AI en Translation, Pages 226-250
Page 226
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2 - The Subject Matter.
3 - The Cause.
Regarding mutual consent:-
It must be issued by someone with legal capacity, and the fact is that the agent of the trustee does not possess the legal
capacity to enter into an assignment of rights contract, as he does not possess it under his power of attorney, and his principal, the former trustee, does not
have this right because the mere transfer of this right to another involves a reduction of the endowment's rights and certain
harm to it, as it is inconceivable that the assignee would agree to pay amounts equal to or more than the rent allowances,
otherwise what would be his benefit in this contract.
Regarding the subject matter:-
It is the thing that the debtor is obligated to perform, and it is required to exist at the time the obligation arises. If it
does not exist, the obligation is not established even if the subject matter could exist in the future (Al-Sanhuri -
Al-Waseet).
If we look at the two waiver contracts, we find they were concluded on 8/21/1960, provided that the rent allowances
due on 1 Jumada al-Awwal 1380 (which corresponds to 10/21/1960) apply. Article 362 of the Civil Code
does not permit the assignment of a right except for what is subject to seizure, and Article (152) of the Civil Procedure (paragraph 2)
has specified the conditions for a right subject to seizure as being a known, immediate debt not restricted by a condition. Since
the conclusion of the two waiver contracts was on 8/21/1960 to begin on 10/21/1960, therefore the subject matter of
the contract did not exist, and it is also unknown due to the change of tenants for the endowment shops and some of them leaving
their shops at the end of the contract.
From this, it is clear to your esteemed court that the subject matter of the contract did not exist at the time of conclusion, as there was not
any debt owed by the tenants at the time the contract was concluded on 8/21/1960.
Regarding the cause:-
It is the direct purpose that the obligor intends to achieve through his obligation, and it must be
lawful, meaning it must not be legally prohibited or contrary to public order or morals. The waiver by the agent of the
dismissed trustee of the endowment rent allowances in exchange for certain amounts is intended for ⟦the return⟧ of borrowing and loaning
on behalf of the endowment, and this is something that neither the endowment deed nor the endowment provisions permit the trustee to do without obtaining
prior permission from the judge, and this is what the former trustee and his agent did not do.
Accordingly, the two waiver contracts, the subject of the lawsuit, cannot be characterized as an assignment under the Civil Law.
To be continued
Page 229
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: L/283/63
Date: 17 / 10 / 963
To the Honorable President of the Baghdad Region Court of Appeal
Subject / Explanatory brief from the agents of the Appellee
In the appellate case numbered 11/S/963
Appellant: - Mr. Hamid Majeed 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 addition to his guardianship over the endowments of Menachem Saleh Daniel
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 brief 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 hand of the previous guardian
on 13 / 3 / 961, and it includes the numbers of the real estate 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 lease year began on the first of Jumada al-Awwal in the year 1379 AH, as they are leased year by year according to the lunar
calendar for decades and end 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
briefs, including the response brief dated 14 / 1 / 963 (paragraph 1), that the two waiver contracts are characterized as
borrowing and lending for the account of the endowment, and we also indicated that the guardian is not permitted, based on the provisions of the endowment and the conditions of the endowment
deed numbered 87 / 935, to waive the rights of the endowment, and if he is permitted to do so, he must first
obtain permission from 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 grant the guardian the right to waive because it causes certain harm to the interest of the endowment and because it is borrowing and lending in
its legal characterization, and this is not permitted except with the judge's permission.
In addition to all that, we have detailed in our previous briefs the lack of authority of the contracting party, Edward Yaqoub, under his power of attorney
from the dismissed guardian, Emil Saleh Shlomo - who himself does not possess the right to waive the rights of the endowment - as
the previous guardian did not authorize his agent with this right, which he restricted to his private properties only, excluding the endowed properties under
his guardianship, 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 (mother of the former trustee) since her agent Edward Yaqub (who is the same contractor in the two contracts -
of waiver subject of this lawsuit) has waived the allowances of her pure properties to the appellant himself.
The court decided to dismiss the lawsuit, 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 as it was not stated 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 in cassation and correction.
If Edward Yaqub does not possess the right of waiver under a power of attorney related to pure properties, then he is more likely not to possess the right of waiver
under a power of attorney related to endowments because his principal himself does not possess this right, as the aforementioned right was limited to his private properties -
only.
It is worth noting that the two waiver contracts subject of the lawsuit cannot be legally characterized as an assignment of right (noting
that the appellant's agents denied that the two mentioned contracts were an assignment of right), which is the transfer of the obligation from a creditor
to another creditor, and we have clarified in our memorandum dated 6/24/1963 that Islamic Sharia is the one that must be
applied, not the Civil Law. Despite all that, we will clarify that the two contracts subject of the lawsuit cannot
be considered an assignment with respect to Islamic Sharia first and with respect to the Civil Law second.
