AI en Translation, Pages 276-300
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The agent during the period of his agency.
So how was it permissible for the court after this to limit the liability to the agent without the principal - the Mutawalli -
in addition to the Waqf.
The law stipulated in Article (942 Civil) that the rights of the contract return to the contracting party.
If the agent contracts with a third party in the name of the principal, then the contract occurs for the principal and the rights of the contract return to him.
The agent contracting with our client concluded the two mentioned contracts in the name of his principal added to the Waqf within the limits of
his agency, so how is it permissible to disable the provision of the law and limit the liability to the agent without the principal contrary to the mentioned
article.
A judgment such as this is worthy of annulment for its explicit violation of the law.
Fourth - The court's judgment was built contrary to the documents and the facts of this lawsuit, as it considered the agent as waiving
the right of the Waqf, while the two contracts subject of the lawsuit, although the word waiver was used in them, they are
two compensation contracts between two parties and are not two donation or waiver contracts from one side. Accordingly, the direction of
the Court of First Instance in its appealed judgment that the agent of the Mutawalli has harmed the rights of the Waqf by concluding
the two waiver contracts contradicts the truth and reality. Because this waiver was not of the nature of a donation and did not cause
harm to the Waqf as the court erroneously went, but rather it was within a compensation contract and in exchange for a consideration amounting to
(27900) dinars received by the agent of the Mutawalli from our client in advance for the account of the Waqf and its interest. Thus, the Waqf
in this case has actually benefited and obtained what is equivalent to all the rental considerations owed by the tenants
from our client in advance and in one deal without any effort or expenses for collecting those considerations from the tenants
under the two mentioned contracts, and it was required by the two mentioned contracts that our client obtains the considerations
of the contracted benefit in exchange for what he paid in cash compensation, but the agent of the Mutawalli surprised our client by interfering
with his disposal to fulfill his rights from the tenants under the two mentioned contracts, by concluding
another lease contract with Mr. Khairi Hassoun Al-Ansari on the same subject and the aforementioned person notifying the tenants
of the necessity of paying the rental considerations to him and not handing over any of it to anyone else, which led to the tenants stopping
the payment of rental considerations to our client Mr. Hamid Majeed Al-Obaidi, which caused him severe damages
and deprived him of fulfilling his legitimate rights.
So how was it permissible for the court to state in its appealed judgment that the agent of the Mutawalli, by performing the two mentioned
contracts, has harmed the interest of the Waqf, while the matter is exactly the opposite, as all the benefit and gain went to the side of
the Waqf and all the damage and loss went to our client - the appellant - and how was it permissible for it to build its judgment
on dismissing our client's lawsuit on an unrealistic and untrue reason. A judgment built on incorrect facts is undoubtedly
contrary to the law and the facts of this lawsuit. And this is a cause for annulment.
Fifth - The appellee has pleaded saying that the Mutawalli and consequently his agent is not authorized to conclude contracts with others
unless he obtains in advance permission from the Spiritual Council, claiming that this is a condition stipulated by the Waqif
in his Waqf deed and conditioned on the Mutawalli in his appointment, while this statement from the side of the appellee
is nothing more than a mere claim only, not supported by the Waqf deed nor the appointment, and all there is to this subject is that
the Mutawalli, after estimating the revenues that may come from the Waqf properties, determines the amount of expenses that
- to be continued -
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It is spent on the designated endowment entities, and a budget is organized for this purpose and submitted to the Corporeal Council for approval.
There is nothing in the endowment deed or the trusteeship that limits the authority of the trustee in managing the endowments
and entering into contracts regarding them; rather, this matter was left to his absolute discretion, and he has delegated in this regard
his agent, Edward Yaqoub, who contracted with our client on behalf of the endowment. Therefore, the statements of the appellee
regarding the alleged permission were nothing more than a mere claim unsupported by any evidence.
As for the possibility that the trustee or his agent betrayed the endowment, this subject—assuming its correctness—has no
relation to our client, who contracted with the representative of the endowment in good faith. Furthermore, this contracting occurred before
the dispute arose between the trustee and the Administrative Committee for Jews, and before any doubt arose regarding the conduct and integrity
of the trustee or his agent. If there had been such a doubt as the appellee claims, this doubt would have been announced
by every possible means, at least in the local newspapers, so that the good-faith third party would be aware of the situation.
However, if none of this happened and the Administrative Committee did not disclose
its doubt regarding the conduct and integrity of the trustee or his agent, while knowing that the trusteeship is standing and the agency is standing
and in effect, and that the trustee or his agent has the right to enter into contracts in the name of the endowment with third parties, and the Administrative Committee
for Jews remained silent about all of this while people did not know, then it comes later to say that the endowment is not responsible
and that the responsible party, according to its claim, is the trustee's agent alone, to the extent that it even excluded the trustee from responsibility
as well. This statement by the Committee - the appellee - is incorrect and contrary to the simplest
rules of justice, for what is the fault of the people, including our client, to be victims of the Menachem Daniel Endowment,
which grows wealthy at their expense and absorbs their money without right.
