AI en Translation, Pages 201-225
Page 202
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number JA / ⟦28⟧ / 64
Date 22 / 4 / 1964
To the Honorable President of the Baghdad District Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
For the appellate case numbered 11 / S / 963
The Appellant: - Mr. Hamid Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti and Aziz Al-Shaher
and Hussein Al-Haj Ali.
The Appellee: - The President of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menahem
Saleh Daniel - his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad
Salem Zaidan.
First: - While we reserve all our preliminary and appellate defenses, and we do not agree with what your honorable court
has concluded in characterizing the two contracts subject of the lawsuit as an assignment of right, we would like to remind
the honorable court of what we have previously stated in our previous memoranda that the subject of the lawsuit relates
to endowment property, and endowments in general are governed by the principles of Islamic Sharia and Islamic jurisprudence, which
does not recognize the assignment of right in its various schools of thought. Furthermore, the Menahem Saleh Daniel endowment,
in addition to that, is governed by the endowment deed numbered 87 / 935, which does not permit the guardian and consequently his agent
to perform an assignment of right, according to the following details: -
1 - The contracting party is an agent and not a principal: -
The contracting party, Edward Yaqoub Shashoua, has, pursuant to his power of attorney, contracted with the appellant, and it has been proven
to your honorable court that the aforementioned power of attorney specified the powers possessed by the agent and did not stipulate in
the power of attorney the authorization of the agent with the power of assignment of right, as the power of attorney specified the powers
possessed by the agent regarding the endowment, and the contracting party exceeded his authority by concluding these two contracts as an assignment
of right based on Article 933 of the Civil Code, which stipulates the following: -
(The agent must execute the agency without exceeding its prescribed limits)
And Article 931 of the Civil Code, which stipulates the following: -
(It is valid to specify the agency by specifying the subject matter and to generalize it by generalizing it)
To be continued
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There is no need to repeat what we have stated in all our pleadings regarding the agent exceeding the limits of his power of attorney, nor to refer
to the discriminatory decisions and other legal articles.
B - The contracting party is the agent of the administrator (Mutawalli), and the subject of the contract is endowment properties (Awqaf) and not private properties, and the dispute
relates to the invalidity of the endowment ⟦line⟧ :
The agent derives his authority from the principal; if the principal does not have the authority to
conclude a contract for the assignment of rights, then it follows that the agent cannot do so, as the principal is an administrator and the administrator
derives his powers from the terms of the endowment deed and the general provisions of the endowment, and he may not in any case
violate them. The administrator does not possess the right to conclude an assignment of right under the terms of the endowment deed nor under
the general provisions of the endowment ⟦line⟧ .
Violation of the grantor's condition and the general provisions of the endowment:
Professor Shafiq Al-Ani says in his book "Provisions of Endowment," p. 71, literally the following:
(The administrator is obligated to implement the condition of the grantor and has no right to violate ⟦line⟧).
Article 840 of the book "Arrangement of Classes in the Provisions of Endowments" states the following:
(The condition of the grantor is considered, in terms of the necessity of following it and the impermissibility of violating it, like the text of the Lawgiver).
In light of the above, the administrator, according to the grantor's condition, does not have the right to transfer the right belonging to the endowment,
as the grantor's condition is explicit in that regard, since the endowment deed No. 35/87 did not permit
him to conduct such a transfer.
Second: Assuming the characterization of the two contracts as an assignment of right, we have clarified in paragraph (second) of our pleading
dated 10/17/1963 that the assignment of right is only permissible to the extent that it is subject to seizure (Article 262
of the Iraqi Civil Code).
Article 152 of the Civil Procedure Code has also defined the right subject to seizure as being a known
debt, immediately due and not restricted by a condition ⟦line⟧ etc.
And on the date of 8/21/1960, there was no right for the endowment against the tenants, and that
is because the start of the tenants' contracts begins on 1 Jumada al-Ula, which coincides with 10/21/1960.
Third: The decision of your esteemed court dated 3/8/1964 was to charge the appellant to state whether
the elements of Article 363 of the Civil Code were met, i.e., whether the assignment was executed against the tenants and they accepted it,
and in the event they did not accept it, whether they were officially notified. The appellant's attorneys delved in their pleading
dated 3/29/1964 into matters unrelated to the subject of the decision, but they cited two points we deemed
necessary to discuss:
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The first point:-
That the lessees have partially accepted the assignment, as they have paid their client an amount
of 3285/- Dinars, which is the remainder of the installments of the annual rent, and they received promissory notes
for this amount (Paragraph 1) of the appellant's attorneys' brief.
