
and legal persons whose ownership was expropriated before the implementation of the aforementioned agreement
and protocol will have the rights related to them settled at the earliest possible opportunity in accordance
with the laws and regulations in force in Iraq at the time of expropriation.
3 - I suggest that this memorandum and your government's response of approval be considered an agreement
between our governments in this regard, complementing the Economic Cooperation Agreement and the attached
protocol which were signed today.
(2) I am pleased to inform Your Excellency of my government's approval of the above and that your government's
referenced memorandum and this response of mine be considered an agreement between our governments in this
regard, complementing the Economic Cooperation Agreement and the attached protocol which were
signed today.
Please accept, Your Excellency, my highest thanks and appreciation.
Minister of Economy
His Excellency Khalifa Khalid Al-Ghunaim
Minister of Commerce
Kuwait
Page 182
Al-Waqai' al-Iraqiya Issue No. 1034
8
11/25/1964
Official Statement
At twelve o'clock noon on Monday, 11-16-1964, at the Ministry of Foreign Affairs, between Dr. Tariq al-Mathuli, Director General of the Economic Department, and Mr. Leo Tuominen, Chargé d'Affaires of the Finnish Legation in Baghdad, the exchange of official notes provided for in Article Eight of the Economic and Technical Cooperation Agreement concluded between the Republic of Iraq and the Republic of Finland, signed in Baghdad on 11-5-1961, took place to determine the date of the entry into force of the said agreement. Accordingly, the agreement is considered effective as of 11-16-1964.
Director General of Radio and Television
Supplement No. (3) to the Statement of the Tobacco Monopoly Administration
No. (8) for the year 1964
1 - Due to the lack of warehouses in the center of Rania District, tobacco farmers in the said district have the right to deliver their tobacco in Sulaymaniyah, Kirkuk, Koya, and Qal'at Diza for inspection by the tobacco inspection committees.
2 - Supplemental Statement No. (2) to the Tobacco Monopoly Administration Statement No. (8) for the year 1964 is hereby cancelled.
Director General
and Chairman of the Board of the Tobacco Monopoly
Dr. Akram al-Jaf
Statement No. (42) for the year 1964
Issued by the Secretary General for the Administration of Sequestrated Property due to
measures for the reform of the system of government and state security
First - Further to our Statement No. (1) for the year 1963 and based on the two decisions of the Military Governor General mentioned below, which include the sequestration of movable and immovable property belonging to those mentioned therein, their names are added to the names listed at the end of our statement above, and the provisions of our aforementioned statement and all other statements shall apply to them.
a - Decision No. S/2148/8 on 11-2-1964.
1812 - Lawyer Dhannun Abdullah al-Dhannun - his wife and children - his property was previously sequestrated according to paragraph 1761 of our Statement No. 28 for the year 1964.
1813 - Abd Mazlum - his wife and children.
1814 - Qasim Ali al-Nidawi - his wife and children.
b - Decision No. S/2155/8 on 11-3-1964.
1815 - Lawyer Hamid al-Obaidi - his wife and children.
1816 - Retiree Jawhar Ghanim - his wife and children.
Second - Further to our Statement No. (88) for the year 1963 and based on the decision of the Military Governor General mentioned below, which includes the lifting of sequestration on movable and immovable property belonging to the person mentioned below whose name appears in the paragraph indicated next to it in our statement above, his movable and immovable property is excluded from the provisions of our Statement No. (1) for the year 1963 and all other statements.
1202 - Al-Hajj Ahmed Ismail.
Secretary General
for the Administration of Sequestrated Property
Statement No. (43) for the year 1964
Issued by the Secretary General for the Administration of Sequestrated Property due to
measures for the reform of the system of government and state security
First - Further to our Statement No. (1) for the year 1963 and based on the decision of the Military Governor General No. S/2169/8 dated 11-8-1964, which includes the sequestration of movable and immovable property belonging to the person mentioned therein, his name is added to the names listed at the end of our statement above, and the provisions of our aforementioned statement and all other statements shall apply to him.
1817 - Mahdi Khalaf Wajid - employee at the College of Veterinary Medicine.
Second - Further to our statements numbered 72 and 87 for the year 1963 and 40 for the year 1964, and based on the two decisions of the Military Governor General mentioned below, which include the lifting of sequestration on movable and immovable property belonging to the persons mentioned therein whose names appear in the paragraphs indicated next to them in our statements above, their movable and immovable property is excluded from the provisions of our Statement No. (1) for the year 1963 and all other statements.
a - Decision No. 10887/8 dated 11-7-1964.
840 - Ni'mat Sadiq - former finance officer of Bibaz sub-district.
1144 - Fakhr al-Din Abdul Karim - finance officer of Qadir Karam sub-district.
b - Decision No. S/2183 dated 11-11-1964.
1807 - Contractor Fuad Allah Werdi.
1808 - Contractor Burhan Yaqub.
Secretary General
for the Administration of Sequestrated Property
Republic of Iraq - Government Press
Page 183
Lawyers' Office
Hassan Abdullah Muthafar
Hadi Latif
Mustansir Street - Sabri Tuaima Building
Telephone 82280 - 81442
Advocate Hassan Abdullah Muthafar
Advocate Hadi Latif
Sabri Bldg. - Mustansir Street
Tel. { 82280
{ 81442
Number: 11 L / 189 / 65
Date: 13 / 6 / 1965
The Honorable President of the Court of Cassation of Iraq
Subject / Responsive brief from the agents of the respondent in the file
Numbered 1482 / H / 1965
Applicant for correction of the decision: The Appellant: - Lawyer Hamad Majeed Al-Humaidi.