First: - With respect to Islamic Sharia: -
The assignment of right with respect to Islamic Sharia, as Professor Al-Sanhuri says in Al-Waseet, Part
Three, is not accepted by Islamic jurisprudence, and Dr. Hassan Dhannun says in his book Provisions of Obligation in Civil
Law, paragraph 218, p. 207, that Islamic Sharia approved the assignment of debt without the assignment of right, as
the three schools of thought, Hanafi, Shafi'i, and Hanbali, do not all approve the assignment of right, and Sharia did not
originally approve the 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 that must be applied
to the subject of this lawsuit, the two mentioned contracts cannot, in this case, be characterized as an assignment of right.
Second: - With respect to the Civil Law: -
The assignment of right in the 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 elements and characteristics,
and the purposes and objectives of the assignment of right are diverse, as the assignor may intend to sell his right to the assignee
and at that time he receives a price for this right from him.
The pillars of the assignment of right in the Civil Law are the same pillars of the contract, which are: -
1- Mutual consent
To be continued
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2 - The Object.
3 - The Cause.
Regarding mutual consent:-
It must be issued by someone with legal capacity, and the fact is that the agent of the trustee does not possess the legal
capacity to enter into a contract for the assignment of a right, as he does not possess it under his power of attorney, just as his principal, the former trustee, does
not have this right because the mere transfer of this right to another involves a reduction of the rights of the endowment and certain
harm to it, as it is inconceivable that the assignee would agree to pay amounts equal to or more than the rental values,
otherwise what would be his benefit in this contract.
Regarding the object:-
It is the thing that the debtor is obligated to perform, and it is required that it exists at the time the obligation arises; if it
does not exist, the obligation does not arise even if the object could exist in the future (Al-Mashhouri -
Al-Waseet).
If we look at the two waiver contracts, we find they were concluded on 21/8/1960, provided that the rental values
due on 1 Jumada al-Awwal 1380 (which corresponds to 21/10/1960) apply. Article 362 of the Civil Code
does not permit the assignment of a right except for what is subject to seizure, and Article (152) of the Civil Procedure (paragraph 2)
has specified the conditions for a right subject to seizure as being that the debt is known, immediate, and not restricted by a condition. Since
the conclusion of the two waiver contracts was on 21/8/1960 to begin on 21/10/1960, therefore the object of
the contract did not exist, and it is also unknown due to the change of tenants for the endowment shops and because some of them left
their shops at the end of the contract.
From this, it is clear to your esteemed court that the object of the contract did not exist at the time of conclusion, as there was
no debt owed by the tenants at the time the contract was concluded on 21/8/1960.
Regarding the cause:-
It is the direct purpose that the obligor intends to achieve through his obligation, and it must be
lawful, meaning it must not be legally prohibited or contrary to public order or morals. The waiver by the agent of the
dismissed trustee of the endowment rental values in exchange for certain amounts is intended to initiate borrowing and lending
on behalf of the endowment, and this is what the endowment deed and the provisions of the endowment do not permit the trustee to do without obtaining
prior permission from the judge, and this is what the former trustee and his agent did not do.
Accordingly, the two waiver contracts, the subject of the lawsuit, cannot be characterized as an assignment under the Civil Law.
To be continued
⟦due⟧
Page 232
In the name of God
Presidency of the Rabbinate
In Baghdad
Number ⟦...⟧
It is attributed to us, the Chief Rabbi of Baghdad and President of the Jewish Religious Court therein, by virtue of this
legal certificate issued by us on ⟦...⟧ corresponding to 24 Rajab 1384 Hijri, that we have
examined and inspected the general register belonging to the Mosaic community in Baghdad and found therein that the person named
Aaron son of Eliyahu son of Isaac, mentioned in the said register under number ⟦...⟧ on page ⟦...⟧ of volume
⟦...⟧ has died in Baghdad on ⟦...⟧ corresponding to ⟦...⟧
Based on the request submitted by his legal heirs, we have issued this legal certificate
of his death ⟦...⟧ and in confirmation of what was stated in the aforementioned register, and for this purpose we have written this
legal certificate.
Whereas the aforementioned deceased left behind legal heirs, namely his wife
named ⟦...⟧ and his children ( ⟦...⟧ ), ( ⟦...⟧ ), ( ⟦...⟧ ), ( ⟦...⟧ ), ( ⟦...⟧ )
and ( ⟦...⟧ ), ( ⟦...⟧ ), ( ⟦...⟧ ), ( ⟦...⟧ ), and ( ⟦...⟧ )
According to the legal distribution of inheritance issued by this court and recorded in the register of legal distributions
under number ⟦...⟧ on ⟦...⟧ for the year 1964 AD, the inheritance of the aforementioned deceased was limited
among his heirs mentioned above according to the legal shares specified in the said distribution.