And our answer to this point:-
The amount of 3285/- Dinars, documented by promissory notes to the order of the attorney of the dismissed
trustee, Edward Yaqoub Shashoua, against the lessees, has no relation to the subject of this lawsuit, as this amount, by the admission
of the appellant's attorneys:
(is the remainder of the rent for the two years preceding the contract subject of the lawsuit)
Furthermore, promissory notes are subject to the provisions and rules of commercial law regarding the transfer of debt and have no relation
to the provisions of the assignment of rights mentioned in the Civil Code. This was the view taken by the Court of
Cassation in its decision No. 34/S/58 dated 1/15/58, published on page 396 in
the first part of the Iraqi Civil Judiciary by Professor Salman Bayat, and this was also the view of the collection of
preparatory works for the Egyptian Civil Code in its comments on Article 302 Egyptian, which corresponds to
Article 362 Iraqi Civil (p. 111, Part Three of the aforementioned collection).
The second point:-
That the assignment was announced to the lessees orally (Paragraph 4, p. 2 of the appellant's attorneys' brief)
As for our answer to it:-
The appellant's attorneys have admitted that the announcement of the assignment was oral, even though Article (363)
of the Iraqi Civil Code, which matches Article 305 Egyptian, stipulated the necessity of official notification (p.
316 of the aforementioned collection, Vol. 3). This was also the view of the late Dr. Muhammad
Kamil Mursi, emphasizing that a registered letter does not replace official notification, pp. 611 and 612, Part
Six, Named Contracts.
Summary:-
1 - While reserving all our primary and appellate defenses and our disagreement with your esteemed court on
the characterization of the two contracts subject of the lawsuit as an assignment of rights, and assuming their characterization
as an assignment of rights, the trustee and consequently his attorney do not possess the authority to perform an assignment of rights, neither under
the Waqf deed No. 35/37 nor under the provisions of the General Waqf, as Islamic jurisprudence
prohibited
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Assignment of rights is not recognized in its various doctrines.
2 - The elements of Article 362 of the Civil Code are not met.
3 - The elements of Article 363 of the Civil Code are also not met.
As for the remaining points mentioned in the appellant's agents' brief, they have no relation to the subject of the court's decision
Respectfully ⟦dated⟧ 3/8/64, and therefore we saw no justification for discussing them.
We reiterate our statements and what was stated in our previous briefs, and we request the dismissal of the appeal and that the appellant bear the costs
and attorney fees.
With respect,
Agents of the Appellee
Attorney Attorney Attorney
Mohammad Salem Zaidan Shaul Moussa Hassan Abdullah Muzaffar
Page 206
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number JA ⟦28/12/64⟧
Date 12 / 4 / 1964
To the Honorable President of the Baghdad Regional Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
For the appellate lawsuit numbered 11 / S / 1963
The Appellant: - Mr. Hamid Al-Hamidi - His lawyers are Abdul Jabbar Al-Tikriti, Aziz Al-Shahir
and Hussein Al-Haj Taha.
The Appellee: - The Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee over the endowments of Menachem
Saleh Daniel - His lawyers are Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad
Salem Zaidan.
First: - While we reserve all our preliminary and appellate defenses, and we do not agree with what your honorable court
has concluded in characterizing the two contracts subject of the lawsuit as an assignment of right, we wish to remind
the honorable court of what we have previously stated in our previous memoranda that the subject of the lawsuit relates
to endowment property, and endowments in general are governed by the principles of Islamic Sharia and Islamic jurisprudence which
does not recognize the assignment of right in its various schools of thought. Furthermore, the Menachem Saleh Daniel endowment
is additionally governed by the endowment deed numbered 87 / 935, which does not permit the trustee and consequently his agent
to perform an assignment of right, as detailed below: -
1 - The contracting party is an agent and not a principal: -
The contracting party, Edward Yaqoub Shashoua, has, by virtue of his power of attorney, contracted with the appellant, and it has been proven
to your honorable court that the aforementioned power of attorney specified the powers possessed by the agent and did not stipulate in
the power of attorney the authorization of the agent to assign rights, as the power of attorney specified the powers
possessed by the agent regarding the endowment, and the contracting party exceeded his authority by concluding these two contracts as an assignment
of right based on Article 933 of the Civil Code, which stipulates the following: -
(The agent must execute the agency without exceeding its prescribed limits)
And Article 931 of the Civil Code, which stipulates the following: -
(It is valid to specify the agency by specifying the subject matter and to generalize it by generalizing it)
To be continued
Page 207
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There is no need to repeat what we have stated in all our pleadings regarding the fact that the agent has exceeded the limits of his agency, nor to
the discriminatory decisions and other legal articles.