The Respondent: The Appellee: - Head of the Administrative Committee for Iraqi Jews - in addition to his guardianship over
the endowments of Menachem Sassoon Daniel, his agents are the lawyers Hassan Abdullah
Muthafar, Shaul Moussa, and Muhammad Salem Zaidan.
We have been notified of the brief requesting correction of decision No. 1482 / H / 65. What is stated therein is legally inadmissible
and warrants rejection for the following legal reasons: -
First: - The request for correction of the decision is not based on any of the grounds for correction: -
The challenge by correction of the decision is considered one of the extraordinary methods of appeal, as the decision of the Court of
Cassation is intended to terminate the lawsuit finally after it has been adjudicated by the highest judicial authority.
The request for correction of the Court of Cassation's decision must be based on one of the grounds stipulated in paragraph
1 - 4 of Article 231 of the Civil Procedure Code.
The reasons cited by the applicant for correction in his brief do not constitute any of the mentioned grounds for correction.
It appears that the applicant for correction considered the difference in the grounds of the judgment at the trial, appeal, and cassation levels
as a contradiction, and that this difference, in his opinion, warrants a request for correction. He overlooked that the Court of
Cassation did not confirm the judgment in terms of the result, and that the reason it adopted in confirming the judgment
is intended to be added to the trial and appellate grounds of the judgment.
The text of paragraph 4 of Article 231 is clear, as it states: -
(That the decision requested to be corrected is contradictory to itself, or that it is contradictory
to a previous decision of the Court of Cassation issued in the same lawsuit without the parties changing in identity
and capacity).
establishes
Page 184
— 2 —
What the applicant for correction stated in his brief regarding what he called the existence of a contradiction in the legal basis, interpreting that
contradiction based on the reasons for dismissing the lawsuit in the decision of the Court of First Instance, the Court of Appeal, and by the Court of
Cassation, is legally inadmissible for the following reasons:—
1 — Paragraph (4) of Article 231 — A — stipulates that the contradiction must be within the same decision requested
to be corrected, and the cassation decision subject to correction does not contradict itself, but rather presented the facts
of the lawsuit and upheld the judgment relying on a reason added to the reasons for dismissing the lawsuit initially and the confirmation
of the judgment on appeal. Furthermore, the reason adopted by your esteemed court in upholding the judgment is a correct
reason with no contradiction in it, because the actions of the dismissed trustee require prior permission from the Communal
Council, whose place is taken by the Administrative Committee for Iraqi Jews in its capacity as the supreme supervisor of the
endowment deed, as will be detailed in the following paragraph.
B— The cassation decision subject to the correction request is the only decision in this lawsuit, and there is
no other cassation decision issued in the same lawsuit.
From all this, it is clear to your esteemed court that there is no contradiction in the judgment of the Court of Cassation, nor any contradiction in any other
form stipulated in Paragraph — 4 — of Article 231 — A — of the Civil Procedure Code.
The judgments of your esteemed court, the Court of Appeal, and the Court of First Instance issued in this lawsuit
are all directed towards dismissing the lawsuit based on the legal reasons they contained.
Second:— Court of Cassation Decision No. 64/H/1972 and the Endowment Deed:—
⟦line⟧
The decision of your esteemed court, in terms of the legal reasons it contained, is in accordance with the law and the endowment deed
No. 35/Sh/87, which obligated the trustee to obtain prior permission from the supervisor for all actions
he carries out regarding the endowment, within its requirement for the trustee to submit a budget including the revenues
expected to be obtained from the endowed properties, i.e., rental fees and others, as well as expenses, and that
at least two months before the beginning of the year to which those revenues belong, and he (i.e., the
trustee) may not act upon it except after the approval of the supervisor (the Administrative Committee for Iraqi Jews
acting in place of the Communal Council) and the issuance of permission accordingly. He must also obtain prior
permission for all new matters and actions that arise after the approval of the aforementioned budget by the supervisor
as we previously mentioned.
On this occasion, it must be clarified that what the applicant for correction suggested in the fourth paragraph of
his brief regarding the lack of necessity to obtain prior permission from the supervisor and his citation of a sentence
To be continued
Page 185
- 3 -
contrary to the Waqf deed is something that contradicts the truth and reality. Where the applicant for correction has missed that the Waqf
deed had stipulated prior permission for the actions of the trustee in the event that the trusteeship passes to the descendants of
one of the two trustees standing at that time (namely Ezra Menachem Daniel and Saleh Shlomo) who passed away
and the trusteeship passed after them to Emil Saleh Shlomo, the dismissed trustee in the year 1955. The detail of that is
that when the trusteeship was in the custody of the two aforementioned former trustees, the Waqf deed stipulated that they must
submit a budget to the Physical Council, which is the supervisor, for the purpose of approval only.
But the matter differed when the trusteeship passed to the descendants of one of them after their death, namely the dismissed
trustee Emil Saleh Shlomo, as the Waqf deed stipulated in this case the necessity of obtaining prior permission
from the supervisor, which is the Administrative Committee for Iraqi Jews, for all actions he carries out ⟦line⟧
regarding the Waqf, and this characteristic indicates that the dismissed trustee's failure to obtain the stipulated
prior permission was the reason for his dismissal from the trusteeship.