When our client proceeded to contract with the representative of the endowment, he was seeking the benefit of the (Sarqafliya - key money)
known among merchants, utilizing his legal knowledge as a lawyer in terminating the contracts of the endowment occupants
and giving them to others or to them for a higher consideration than before, and in this there was great benefit for our client. This benefit
was lost to him, as were all his funds which he collected by the sweat of his brow, not for any fault
or error on his part, but rather the fault and responsibility lie on the shoulders of the endowment alone. Because it is legally
responsible for the contracts of its representative, even if this representative capacity were to cease without the good-faith third party
knowing of it, the responsibility remains on the endowment. This was stipulated in Article (948 Civil Code),
which stated (The termination of the agency cannot be invoked against a good-faith third party who contracted with the agent before
knowing of its termination).
If this is the rule of law even in the case of dismissing the agent or terminating his agency, then what is the case
when the agency is standing and the trusteeship is standing and people do not know the secrets...
Therefore, our client's right is attached to the liability of the trustee in addition to the endowment, and he is legally responsible for clearing
the liability of his agent Edward Yaqoub, as stipulated in Article (941 paragraph 2 Civil Code) which stated (And
the principal must clear the agent's liability from the obligations he entered into in his own name for the sake of executing the agency).
Accordingly, the Court of First Instance's approach in limiting responsibility to the agent without the principal is contrary to the law
and warrants reversal.
- To be continued -
Page 279
Sixth - The legal characterization of the two contracts subject to the lawsuit:
While it is sufficient for us to say that the two contracts subject to the lawsuit are legally valid by virtue of
Articles (75, 126, and 145 Civil) and that leasing by way of assignment is a common and recognized matter among
people, we want here to prove that the two mentioned contracts are explicitly lease contracts
and that the will of the contracting parties met on this matter, and the following is a clarification of the subject.
1- It is agreed upon in jurisprudence and judiciary that the interpretation of the contract means searching for the common intention of the contracting parties, and
Professor Al-Sanhuri pointed out this rule in his book Al-Waseet (Vol. 1, page 610).
It is also established that the terms of the contract interpret one another, and it is not permissible to isolate a single phrase from the rest of the
phrases; rather, they must be interpreted as part of a whole, which is the contract (same source, page 610
also), just as the contract is interpreted according to what is required by current custom in transactions (same source, page
610) ⟦VH⟧
From these rules, we can address the two contracts subject to the lawsuit.
Although the term "assignment" was used in the two mentioned contracts by custom, the fifth clause of them
reveals the will of the contracting parties and their common intention, as it stated in this clause that in the event of
the government enacting a law providing for the reduction of rent amounts, the appellee alone shall bear this
reduction. It is not important whether this condition is binding or non-binding; what is important is that this condition
has revealed that the intent of these two contracts is leasing, and the assignment terms present in
the two contracts are only to express the intent of the contracting parties. In contracts, consideration is given to intentions and meanings,
not to words and structures. Furthermore, assignment is excluded from these two contracts because they are compensatory contracts
and not donation contracts.
What also supports that leasing is what was intended by these two contracts is what was stated in the second clause of them,
where it was mentioned in the clause that the consideration received by the Mutawalli from our client is a lease consideration, just as the receipt
given by the agent of the Mutawalli to our client acknowledging receipt of the remainder of the consideration stated that the amount
received is lease consideration.
Our client has also pointed out in all his pleadings that the intent of the two contracts subject to the lawsuit
is leasing.
Therefore, the court should have taken these matters into consideration and looked at the two contracts as a whole
and clarified the intent of the contracting parties from all the words and phrases of the two contracts, and not limited itself to the words of assignment
while leaving the rest of the words and phrases, because the terms of the contract interpret one another as we have shown, and
the law dictates that giving effect to speech is better than neglecting it.
The court, in its characterization of the rights presented before it, is not bound by the statements of the parties, but rather applies the rule of
law to what appears to it from the intent of the contracting parties and what they agreed upon. If these matters were observed
and the Court of First Instance had scrutinized what was stated in the fifth and second clauses of the two mentioned contracts, it would have concluded
that the intent of the two contracts is leasing, and since this leasing is within the powers of the agent Edward
Yacoub according to his power of attorney, the Waqf becomes explicitly responsible for the two contracts and ends the matter.
- To be continued -
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6
The court's neglect of this aspect and its consideration of the two contracts as a waiver of the Waqf's right is contrary to the two contracts
themselves and contrary to the law and the rules of interpretation.