B - The contracting party is the agent of the trustee, and the subject of the contract is endowment properties and not private properties, and the dispute
relates to the annulment of the endowment ⟦line⟧ :
The agent derives his authority from the principal. If the principal does not have the authority to
conclude an assignment of right contract, then by priority the agent cannot do so, as the principal is a trustee and the trustee
derives his powers from the conditions of the endowment deed and the provisions of public endowment, and he has no right in any case
to violate them. The trustee does not possess the right to conclude an assignment of right under the conditions of the endowment, nor under
the provisions of public endowment ⟦line⟧ .
Violation of the endower's condition and the provisions of the general endowment:-
Professor Shafiq Al-Ani says in his book "Provisions of the Endowment", p. 71, verbatim as follows:-
(The trustee is obliged to implement the endower's condition and has no right to violate it ⟦line⟧ ).
Also, Article 840 of the book "Arrangement of Ranks in the Provisions of Endowments" stipulates the following:-
(The endower's condition is considered, in terms of the necessity of following it and the inadmissibility of violating it, as a text of the Legislator).
In light of the above, the trustee, according to the endower's condition, does not have the right to transfer the right belonging to the endowment
since the endower's condition is explicit in that, as the endowment deed No. 35/87 did not permit
him to perform such an assignment.
Second: Assuming the adaptation of the two contracts as an assignment of right, we have clarified in paragraph (second) of our pleading
dated 10/17/63 that an assignment of right is only permissible to the extent that it is seizable (Article 362
Iraqi Civil Code).
Furthermore, Article 152 of the Civil Procedure Code has defined a seizable right as being a known,
immediate debt not restricted by a condition ⟦line⟧ etc.
And on the date of 8/21/1960, there was no right for the endowment against the tenants because
the start of the tenants' contract begins on 1 Jumada al-Ula, which coincides with 10/21/1960.
Third: Your respected court's decision dated 3/8/1964 was to task the appellant to clarify whether
the elements of Article 363 of the Civil Code were met, i.e., was the assignment executed against the tenants and did they accept it,
and in the event they did not accept it, was it officially notified to them? The appellant's attorneys delved in their pleading
dated 3/29/1964 into matters unrelated to the subject of the decision, but they cited two points we deemed
necessary to discuss.
Page 208
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The first point:
That the lessees have partially accepted the assignment, as they have paid to their client an amount
of 3285 dinars, which is the remainder of the installments of the annual rent, and they received promissory notes
for this amount (paragraph 1) of the appellant's attorneys' brief.
In response to this point:
The amount of 3285 dinars, documented by promissory notes to the order of the attorney of the dismissed
trustee, Edward Yaqoub Shashon, against the lessees, has no relation to the subject of this lawsuit, as this amount, by the admission
of the appellant's attorneys:
(is the remainder of the rent for the two years preceding the contract subject of the lawsuit)
Furthermore, promissory notes are subject to the provisions and rules of commercial law regarding the transfer of debt and have no relation
to the provisions of the assignment of rights contained in the Civil Law. This was the view taken by the Court of
Cassation in its decision No. 34/S/258 dated 1/15/58, published on page 316 in
the first part of the Iraqi Civil Judiciary by Professor Salman Bayat, and this was also the view of the collection of
preparatory works for the Egyptian Civil Law in its comments on Article 23 Egyptian, which corresponds to
Article 362 of the Iraqi Civil Code (p. 111, Part Three of the aforementioned collection).
The second point:
That the assignment ⟦which⟧ was announced to the lessees orally (paragraph 4, p. 2 of the appellant's attorneys' brief)
As for our response to it:
The appellant's attorneys have admitted that the announcement of the assignment was oral, even though Article (363)
of the Iraqi Civil Code, which matches Article 305 Egyptian, stipulated the necessity of official notification (p.
316 of the aforementioned collection, Vol. 3), as was also the view of the late Dr. Muhammad
Kamel Morsi, emphasizing that a registered letter does not replace official notification, pp. 611 and 612, Part
Six, The Guarantee Contract.
Summary:
1 — While reserving all our preliminary and appellate defenses and our disagreement with your esteemed court regarding
the characterization of the two contracts subject of the lawsuit as an assignment of rights, and assuming they are characterized
as an assignment of rights, the trustee and consequently his attorney do not have the power to perform an assignment of rights, neither under
the endowment deed No. 37/35 nor under the provisions of the general endowment, as Islamic jurisprudence
from it
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Assignment of rights is not recognized in its various schools of thought.
2 - The elements of Article 362 of the Civil Code are not met.
3 - The elements of Article 363 of the Civil Code are also not met.
As for the remaining points mentioned in the appellant's agents' brief, they are unrelated to the subject of the court's decision
Respectfully ⟦dated⟧ 3/8/64, and therefore we saw no justification for discussing them.
We reiterate our statements and what was stated in our previous briefs, and we request the dismissal of the appeal and that the appellant bear the costs
and attorney fees.
