AI en Translation, Pages 251-275
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- That the lease contracts with the occupants, assuming their validity, are contracts suspended upon the approval of the Communal
Council according to the text of the endowment deed, which prohibits leasing for more than one year, and that the lease for this year
must be authorized in advance by the Communal Council. Whatever exceeds one year is void by the text of the founder's condition.
Therefore, the lease for the first year is void due to the lack of permission from the Communal Council for the lease, and pursuant to the rule stating
that (if a thing is void, what is within it is void), and since the lease contracts with the occupants are void, the
assignment contracts based on the lease contract do not bind the endowment in any way.
- Especially since the trustee (Mutawalli) did not grant the agent the right to waive the rental payments, as the trustee did not possess
the right in the first place; therefore, the agent exceeded the limits of the power of attorney and was not authorized such a right
by the principal, who does not own it originally.
- However, Islamic Sharia is tolerant and does not recognize any contract that has no place in the books of jurisprudence.
Islamic Sharia rejects the theory of contract (obligation) and does not recognize it at all, and the assignment contract
is not among the named contracts mentioned in the books of jurisprudence.
- If Islamic Sharia only recognizes named contracts, it establishes, on the other hand, the rule that
the criteria in contracts are the intentions and meanings.
- Based on the assumption of its validity and applying the rule of criteria in contracts for intentions and meanings, then
the two contracts are considered a loan by the appellant and borrowing by the agent of the trustee. Provided that
the loan is repaid from the rental payments of the endowment properties within three years.
And the loan is subject to conditions:
1 - An urgent necessity required by the state of the endowment to pay a fine.
2 - That the endowment does not bear any damage from paying interest or a guarantee.
3 - That the judge authorizes this loan after verifying the two previous matters.
4 - That this loan is spent on the reason for which the money was borrowed.
- Since these are the facts, none of these four conditions are met, and therefore this contract
does not bind the endowment even assuming its validity.
- If the loan contract has become totally invalid, the agent is personally responsible for it. And regardless of
the lender's good faith, his position as a man of law and advocacy does not exempt him from ignorance
of the law, and he must bear his responsibility himself.
- The agent admitted receiving the amount of 27,900 Dinars as a loan on the account of the endowment ⟦line⟧
and this loan is not binding on the endowment for the reasons mentioned above.
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Furthermore, Edward'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. Also, 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 not paid except through a bank or a financial institution. Also, Edward'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
a money changer, nor did Edward keep this amount or part of it 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 guardian over Waqf funds and its protection, and invalidating 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 Muslims' Treasury.
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, Article 124 Civil Code) and invalidated
every contract containing injustice to Waqf property (Paragraph 3, Article 124 Civil Code).
The waiver contract is pure harm by diminishing the Waqf property; 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 ruling.
From all this, it becomes clear to the esteemed court that the appealed preliminary ruling is 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, both initially and on appeal, were based 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.
While we have 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: Contradiction in hearing the claim: -
This contradiction in the characterization of the two waiver contracts appears and becomes clear in five places: -
1- The lawsuit petition says literally (I request .... and after presenting my evidence on -
To be continued
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waiving the rent allowances, obligating him to terminate the contract).
B - The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1962 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.
He confirmed this approach in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C - The appeal petition stated in the second paragraph that (the contract for the 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 set forth according to the texts of the Civil Code in the chapter on lease contracts.
D - The appellant's attorneys stated in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
that the two waiver contracts are compensation contracts between the two parties, but they remained silent about the nature of this compensation.
E - The appellant's attorneys stated in the sixth paragraph of their brief dated 3/20/963 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. Meanwhile, his colleague, Mr. Abdul Jabbar Al-Tikriti, stated that the waiver contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were established on no basis of Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf property. This
property, which the law has mandated 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 Article Seven of the Civil and Commercial Procedure Law.
Thus, the only legal characterization of the two waiver contracts - assuming their validity, non-nullity, and that
the apparent facts do not contradict them - is that they are a loan contract conditioned on its repayment from the rent allowances of the Waqf properties, especially
since the appellant's attorneys denied that the two waiver contracts were a ⟦debt⟧ assignment or a right assignment.
Seriousness of the contract: ⟦line⟧
There are considerations that prevent us from explaining the manner in which the two contracts were concluded, but one may be led
without will or choice to say nothing but the truth if we say that the two waiver contracts were driven solely by bad faith
in their conclusion, and the explanation for that is:
1 - Adele Saleh Shlomo was appointed as a trustee on 2/22/955, pursuant to the deed numbered 8/55
issued by the Personal Status Court in Baghdad.