As for the appellee's claim that the two contracts subject of the lawsuit are loan and borrowing contracts,
this statement is incorrect and is not supported by the wording and phrases of the two contracts and is far from the intention of the parties. Otherwise,
how do we reconcile the loan contract with what was stipulated in the fifth and second clauses of the two contracts? And what
is the relationship between loan and borrowing and the government's enactment of a law requiring the reduction of rental fees? In addition to
that, the loan contract has known forms and terms that are not hidden from the contracting parties, especially since our client
is a lawyer who appreciates this matter as it should be. If our client did not intend to lease in his contract with the Waqf, he would have sought
to guarantee his rights through the provisions of bail, transfer of debt, or transfer of right, and would have made the Waqf's tenants a party
to these contracts without resorting to the lease contract.
Accordingly, the appellee's statement that the two contracts are a loan and borrowing contract is incorrect
and contrary to the text of the aforementioned two contracts.
Seventh - The guarantee stipulated in the two contracts:
The two mentioned contracts were attributed to the trusteeship and the Waqf, and the trustee's agent received the amounts
agreed upon in the two mentioned contracts from our client - the appellant - amounting to (27,900) dinars
for the account of the Waqf. Therefore, the Waqf trusteeship is responsible for returning the claimed amount from the amounts
received for the account of the Waqf under the two mentioned contracts, amounting to (24,615) dinars, as well as for the amount of
compensation arising from the penalty clause amounting to (8,000) dinars because the two mentioned contracts
were attributed to the Waqf trusteeship and the amounts received entered the Waqf's liability and were spent on the entities
endowed. If there is an amount of the received funds still with the agent, the trustee has the right to demand
the agent to hand it over to the Waqf in accordance with the requirements of Articles 935, 937, and 942 of the Civil Code.
The Waqf, in this case, is responsible in any event for returning the amounts that entered its liability and were spent on
its expenditures.
Eighth - Edward Yaqoub, according to his power of attorney for the trustee, is legally bound and by virtue of the two contracts concluded by him in addition
to the Waqf, not to interfere with our client in the implementation of the two mentioned contracts and not to breach their terms. He pledged
in Clause 6 of each of the two mentioned contracts to return the amounts received by him to our client with compensation
amounting to (5,000) dinars in the first contract and (3,000) dinars in the second contract if he or any
person from the Waqf beneficiaries took a path contrary to this contract by leasing or waiving for the purpose of receiving
rental fees, in order to confirm the guarantee of non-interference with our client in the implementation of the two mentioned contracts. The
guarantee against interference is established by law even if it is not stipulated in the contract (Paragraph 2 of Article 753 Civil).
However, only a short period had passed since the conclusion of the two mentioned contracts until the trustee's agent violated
his obligations therein and interfered with our client in the matter of their implementation, by concluding a lease contract with Mr. Khairi Hassoun
for the purpose of receiving rental fees. The new tenant then sent notices to the tenants calling upon them
to hand over the rental fees to him, and by this, he violated the terms of the two contracts and interfered with our client in the matter of their implementation.
To be continued =
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Indeed, the administrator, in addition to the endowment, is liable for the conditional and specified compensation amount in the two contracts
without the need for a formal notice because he is legally bound by the terms of the two mentioned contracts to refrain from an act, which is
not interfering with our client in the execution of the two contracts. There is no necessity to notify the debtor if the obligation is to refrain
from an act and the debtor breached it, as stipulated in the last sentence of paragraph (a) of Article (258)
of the Civil Code. Added to that, the execution of the two contracts has become impossible and beyond the will of the endowment's agent
due to the involvement of Khairi Hassoun, the new tenant, in the matter. Therefore, notification is not required according to the first
paragraph of Article (258 Civil Code). Nevertheless, our client did notify the administrator's agent via a written request as
permitted by Article 257 of the aforementioned law. He received a letter from him dated 2/25/1961 in which he admits
to concluding a new contract with Khairi Hassoun and claims he will attempt within five days to rescind the said contract,
however, he did not take any action in this regard.
Accordingly, the obligation to compensate for the damage suffered by our client as a result of the administrator's agent violating the terms
of the two mentioned contracts has been established, and the administrator, in addition to the endowment, is responsible for the compensation amount as specified
in Clause 6 of each of the two mentioned contracts. If there is personal liability falling upon
the administrator's agent as indicated in the preliminary judgment, it does not exceed criminal liability. As for
civil liability and compensation, it falls upon the administrator in addition to the endowment, as we explained above.
Accordingly, we reiterate all the demands contained in the appellate
lawsuit petition.
Respectfully yours.
Attorneys for the Appellant
Attorney | Attorney
Hussein Al-Haj Ali | Abdul Jabbar Al-Tikriti
⟦illegible⟧
Page 282
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 5 L / 18 / 63
Date 14 / 1 / 963
To the Honorable President of the Baghdad Court of Appeal
Through the Honorable Judge of the Karkh Court of First Instance (Unlimited)
Subject / Responsive brief from the attorneys of the Appellee for the
First Instance lawsuit numbered 45 / B / 961.
Appellant: Hamid Al-Obaidi, his general attorney Lawyer Abdul Aziz Al-Shahiri.