And since the action subject of the lawsuit occurred during the tenure of Emil Saleh Shlomo and not during the tenure of the two former
trustees, the Waqf condition requiring the necessity of obtaining prior permission is what must be acted upon.
We intended all this not as a response to the statement of the applicant for correction, but rather we saw it as a duty to present the full
legal facts in a manner consistent with the provisions of the law and the Waqf deed so that your esteemed court
may be aware of the matter.
From all of the above, it appears to your esteemed court that the request for correction is not based on any of the reasons
for correction exclusively limited in Article 231.
Therefore, we request the rejection of the request and that the applicant for correction be charged with the costs.
With respect,
The agents of the Administrative
Committee for Iraqi Jews ⟦line⟧
Lawyer | Lawyer | Lawyer
Mohammed Salem Zaidan | Shaul Moussa | Hassan Abdullah Muzaffar
Page 187
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: 10 L / 451 / 64
Date: 14 / 11 / 1964
To the Honorable President of the Court of Cassation of Iraq
Appellate Case Number: 1972 / H / 64
Appellant: Hamid Majid Al-Obaidi - represented by lawyer Hussein Al-Haj Ali
Appellee: Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem and Sassoon Daniel endowments
Represented by lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
We were notified of the cassation brief numbered 1972 / H / 64 on 8 / 11 / 64, and we respond to it as follows:
First: Characterization of the two contracts subject of the lawsuit.
(1) The two contracts for the assignment of rental fees for the endowed properties leased by the agent of
the dismissed trustee to other persons are considered as borrowing and loaning sums for the account of the endowment. The detail of that
is that the endowed properties subject of the two contracts are leased by the contracting party to the occupying persons under contracts, and the rental
fees become due gradually in installments. Thus, his assignment of those fees is borrowing and loaning.
From this legal characterization of the assignment contract, the following appears to your honorable court:
A - The dismissed trustee did not authorize his agent, Edouard Yaqoub, under the general power of attorney attached to the case file,
to borrow or assign the fees, as the powers he possesses were specifically defined therein.
B - Assuming that the dismissed trustee had given the power of assignment to his agent, he cannot legally do so,
as the trustee does not have the right to waive the rights of the endowment.
(2) The two assignment contracts cannot be characterized as an assignment of right, as Islamic Sharia, which is
applicable, does not recognize the assignment of right, and because the elements of assignment of right under the Civil Law are not
present in the two mentioned transactions due to the absence of the element of consent, the absence of the subject matter, and the illegality of the cause,
as we detailed in our explanatory brief numbered 7 L / 283 / 63 dated 17 / 10 / 1963
submitted to the Court of Appeal.
Second: The authority of Edouard Yaqoub Shashoua.
It is clear to your honorable court from the power of attorney given by the dismissed trustee, Emile Saleh,
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Shlomo to his agent Edward Yaqoub Shashoua, the aforementioned does not possess the right of waiver since the wa-
The powers held by the agent have been specified and did not stipulate authorizing the agent to waive, which must
be in explicit terms, and the agent must execute the agency without exceeding its drawn limits (Article 933 Civil).
As the right of waiver, forfeiture, and discharge was restricted to his private properties only, and the dismissed trustee has confirmed
in his power of attorney the specification of the actions performed by his agent towards the endowment by including the expression:
(And he has the use of all powers granted to me by law and which I can legally use for myself
to preserve my rights in general)
The intent of this expression is to grant absolute powers regarding his personal rights only and to restrict those powers
regarding the endowment, as the expression came using all powers that I can use for myself, meaning
specialized for himself only and not in addition to his position, as well as the expression:
(To preserve my rights), for the expression includes the personal rights of the principal and does not extend to the endowment, since
the principal Emil Saleh Shlomo has appointed Edward Yaqoub in his personal capacity and in addition to his trusteeship from which he was dismissed
over the endowment.
It is clear that the presented power of attorney is not absolute general regarding the powers of the dismissed trustee's agent concerning
the endowment, and since Article 931 Civil stipulates that it is valid to specify the agency by the principal's specification
and generalize it by his generalization,
A special power of attorney is one that defines a specific legal act or acts, p. 45, part 5, Preparatory Works
of the Egyptian Law.
As for the general power of attorney, it is that which is issued in general terms without specifying a particular legal act; it is that which occurs
in the general power of attorney in which nothing is named over another, for if a thing is named, it does not benefit from generalization
and delegation.
Accordingly, the power of attorney given by the dismissed trustee to his agent is limited to the actions mentioned therein and did not stipulate
therein the waiver, especially regarding the endowment, since the trustee himself does not possess the right of waiver, so not authorizing this
right to his agent is a natural matter, as one who lacks a thing cannot give it.
Your esteemed court has previously decided in its general assembly in the primary lawsuit numbered 1601/961
filed at the Baghdad Court of First Instance by the same appellant against Regina Sassoon, the mother of the dismissed trustee.