Accordingly, we have given this certificate into the hands of his heirs mentioned above to be submitted to the
competent departments when necessary, and for this purpose it was written on ⟦...⟧ for the year 1964 AD.
Chief Rabbi of Baghdad
and President of the Jewish Religious Court
We, the undersigned, testify to the authenticity of the signature and seal of His Excellency the Chief Rabbi of Baghdad and President of
the Jewish Religious Court in Baghdad mentioned above, and we confirm the accuracy of the information contained in this
legal certificate based on the official records kept at the Presidency of the Rabbinate in Baghdad.
Accordingly, we have signed and sealed this certificate in Baghdad on the day ⟦...⟧ of the month ⟦...⟧ of the year
1964 AD.
Member of the Lay Council of the Mosaic Community in Baghdad
Member of the Lay Council of the Mosaic Community in Baghdad
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Due to the absence of the three pillars: consent, subject matter, and cause.
From all of this, it is clear to your honorable court that the legal characterization of the two waiver contracts can only be
borrowing and loaning for the account of the endowment (Waqf), and this is not permissible except under the conditions we detailed in this memorandum and the previous
memoranda ⟦line⟧ .
On this occasion, we emphasize that the subject of this lawsuit is governed by the general provisions of the Waqf and the conditions of the Waqf deed
No. 935/87 as it is an endowment, and that Islamic Sharia is the applicable law, not the provisions of the Civil
Law. Therefore, the actions of the trustee (Mutawalli) cannot be compared to the actions of owners of absolute rights, as the actions of
the trustee in the subject of our lawsuit are governed by the provisions of the Waqf and the Waqf deed, as there are certain actions
- including waiver, borrowing, and loaning - that the trustee is not permitted to perform without the permission of the supervisor
first and the judge second. Furthermore, Islamic Sharia does not permit the assignment of rights at all.
Therefore, we request the confirmation of the preliminary judgment and that the appellant be charged with court costs and attorney fees for the following reasons:-
First: The lack of authority of the contracting party, Edward Yaqoub Shamshoun, under his power of attorney from the previous trustee, to carry out the waiver under
the two contracts subject to the lawsuit, in accordance with Articles 931 and 932 of the Civil Code and according to what the Iraqi judiciary has established.
Second: The lack of authority of the trustee himself to conclude the two waiver contracts, as in their legal characterization they are borrowing and loaning
for the account of the Waqf, and this is something he does not possess under the Waqf deed No. 935/87 and the general provisions of the Waqf which
do not allow waiver without prior permission from the judge.
Third: The transaction took place during a period dominated by doubt and suspicion, as the contracting party executed the two waiver contracts during the course of
the dismissal lawsuit due to his betrayal and a few months before the date of his removal from the trusteeship for proven betrayal.
Fourth: The two waiver contracts cannot be characterized as an assignment of rights because Islamic Sharia is the applicable
law first, and because the pillars of assignment of rights under the Civil Law are not present in the two mentioned contracts
due to the absence of the pillar of consent, the non-existence of the subject matter, and the illegality of the cause.
For these reasons and other reasons mentioned in our previous memoranda, we request the confirmation of the preliminary judgment.
With respect,
Attorneys for the Appellee
Attorney Attorney Attorney
Mohammed Salem Zaidan Shaul Moussa Hassan Abdullah Mukhlis
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Number ⟦...⟧
Date ⟦...⟧
Mr. ⟦...⟧
Based on ⟦...⟧
That ⟦...⟧
⟦...⟧
⟦...⟧
⟦...⟧
⟦...⟧
⟦...⟧
⟦...⟧
⟦...⟧
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Appeal
22
Page 238
Presidency of
Baghdad Court of Appeal
« Summons for the Appellee »
Case Number:
S /: 195⟦...⟧
Name and surname of the appellee | Occupation | Place of residence | Name of his attorney
⟦Abdul Razzaq Abdul Qadir⟧ | ⟦Grocer⟧ | ⟦Baghdad - Karkh⟧ | ⟦...⟧
It has been decided to set the day ( ⟦...⟧ ) corresponding to / / 195 to hear the case appealed against you
by the appellant ⟦...⟧ son of ⟦...⟧ therefore you must appear before this court at
( 9 ) o'clock in the morning of the mentioned day, and in the event of your failure to attend or send an attorney on your behalf, the trial will proceed
against you in absentia.
Written on / / 195
Clerk
President
⟦Circular seal⟧
⟦Separate piece of paper with stains⟧
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Logic dictated that it should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of Waqf
and its leasing, as it did for all the real rights mentioned in Article 68. However, it did not do so, nor did it
speak about the leasing of Waqf in the lease contract as the Syrian and Egyptian civil legislators did, because everything
related to Waqf falls under the jurisdiction of the Sharia courts according to the Temporary Sharia Procedure Law of the year
1922. Therefore, the Iraqi civil legislator refrained from detailing provisions within the jurisdiction of the Sharia
courts, which apply Islamic jurisprudence.