Appellee: Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menahem and Sassoon
Daniel, his attorneys are the lawyers Hassan Abdullah Muzaffar and Shaul Moussa.
We were notified on 8 / 1 / 963 of the appeal brief for lawsuit number 45 / B / 61, and we respond to it as follows:-
The decision of the Karkh Court of First Instance (Unlimited) to dismiss the lawsuit on its merits is in accordance with the law, the terms
of the endowment deed, and the general provisions of the endowment for the following legal reasons:-
First - Characterization of the two contracts subject of the lawsuit:-
The contract for the waiver of rental fees for the endowed properties leased by the agent of the dismissed guardian to
other persons is considered as borrowing and loaning sums for the account of the endowment. The detail of this is that the endowed properties
of the two contracts are leased by the judge to the occupying persons under contracts, and the fees
become due gradually in installments. His action of waiving those fees is borrowing and loaning.
The legal characterization of the waiver contract concluded by the dismissed guardian appears to your honorable court as follows:
A - The dismissed guardian did not authorize his agent, Edward Yaqoub, under the general power of attorney attached to
borrow or waive the fees, as the powers he possesses were specifically designated.
B - Assuming that the dismissed guardian had given his agent the authority to waive, he cannot do so
as the guardian does not possess the right to waive the rights of the endowment.
Second - The authority of Edward Yaqoub Shashoua:-
It is clear to your honorable court from the power of attorney granted by the dismissed guardian, Mr. Emile Saleh,
to his agent, Mr. Edward Yaqoub Shashoua, that the aforementioned person does not possess the right of waiver, as the
aforementioned power of attorney specified the powers possessed by the agent and did not stipulate ⟦the authorization of the agent⟧. Authorization
must be in explicit terms, and the agent must execute the power of attorney without exceeding its drawn limits.
X
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— 2 —
The endowment deed (Waqfiyah) No. 935/87 attached to the case file and the deeds based on it, whose
numbers are mentioned within the said deed, have limited the authority of the trustee (Mutawalli) to leasing the endowed properties and stipulated for the validity of
this lease that he must first obtain permission from the Lay Council of the Mosaic community, currently replaced by the Administrative Committee
for Iraqi Jews, in its capacity as the supervisor (Nazir) of the endowment.
It is not hidden from your esteemed court that the condition of the endower (Waqif) is like the text of the Legislator in the necessity of following it and acting upon it, and that whatever
contradicts the condition of the endower is a violation of the text, and ruling by it is a ruling without evidence (Vol. 3, p. 467 of the book Radd al-Muhtar
by the scholar Muhammad Amin, known as Ibn Abidin).
From this, it is clear to your court that the permission must be prior to the action if this action
is a lease contract at a fair market rent; so how about if the action is a waiver? A waiver is a relinquishment of part of the endowment's rights,
and the trustee does not possess this right as it is a definite harm and an explicit violation of the endowment deed. It is stated in
Article (10) of the book Tartib al-Sunuf fi Ahkam al-Wuquf by the late Ali Haydar the following: (The actions of
the trustee and the judge regarding the endowment are contingent upon the public interest). Accordingly, this action by the agent of the dismissed trustee
is contrary to the endowment deed and the provisions of the endowment for the following reasons:-
A — It is not within the authority of the trustee, according to the endowment deed, to waive the rights of the endowment.
B — The authority of the trustee to lease the endowed properties at a fair market rent requires for its validity obtaining prior permission from
the supervisor (The Administrative Committee for Iraqi Jews).
C — The provisions of the endowment do not grant the trustee the right to waive the rights of the endowment because the waiver is a definite harm to the endowment
and an explicit violation of the endowment deed.
D — Even if necessity requires the trustee to violate the condition of the endower, in this case, he must obtain
the permission of the judge, and this is what is stipulated in Article (867 of Tartib al-Sunuf fi Ahkam al-Wuquf)
by the late Ali Haydar.
From all the above, it appears to your esteemed court that the two waiver contracts subject of the lawsuit are in violation of the endowment deed
and the general provisions of the endowment, and the trustee does not have the power to initiate them, and consequently, his agent does not have the power to execute them even assuming for the sake of argument
that he was authorized to do so under his power of attorney.
Fourth — The occurrence of the action during a period dominated by suspicion and doubt:-
We explained in the fourth paragraph of our memorandum submitted to the Court of First Instance No. 2/L/62/402 dated
11/14/62 in its third paragraph that the two waiver contracts were executed by the agent of the dismissed trustee during —
the period in which the supervisor filed lawsuit No. 30/Sh/59 against the dismissed trustee Emil Saleh Shlomo.