With respect,
Agents of the Appellee
Lawyer | Lawyer | Lawyer
Muhammad Salem Zaidan | Shaul Moussa | Hassan Abdullah Muzaffar
Page 210
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 8/L/104/64
Date 29 / 2 / 1964
To the Honorable President of the Baghdad Regional Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee for the lawsuit
Appeal No. ⟦illegible⟧ S/1963
The Appellant: - Mr. Hamad Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti, Aziz Muhammad
Al-Shaher and Hussein Haj Ali.
The Appellee: - Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh
Daniel, his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa and Muhammad Salem Zaidan.
We have detailed in our previous memoranda the following: -
First: - The lack of authority of the contracting party, Edward Yaqoub Sha'shou', under his power of attorney from the dismissed trustee, to perform a waiver
under the two contracts subject of the lawsuit in accordance with Articles 931 and 932 of the Civil Code and in accordance with what has been established
by the Iraqi judiciary.
Second: - The lack of authority of the trustee himself to conclude the two waiver contracts as they are, in their legal characterization,
borrowing and a loan for the account of the endowment, and this is not within the trustee's power.
Third: - The trustee is not permitted to violate the condition of the endower stated in the endowment deed No. 935/87, which
allows him only to lease the endowment assets for a period of one year only, and the trustee must obtain the approval of the Council
of the Body (the Supervisor) for this lease before carrying out the transaction.
Fourth: - The two waiver contracts cannot be characterized as an assignment of rights, as the general endowment provisions
and the noble Sharia are applicable in the subject of our lawsuit, and the elements of an assignment of rights
under the Civil Code are not present in the two mentioned contracts due to the absence of consent, the absence
of the object, and the illegality of the cause.
Fifth: - As we detailed in the previous memoranda regarding the seriousness of the contract and the actions of the trustee's agent, which
are not hidden from your honorable court and which led to his dismissal for his betrayal, and that the two contracts subject of the lawsuit
were concluded when he found that his hand would be removed from the trusteeship, as he began to perform sham and forged
actions and contracts, which led to him entering prison to receive his punishment for some of his criminal acts.
As long as your honorable court has characterized the two contracts subject of the lawsuit as an assignment of rights, we follow your court
To be continued
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he does not have the right to such an assignment, as the endower permitted the trustee to lease the endowment properties for a period of one year only, provided that
he obtains the approval of the Communal Council for this lease only.
Accordingly, if we assume that the trustee's power of attorney to his contracting agent was a power of attorney in which the assignment of rights was specified in addition
to the endowment, then the principal does not have such powers, as the conclusion of these two contracts is a violation
of the endower's condition, and the endowment has no responsibility for them.
Furthermore, the general provisions of the endowment do not allow the trustee to carry out such a disposition, as the trustee must
develop the endowment's property and not decrease it, regardless of the reasons, motives, and the contracts he concludes must
be beneficial to the endowment, and any ⟦contract⟧ that fluctuates between benefit and harm is not binding on the endowment unless
it is contingent upon the judge's permission.
From all of the above, and despite our concurrence with your esteemed court's decision that the two contracts subject to the lawsuit apply
to the assignment of rights, the endowment is not responsible for the actions of the dismissed trustee's agent for the following reasons:
First: The lack of authority of the contractor, Edward Yaqoub Shashoua, the agent for the dismissed trustee, to conclude the assignment of rights contract.
Second: The lack of authority of the dismissed trustee to conclude the assignment of rights contract, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment's provisions.
Accordingly, since the contractor does not have the authority to perform an assignment of rights for the reasons mentioned above, he is the one responsible
personally for the two waiver contracts subject to the lawsuit, and there is absolutely no responsibility on the endowment.
We reiterate our previous statements and what was stated in our briefs, and we request the dismissal of the appeal, the affirmation of the preliminary judgment, and charging the appellant
with all costs and attorney fees.
With respect,
Attorneys for the Appellee
Attorney | Attorney | Attorney
Muhammad Salem Zaidan | Shaul Moussa | Hassan Abdullah Muzaffar
Page 213
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 8 L / 402 / 15
Date 29 / 2 / 1964
Mr. President of the Baghdad District Court of Appeal, Respected
Subject / Explanatory brief from the agents of the Appellee for the lawsuit
Appellate No. ⟦...⟧ S / 963
Appellant: - Mr. Hamid Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti and Aziz Muhammad
Al-Shaher and Hussein Haj Ali ⟦...⟧
Appellee: - Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh
Daniel, his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
As we have explained in our previous briefs in detail as follows: -
First: - The lack of authority of the contracting party, Edward Yaqoub Shamshua, under his power of attorney from the dismissed trustee, to perform a waiver
under the two contracts subject of the lawsuit in accordance with Articles 931 and 933 of the Civil Code and in accordance with what has been established
by the Iraqi judiciary.