From this comparison, it is clear to your esteemed court that the Iraqi civil legislator intentionally avoided following
the Egyptian and Syrian legislators in detailing the provisions of Waqf, its leasing, and others, due to Iraq's social conditions
which prevented it from interfering in matters affecting personal status, Sharia rulings, or Muslim endowments.
Therefore, it intentionality remained silent and left that to the principles of Islamic Sharia according to the second paragraph of
the first article of the Civil Code, provided that these principles are compatible with the Civil Code.
The Court of Cassation's jurisprudence has established that the principles of Islamic Sharia are what govern Waqf cases.
Despite the fact that the Iraqi Civil Code dedicated ten articles (824 - 833) to the Mugharasa contract,
in addition to the general rules included in the lease contract, the Court of Cassation stated in its decision numbered
997/H/962 dated 6/2/1962 (⟦line⟧ it was found that what governs the substantive points
required by the Mugharasa contract related to Waqf property and the planter are the Waqf provisions from Islamic jurisprudence).
If we conclude that Waqf cases are governed by the principles of Islamic Sharia, then we must examine the following
matters in light of the principles of Islamic Sharia, namely:-
1 - The powers of the trustee Emil Saleh Shlomo.
2 - The power of attorney granted by the aforementioned trustee to his agent Edward Yaqoub.
3 - The lease contract concluded by the trustee's agent with the occupying tenants.
4 - The two assignment contracts concluded by the trustee's agent with the appellant.
First:- The powers of the trustee Emil Saleh Shlomo:-
The aforementioned trustee derives his powers from:-
A - The Waqf deed numbered 935/87.
B - The Waqf provisions from Islamic jurisprudence.
As for the Waqf deed, it permits the trustee to lease Waqf properties for a period of one year only, and the trustee must obtain
the approval of the Communal Council for this lease. This means that the trustee's lease for a period of one year is contingent upon
the authorization of the Communal Council; if authorized, it is executed, and if not authorized, the lease is invalidated.
Mushir
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As for the rulings of Islamic Sharia, they require that the rental value be equivalent to the fair market rent, and if a contract is concluded with gross unfairness,
the contract is considered voidable in the view of the Majalla (Article 441) and null in the view of the Civil Law (Paragraph 2,
Article 124). The trustee (Mutawalli) must grow the endowment (Waqf) property and not diminish it, regardless of the reasons and motives.
Furthermore, any contract that combines benefit and harm is contingent upon the judge's permission.
Second: The nature of the power of attorney granted by the trustee to Edward Yaqoub:
It is agreed upon in Islamic jurisprudence that a general power of attorney is the rule and specification is the exception.
This is because a general power of attorney is one issued in general, absolute terms without specifying a legal act for it, and which
does not mention one right over another or one authority over another. If some rights and authorities are named, the
absoluteness, generality, and delegation are negated, and the generality and absoluteness no longer serve a purpose.
By referring to the power of attorney deed given by the trustee to Edward Yaqoub, we find it includes two appointments:
First: Appointing him as an agent for himself.
Second: Appointing him as an agent in addition to the endowment.
The principal has detailed the rights and authorities granted to his agent until they exceeded one hundred rights and authorities.
Therefore, this power of attorney is not general but rather restricted by the rights and authorities listed in the power of attorney deed.
Civil law in Article (931) agrees with Islamic jurisprudence in this view; therefore, this
power of attorney is a special power of attorney in the view of Islamic jurisprudence and Civil Law.
As for the argument of the appellant's agents that the power of attorney is general, based on the following phrase:
(... the aforementioned person is an agent for me in pursuing all lawsuits to the last degree of the courts,
and he has the use of all authorities that I can legally use for myself to preserve my rights.)
Therefore, the absolute nature of the authorities applies only to what the lawsuits require, and this absoluteness applies to
the principal's personal rights only and does not extend to the trusteeship. This is evidenced by the principal emphasizing this matter in
three expressions:
1 - An agent for me.
2 - The authorities that I can use for myself.
3 - To preserve my rights.
Therefore, the power of attorney is a special power of attorney, and the agent is restricted by the power of attorney deed and cannot perform any procedure or
disposition not explicitly mentioned in the power of attorney deed, and this deed is devoid of the agent's right to waive the
endowment's rental payments.
The Court of Cassation has previously decided in its general assembly, in its decision numbered
and dated / / 1962, that if some rights are mentioned in a power of attorney, it is a special power of attorney.