To be continued
X
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Where the right of waiver, forfeiture, and release was limited to his private property only, and the dismissed trustee confirmed
in his power of attorney by specifying the actions he performs towards the endowment by including the expression (and he has the use of all
powers granted to me by law and which I can use for myself legally to preserve my rights
in general). What is meant by this expression is the release of powers for the agent regarding his personal
rights only, and those powers are restricted regarding the endowment, as the expression came using all powers
that I can use for myself, specified for himself only and not in addition to his position, as well as the expression (to preserve
my rights), the adversaries include the personal rights of the principal and do not extend to the endowment.
It is clear that the presented power of attorney is not absolute general regarding the powers of the dismissed trustee's agent concerning the endowment.
And since Article (931 Civil) stipulates that it is valid to specify the power of attorney by specifying the subject matter and generalizing it
by generalizing it, the special power of attorney is that which is defined by a specific legal act or acts (Part 5 Page 45
Preparatory works of the Egyptian law).
As for the general power of attorney, it is that which is stated in general terms without specifying a specific legal act for it, as it occurs in
the general power of attorney in which nothing is named specifically, for if the thing is named, it does not benefit from generalization and delegation
(Bidayat al-Mujtahid Vol. 2 p. 238). Accordingly, the power of attorney given by the dismissed trustee to his agent
is limited to the actions mentioned therein and did not stipulate waiver, especially regarding the endowment, as the trustee
himself does not possess the right of waiver, so not authorizing this right to his agent is natural since (one who lacks something
cannot give it).
As we explained in our preliminary briefs, the waiver subject of the lawsuit is a forfeiture of part of the endowment's rights,
and it is not permissible for the trustee to perform what results in the loss of the endowment's assets or its yield, as will become clear to your esteemed court
in the following paragraph:-
Third - The powers of the trustee regarding the provisions of the endowment and the endowment deed:-
X
The decision of the Court of First Instance rejected the appellant's lawsuit in view of the contracting party - the agent of the dismissed trustee - exceeding
the limits of his power of attorney and concluding the waiver contract subject of the lawsuit, which the general power of attorney did not authorize him to use,
and that he performed this contract to the detriment of an ⟦actual⟧ interest, no legal effect is entailed on the endowment; rather, this act of his is considered
an exceeding of the limits of his power of attorney for which he is personally liable. We have explained in the previous paragraph that the contracting party exceeded the powers
authorized to him by concluding the ⟦two contracts⟧ of waiver subject of the lawsuit, as the trustee himself does not possess the right to waive the endowment's rights,
since the powers of the trustee are defined according to the endowment deed and the general provisions of the endowment. The details are as follows:-
To be continued
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before the Personal Status Court in Baghdad, requesting his removal from the trusteeship based on his illegal
actions that violate the endowment deed and the provisions of the endowment, which ended with his removal from the trusteeship. Before the judgment was issued,
the court noticed that the removed trustee was continuing his illegal actions against the endowment, including
leasing the endowments without obtaining prior permission from the supervisor or waiving the rental values to several persons.
Therefore, it decided to restrain his hand from acting, and that was on 11/3/13, as it was confirmed to it that the remaining of the
removed trustee managing the affairs of the endowment is a matter of certain harm to the endowment, which forced it to restrain his hand from the trusteeship
and entrust the management of the endowed properties to it until the dismissal lawsuit is decided and a new trustee is appointed. The two waiver contracts,
the subject of the lawsuit, are among the illegal actions carried out by the agent of the removed trustee, thereby violating
the condition of the endower and the general provisions of the endowment. This action was during the period in which the
stubborn agent expected the issuance of the judgment against his client for removal and shortly before the date of restraining the hand from acting. Accordingly,
harming the endowment and obtaining gains and funds by the removed trustee and his agent for themselves at the
expense of the endowment is the true goal of those actions. In this case, no responsibility arises for the endowment
as a result of that.
⟦XX⟧ Fifth - We have clarified in our briefs submitted to the Court of First Instance and requested the necessity of dismissing the lawsuit on formal grounds
for the following reasons:
1 - The necessity of the formal notice which the plaintiff did not perform before filing the lawsuit based on paragraph - a - of
Article 177 Civil.
2 - The necessity of the formal notice which the plaintiff did not perform before filing the lawsuit to claim compensation according to paragraph - a -
of Article (177 Civil) and paragraph - a - of Article (256 Civil).
As for the subject of the reply letter presented by the appellant's agent as a formal notice, that reply
letter is not sufficient to arrange the legal effect of the notice, as Professor Al-Sanhuri says (Al-Waseet Vol. 2):
(The mere statement of the debtor is not sufficient to arrange the legal effect of the notice; rather, the original notice must be submitted, as
the court can determine whether rescission results from that or not). ⟦Regarding the debtor's notice⟧
The plaintiff did not submit the original notice and remained silent throughout the sessions without answering, as it is required
to notify the debtor when requesting compensation based on paragraph - a - of Article (256 Civil).