It becomes clear
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Amil by claiming an amount of (-/24,000 twenty-four thousand dinars) which he claims that Edwar Yaqoub ⟦line⟧
regarding rental fees for her shares in the same endowment properties, considering that the power of attorney is a special power of attorney and he cannot
the agent cannot perform any action or disposal not explicitly mentioned in the power of attorney document, especially if the disposal is the right of waiver
which requires it to be stated in the power of attorney in an explicit manner,
The waiver subject of the lawsuit is a forfeiture of part ⟦of the paragraph⟧ of the endowment's rights, and it is not permissible for the trustee to do what results in the loss
of the endowment's rights or its yield, as will become clear to your esteemed court as follows.
Third: The powers of the trustee regarding the provisions of the endowment and the endowment deed.
The endowment deed numbered 87 Sh/935 attached
to the case file and the deeds based on it, whose numbers are mentioned within the said deed, have specified the authority
of the trustee to lease the endowed properties and stipulated for the validity of this lease that he must previously obtain permission from the Council
The Spiritual Council of the Mosaic Community, currently replaced by the Administrative Committee for Iraqi Jews in its capacity as the supervisor of
the endowment.
It is not hidden from your esteemed court that the condition of the endower is like the text of the Legislator in the necessity of following it and acting upon it, and any violation
of the endower's condition is a violation of the text, and ruling by it is a ruling without evidence, Part (3) Page (467) of
the book Radd al-Muhtar by the scholar Muhammad Amin, famous as Ibn Abidin)
From this, it is clear to your court that the permission must be prior to the disposal of it if this disposal
is for leasing at a fair market rent, so how about if this disposal is a waiver..? The waiver is a forfeiture of part
of the endowment's rights, and the trustee does not possess this right as it is a definite harm and an explicit violation of the endowment deed.
Accordingly, this action by the dismissed agent of the trustee is contrary to the endowment deed and the provisions of the endowment for the following reasons:
A - It is not within the authority of the trustee under the endowment deed to waive the rights of the endowment.
B - The authority of the trustee to lease the endowments at a fair market rent requires for its validity obtaining prior permission from the supervisor.
C - The provisions of the endowment do not permit the trustee the right to waive the rights of the endowment because the waiver is a definite harm to the endowment
and an explicit violation of the endowment deed.
D - Even if necessity requires the trustee to violate the endower's condition, in this case he must obtain
the judge's permission, and this is what Article (867) of Tartib al-Sunuf min Ahkam al-Wuquf
by the late Ali Haidar states.
E - The endowment is governed by the principles of Islamic Sharia, which refuses to diminish the value of the endowment if it is not taken
with the judge's permission, and since the two waiver contracts are pure harm to the endowment and a loss of ⟦amounts⟧ significant to it that did not enter into
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his liability absolutely, as they do not bind the Waqf due to the lack of the judge's permission.
From all of the above, it appears to your esteemed court that the two waiver contracts, the subject of the lawsuit, are contrary to the Waqf deed
and the general provisions of the Waqf. The trustee does not have the power to initiate them, and consequently, his agent does not have the power to execute them, even assuming for the sake of argument
that he was authorized to do so under his power of attorney.
Fourth: The issuance of the transaction during a period dominated by suspicion and doubt.
A - The two waiver contracts, the subject of the lawsuit, were executed by the agent of the dismissed trustee during the period in which
the supervisor filed lawsuit No. 30 Sh/59 against the dismissed trustee, Emil Saleh Shlomo, before the
Personal Status Court in Baghdad, requesting his dismissal from the trusteeship, basing his request on illegal actions
contrary to the Waqf deed and the provisions of the Waqf, and for his betrayal of the Waqf, squandering its funds, and wasting its rights, which
ended with his dismissal from the trusteeship.
If your high court noted the date of the two waiver contracts, you would find that they occurred in the final period of
the duration of the lawsuit's consideration, when it became certain to the agent of the dismissed trustee that a decision to dismiss him from the trusteeship, in view of his betrayal
and negligence regarding the rights of the Waqf, had become imminent.
When the trial court noticed that the dismissed trustee's continuation in the trusteeship posed a definite harm to the Waqf,
as it had reviewed his actions of leasing the Waqf for less than the fair market rent and his waiver of rental amounts
to multiple persons, it restrained his hand from acting, as it was confirmed to the court that his remaining was a harm to the Waqf, and it entrusted
the management of the endowments to itself until the dismissal lawsuit was decided and a new trustee was appointed. Accordingly, the harming of
the Waqf and the obtaining of gains and funds by the dismissed trustee and his agent for themselves at the expense of
the Waqf was the true purpose of those actions. In this case, no liability arises for the Waqf
as a result of that, which makes the former trustee and his agent personally responsible for the mentioned action,
and his responsibility cannot extend to the Waqf, as the Waqf did not receive into its account any of the amounts
claimed, so it is not responsible for them.
B - The funds included in the waiver contract did not enter the account of the Waqf, but rather entered the account of the contracting party
personally, and according to the provisions of Islamic Sharia applicable in this case, the
Waqf is not responsible for them.
Fifth: The seriousness of the contract
Confirming what we have explained in detail in our explanatory brief No. 172/63 dated
6/24/63 submitted to the Court of Appeal, we point out in this paragraph that bad faith, enrichment, and the squandering of
the rights of the Waqf and others were the motive for carrying out the transactions subject of this lawsuit, as the trustee was not satisfied
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Page 191
The dismissed person and his agent squandered the endowment funds during the period of his tenure; rather, he wanted to burden the endowment's liability with huge sums through
actions such as the actions subject of the lawsuit, which would extend their benefit for a long period after the dismissal, and the explanation for that is:
1- That Emil Saleh Shlomo was appointed as a trustee on 2/22/55 by the deed numbered 8 Sh / 55 issued by the Court of Personal
Status in Baghdad.