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B: Even if the lease contracts with the occupants are assumed to be valid, they are contracts contingent upon the approval of the
Community Council according to the text of the endowment deed (Waqfiyah), which prohibits leasing for more than one year, and the lease for this year
must be pre-authorized by the Community Council. Therefore, anything exceeding one year is void by the text of the founder's condition,
and the lease for the first year is void due to the lack of permission from the Community Council to lease. According to the ruling principle:
"If a thing is void, what is contained within it is also void." Since the lease contracts with the occupants are void, the
assignment contracts based on the lease contracts do not bind the endowment in any way.
Third: The power of attorney is specific, and the trustee did not grant the agent the right to waive lease payments, as the trustee did not possess
this right originally. Therefore, the agent has exceeded the limits of the agency and was not authorized such a right
by the principal, who does not possess it at all.
Fourth: Contracts in Islamic Sharia are "named" (Nominate) and it does not recognize any contract that has no place in the books of jurisprudence,
as Islamic Sharia rejects the theory of contract (obligation) and does not recognize it at all. The assignment contract
has no place among the named contracts mentioned in the books of jurisprudence.
Fifth: While Islamic Sharia only recognizes named contracts, it affirms, on the other hand, the principle of:
"In contracts, consideration is given to intentions and meanings."
Regarding the assignment contract, assuming its validity and applying the principle of "intentions and meanings" in contracts, then
these two contracts are nothing but loan contracts—a loan provided by the appellant and borrowing by the trustee's agent—on the condition
that the loan is repaid from the rental income of the endowment properties over three years.
Borrowing by the endowment is subject to conditions:
1 - An urgent necessity required by the state of the endowment to ward off a liability.
2 - That the endowment bears no harm from paying interest or a guarantee.
3 - That the judge authorizes this loan after confirming the two previous matters.
4 - That this loan is spent on the purpose for which the money was borrowed.
In our lawsuit, not one of these four conditions is met at all. Therefore, this contract
is not binding on the endowment's liability, even assuming its validity.
Thus, even if the loan contract were valid—though it is absolutely invalid—the agent would be personally responsible for it. Whatever
may be said about the lender's good faith, his position as a man of law and an attorney does not exempt him from ignorance
of the law's ruling, and he must bear the responsibility himself.
Seventh: The agent's acknowledgment of receiving the amount of 27,900 Dinars as a loan on the account of the endowment ⟦line⟧
this loan is not binding on the endowment for the reasons mentioned above.
To be continued
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Just as the plaintiff's acknowledgment of receiving this amount is not binding on the Waqf's liability, because the Waqf did not need this
money on one hand, and because the judge did not authorize this borrowing on the other hand. Furthermore, this acknowledgment
is contradicted by the apparent circumstances, because the act of delivering and receiving an amount of 27,900 dinars cannot take place except by what
confirms the reality of its delivery and receipt and negates any doubt or suspicion regarding the validity of the incident. The magnitude of this amount
is such that it is not paid except through a bank or financial institution. Also, the plaintiff's retention of this amount would only be at
the bank, and this is what did not happen. Neither the amount of 27,900 dinars was paid in whole or in part by a bank or
money changer, nor was this amount or part of it deposited or kept in the Waqf's account at the bank.
Therefore, no weight is given to an acknowledgment contradicted by apparent circumstances according to the provisions of Islamic Jurisprudence, Article 1577 of the Majalla
and Article 465 of the Civil Code.
The Second Aspect:
Judicial Protection of Waqf Property:
We do not see a necessity to explain the care and protection that Islamic Jurisprudence has bestowed upon Waqf property, making
the judiciary a supervisor
and overseer of Waqf funds and its protection, and the annulment of every contract containing harm or injustice to the Waqf. This is a
recognized matter, and books of jurisprudence have elaborated on it until they equated Waqf property with the property of the House of Muslims.
The civil legislator followed this same direction, making everything related to the Waqf a matter of public order —
(Paragraph of Article 130) and treated Waqf property as state property (Paragraph 2 of Article 124 Civil) and the annulment of
every contract containing injustice to Waqf property (Paragraph 3 of Article 124 Civil).
The waiver contract is a pure harm par excellence to the Waqf property, and therefore the esteemed court is obliged to protect the Waqf property from
a person who conspired against it since the first day of his appointment over it. This protection is achieved by upholding the preliminary judgment.
From all this, it is clear to the esteemed court that the appealed preliminary judgment was in accordance with Islamic Sharia
and the Civil Law as well.
Discussion of the Appellant's Attorneys' Defenses:
The defenses of the appellant's attorneys, in substance and basis, relied on a wrong interpretation of the Civil Law.
Even though this lawsuit of ours is not governed by the Civil Law, but rather by Islamic Sharia.
With our firm confidence that the esteemed court will apply the principles of Islamic Sharia to this lawsuit of ours,
we see no embarrassment in refuting and debunking the defenses of the appellant's attorneys.