2 - The aforementioned trustee appointed Edward Yaqoub as his agent on 5/30/1955.
3 - The appellant sent two notices to the aforementioned agent requesting compliance with and observance of the founder's condition ⟦line⟧
To be continued
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Endowment funds and the lack of negligence therein. However, the agent did not respond to the two aforementioned warnings.
4 — The appellee filed lawsuit No. 56/75 before the Court of Personal Status in Baghdad
on 6/3/1956, 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 around his neck and that the court would remove his hand from the trusteeship,
he carried out fictitious actions and contracts to harm the endowment and his clients, as Daniel said, and it is enough
that this agent is currently lying in prison for acts of forgery and betrayal.
It is sufficient that he created a subsequent contract for the same location as 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 the account of the endowment, which exceed one hundred thousand dinars?
We assure 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 contradicted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a large 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 that
no dismissal lawsuit had been filed against him for his betrayal, and that he was authorized to enter into this contract and that the endowment rules permit it. As for
clinging to good faith, it collapses in the face of the reality and circumstances in which the contract was concluded.
For these reasons and for the reasons stated in our primary and appellate briefs and defenses, we hope to uphold the primary judgment.
With highest thanks and respect to your Excellencies.
Agents of the Appellee
Lawyer | Lawyer
Muhammad Salem Zaidan | Hassan Abdullah Muzaffar
Page 255
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number ⟦the⟧ / 2 / ⟦...⟧
Date 24 / 6 / 63
The Honorable President of the Baghdad Court of Appeal
A memorandum submitted by the attorneys of the appellee in
Case file number 11 S / 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 Civil Law.
Second: - Judicial protection for Waqf property and not neglecting it, a protection that Islamic jurisprudence and Civil Law consider to be within 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: -
Islamic Sharia is the one applicable, not 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 Code considered the right of Waqf and the right of its lease as original real rights, following the Syrian Civil Code in Article 585 and the Egyptian Civil Code in Article (583).
2- The Syrian Civil Code, 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 Code dedicated a special chapter in the lease contract under the title (Lease of Waqf) starting with Article 595 and ending with Article 601.
And the Egyptian Civil Code dedicated a special chapter in the lease contract under the title (Lease of Waqf) starting with Article 628 and ending with Article 634.
3- As for the Iraqi Civil Code, it has dedicated a special chapter for every real right mentioned in Article 68 except for the right of Waqf and its lease.
To be continued
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Logic dictated that he should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of Waqf
and its leasing, as he did for all the real rights mentioned in Article 68, but he did not do so, nor
did he 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, 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 Waqf and its leasing and others, due to Iraq's social circumstances
which prevented him from interfering in what touches personal status or Sharia rulings or the endowments of Muslims,
and for this reason, he intended this silence 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,
apart from 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 Mugharasa are the provisions of Waqf 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 the 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 contracts 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 provisions of Waqf from Islamic jurisprudence.
As for the Waqf deed, it allows 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 invalidated.
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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 develop the endowment (Waqf) property and not diminish it, 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 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 absoluteness and generality no longer serve a purpose.
By referring to the power of attorney document 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 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 to the rights and authorities listed in the power of attorney document.
Civil law in Article (931) agrees with Islamic jurisprudence in this view, and 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:
(...from him, 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 use for myself legally 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 fact that the principal emphasized 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 bound by the power of attorney document and cannot perform any procedure or
disposition not explicitly mentioned in the power of attorney document, and this document is devoid of the agent's right to waive the
endowment's rental values.
The Court of Cassation has previously decided in its general assembly, in its decision numbered
and dated / / 962, that if some rights are mentioned in the power of attorney, it is a special power of attorney.
⟦illegible stamp⟧
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And it is not complete, and that is in the lawsuit numbered 1601/61 filed before the Baghdad Court of First Instance
Appealed against Regina Sassoon, the mother of the trustee Emil, for her claim of an amount of 24 thousand dinars, alleging that Edward
Yaqub had waived to him the rental fees for her shares in the same endowment properties and for the same period in our lawsuit
this, and the court dismissed the lawsuit considering the power of attorney of Edward Yaqub to perform -
the waiver as 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: - Lease contracts 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 document in his creation of lease contracts for the endowment properties
⟦.........⟧ .