2- That the aforementioned trustee appointed Edwar Yaqoub as his agent on 5/30/1955.
3- That the appellant directed several warnings to the aforementioned agent requesting adherence to the terms of the endowment and not to squander the rights of
the endowment, but he did not respond to them.
4- The appellant filed a lawsuit to dismiss the trustee for his betrayal and his agent's squandering of the endowment's rights under No. 3 Sh / 59, and the
aforementioned agent exerted methods and tricks that cannot be counted to prolong the duration of the lawsuit, and when he found that the decision to remove
his hand from the trusteeship and then dismiss him from it had become imminent, he began to carry out sham actions and contracts in order to harm
the endowment and continue his benefit from its revenues for the period following the dismissal through such sham contracts and actions -
and it is sufficient that this agent is a prison inmate at the present time for acts of forgery and betrayal, and it is also sufficient that
he created subsequent contracts for the properties subject of the two mentioned actions with other persons in a period of less
than a month, so where is the good faith and where are the amounts received by the aforementioned agent, which exceed one hundred
thousand dinars.
We emphasize to the esteemed court that these contracts subject of the lawsuit have no basis in truth and that the aforementioned agent
wanted to leave the endowment burdened with debts to benefit from their amounts after his dismissal, noting that all the mentioned
amounts never entered the endowment's liability and it is not responsible for them.
Summary: The decision of the Karkh Court of First Instance (Unlimited) ruling to dismiss the appellant's lawsuit regarding the endowment and considering
the former agent personally responsible for the action is in accordance with the law, the endowment deed, and the general provisions
of the endowment, and the decision of the Court of Appeal, which confirmed the initial decision in terms of the result
for the reasons stated therein, is in accordance with the law and the endowment deed.
For these reasons and for the reasons that we have previously mentioned in our initial and appellate briefs and defenses,
we request the confirmation of the appealed judgment and to charge the appellant with the fees and attorney's fees.
Please accept our thanks.
Agents of the Appellee
Lawyer Shaul Moussa | Lawyer Muhammad Salem Zaidan | Lawyer Hassan Abdullah Muzaffar
Page 192
1/22/72
⟦illegible⟧
⟦illegible⟧
1/20/72
In the name of God, the Most Gracious, the Most Merciful
The Honorable President of the Court of Cassation of Iraq
Appellant - Hamid Majeed Al-Obaidi - represented by attorney Hussein Al-Haj Ali
Appellee - Chairman of the Administrative Committee for Jews in addition to his guardianship over the endowments of Menahem and Sassoon Daniel - represented by
Attorneys Messrs. Ihsan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem
Zaidan
Subject of Cassation
Is that the Baghdad Regional Court of Appeals has ruled in the appellate case numbered 11/S/63
And issued its judgment ruling to dismiss the appeal and uphold the primary judgment numbered 45/61 Karkh and obligated my client to pay
Attorney fees amounting to five hundred dinars along with expenses.
And since this judgment is contrary to the law and prejudicial to my client's rights, I proceeded to appeal it before being notified
of it, requesting its reversal for the following reasons:-
First - The summary of the case was mentioned in the appealed decision, so there is no need to repeat it here, in accordance with Article (218) -
Paragraph (2) of the Civil and Commercial Procedures.
Second - The primary judgment upheld on appeal was based on only two reasons, which are:
1) That the agent exceeded the limits of his power of attorney, so he is personally liable for the claim, and there is no liability on the endowment.
2) That the waiver is a detriment to the endowment.
However, the Court of Appeals did not agree with the Court of First Instance in what it went towards and refuted the reasons for its judgment and concluded
that the agent did not exceed the limits of his power of attorney, and that what he did was within his powers, but nevertheless it upheld
the judgment in terms of the result, basing it on the following reasons:-
1 - That the assignment was accepted by the assignees, and therefore there is no room for recourse against the assignor - the appellee - and it said
that my client - the appellant - can sue the assignees to obtain his right from them. Then it called my client
(a tenant) and said (that the leasing of the property to others by the lessor does not affect the rights of the (tenant).
The Court of Appeals said all of that after preparing for it by saying (that the legal principles specific
to the assignment contract which the appellant - the appellant - relied upon in his defenses, we find that the assignment was accepted by
the assignees and became effective against them and he has the right of recourse against them and no recourse against the assignor - the appellee).
It seems clear that the Court of Appeals wanted with this preparation to cause us an admission that we
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Those whom we said that the assigned right - the claimed amount - has been transferred in its entirety to the liability of the assignees, and that is
through our interpretation of the legal provisions regarding the assignment of rights.
We do not wish to discuss this opinion more than to say that acknowledgment is one thing, and the interpretation of
the law is another (Article 461 Civil). In addition to that, we recalled and emphasized in
the statement dated 29/3/64 that the assigned right did not transfer from it to the liability of
the tenants - the assignees - except to the extent of what was in their liability to the assignor, which is the amount of (3285) Dinars
remaining in their liability from the annual rent value.
And the assignee - in the assignment of right - is not bound by law except to the extent of what is in his liability to the assignor, Article 362
Civil.