First: The contradiction stems from hearing the claim:
This contradiction in the characterization of the two waiver contracts appears and becomes clear in five places:
A — The lawsuit petition says literally (I request .... and after hearing my evidence on —
To be continued
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waiving the rent allowances, his obligation to terminate the contract).
B - The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1961 that the two contracts,
even if they were contracts for the waiver of rent allowances, are legally considered lease contracts
based on the text of Article (777) of the Civil Code.
This approach was confirmed in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C - The appeal of the appeal went in the second paragraph to the fact that (the contract of waiver of rent allowances -
is legally considered a lease contract based on the text of Article (777) of the Civil Code, and that these
two contracts' provisions were stated according to the texts of the Civil Code in the chapter on the lease contract.
D - The appellant's two attorneys went in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
to the fact that the two waiver contracts are compensation contracts between the two parties, but as for the nature of this compensation, they remained silent about it.
E - The appellant's two attorneys went in the sixth paragraph of their brief dated 3/10/963 to the fact that
the two contracts are explicitly lease contracts, and they confirmed this approach several times in their brief.
In the session on 4/21/963, the appellant's attorney, Mr. Hussein Al-Haj, emphasized that the contract is an
explicit lease contract. While his colleague, Mr. Abdul Jabbar Al-Tikriti, went to the fact that the waiver contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were based on no foundation of Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf money. This
money which the law required the judiciary to protect from every aggression.
This contradiction alone is sufficient to support the preliminary judgment, as contradiction prevents the hearing of the claim as required
by the seventh article of the Civil Procedure and Commercial Law.
Thus, the only legal characterization of the two waiver contracts - assuming their validity, non-nullity, and that
the apparent situation does not contradict them - is that they are a loan conditioned to be repaid from the rent allowances of the Waqf properties, especially
since the appellant's two attorneys denied that the two waiver contracts were a transfer of ⟦debt⟧ or a transfer of right.
Newness of the contract ⟦line⟧
There are considerations that prevent us from explaining the manner in which the two contracts were made, but a person may be driven
without will or choice; we say nothing but the truth if we say that the two waiver contracts, bad faith was the only motive
for their conclusion, and the explanation for that is:
1 - That Amin Saleh Shaluwa was appointed as a trustee on 1/22/955, according to the document numbered 8/55
issued by the Personal Status Court in Baghdad.
2 - That the aforementioned trustee appointed Edwar Yaqoub as his attorney on 5/20/1955.
3 - That the appellant addressed two notices to the aforementioned attorney in which she requested adherence to the condition of the Waqf founder and its observance.
To be continued
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Endowment funds and the non-disposal thereof. However, the agent did not respond to the two aforementioned warnings.
4 - The appellee filed lawsuit No. 56/75 before the Personal Status Court in Baghdad
on 3/6/196 requesting the dismissal of the aforementioned trustee from the trusteeship due to the betrayal committed
by the agent. When the court dismissed the lawsuit on the grounds that the original trustee was unaware of his agent's
treacherous actions, our client filed another lawsuit to dismiss the trustee for the betrayal of his agent in lawsuit No.
30/Sh/59. The aforementioned agent employed countless methods and tricks to prolong
the duration of the dispute. When he found that the noose was tightening and that the court would remove his hand from the trusteeship,
he carried out actions and sham contracts to harm the endowment and his clients. Regarding what Daniel said, it is enough
that this agent is currently lying in prison for acts of forgery and betrayal.
It is sufficient that he created subsequent contracts for the same location of the two contracts subject of this lawsuit with Mr.
Hassoun Al-Ansari in a period of less than a month. So where is the good faith? And where are the amounts received by the agent
mentioned on account of the endowment, which exceed one hundred thousand dinars?
We emphasize to the esteemed court that the contract has no shadow of truth and that the aforementioned agent wanted
to leave the endowment burdened with debts, and for this reason, he created many contracts. The claim that
the appellant was in good faith is a claim refuted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a new number of lawyers in the cases of dismissing his client from the trusteeship. Therefore,
the appellant should have ensured that the person he was contracting with was in good faith, not restricted, and not
subject to a dismissal lawsuit for his betrayal, and that he was authorized to enter into this contract and that the endowment rules permit it. As for
adhering to good faith, it collapses before the reality and circumstances in which the contract took place.
For these reasons and for the reasons stated in our primary and appellate briefs and defenses, we hope to uphold the primary judgment.
With our highest thanks and respect.
Agents of the Appellee
Lawyer | Lawyer
Mohamed Salem Zaidan | Hassan Abdullah Mukhles
Page 247
The Lawyers
Haskail Abdullah Muzaffar
Shaul Moussa
Number L/172/63
Date 24/6/63
Honorable President of the Baghdad Court of Appeal
A memorandum submitted by the representatives of the appellee in
Notification No. ⟦Year⟧ 11 / 962
The importance and seriousness of this case are not hidden from your esteemed court from two aspects: -
First: - Determining the substantive law that governs this case and whether it is Islamic Sharia or the
⟦positive⟧ Civil Law.