As for the endowment deed numbered 87/35, it prohibits the trustee from leasing for more than one year only, and it requires
him to obtain in advance the approval of the Communal Council. Even assuming the validity of the agent's lease of the endowment properties for a period of -
three years, this lease is void by the endowment deed itself 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 failing to obtain the prior approval of the Communal 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 produce any legal effect 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 document
because the trustee does not possess this right in the first place, as one who lacks something cannot give it.
For the waiver is nothing but a reduction of the endowment's property, and Islamic jurisprudence has mandated the judge to protect
the endowment's property if it suffers imbalance or reduction. Therefore, any contract revolving between benefit and harm concluded by the trustee
requires the judge's permission first; otherwise, the contract does not bind the endowment's liability to anything. Furthermore, the civil
legislator followed the same direction as Islamic jurisprudence and considered the judicial protection of endowment property to be part of public order
(paragraph 2 of Article 130).
From all this, it becomes 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 the
judge's permission is not obtained. The two waiver contracts are pure harm to the endowment and a loss of an amount of 27,900 dinars to it.
Therefore, this contract does not bind the endowment's liability due to the failure to obtain the judge's permission.
To be continued
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Second:— That the lease contracts with the occupants, assuming their validity, are contracts suspended pending the approval of the
Ecclesiastical Council by the text of the endowment deed (Waqfiyah), which prohibits leasing for more than one year, and that the lease for this year
must be pre-authorized by the Ecclesiastical 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 Ecclesiastical Council to lease, and according to the established rule:
if a thing is void, what is contained within it is also void. Since the lease contracts with the occupants are void, the two
assignment contracts based on the lease contracts do not bind the endowment to anything.
Third:— That the power of attorney is specific, and the trustee (Mutawalli) did not grant the agent the right to waive the lease payments, as the trustee did not possess
this right in the first place. Therefore, the agent has exceeded the limits of the power of attorney and was not authorized for such a right
by the principal, who does not possess it at all.
Fourth:— That 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, and the two assignment contracts
have no place among the named contracts mentioned in the books of jurisprudence.
Fifth:— If Islamic Sharia only recognizes named contracts, it establishes, on the other hand, the rule:
"In contracts, consideration is given to intentions and meanings."
And the two assignment contracts, assuming their validity and applying the rule of consideration in contracts for intentions and meanings, then
the nature of these two contracts is a loan from the appellant and a borrowing by the trustee's agent, provided that
the loan is repaid from the lease payments 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 pay off a liability.
2 — That the endowment does not bear any harm from paying interest or a guarantee.
3 — That the judge authorizes this loan after verifying the two previous matters.
4 — That this loan is spent on the reason for which the money was borrowed.
In our lawsuit, none of these four conditions are met at all; therefore, this contract
is not binding on the endowment's liability, assuming its validity.
Therefore, if the loan contract were valid—and it is not valid at all—the agent would be personally responsible for it. Whatever
is said about the good faith of the lender, his position as a man of law and advocacy does not exempt him from ignorance
of the rule of law, and he must bear his responsibility himself.
Seventh:— Regarding the agent's acknowledgment of receiving an amount of 27,900 Dinars as a loan on the account of the endowment,
this loan is not binding on the endowment for the reasons mentioned above.
To be continued
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Furthermore, Edward's acknowledgment of receiving this amount is not binding on the Endowment's liability, because the Endowment did not need this
money on one hand, and because the judge did not authorize this borrowing on the other hand. Moreover, this acknowledgment
is contradicted by the apparent circumstances, because the event of delivering and receiving an amount of 27,900 Dinars cannot take place except through 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 not paid except through a bank or a financial institution. Also, Edward'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 through a bank or
a money changer, nor did Edward keep this amount or part of it in the Endowment's account at the bank.
Therefore, no weight is given to an acknowledgment that is contradicted by the 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 Endowment property:
We do not see a necessity to explain the care and protection that Islamic Jurisprudence has bestowed upon Endowment property, making
the judiciary a supervisor and overseer of Endowment funds and its protector, and nullifying every contract involving harm or unfairness to the Endowment. This is a
settled matter, and books of jurisprudence have elaborated on it to the point of equating Endowment property with the property of the Muslim treasury ⟦line⟧
The civil legislator followed this same path, making everything related to the Endowment a matter of public order
(Paragraph of Article 130), and treating Endowment property the same as state property (P 2, Article 124 Civil), and nullifying
every contract involving unfairness to Endowment property (Paragraph 3, Article 134 Civil).
The waiver contract is pure harm by diminishing the Endowment's property; therefore, the esteemed court is obliged to protect the Endowment 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 of this, it is clear to the esteemed court that the appealed preliminary judgment was consistent with Islamic Sharia
and with the Civil Law as well.