The presented letter, which has no fixed date and was presented - as a remedy - after our request to submit the notice
and after we were appointed as counsel for the current trustee, ⟦is only⟧ an acknowledgment by the agent of the two waiver contracts, and this
acknowledgment is valid within the limits in which the trustee or his agent is permitted to perform acts of disposition, as the right of acknowledgment over
To be continued
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- 6 -
8
3 - The issuance of the disposition in a period dominated by doubt and suspicion, as the two waiver contracts were executed by the agent of the dismissed
trustee shortly before the trustee was restrained from acting and shortly before the issuance of the dismissal judgment, and that the real
purpose is his personal benefit at the expense of the endowment.
⟦X⟧
4 - The necessity of notification before filing the lawsuit and before claiming compensation according to paragraph - A - of the two articles
(177, 256 Civil).
Therefore, we request the confirmation of the preliminary judgment and charging the appellant with the trial costs and appellate attorney fees
and lifting the precautionary seizure, while our client reserves the right to claim from the appellant the amounts he received on account of the two contracts
subject of the lawsuit.
With respect to your Excellency.
Attorneys for the Appellee
Lawyer | Lawyer
Shaul Moussa Hassan | Abdullah Muzaffar
Page 288
Presidency of
Baghdad Court of Appeal
(Summons for the Appellee)
File Number:
S: 195 /
Name of the Appellee and their title | Profession | Place of residence | Name of their attorney
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
( ) o'clock on 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
Page 289
Presidency
Baghdad Court of Appeal
Summons for the Appellee
Case Number: S / 195
Name of the Appellee and his title | Occupation | Place of residence | Name of his attorney
⟦illegible⟧ | | |
It has been decided to set the day ( ) corresponding to / / 195 to hear the case appealed against you
by the appellant, therefore you must appear before this court at
( ) o'clock on 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
⟦illegible⟧
Page 290
Lawyer
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Banks Street
Al-Damerji Building
Telephone { Office 86251
Telephone { Residence
To the Honorable President of the Baghdad Region Court of Appeal
Through the Honorable President of the Karkh Court of First Instance (Unlimited)
Case Number 45 / B / 61
Appellant (Plaintiff) - Hamid Al-Obaidi - his general agent Abdul Aziz Muhammad Al-Shahiri.
Appellee (Defendant) - President of the Administrative Committee for Jews in addition to his trusteeship over the endowments of Menachem and Sassoon
Daniel - his lawyers Ihsan Abdullah Muzaffar and Shaul Moussa.
Subject of Appeal:-
The Karkh Court of First Instance (Unlimited) issued decision No. 45 / B / 61, which was announced on
5 / 1 / 963, ruling to dismiss my client's lawsuit on the grounds that the agent exceeded the authority of his general power of attorney. Since the
aforementioned decision is contrary to the law and prejudicial to my client's rights, I have initiated its appeal before being notified of it, requesting its annulment for the following reasons:-
And this is the text of the decision:-
(Upon deliberation, scrutiny, and observation of the copy of the endowment deed No. 87 / 35 and the notification of the Personal Status Court No.
35 Sh / 960 and the general power of attorney certified by the Karkh Notary Public under general number 383, by which the principal
Emile Saleh Shleimou, in his own capacity and as trustee of the endowments of Menachem and Sassoon Saleh ⟦President⟧, authorized the agent Mr. Edward Yaqoub
Sha'shua to perform the following acts, as stated in the first paragraph: "In leasing all properties, lands,
and common shares belonging to me and the properties of the endowment referred to above to whomever he wishes for the consideration he deems appropriate,
collecting the rent for the mentioned properties and endowments, signing and terminating lease contracts and agreements, and he has
the right of discharge and waiver regarding my private properties only and ⟦all⟧ settlements with tenants and acknowledgment." Whereas the former agent
the defendant had concluded the two waiver contracts subject of the lawsuit, certified by the South Baghdad Notary Public on
24 / 11 / 960 for a period of three years starting from 1 / Jumada al-Awwal 1380 AH for a known amount, and that he concluded
these two contracts in his capacity as agent for the trustee of the Menachem Daniel endowments.
It has been proven that the agent (the former dismissed trustee) exceeded the limits of his agency and concluded the waiver contract subject of
the lawsuit, which the general power of attorney No. 383 authorizes him to use, and that he entered into these two contracts to the detriment of the interest
of the endowment. Therefore, no legal effect is entailed upon the endowment; rather, this act of his is considered an exceeding of the limits of his agency for which he is personally
liable. Accordingly, and upon request, it was decided to rule to dismiss the plaintiff's lawsuit and charge him all court costs and lift the precautionary seizure
placed, and charge the plaintiff the attorney fees amounting to 500 Dinars. The decision was issued in presence, subject to appeal and cassation.
The legal grounds on which we base our request to annul the judgment.