Second: - The lack of authority of the trustee himself to conclude the two waiver contracts as they are, in their legal characterization,
indebtedness and borrowing for the account of the endowment, and this is not something the trustee possesses.
Third: - The trustee is not permitted to violate the condition of the endower stated in the endowment deed No. 87/935, which
allows him only to lease the endowment assets for a period of one year only, and the trustee must obtain the approval of the Council
of the Body (the Supervisor) for this lease before carrying out the transaction.
Fourth: - The two waiver contracts cannot be characterized as an assignment of rights, as the general provisions of the endowment
and Sharia, which are applicable in the subject of our lawsuit, and the elements of the assignment of rights
under the Civil Code are not available in the two mentioned contracts due to the absence of consent and the absence
of the subject matter and the illegality of the cause.
Fifth: - As we detailed in the previous briefs regarding the seriousness of the contract and the actions of the trustee's agent, which
are not hidden from your respected court and which led to his dismissal for his betrayal, and that the two contracts subject of the lawsuit
were concluded when he found that his hand would be removed from the guardianship, as he began to perform simulated and
forged actions and contracts, which led to him entering prison to receive his punishment for some of his criminal actions.
As long as your respected court has characterized the two contracts subject of the lawsuit as an assignment of rights, we follow your court
To be continued
⟦signature⟧
Page 215
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he has no such assignment, as the endower permitted the trustee to lease the endowment properties for a period of one year only, provided that
he obtains the approval of the Communal Council for this lease only.
Accordingly, if we assume that the trustee's power of attorney to his contracting agent was a power of attorney in which the assignment of rights was specified in addition
to the endowment, then the principal does not have such powers, as the conclusion of these two contracts is in violation
of the endower's condition, and the endowment has no responsibility for them.
Furthermore, the general provisions of the endowment do not permit the trustee to carry out such a disposition, as the trustee must
develop the endowment's property and not diminish it, regardless of the reasons and motives, and the contracts he concludes must
be beneficial to the endowment, and any ⟦let it be⟧ contract that fluctuates between benefit and harm is not binding on the endowment unless
it is contingent upon the judge's permission.
From all of the above, and despite our concurrence with the decision of your esteemed court that the two contracts subject of the lawsuit apply
to the assignment of rights, the endowment is not responsible for the actions of the dismissed trustee's agent for the following reasons:
First: The lack of authority of the contractor, Edward Yaqoub Shashoua, the agent for the dismissed trustee, to conclude assignment of rights contracts.
Second: The lack of authority of the dismissed trustee to conclude an assignment of rights contract, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment's provisions.
Accordingly, since the contractor does not have the authority to perform an assignment of rights for the reasons mentioned above, he is personally
responsible for the two waiver contracts subject of the lawsuit, and there is absolutely no responsibility on the endowment.
We reiterate our previous statements and what was stated in our briefs, and we request the dismissal of the appeal, the affirmation of the preliminary ruling, and charging the appellant
with all costs and attorney fees.
With respect,
Agents of the Appellee
Lawyer Lawyer Lawyer
Mohammed Salem Zaidan Shaul Moussa Hassan Abdullah Muzaffar
⟦Correct⟧
29 / 2 / 64
Page 218
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He does not have such an assignment, as the endower permitted the trustee to lease the endowment properties for a period of one year only, provided that
he obtains the approval of the Spiritual Council for this lease only.
Accordingly, if we assume that the trustee's power of attorney to his contracting agent was a power of attorney in which the assignment of rights was specified in addition
to the endowment, then the principal does not have such powers, as the conclusion of these two contracts is a violation
of the endower's condition, and the endowment has no responsibility for them.
Furthermore, the general provisions of the endowment do not permit the trustee to perform such an action, as the trustee must
grow the endowment's money, not decrease it, regardless of the reasons, motives, and contracts he concludes; they must
be beneficial to the endowment, and any ⟦contract⟧ contract that fluctuates between benefit and harm is not binding on the endowment unless
it is contingent upon the judge's permission.
From all of the above, and despite our concurrence with the decision of your esteemed court that the two contracts subject to the lawsuit apply
to the assignment of rights, the endowment is not responsible for the actions of the dismissed trustee's agent for the following reasons:
First: The lack of authority of the contractor, Edward Yaqoub Shashoua, the agent of the dismissed trustee, to conclude assignment of rights contracts.
Second: The lack of authority of the dismissed trustee to conclude assignment of rights contracts, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment provisions.
Accordingly, since the contractor does not have the authority to perform an assignment of rights for the reasons mentioned above, he is the one responsible
personally for the two waiver contracts subject to the lawsuit, and there is absolutely no responsibility on the endowment.