Discussion of the appellant's attorneys' defenses:
The defenses of the appellant's attorneys, initially and on appeal, were based on an erroneous interpretation of the Civil Law.
Even though our lawsuit is not governed by Civil Law, but rather by Islamic Sharia.
With our firm confidence that the esteemed court will apply the principles of Islamic Sharia to our lawsuit,
we see no harm in refuting the appellant's attorneys' defenses and debunking them.
First: Contradiction prevents the hearing of the claim:
This contradiction in characterizing the two waiver contracts appears and becomes clear in five places:
1- The petition of the lawsuit says literally (I request ⟦....⟧ and after hearing my evidence on -
To be continued
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Assignment of rental allowances, compelling him to terminate the contract).
B — The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1962 that the two contracts,
even if they were assignment contracts for rental allowances, are legally considered lease contracts
based on the text of Article (777) of the Civil Code.
He confirmed this approach in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C — The appeal of the appeal stated in the second paragraph that (the contract of assignment of rental allowances —
is legally considered a lease contract based on the text of Article (777) of the Civil Code, and these two
contracts were governed by the provisions of the Civil Code in the chapter on lease contracts.
D — The appellant's attorneys stated in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
that the two assignment contracts are compensatory contracts between the two parties, but as for the nature of this compensation, they remained silent about it.
E — The appellant's attorneys stated in the sixth paragraph of their brief dated 3/20/963 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-Hajj, emphasized that the contract is an
explicit lease contract. Meanwhile, his colleague, Mr. Abdul Jabbar Al-Tikriti, stated that the assignment contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were established on no basis in Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf funds. This
money, which the law has mandated 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 Article Seven of the Civil and Commercial Procedure Law.
Thus, the only legal characterization for the two assignment contracts — assuming their validity, non-nullity, and that
the apparent facts do not contradict them — would be a loan contract conditioned on repayment from the rental allowances of the Waqf properties, especially
since the appellant's attorneys denied that the two assignment contracts were a ⟦debt⟧ transfer or a right transfer.
Seriousness of the contract: —
There are considerations that prevent us from explaining the manner in which the two contracts were concluded, but one may be led
without will or choice; we do not speak falsely if we say that bad faith was the sole motive for the two assignment
contracts, and the explanation for that is: —
1 — Emil Saleh Shlomo was appointed as a trustee on 2/22/955, pursuant to the deed numbered 8/55
issued by the Personal Status Court in Baghdad.
2 — The aforementioned trustee appointed Edward Yaqoub as his agent on 5/30/1955.
3 — The appellant sent two notices to the aforementioned agent requesting adherence to the condition of the endower and the care
To be continued
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Endowment funds and the lack of negligence therein. However, the agent did not respond to the two mentioned warnings.
4 - The appellee filed lawsuit No. 56/75 before the Personal Status Court in Baghdad
on 6/3/1956, requesting the dismissal of the mentioned 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 mentioned agent employed countless methods and tricks to prolong
the duration of the dispute. When he found that the noose had tightened around his neck and that the court would remove his hand from the trusteeship,
he carried out fictitious actions and contracts to harm the endowment and his client ⟦Atta Taha⟧ Daniel. It is sufficient
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 mentioned agent
on account of the endowment, which exceed one hundred thousand dinars?
We assure the esteemed court that the contract has no shadow of truth and that the mentioned agent wanted
to leave the endowment burdened with debts, and for this reason, he created many contracts. The statement by the
appellant that he was in good faith is a statement contradicted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a large 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 that
no dismissal lawsuit had been filed against him for his betrayal, and that he was authorized to conduct this contract and that the endowment provisions permit it. As for
clinging 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 to your Excellency.