First - The authority of the endowment trustee or his general agent regarding the leasing of endowed real estate:-
The endowment trustee or his general agent has the right to lease endowed real estate or waive its rents
for a period of three years only, even if the lease or waiver of its rents was conducted in two separate contracts for one
tenant. This is what the Court of Cassation of Iraq held in its decision No. 918 / J / 54, and this is its text
- To be continued -
Page 291
(The Lawyer)
Abdul Aziz Muhammad Al-Shaharli
Baghdad - Al-Bunook Street
Al-Damirji Building
Telephone ( Office 86251
( Residence
- 2 -
"The trustee of the endowment (waqf) does not have the right to lease the endowed properties for a period exceeding three years without the permission of
the Sharia Court, even if he conducts the lease through two separate contracts for one tenant. Article 724 Civil, Judicial
Principles, Civil Section, page 28, Abdul Rahman Allam." Likewise, the cassation decision numbered 1110/Rights/
59, and this is its text: "It was found that the Court of Appeal followed the decision of the Court of Cassation numbered 1246/Rights/58
dated 7/10/⟦158⟧ which stipulates the necessity of conducting an auction for the properties leased by the Endowment Department, and that what
exceeds a lease period of three years must be coupled with the approval of the Council of Ministers. Since the specified conditions
were not met, the Endowment Department has no right to claim the previously named rent and its conditional addition. After the
Court of Appeal clarified those conditions, it issued its ruling upholding the primary judgment which included the dismissal of the claim. Since
its issued judgment was in accordance with the law, it was decided to ratify it on 18/2/⟦960⟧. The decision was issued by the General
Assembly of the Court of Cassation by consensus. Iraqi Judiciary, Salman Bayat, page 167, Part Two.
B- The trustee may initiate lease contracts for the endowment's investments and collect their rents. Provisions of the Endowment,
Muhammad Shafiq Al-Ani, page 46.
As long as the trustee or his agent has the right to initiate lease contracts, he has, a fortiori, the right to waive the
considerations and receive the agreed-upon consideration in exchange for the waived amounts. This is all that the agent of the previous
trustee did, as he waived the lease considerations for the duration of the two contracts and received their value in cash from my client,
as is clear in the two contracts subject of the lawsuit. These actions are considered nothing but acts of administration that he has the right
to practice legally.
C- What the interest of the endowment requires:-
It is accepted that no harm should befall the endowment when leasing it or waiving the lease considerations.
Therefore, they said that the minimum for the conclusion of contracts regarding the endowment side to be valid
is the fair market rent or what is ⟦less⟧ than it by a small amount, and the small amount is what is less than one-fifth. But if a lease contract is concluded
at a rate where people are not cheated, and it is one-fifth less than the fair market rent or its reduction is more than that,
it is concluded as invalid, and the tenant is obliged to complete the fair market rent and pay what was missing from it in the past period
from the time of the contract. Provisions of the Endowment by Professor Shafiq Al-Ani, pages 56 and 57.
It appears to your esteemed court that there is no cheating of the endowment or harm to it in my client's two contracts subject of the lawsuit.
On the contrary, the endowment benefited greatly from the two contracts subject of the lawsuit
as a result of the previous agent receiving the consideration in cash in exchange for his waiver of the lease considerations for the duration of the two contracts. Thus,
the previous agent was able, as a result of receiving the agreed-upon consideration in cash in exchange for this waiver, to manage
the affairs of the endowment and ⟦arrange⟧ its matters, not as the court of first instance went, stating that these two contracts harmed the endowment.
If we were to follow what the court of first instance went with, the endowment side would have been enriched at the expense of others.
Therefore, all that the previous trustee's agent did regarding these two contracts was within the limits of his authority
authorized by law, and the trustee and his agent did not violate the condition of the endower because the endowment deed did not limit
and define the authority of the trustee over the endowment for managing the endowment's affairs.
- To be continued -
Page 292
(Lawyer)
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Al-Bunook Street
Al-Damirji Building
Telephone { Office 86251
Residence
- 2 -
Second - The powers of the contracting general agent, Edward Yaqoub, in light of the rights mentioned in the general power of attorney
A- It was stated in the first clause of the general power of attorney No. 383 dated 5/30/955, certified
by the Karkh Notary Public, on behalf of his principal, Emil Saleh Shlimo, and in addition to the endowment under
his guardianship, that he has the right to perform the following acts: 1- In leasing all properties, state lands, and common
shares belonging to me and to the endowment properties - referred to in the aforementioned power of attorney document - to
whomever he wishes and for the consideration he deems appropriate, and to receive the rental amounts for the mentioned properties and endowments, and to sign
lease contracts, terminate them, and contracts... etc.