Also, the assignment of right is not permissible in the first place except to the extent of what was subject to seizure, Article 364 Civil.
How is it permissible after this for the Court of Appeal to say that my client can sue the tenants
- the assignees - and obtain the entire claimed amount from them.
Then how is it permissible for the Court of Appeal to call my client (a tenant) after it has taken a decision in
characterizing the two contracts subject of the lawsuit as (assignment of right). And it forced us to characterize our lawsuit on this
basis and prove the execution of this assignment. Is this not a contradiction.
And if the court was convinced that my client is a tenant as stated in the folds of its decision (page 3 line
4 before the last), then why does it not give him the right in his lawsuit according to Articles (753 and 782)
Civil. Then how can the lease be reconciled with the assignment of right, while the contract is the same and has not changed.
We see it useful to submit to your esteemed court a copy of the statement dated 26/3/64 which
we submitted to the Court of Appeal when it forced us to characterize our lawsuit on the basis of assignment of right, and it will become clear from
this statement that we repeated in more than one place in it that the assigned right did not transfer from it to the liability of
the assignees - the tenants - except (3285) Dinars and there remained of the assigned right (24615)
Dinars on the liability of the assignor - the respondent - which could have been collected from the rent of the endowments on the condition
that these endowments remain occupied by lease and provided that the assignment is presented to the tenants again for acceptance, and we said that this
is permissible given what the judiciary has ruled in Egypt.
This is what we said in the statement, and we never said that the assignees accepted the assignment in its entirety as it went
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Court of Appeal.
This means that the Court of Appeal ruled contrary to the facts of the case, and this is a ground for cassation
Article (222) of the Civil Procedure Code.
Now that we have finished discussing the first ground of the judgment, we move to discuss the second
ground of it, which is—as stated on page 3 of the decision, line 3 from the bottom, the court said:
(That the payment of the claimed amount to the appellee was not confirmed, and the admission of the trustee's agent of receiving
the amount is not sufficient as this amount did not appear in the endowment budget)
The court concluded from this that the apparent state of the endowment budget belies my client's claim.
Now we say: when and in which era of the judiciary in Islam, and who is the jurist, or rather what are
the judicial precedents in Iraq that say that the budget of—the defendant—is considered evidence of the truth
or falsehood of the plaintiff's claim.
This is, in fact, a very dangerous precedent that has no basis in law or Sharia, for how
can the debtor provide the instrument of proof for his creditor? Especially if the debtor is of the type of endowment trustees
whose betrayals and manipulation of endowment funds have caused the courts in Iraq to clamor, especially since the trustee in our case
has had his betrayal proven in the judgment issued for his dismissal. But what is my client's fault in the trustee's betrayal of the endowment
and his failure to enter the claimed amount into the endowment budget?
Is there a legal or Sharia rule ⟦...⟧ that dictates that the party contracting with the trustee is responsible for
his honesty or a guarantor for him towards the endowment? There is absolutely nothing of the sort.
When my client proceeded to contract with the trustee through his general agent, he knew that these
two persons represented the endowment, as the trusteeship was standing and the general power of attorney was standing, and it was not known of them that they had betrayed
the endowment previously. Their betrayal was not proven until two years after the date of contracting with my client. As for the saying that—
there was a lawsuit between the trustee and the endowment before the date of contracting, this does not mean that people are presumed
to know about this lawsuit, or even if they knew about it, it does not serve as evidence of the trustee's betrayal until—
the judgment is issued therein.
So how is it if my client did not know about this lawsuit at all and proceeded to contract in good faith?
The agents of the respondent did not provide any evidence of my client's bad faith in contracting or at least
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his knowledge of the filed lawsuit. Furthermore, the contested judgment was also devoid of any evidence of bad faith
on the part of my client, and we do not know how it is permissible for judgments to be built on conjectures.
It is understood by default from the court's statement that the delivery was not proven to it, meaning that the court
was not convinced of the seriousness of the contract. If that was the case in the court's view, why did it bother itself to delve into the subject
of the assignment of rights and concluded from it the judgment that the claimed amount has been transferred to the liability of the assignees and there is no recourse
against the assignor - the appellant - is this not a contradiction in the same judgment? Contradiction in a judgment is a ground for cassation
Article (222) paragraph (5) of the Civil Procedure Code.
Third - The apparent state of affairs is not inferred by the budget of the time, but rather by what is usually or rationally unacceptable, such as if a
destitute poor person claims to have lent someone who does not need a loan a massive sum of money at a time when it is not
rationally possible that the lender owns even a small part of what he claimed, while the borrower is wealthy enough that it is rationally
impossible for him to borrow such an amount. This is a simple example compared to the extensive examples provided by
jurists in their explanation of this text.
What indicates the legislator's strictness in cases to which this text applies is what Article (465)
of the Civil Code stated, where it said (It is required that the apparent state of affairs does not contradict the acknowledgment; if a person acknowledges the filiation of another older than him in age,
his acknowledgment is not valid).