| Agents of the Appellee |
Lawyer | | Lawyer
Hassan Abdullah Mazhar | | Muhammad Salem Zaidan
Page 263
Universal Number 20
2/7/961
For a period of two years
Starting from 1 Muharram 1384 until 1 Muharram 1386 AH for 425 ⟦thousand⟧ Dinars
21/8/60
24/11/60
2/1/961
4/ The first party must provide to the second party within
twenty days from the date of signing this agreement
this detailed guide of its trees, annual production, and existing buildings
and the disposal with their rental values and what is unoccupied
of them, and enabling the second party to exploit the leased property
without opposition or interference
60/12/10 on 25/11/60 ⟦God⟧
2529/4/24 7/1/24
64/4/28 64/2/29
Muharram 1380 6/6/60
6/25
8/21
11/24
2/1/61
16/11/60 280
Page 264
⟦illegible⟧ in the contract ⟦illegible⟧
As much as it may have been ⟦illegible⟧
Is it permissible for the lessee to guarantee 402 a clause exempting other parties
Execution of his obligations 400 a clause if the debtor breaches ⟦illegible⟧ ⟦illegible⟧
by a foreign person
This article speaks about the lessee's assignment to others
And there is no article in the lease contract mentioned
in the Civil Law that speaks about the lessor's assignment
of the lease payments due to him to others
which may or may not be realized
The Chosen One
822 - 824
It was found that what governs the substantive activity
which regulates real estate contracts attached
to the Waqf and real estate are the provisions of the Waqf
from Islamic jurisprudence.
Syrian | Egyptian
85 | 82
991 - 1027 | 999 - 1014 and the rights branching from
in the Waqf, the two leases, and the long lease | the pure which are in the Waqf property
995 - 601 | 828 - 834
2997 / 2 / 1964
2 / 2 / 64
Page 265
Guardianship deed No. 55/8 on 4/22/55
Dismissal lawsuit 56/75 on 6/2/56
The first house of the deed 87/24, the budget and the inheritance share were submitted
1- A decision must be made on the substantive law that applies to the subject
of our lawsuit: whether Sharia or Civil law applies.
Deciding on this aspect <del>will determine</del> will facilitate our task
in discussing the power of attorney, the lease contract, the
consumption contract, and the waiver.
2- The appellant's attorney based his appeal on the fact that the contract
between his client and Al-Jari is a waiver contract governed by Articles 775 and 776
thereof.
3- This article is located in the fourth chapter of shops
(and his waiver of the lease)
Article 775 states that the lessee may sublease the leased property
And Article 776 states that in the event the lessee subleases the property, the relationship
between the lessor and the first lessee remains subject to the provisions of the first
lease contract, while the relationship between the first and second lessee is governed
by the provisions of the second lease contract.
As for Article 777, which the appellant relied upon, it states that in the case of waiver
where the lease is waived, the assignee replaces the lessee
in all rights and obligations under the terms of the first
lease contract; however, the lessee remains a guarantor for the assignee in
Page 269
To the Honorable President of the Baghdad Regional Court of Appeal
The Appellant - Plaintiff - Hamid Majid al-Ubaidi - represented by lawyers Abdul Jabbar al-Tikriti and Hussein
Al-Haj Ali.
The Appellee - Defendant - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee over
the endowments of Menachem and Sassoon Daniel - represented by lawyer Shaul Moshi.
Explanatory memorandum submitted by the Appellant's lawyers:-
Our client's appeal is based on the appealed judgment of the Court of First Instance, which ruled
to dismiss our client's lawsuit on the grounds that the trustee's agent exceeded the limits of his authority, thereby harming the interest of the endowment by concluding
the two waiver contracts, and that because of this, he is considered personally liable and no legal effect is incurred upon the endowment...
The point that requires consideration and adjudication on appeal in this regard is whether
the trustee's agent, by concluding the two waiver contracts, harmed the interest of the endowment and exceeded the limits of his authority or not?
The word (waiver) may be used in the sense of a donation and the relinquishment of a right without compensation, and it may be used
in the sense of leaving a specific property or a specific right in exchange for a specific consideration. The intended meaning of this
word when used in some contracts is derived from the form of the contract, its content, and the intention of the contracting parties.
If a person waives, within a contract, a property or a right belonging to him without compensation, the contract is a contract of donation or a contract
of release and relinquishment. However, if he waives that in exchange for consideration, the contract is a contract of exchange. The capacity required
in donation contracts differs from the capacity in exchange contracts.
The trustee, and naturally his agent, does not possess the capacity to enter into a donation contract regarding endowment property or to relinquish
one of its rights; if he does so, he is personally liable for the results of the contract. Because donating endowment property
is pure harm to the endowment.
However, the trustee or his authorized agent for the management of the endowment has the right to enter into any contract of
exchange necessitated by the type of endowed properties, their nature, and their proper management. He has the right to lease them and collect the rent
himself or through his messenger or agent, and he has the right to cultivate them himself or through his agent and collect and sell their yields
if the endowment is agricultural land. He also has the right to enter into sharecropping, irrigation, or plantation contracts regarding them,
and he has the right to grant the yields and fruits of the trees by way of commitment and collect their prices. He is authorized by Sharia
and law to perform any of these contracts and others according to the requirements of the situation, provided that there is no
gross deception and that the consideration is not less than the fair rent or fair value.