We reiterate our previous statements and what was stated in our briefs, and we request the dismissal of the appeal, the upholding of the preliminary ruling, and charging the appellant
all costs and attorney fees.
With respect,
Attorneys for the Appellee
Attorney | Attorney | Attorney
Mohammed Salem Zaidan | Shaul Moussa | Hassan Abdullah Shalfer
⟦illegible signature/stamp⟧
Page 219
To the Honorable President of the Baghdad District Court of Appeal
Explanatory memorandum submitted by the attorneys of the appellant in
the appellate case numbered 11 S / 962.
Appellant - Plaintiff - Hamid Majid Al-Obaidi - his attorneys, lawyers Abdul Jabbar Al-Tikriti and Hussein
Al-Haj Ali.
Appellee - Defendant - President of the Administrative Committee for Iraqi Jews in addition to his trusteeship over
the Sassoon Daniel Endowments. His attorneys, lawyers Shaul Moshi and Hassan Abdullah
Mufassir.
Presented:
Since your honorable court has decided to characterize the two contracts attached to this case
as assignment of rights contracts, and has tasked us with proving the execution of this assignment, we can only
respond to this decision while reserving our previous defenses.
⟦circle with '1' or 'C'⟧
The legal provisions related to the assignment of rights place us in the position of the assignee, and the appellee
in the position of the assignor, and the tenants in the position of the debtors, and the rental amounts as the
assigned right.
The assignment of right is nothing more than a contract like any other contract; it is subject to its own specific provisions
just as it is subject to contractual simulation.
⟦circle with 'C' or '2'⟧
The legal provisions in this regard require that the debtors be indebted
to the assignor for the amount of the assigned right, Article (362 and 368 Civil). The law also requires the assignor
to enable the assignee to collect the assigned right, Article (367 Civil), and this assignment is not effective
against the debtor unless they accept it or it is notified to them, Article (363 Civil), provided that the assignor is a guarantor against infringement
even if non-guarantee was stipulated, Article (371 Civil).
These are the provisions of the assignment of rights relevant to our case, and in light of them, we review the facts
of the case.
1- The appellee - the assignor - has received from our client ( ) Dinars according to
the two contracts presented in the case, while he did not have a claim against the tenants at the time of the assignment
⟦line⟧ to be continued ⟦line⟧
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except (3285) Dinars, and this amount is the remainder of the installments of the annual rent, and
part of these installments is documented by promissory notes endorsed by the assignor - the appellee - to the order of our client
in accordance with the fourth condition of the two assignment contracts, and the tenants paid them to our client upon maturity.
2- The assignor did not hand over to our client the documents of the assigned right except to the extent of the right he had
against the assignees - the tenants - and there remained (24615) Dinars of the assigned right
without a document.
There was no
document
3- It is self-evident that the responsibility of the assignees - the tenants - is limited to the amount they owe
of the right to the appellee at the time of their acceptance of the assignment, and therefore this acceptance did not transfer from the assigned
right to their liability except (3285) Dinars, and as for the remainder, amounting to (24615) Dinars,
it remained the responsibility of the assignor - the appellee - and he is responsible for returning it to our client with compensation.
There was no
remainder
the mentioned
amount
There is nothing
on the assignor's liability
4- Since the assignees - the tenants - have paid what they owed of the right, there is no longer
importance in knowing whether the acceptance had a fixed date or not, since the assignment was executed against them
to the extent of the right they owed to the assignor, and they paid it to our client and recovered their promissory notes from him, noting
that the notification of the assignment to them was oral, and their acceptance of it was partial.
5- Since it has become clear that the responsibility of the assignees arises from their acceptance of the assignment and is limited to the amount they owe
of the right to the assignor (Articles 362 and 363 Civil), the responsibility of the assignor is determined by the assignment contract
and the common intention of the contracting parties, and accordingly, for the purpose of determining the responsibility of each of the parties in
this assignment of ours, we must examine it in isolation from the assignees - the tenants - i.e., before
notifying them of it or their acceptance of it.
Before clarifying this subject, it is good for us to refer to the judicial applications in Egypt in
(regarding the assigned right).
The Directorate and the court are not in agreement
The judiciary in Egypt has moved toward the permissibility of the property owner assigning the share of the proceeds produced by his property
in the future, and it has also moved toward the permissibility of the contractor assigning to a bank the fee that
will be due to him in return for the works entrusted to him by the employer as long as it is for a current account produced
for him by the exchange (Al-Waseet Part Three page 453 by Al-Sanhuri), noting that the texts of the assignment of right
in Egyptian law are the same texts in Iraqi law.