From this, it is understood that the application of this text is not as easy as imagined by the contested decision. For it was
incumbent upon the Court of Appeal - while intending to apply this text - to investigate my client's financial capacity and whether
he is able to pay this amount, and after that, issue its judgment in light of what appears to it. We have clarified to the esteemed
and respected court in the last session that we are ready to prove our client's financial capacity, and we also clarified to it
that my client is ready to prove the delivery and receipt by personal evidence in addition to the evidence certified by the Notary
Public, but the court did not pay attention to this; on the contrary, it said that we are satisfied with the delivery by the acknowledgment
of the appellee. This statement attributed to us by the court is contrary to the record of the lawsuit in that last
session and is a ground for cassation under paragraph (5) of Article (222) of the Civil Procedure Code.
Fourth - Most importantly, the subject of delivery and receipt was not a matter of discussion in the primary proceedings,
and the opposing counsel did not raise it in all their briefs and pleadings until the lawsuit ended and was concluded with a decision.
How is it permissible after this to raise a new defense in the Court of Appeal, knowing that the opposing counsel did not adhere to it?
⟦line⟧ to be continued ⟦line⟧
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with it, and they did not raise it even in the appellate trials, neither in the case record nor in the briefs.
How can the Court of Appeal rule on a matter that the adversary did not claim? This is contrary
to Article (222), paragraph (5), and warrants the reversal of the judgment.
Furthermore, the apparent state of affairs was also not a subject of discussion in the primary proceedings until the issuance
of the decision in the case. How can this new defense be raised in the Court of Appeal?
This is a clear violation of the law and is prohibited from being accepted under Article (5), paragraph (4) -
Pleadings.
From this, it is clear that the Court of Appeal violated the law by accepting new defenses that were not a subject
of discussion in the Court of First Instance, which led to ⟦depriving us⟧ of one level of the court hierarchy in discussing the statements
of our adversaries.
For these reasons and for what we have explained in the briefs dated 3/20/1963, 5/22/1963, 3/29/1964,
and 7/8/1964, I request the summoning of the papers, the review of the judgment on appeal, its reversal, and charging the respondent with all fees,
expenses, and attorney's fees.
With respect.
⟦signature⟧
Attorney
Hussein Al-Haj Ali
10/31/1964
Page 197
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: 459 K / 64
Date: 22 / 11 / 64
The Honorable Judge of the First Unlimited Karkh Court of First Instance
Subject / Lawsuit 45 B / 961
Since the judgment issued by your esteemed court in the primary lawsuit numbered 961/45 filed
by Mr. Hamid Majeed Al-Obaidi against the trustee of the Menahem and Sassoon Daniel endowments, ruling to dismiss the lawsuit
and lift the precautionary seizure placed on the revenues of the endowments, and it has been ratified by the Baghdad Court of Appeals
pursuant to its decision issued in the appellate lawsuit numbered 11 / S / 962 (a copy of which
is attached herewith).
We kindly request the disbursement of the amounts accumulated at your esteemed court from the rental fees of the endowments belonging
to the aforementioned endowments, which the tenants deposited with you, to our client, the Administrative Committee for Iraqi Jews,
in its capacity as the trustee over the aforementioned endowments.
With utmost respect
The General Agents
On behalf of the Administrative Committee for Iraqi Jews in its capacity as the trustee over the Menahem and Sassoon Daniel endowments
Lawyer
Shaul Moussa
Lawyer
Hassan Abdullah Muzaffar
Page 198
⟦Amanat Abdullah Khudair⟧
Honorable Mr. President of the Baghdad Region Court of Appeal
A memorandum submitted by the attorneys of the appellant in the lawsuit
Numbered 11/S/962.
Presented:
Your honorable court decided in its last session held on 6/14/964 to assign our client,
the appellant, to prove the place of delivery, the delivery of the amounts acknowledged as received before the court and according to the contract
presented, which the court characterized as an assignment of right, on the grounds that the aforementioned contract was made during the
suspicious period that preceded the dismissal of the trustee. This decision is not based on a legal or Sharia basis,
so we object to it and request its withdrawal for the following reasons:
1- Article 82 of the Civil and Commercial Procedure Code states that "the proof of
the lawsuit shall be carried out by the evidence provided for in Chapter Six of Book One of the Civil Code,
and in commercial lawsuits, the provisions stipulated by the Commercial Law shall be observed."
Article 449 of the Civil Code states that official documents and recognized ordinary documents
shall be full evidence under the law. Accordingly, the presented contract document, which is recognized and acknowledges the receipt of
the amounts listed therein, is full and valid evidence to prove the lawsuit and act upon it without the need for
other evidence by law. Therefore, the court's assignment of our client to provide evidence to prove the content of
the aforementioned document violates legal texts and rules of evidence because what is established by a recognized document
does not need other evidence. The recognized document is the full legal evidence.
2- Evidence - legally and religiously - is only established for the purpose of proving the opposite of the apparent, so how is it permissible
that we establish evidence to prove what is established by a document authenticated by the Notary Public and acknowledged by the appellant
and its content before the judiciary..
Yes, it may be permissible for the debtor to recognize the document issued by him, but he denies its content; in this case,
law and Sharia agreed on one solution and one solution only, which is for the creditor to swear an oath of non-falsehood
regarding the acknowledgment, and this is what Article (111) of the Procedure Code and Article (1581) of the Mejelle
of Legal Provisions stipulated. We mention the Mejelle here because the religious matters of non-Muslim
sects are subject to Hanafi jurisprudence, and the Mejelle is nothing but a summary of what Hanafi jurisprudence has settled upon
regarding rulings. Furthermore, the court informed us orally that it might move towards applying Islamic Sharia
in this lawsuit.