Second: - Judicial protection of Waqf property and not neglecting it, a protection that Islamic jurisprudence and Civil Law
have considered part of public order.
Our belief that your esteemed court is most keen on observing these two aspects is what prompts us to present our
viewpoint.
The First Aspect: -
⟦line⟧
Islamic Sharia is the one applicable, not the Civil Law: -
This lawsuit of ours concerns Waqf property, and Waqf is governed by the principles of Islamic Sharia, and the evidence for that is: -
1- Article (68) of the Civil Law considered the right of Waqf and the right of its leasing as original real rights, following
the Syrian Civil Law in Article 585 and the Egyptian Civil Law in Article (583).
2- The Syrian Civil Law, in the book of original real rights, dedicated a special chapter titled (On Waqf, the Two Leases,
and the Long Lease) starting with Article 998 and ending with Article 1027.
The Egyptian Law also dedicated a special chapter in the book of original real rights, which is the second chapter of the second
part (Rights derived from the right of ownership), and this chapter starts with Article 999 and ends with Article 1014, and in
this chapter, it discussed the leasing of Waqf.
This is despite the fact that the Syrian Civil Law dedicated a special chapter in the lease contract under the title (Leasing of Waqf)
starting with Article 595 and ending with Article 601.
And the Egyptian Civil Law dedicated a special chapter in the lease contract under the title (Leasing of Waqf) starting
with Article 628 and ending with Article 634.
3- As for the Iraqi Civil Law, it dedicated a special chapter for every real right mentioned in Article 68 except for the right of Waqf.
To be continued
Page 248
- 2 -
Logic dictated that it should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of the Waqf
and its leasing, as it did for all the real rights mentioned in Article 68, but it did not do so, nor did it
speak about the leasing of the Waqf in the lease contract as the Syrian and Egyptian civil legislators did, because everything
related to the Waqf falls under the jurisdiction of the Sharia courts according to the Temporary Sharia Procedure Law of the year
1922, and for this reason, the Iraqi civil legislator refrained from detailing provisions within the jurisdiction of the
Sharia courts that apply Islamic jurisprudence.
From this comparison, it becomes clear to your esteemed court that the Iraqi civil legislator intentionally did not follow -
the Egyptian and Syrian legislators in detailing the provisions of the Waqf and its leasing and others, due to Iraq's social circumstances
which prevented it from interfering in matters affecting personal status, Sharia rulings, or the endowments of Muslims.
Therefore, it intentionally remained silent and left that to the principles of Islamic Sharia according to the second paragraph of
the first article of the Civil Code, provided that these principles are compatible with the Civil Code.
The jurisprudence of the Court of Cassation has established that the principles of Islamic Sharia are what govern Waqf cases.
Despite the fact that the Iraqi Civil Code dedicated ten articles (824 - 833) to the Mugharasa contract,
in addition to the general rules included in the lease contract, the Court of Cassation stated in its decision numbered
997/H/962 dated 2/6/1962 ( ⟦.......⟧ it was found that what governs the substantive points
required by Mugharasa contracts related to Waqf property and the planter are the Waqf provisions from Islamic jurisprudence ).
If we conclude that Waqf cases are governed by the principles of Islamic Sharia, then we must examine the following
matters in light of the principles of Islamic Sharia, and these matters are:-
1 - The powers of the trustee Emil Saleh Shlomo.
2 - The power of attorney granted by the aforementioned trustee to his agent Edward Yaqoub.
3 - The lease contract concluded by the trustee's agent with the occupying tenants.
4 - The two waiver contracts concluded by the trustee's agent with the appellant.
First: The powers of the trustee Emil Saleh Shlomo:-
The aforementioned trustee derives his powers from:-
A - The Waqf deed numbered 87/935.
B - The Waqf provisions from Islamic jurisprudence.
As for the Waqf deed, it permits the trustee to lease the Waqf properties for a period of one year only, and the trustee must obtain
the approval of the Communal Council for this lease. This means that the trustee's lease for a period of one year is contingent upon
the authorization of the Communal Council; if authorized, it is executed, and if not authorized, the lease is nullified.
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— 3 —
According to the provisions of Islamic Sharia, the rental value must be equivalent to the fair market rent, and if a contract is concluded with gross unfairness,
the contract is considered voidable in the view of the Majalla (Article 441) and null in the view of the Civil Law (Paragraph 2,
Article 124). The trustee must grow the endowment's assets and not diminish them, regardless of the reasons or motives.
Furthermore, any contract that fluctuates between benefit and harm is contingent upon the judge's permission.