- To be continued -
Page 270
- 2 -
If this is the case, can the two contracts concluded by the Mutawalli's agent be considered contracts of
donation, and the interpretation of the word "waiver" mentioned therein as a donation of the endowment's money and a forfeiture of one of its rights
without compensation?
Despite the fact that this waiver was in exchange for a known consideration amounting to (27,000) dinars received by the
Mutawalli's agent for the account of the endowment and within a contract of exchange added to the endowment? If conclusive evidence is established that
these two contracts are not donation contracts, but rather exchange contracts from which the endowment benefited
greatly, does there remain any basis for the claim that the endowment was harmed by the conclusion of the two mentioned contracts? And if the
occurrence of harm to the interest of the endowment is negated and the benefit to the endowment side is realized by concluding the two mentioned contracts, does
there remain any basis for saying that the agent exceeded the limits of his authority, regardless of the legal characterization of the two mentioned contracts??
The answer to all this is clear, and accordingly, the two mentioned contracts are exchange contracts which the
Mutawalli or his representative in the management of the endowment is entitled to initiate, and they are not donation contracts, and the agent did not exceed
the limits of his authority, and no harm was caused to the interest of the endowment by his conclusion of the two mentioned contracts.
All these matters and others were explained by us in the explanatory memorandum dated 3/20/963, but the question of
your esteemed court in the session dated 3/20/963 required us to clarify more than what we had explained.
First - The Court of First Instance did not address in its judgment the validity of the two contracts subject of the lawsuit, and this is
obvious because the claim is for the rescission of the two contracts and the return of the amount paid to our client with compensation,
and we did not request in our lawsuit the execution of the two contracts so that the research would be drawn to the subject of the validity of the two contracts. Also,
the defendant - the appellee - did not claim the invalidity of the two contracts or their non-enforceability, and therefore
any raising of this issue in the Court of Appeal constitutes a new claim, and this is not permissible in
the Court of Appeal.
Second - Since our lawsuit was focused on the request to rescind the two contracts and we explained the legal reasons for that, the
result resulting from the rescission has been clarified by Article 180 of the Civil Code,
which is the recovery of the paid consideration with compensation.
Third - Since the purpose of the two contracts subject of the lawsuit is the benefit intended by our client from
(Sarqafliya) or the increase in the rent in the event that the occupants of the endowments breach their lease contracts,
therefore, the method of gain intended by our client is considered a type of speculation stipulated in
Article (13) of the Commercial Law.
Since the annual rent of the endowments was considered a basis for determining the consideration paid by our client
to the appellee, and since the previous consideration was unknown to our client, our client stipulated
to the appellee in the third clause of the two mentioned contracts that the previous rent amounts
should not be less than the consideration he paid to him so that our client would at least guarantee the recovery of what he paid
to avoid loss, and this is his right under Article 13 of the Commercial Law.
Also, this condition is extremely appropriate for the purpose intended by our client from the benefit, and this condition is valid
under Article (131) of the Civil Code.
- To be continued -
⟦It is not permissible to raise⟧
⟦any statement⟧
⟦in the appeal⟧
⟦that was not⟧
⟦mentioned⟧
⟦and just as⟧
⟦the subject of⟧
⟦the rescission lawsuit⟧
⟦is the benefit⟧
⟦intended by⟧
⟦our client⟧
⟦from the two contracts⟧
⟦and that the recovery of⟧
⟦the consideration⟧
⟦and the Mutawalli⟧
⟦exceeded⟧
⟦the limits of⟧
⟦his authority⟧
⟦is his right and under the Article⟧
⟦expulsion of the consideration⟧
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- 3 -
Just as the fifth and seventh conditions of the two mentioned contracts came as an affirmation to avoid loss
and in agreement with the purpose of the contracting.
Fourth - And whereas the third condition of the two contracts is clear, and in it the amount of the annual consideration
paid by our client was determined on the basis of the same annual amount for the endowments' considerations, it follows obviously
that the lease period which may fall within our client's period, its consideration shall be owned by our client because
he paid its amount in full to the appellee; therefore, our client stipulated to the appellee in
the fourth and first clauses of the two contracts the waiver of the considerations and the endorsement of their promissory notes for the period that
may fall within our client's period.
This is the intent of the first and fourth conditions of the two contracts. These two conditions are considered binding
under Article (131) Civil and are fully consistent with the purpose intended by our client from the contracting
and they ensure for him the recovery of what he paid at least, should he fail to benefit from the rent difference
or the (Key Money/Sarqafliya).