Accordingly, it is clear from the Mejelle and the law that the court's decision to assign our client to prove the place of delivery
has no basis in law or Islamic Sharia.
- To be continued -
⟦signature⟧
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3- The defenses of the appellee have been limited to specific matters, namely: (that the Waqf is not responsible for what
the trustee received from our client because the contract, according to his claim, is a donation contract and it is not permissible for the trustee to donate, then
he called it a loan contract and it is not permissible for the trustee to borrow, then he claimed that the power of attorney is restricted and not absolute
general). When he came to the Court of Appeal, he added to his previous defenses that Islamic Sharia
is the one applicable in this lawsuit.
All these defenses were stated by the appellee, but he never said, neither in the Court of First Instance nor in
the Court of Appeal, that the delivery and receipt did not take place, or that the trustee's agent did not receive from our client
the subject of the claim. So how is it permissible at this point to raise a new topic in the Court of Appeal that was not
a subject of research in the Court of First Instance.
Yes, it is permissible for the appellee to provide new evidence in the Court of Appeal to prove his original defenses,
just as it is also permissible for the court to clarify ambiguous points in the lawsuit, or to conduct
any physical investigations it deems necessary, but all of that must be done within the limits of the defense and the claim
in application of the rule stating that the judge does not rule based on his personal knowledge.
While the decision taken by your esteemed court has brought a new matter that our client did not claim and the
appellee did not plead.
This decision, even if it wears the cloak of judicial investigations, in its meaning includes a new defense, or
a new lawsuit, and this is not permissible in the Court of Appeal by virtue of Article (5) paragraph (4) and Article
(201) paragraph (1) of the Civil and Commercial Procedure Law. Moreover, this
decision leads, in terms of result, to a judgment on what was not previously a lawsuit, and this is not permissible Sharia-wise
and legally, and the Majalla also stipulated that in Article (1829) where it said - A judgment is not valid
without a prior lawsuit - and therefore the court's decision to task our client with proving the act of delivery is not based
on a legal or Sharia rule and is explicitly contrary to the law.
4- As for the (suspicious period) mentioned in the aforementioned decision and the validity of contracts occurring during it
or their invalidity, it is a special subject limited to the state of commercial bankruptcy as stipulated in
Articles 156, 157, and 158 of the Ottoman Commercial Law - Bankruptcy Section - which
is still in force in Iraq. The provisions of these articles of the Commercial Law cannot be applied except to
the merchant adjudged bankrupt within the conditions and circumstances stipulated therein. The trustee is not
a merchant and the contracts he conducts are not commercial contracts, and the judgment to dismiss the trustee is not a judgment of his bankruptcy.
What is permissible for the trustee and what is not permissible for him in terms of actions regarding the Waqf are determined by jurisprudential rulings, and
his contracts that he is allowed to conduct are subject to the provisions of the Civil Law, and these provisions did not ⟦stipulate⟧ ⟦on⟧
stipulate a suspicious period for the dismissed trustee that makes his permissible actions during it subject to challenge
and questioning of their integrity. The dismissed trustee is prevented and prohibited from acting in Waqf matters after
the issuance of the judgment for his dismissal, so his actions after the dismissal are considered void, while his permissible actions that
he conducted before the dismissal during his accounting or before that are considered valid and effective unless it appears
- To be continued -
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after his dismissal that he performed an action that he was not permitted to perform before his dismissal, then that action is void.
An example of this is if the trustee was dismissed because of his leasing some of the endowment properties for less than the fair rent
and with gross deception, and it appeared after that that he leased some other endowment properties during his accounting
or before that for more than the fair rent ⟦or⟧ it appeared that he leased one of the endowment properties to himself
and lived in it, then the lease contracts he executed for more than the fair rent remain valid and effective.
As for the lease contract he executed for himself, it is considered void due to the presence of suspicion in it; this is what the jurists decided
regarding what is permissible and what is not permissible of the actions performed by the trustee, and they did not say that there is
a suspicious period preceding the dismissal during which the contracts concluded by the trustee are subject to challenge, and even
on the assumption that one of the jurists said this, then this saying is not taken into account and does not constitute a rule because the criterion
is for the common majority, not the rare, especially if what was paid to the trustee was equal to the fair rent and a single
deal for two years in the hope that our client would benefit from the (Sarkafliya) as we explained previously.
And before we come to the end of this memorandum, it must be said that the trustee has the right ⟦to⟧ admit - before
the judiciary in the lawsuit filed against him - the contracts issued by him, and the Majalla has stipulated that
in Article (1634).
And since this text was mentioned in the discussion of litigation and the trustee standing as a litigant in lawsuits of contracts
issued by him, it must be said - in clarification of the subject - (that the litigant is the one whose
admission results in a judgment on the assumption that the lawsuit is proven) Article (2) paragraph (3) and (4) of the Code of
Civil and Commercial Procedure. And Article (1634) of the Majalla.
This, and since our lawsuit relates to a contract admitted by the trustee, and it is his right to admit it by virtue of Islamic Sharia
and in view of the legal rulings and Sharia texts we have presented, we request your esteemed court
to reverse its aforementioned decision while repeating our previous demands.
May you remain respected.
Counsel for the Appellant
Lawyer
Hussein Al-Haj Ali ⟦Issa⟧
⟦Signature⟧
⟦24 / 5 / 64⟧