- To be continued -
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What supports the direction of the judiciary in Egypt is what Article (129) paragraph (1) of
stipulated, as it said (The object of the obligation may be non-existent at the time of contracting if it is possible to obtain in the future
and if it is identified in a way that negates ignorance and risk) end.
Confirmation | cannot be denied | unknown | and not | realized | and the tenant | instead of | rent | no increase | nor decrease | payment | two | the date
From this text and from the judicial rulings in Egypt and what the two assignment contracts included of explicit conditions
it becomes clear that the intention of the contracting parties was directed towards fulfilling the assigned right from the rent allowances that
are realized in the liability of the tenants as a result of the renewal of the lease contracts with them, especially since the rent allowances have
been identified in a way that negates ignorance and it is possible to obtain them after renewing the contract with them, however the appellee
deliberately violated the two assignment contracts, and leased the properties to persons other than the assignees, as he agreed with
Khairi Hassoun Al-Ansari and leased the properties to him for a period of two years starting from 1/1/1961 until 30/12/1963, which is
the same period included in the two assignment contracts, and the appellee received the rent allowances from the new tenant
to the end of what was stated in this contract certified by the Notary Public of Kadhimiya under general number 2129 and date
17/12/1960 and by virtue of this contract the benefit of the leased properties became owned by the new tenant as
the allowances for this benefit also became owned by him. This situation led to the loss of our client's rights
especially since the assignment is not effective against the right of the new tenant because he is considered a third party. And the date of acceptance
of the assignment is not officially fixed for him Article (363 Civil). In addition to the fact that the acceptance was limited
to the right existing at the time of the assignment and our client has fulfilled it.
As for the rights that will arise in the liability of the tenants as a result of the renewal of the lease contracts with them, it needs
a new acceptance and this has become impossible after the benefits of the properties were transferred to someone other than the assignor. The matter
which caused the loss of our client's rights and brought him grave damages, all of which happened by the act of the appellee
and his violation of the two assignment contracts. And he is liable for the guarantee stipulated in the sixth clause of the two assignment contracts.
6- The appellee has admitted to his contracting with Khairi Al-Ansari and his breach of the terms of the two assignment contracts
as he admitted to receiving the written notice addressed to him by our client, but he promised to rectify what was issued
from him but to no avail, as he did not find it in his power to implement the obligation in kind due to the attachment of
that to another will, which is the will of the new tenant. And the guarantee has become due from him by force of law
without the need for a notice Article (258 paragraph (2)) in addition to the fact that our client notified him and he admitted
to that in the first session of the preliminary trials.
7- Before we conclude this memorandum, we summarize the most important points mentioned in it:
- To be continued -
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The acceptance by the transferees - the tenants - of our client's assignment was partial and limited to what ⟦illegible⟧
their liability of the assignor's right, amounting to (3285/-) dinars, while the remainder, amounting to (24615/-)
dinars, remained as a liability of the assignor.
B - This remainder could have been collected from the tenants after the right arose in their liability as a result of
renewing the lease contracts with them and notifying them of the assignment again. However, leasing the properties to others
deprived our client of his rights.
C - The common intention of the appellant and the appellee in the assignment contract was directed towards collecting the assigned
right from the tenants after the renewal of the lease contracts with them, but the appellee's breach
of the terms of the two contracts deprived our client of his rights and harmed him, which requires the appellee to return what remains
in his liability along with the guarantee stipulated in the sixth clause of the two contracts pursuant to Articles
(371 and 170 Civil).
D - Evidentiary grounds:
1- The two assignment contracts presented in the lawsuit.
2- The appellee's breach of the terms of the two contracts.
3- The appellee's admission of receiving the written notice sent to him by our client and also his admission
of his error and his promise to rectify what occurred to no avail.
For these reasons, we request a judgment against the appellee to return what remains in his liability with the compensation
stipulated in the sixth clause of the two contracts and to charge him with the trial costs, fees, and attorney
fees.
With respect.
Lawyer Lawyer
Hussein Al-Haj Ali Abdul Jabbar Al-Tikriti
29 / 2 / 964
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The Board of Directors for the Jews of ⟦Al-Sabaiba⟧
To whom it may concern: Based on the request submitted by the head of the community
and pursuant to Article 260 of the Civil Code, it is necessary to know whether
the provisions of Article 262 of the aforementioned law apply or not,
meaning whether this transfer has been executed or not, and how its
transfer was declared and proven, so that we may take the necessary action.
Page 224
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number ⟦L⟧/283/63
Date 17/10/1963
D / ⟦illegible⟧
⟦Presidency of the Court⟧
The Honorable President of the Baghdad District Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
In the appellate case numbered 11/S/963
Appellant: - Mr. Hamid Majid Al-Obaidi, his agents are lawyers Abdul Jabbar Al-Tikriti, Hussein Al-Haj Ali
and Abdul Aziz Al-Shahiri.