It appears to your esteemed court that all the substantive conditions of the two contracts have combined to fulfill the intended
meaning of the contracting, which is to seek benefit from the key money or the increase in the lease consideration in
the event that the tenants breach their lease contracts. Exploiting this matter might be difficult
for the appellee due to his weakness against the strength and intransigence of the tenants, but for our client
the matter is easy given his knowledge of the provisions of the law, his lack of intimidation by the tenants, and his experience
in litigation as a lawyer. Had the two contracts been executed and not breached by the appellee, our client would have benefited greatly
given the vast difference between the lease consideration at the present time compared to what it was in the
tenants' contracts.
The law did not prohibit contracting for such matters; on the contrary, it has approved all contracts
whatever they may be, provided they do not violate public order or morals, Article (75) Civil.
The two contracts subject of the lawsuit have secured for the endowment the collection of the same previously determined lease considerations
from our client in a single deal for a period of three years in exchange for the speculation undertaken by our client with the intent
of profit, which he lost due to the appellee's violation of the provisions of the two mentioned contracts. Whatever
the result by which these two contracts should be named, they are valid and have secured for the endowment
its determined revenues for a period of three years in a single deal; therefore, the saying that the trustee's agent has
- to be continued -
Page 272
- 4 -
has harmed the endowment and exceeded his authority is incorrect and contrary to reality.
Fifth - Since the two contracts subject to the lawsuit are explicit that the benefit of the endowments becomes the right of our client
starting from the first of Jumada al-Awwal in the year 1380 AH, and since the amount of this benefit has been determined
in the third clause of the aforementioned two contracts, and our client paid the equivalent of this benefit to
the appellee, it does not matter after this if those endowments were occupied for a part of the period
which became our client's right. Since our client did not intend from the contract to occupy the endowments
himself, but rather is satisfied with securing and guaranteeing their returns, and he obtained ⟦this⟧ through the first and fourth conditions of
the aforementioned two contracts, and therefore the tenants' occupation of a part of the period that may fall
within our client's period is irrelevant for our client and for the endowment because both have guaranteed
their rights.
The mind may turn from your honorable court's question to the fact that the trustee ⟦or⟧ his agent does not have the right to
lease the endowments to someone while they are leased to others, and even on this assumption, this matter concerns
the tenants alone because it relates to their right, but we did not find any objection or lawsuit from any of them.
The mind may also turn from the question to the fact that the trustee is not allowed to lease for more than three
years, and even on this assumption, the contract would not be void, but rather the excess in the period is what
is subject to rescission. Knowing that our lawsuit is a request to rescind the contract, not a request to execute it.
Therefore, searching for whether the endowments were leased and what is the remaining period for each tenant, this
subject is raised when the lawsuit is a request to execute the contract, while our lawsuit is a request to rescind the contract
and we have explained the reason for that.
Accordingly, we find no reason to search for the remaining periods for the tenants, as even assuming the existence of
periods for the tenants, they are overlapping with our client's period, and in the worst-case scenario, our client's contract would be
contingent on the tenants' approval and subject to rescission, and we did not request more than the rescission of the contract.
What is important in this regard from a legal standpoint is that the defendant - the appellee - did not
plead the invalidity of the contract or its lack of correctness, and the Court of First Instance did not address in its judgment
this subject, and therefore it is legally prohibited to raise the correctness of the contract or its invalidity in the Court of Appeal
because this depends on filing a new lawsuit, and that is not permissible in the Court of Appeal.
This is from one side, and from another side, a person is not obligated except by what is required by law or custom.
- To be continued -
Page 273
- 2 -
or custom, and it is not the custom or usage in such contracts for people to ask whether the endowments
are leased and what the terms of each tenant are; rather, it is sufficient in the eyes of the people that the trustee or his agent commits before them to execute the contract
according to its terms, and if he refuses, he is legally held accountable before them.
This is the established rule by custom, and custom, as is not hidden from your esteemed court, is a binding legal rule, just as
habit is a judgment by law.