Second: The nature of the power of attorney granted by the trustee to Edward Yaqoub:
It is agreed upon in Islamic jurisprudence that a general power of attorney is the rule and specification is the exception.
This is because a general power of attorney is one issued in general, absolute terms without specifying a legal act for it, and which
does not mention one right over another or one authority over another. If some rights and authorities are named, the
absoluteness, generalization, and inclusiveness are negated, and the generalization no longer serves a purpose.
By referring to the power of attorney deed given by the trustee to Edward Yaqoub, we find it includes two appointments:
First: Appointing him as an agent for himself.
Second: Appointing him as an agent in addition to the endowment.
Furthermore, the principal detailed the rights and authorities granted to his agent until they exceeded one hundred rights and authorities.
Therefore, this power of attorney is not general but rather restricted by the rights and authorities listed in the power of attorney deed.
The civil legislator in Article (931) agrees with Islamic jurisprudence in this view; therefore, this
power of attorney is a special power of attorney in the view of Islamic jurisprudence and Civil Law.
As for the argument of the appellant's agents that the power of attorney is general, relying on the following phrase:
(... the aforementioned is an agent for me in pursuing all lawsuits to the last degree of the courts,
and he has the use of all authorities that I can legally use for myself to preserve my rights.)
Therefore, the absolute nature of the authorities applies to the practice of lawsuits only, and this absoluteness applies to
the principal's personal rights only and does not extend to the trusteeship. This is evidenced by the principal emphasizing this matter in
three expressions:
1 — An agent for myself.
2 — The authorities I can use for myself.
3 — To preserve my rights.
Therefore, the power of attorney is a special power of attorney, and the agent is restricted by the power of attorney deed and cannot perform any procedure or
disposition not explicitly mentioned in the power of attorney deed, and this deed is devoid of the agent's right to waive the
endowment's rental payments.
The Court of Cassation has previously decided in its general assembly, specifically in its decision numbered
and dated / / 962, that if some rights are mentioned in a power of attorney, it is a special power of attorney.
⟦illegible⟧
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And it is not general, and that is in the lawsuit numbered 61/1601 filed at the Baghdad Court of First Instance by
the appellant against Regina Sassoon, the mother of the trustee Emil, to claim an amount of 24 thousand dinars on the allegation that Edward
Yaqub had waived to him the rental fees for her shares in the branches of the endowment and for the same period in our lawsuit
this, and the court dismissed the lawsuit on the grounds that the power of attorney of Edward Yaqub to perform -
the waiver was a special power of attorney, and this decision was upheld by the Court of Cassation and confirmed by the General Assembly upon the request
for correction.
Third: - The lease contract concluded by the trustee's agent with the occupants: -
The trustee's agent derives his powers from the endowment deed and the power of attorney instrument in his creation of lease contracts for the endowment properties
⟦...⟧ .
As for the endowment deed numbered 25/87, it prevents the trustee from leasing for more than one year only, and it requires
him to obtain in advance the approval of the Spiritual Council for his authorization to lease the endowment properties for a period of -
three years, then this lease is void according to the endowment deed from three aspects: -
First: - Void in the last two years by the text of the founder's condition which prohibited leasing for more than one year only.
Second: - Void in the first year for not obtaining the prior approval of the Spiritual Council for this lease.
Third: - For gross imbalance in the rental fees (Article 441 of the Majalla, paragraph 2 of Article 124 of the Civil Code).
Therefore, the lease contracts, assuming they exist, are void, and a void contract is not concluded and does not yield a judgment at all.
Fourth: - The two waiver contracts: -
Since the power of attorney given by the trustee Emil Saleh Shlomo to Edward Yaqub in addition to his trusteeship over the endowment
is a special power of attorney, and the trustee did not grant the mentioned agent the right to waive the rental fees in the power of attorney instrument
that is because the trustee does not possess this right at all, as one who lacks something cannot give it.
Since the waiver is nothing but a reduction of the endowment's yields, and Islamic jurisprudence has mandated the judge to protect
the endowment's money if it suffers imbalance or reduction, and therefore any contract that revolves between benefit and harm concluded by the trustee
requires the judge's permission first, "otherwise the contract does not bind the endowment's liability for anything." Also, the legislator
of the Civil Code followed the same direction as Islamic jurisprudence and considered the judicial protection of endowment money to be part of public order
(paragraph 2 of Article 130).
From all this, it is clear to your esteemed court that the two waiver contracts do not bind the endowment's liability for the following reasons:
First: - The endowment is governed by the principles of Islamic Sharia, which refuses the reduction of the endowment's liability if permission
is not obtained from the judge. The two waiver contracts are pure harm to the endowment and a loss of an amount of 27,900 dinars for it.
Therefore, this contract does not bind the endowment's liability for not obtaining the judge's permission.
To be continued