Appellee: - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Salih Daniel Endowments
his agents are lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
In response to the decision of your esteemed court, we attach to this memorandum the seizure report conducted by the Personal Status Court
in Baghdad on 26/4/961, number 29/Sh/959, when it decided to suspend the previous trustee
on 13/3/961, and it includes the numbers of the properties subject to this lawsuit and the names of the tenants.
All the shops were on 21/8/960 (which is the date of the two waiver contracts) occupied by their tenants
whose rental year began on the first of Jumada al-Awwal in the year 1379 AH, as they are rented year by year according to the lunar calendar
for decades, and ends on 30 Rabi' al-Thani in the year 1380 AH, corresponding to 21/10/1960.
The appellant's agents have not settled on a legal characterization for the two waiver contracts, and we have previously explained in our previous
memoranda, including the response memorandum dated 14/1/963 (paragraph 1), that the two waiver contracts are characterized as
borrowing and a loan for the account of the endowment, and we also indicated that the trustee is not permitted, based on the provisions of the endowment and the conditions of the endowment deed
numbered 935/87, to waive the rights of the endowment, and if he is permitted to do so, he must first
obtain the permission of the supervisor (the Administrative Committee for Iraqi Jews at the time) and the permission of the Personal Status Judge.
The provisions of the endowment do not allow the trustee the right to waive because it causes definite harm to the interest of the endowment and because it is borrowing and a loan in
its legal characterization, and this is not permissible except with the judge's permission.
In addition to all that, we have detailed in our previous memoranda the lack of authority of the contracting party, Edward Yaqoub, under his power of attorney
from the dismissed trustee, Emil Salih Shlomo - who himself does not possess the right to waive the rights of the endowment - as
the previous trustee did not authorize his agent with this right, which he restricted to his private properties only, excluding the endowed properties under
his trusteeship, and our statement is supported by the case numbered 1601/61 between the appellant himself and Mrs. Regina
To be continued
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Sassoon Daniel (the mother of the former administrator), since her agent Edward Yaqoub (who is the same contractor in the contract of
waiver subject of this lawsuit) had waived the allowances of her pure properties to the appellant himself.
The court decided to dismiss the lawsuit by characterizing the power of attorney as a special power of attorney limited to the actions mentioned therein
and it cannot be considered a general power of attorney since it was not phrased in general terms but rather specified certain acts for it, nor was the agent authorized
therein the right of waiver, which must be stated in explicit terms, and the aforementioned decision was upheld by cassation and rectification.
If Edward Yaqoub does not possess the right to waive under a power of attorney related to pure properties, then he is even more so not entitled to waive
under a power of attorney related to endowments because his principal himself does not possess this right, as the aforementioned right was restricted to his private properties
only ⟦line⟧ .
It is worth mentioning that the waiver contract subject of the lawsuit cannot be legally characterized as an assignment of rights (noting
that the appellant's agents themselves denied that the two aforementioned contracts were an assignment of rights), which is the transfer of an obligation from a creditor
to another creditor, and we have clarified in our memorandum dated 24/6/1963 that Islamic Sharia is the one mandatory
to be applied, not the civil law, and despite all that, we will show that the two contracts subject of the lawsuit cannot
be considered an assignment with respect to Islamic Sharia first and with respect to civil law second.
First: Regarding Islamic Sharia:
⟦line⟧
The assignment of rights with respect to Islamic Sharia, as Professor Al-Sanhuri says in Al-Waseet, Volume
Three, is not accepted by Islamic jurisprudence, and Dr. Hassan Dhanoun says in his book 'Provisions of Obligation in Civil Law'
paragraph 218, p. 207, that Islamic Sharia approved the assignment of debt but not the assignment of rights, as
all three schools—Hanafi, Shafi'i, and Hanbali—do not recognize the assignment of rights, and Islamic Sharia
did not originally recognize assignment, neither due to death nor between the living.
From all this, it becomes clear to your esteemed court that since Islamic Sharia is the one to be applied
to the subject of this lawsuit, it is impossible in this case to characterize the two aforementioned contracts as an assignment of rights.
Second: Regarding the Civil Law:
⟦line⟧
The assignment of rights in civil law is for the creditor to agree with a third party to transfer to him his right
which is owed by the debtor, so the third party replaces the creditor in this right with all its components and characteristics.
Furthermore, the purposes and objectives of the assignment of rights are varied, as the assignor may intend to sell his right to the assignee
and at that point, he receives a price for this right from him.
The pillars of assignment of rights in civil law are the same as the pillars of a contract, namely:
1 - Mutual Consent
To be continued