Therefore, it is not our client's business to ask or investigate the duration of each occupant of the endowments, but rather he was satisfied, and it is his right
to be satisfied with the conditions and guarantees he placed in his favor in the contract, especially since the contracting party with him is a person known among
the people for his agency over the endowments of Menachem and Sassoon Daniel. Despite all ⟦that⟧, this subject was not a matter of discussion in the Court of
First Instance and was not mentioned in the appealed judgment, nor was it held against our client or the appellee, and whoever wants to hold onto it must
follow it, in addition to the fact that the apparent question relates to the validity of the two contracts and the request for their execution, while our lawsuit includes a request
to rescind the two contracts and restore what was to what it was with compensation. Whatever the legal effect intended to be arranged based on
the court's question, the characterization of the two mentioned contracts as assignment contracts or the granting of the collection of endowment revenues
by way of commitment or otherwise does not change anything in the subject as long as the conditions of validity are met in them and they were among the
contracts that secure the previous endowment revenues, because the contract, according to the requirements of Article 140 of the Civil Code,
if it appears invalid in one respect but the elements of another contract are present in it, then this contract shall be valid as
the contract whose elements were met if it appears that the intention of the contracting parties was directed towards concluding this contract. And this
can all be assumed in the case of a request to execute the contract.
As for the existing lawsuits based on the request to rescind the contract and recover the amounts received for the account of
the endowment, there is no need to research it because in this case, whether the contract was valid and subject to rescission or was not
valid, the contracting party who received the consideration must return it to the other contracting party and the two contracting parties must be returned to
the state they were in before the contract (Art. 138 and 180 Civil).
This is what we wanted to clarify based on the clarification of the esteemed court.
Lawyer
Hussein Al-Haj Ali
⟦signature⟧
Lawyer
Abdul Jabbar Al-Tikriti
⟦signature⟧
22 / 5 / 964
Page 275
To the Honorable President of the Baghdad Region Court of Appeal
Explanatory memorandum submitted by the attorneys of the appellant in the case
Appellate No. 11 S / 962.
Appellant - Plaintiff - Hamid Majid al-Hamidi - His attorneys, lawyers Abdul Jabbar al-Tikrli and Hussein
Al-Haj Ali
Appellee - Defendant - President of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem
and Sassoon Daniel Endowments - His attorneys, lawyers Hassan Abdullah Muzaffar and Shaul Moshi.
Presented:
The appealed preliminary judgment ruled to dismiss the lawsuit of our client, the plaintiff - the appellant - on the grounds that
the trustee's agent had exceeded the limits of his agency and harmed the interest of the endowment by concluding the two waiver contracts, and that the aforementioned agent is considered
personally liable, and no legal effect is incurred by the endowment because of that.... Therefore, we must discuss this appealed
judgment in light of the legal provisions in the following manner:
First - The court's adoption of this approach contradicts the wording of the power of attorney and the reality of the situation, which makes the appealed judgment
contrary to the law, because the trustee had appointed an agent on his behalf to manage the endowment and granted him all
the necessary powers for the acts of this management, including leasing the endowment's real estate for the consideration he deems appropriate
and collecting rent and expropriation fees and other matters mentioned in the power of attorney with the intent of preserving the
rights of the endowment. The agency in this respect is general, absolute, and delegated to the agent's discretion.
The trustee did not restrict his agent with specific restrictions in the core of the power of attorney nor by any other method, nor did he (the
trustee) object to any of the actions carried out by the agent, including the two contracts under
discussion in this lawsuit, despite the trustee's knowledge of that. If the agency was general, absolute, and not restricted by any limitation,
how can it be assumed that the agent exceeded the limits of his agency? For this assumption does not apply unless the
agency was restricted and the agent violated that restriction.
It remains for us here to state the text of Article (932 Civil) so that your honorable court may see the
erroneous interpretation adopted by the Court of First Instance. The text of this article states the following: (Discretion may be delegated
to the agent, so he may act in what he was authorized to do as he wishes, and it is valid to restrict him to a specific act) End of article. If we look
closely at this power of attorney in light of this text, we would find that the authorized matter is the management of the endowment and the collection of its fees
without any restriction appearing in this regard.
Accordingly, since the power of attorney under discussion is general and absolute regarding the authorized matter - which is the management of the endowment
and the collection of its fees - the claim that the agent exceeded the limits of his agency is irrelevant.
Second - It remains for us to know whether the two waiver contracts fall within the acts of management and within the limits of the authorized
matter or not.
This subject requires searching for the intention of the two contracting parties, meaning the agent and the principal, as it is not hidden
from your honorable court that the agency is a contract like all other contracts and is subject in its interpretation to the same rules
by which other contracts are interpreted. The rule in interpreting a contract is to search for the common intention
of the contracting parties. In light of this intention, it becomes clear whether the waiver under discussion falls within the limits of
the authorized matter or not.
- To be continued -