It appears to your esteemed court from the text of the power of attorney that Mr. Edward Yaqoub, the former general agent, has the right
to waive rental amounts and receive their value. As long as the agent has the right to lease and receive, he has, by priority,
the right to waive rental amounts, especially if it is in exchange for a known amount. He who owns the more, owns
the less. The agent, according to his general power of attorney, has the right to manage and conduct the affairs of the endowment. Despite this, it was
stipulated in the body of the power of attorney that he has the right to receive and lease. In light of this, the waiver contract is among the weakest
rights that fall within the scope of the management right. This is all that the former agent did in terms of actions
during his conclusion of the two contracts subject of the lawsuit. Add to that the fact that the contract for waiving rental amounts is considered
from a legal standpoint a lease contract based on the text of Article 777 of the Civil Code, and these two contracts were subject to
their provisions according to the texts of the Civil Code in the chapter on lease contracts. Therefore, the subject of their conclusion is within
the authority of the general agent authorized to manage the affairs of the endowment, not as the court of first instance concluded.
B- It was stated in the last section of the aforementioned general power of attorney as follows:-
And he has the right to exercise all the powers granted to me by law and which I can exercise for myself -
legally
It is clear to your esteemed court from this text that the principal has authorized and granted the agent the right to use
all legal powers based on the text of Article 931 of the Civil Code. This is what the Court of Cassation of
Iraq went to in its decision No. 1667 / Conciliation / 59 Mandali, and this is its text: "The general power of attorney is signed
by the plaintiff as well, and after the matters explained therein were specified, it stated that the agent shall have
all the rights and powers that she legally possesses. In this regard, it includes the lease contract -
also. Thus, the court's going to the contrary is a deficiency that invalidates the validity of the appealed judgment 6/19/960 Iraqi Civil
Judiciary, page 369, Part Two, Salman Bayat. In light of this, the agent, according to
the clarity of his power of attorney, did not exceed the limits of his power of attorney, as exceeding occurs if the agent acts with a right outside
the limits of the powers authorized to him. This was not established by the court of first instance; rather, what was stated in the power of attorney is evidence
for us against our opponent that the conclusion of the waiver contract was within his legal authority.
- To be continued -
Page 293
- 4 -
Discussion of the trial court's decision from a legal perspective.
In light of the legal defenses, reasons, and grounds we have presented to your esteemed court as an explanation
and characterization of the authority of the Mutawalli (trustee) and his general agent, Edward Yaqoub, according to his general power of attorney, we see that the trial court was not
successful in analyzing and justifying its decision, the subject of the lawsuit, as is clearly and explicitly evident from its aforementioned decision. All
that the trial court relied upon in its decision is that the general agent, Edward Yaqoub, had exceeded the limits of his agency's authority,
and thus he is personally liable for this ⟦exemplary⟧ transgression. The trial court did not rely on a legal text, a legal
rule, or a jurisprudential opinion to support its viewpoint; rather, it used the expression (exceeding authority in his general power of attorney is considered
an arbitrary expression). This is a legal deficiency on the part of the trial court, as the Law of Civil and Commercial
Procedure requires it to justify and explain its decision according to the text of Article 131 of the aforementioned law.
In view of the legal reasons we have stated in our brief, the trial court's decision is considered collapsed due to its lack of
reliance on a legal reason upon which the dismissal of the lawsuit is based.
The trial court, in light of what was stated in its decision, bound itself when it decided that the agent Edward Yaqoub
is a general agent for the Mutawalli with the right to receive payments and lease. Thus, the <del>principal</del> principal result is that the general agent
who manages the affairs of the Mutawalli, who resides outside Iraq, has absolute management defined by the provisions and texts of the Civil
Code. This same opinion was adopted by the Personal Status Court in its decision No. 35 / Sh / 59, which ruled
to remove the Mutawalli (and a ⟦copy⟧ copy of this decision is attached to the lawsuit), which stated that the Mutawalli Emile Saleh
Shalimo resides outside Iraq and that (i.e., the Mutawalli supports his client's side and the agent used to attribute the legal acts
and dispositions he performed to his principal in addition to the trusteeship. The Mutawalli was managing the affairs of the Waqf through his agent.
Add to that, the general agent Edward Yaqoub had received an amount of - / 32,000 thirty-two thousand
dinars belonging to the Waqf from the Personal Status Court in his capacity as an agent for the Mutawalli. Is what he did
in terms of receiving the mentioned amounts considered something he is personally responsible for? In light of what the trial court concluded
in its decision, considering what Edward Yaqoub did as something he is personally liable for. If that were the case, how could the
Personal Status Court hand over to him funds belonging to the Waqf as long as the general agent Edward Yaqoub is responsible for
the act of receiving personally and not the Waqf? And would the Personal Status Court bear that in light of what the
trial court concluded in its decision?
From all this, it is clear that the Personal Status Court did not proceed with its decision to hand over the mentioned amounts until after
it was verified that the general agent Edward Yaqoub, as an agent for the Mutawalli, has the right to receive payments and manage the affairs of the Waqf, and that
his legal dispositions and acts are attributed to the Waqf as he is an agent for the Mutawalli, and that his dispositions do not belong to him personally.
Accordingly, the general agent Edward Yaqoub, through his actions, did not go beyond his legally authorized power
by concluding the waiver contract, as is proven by his actions and management of the Waqf's affairs over a long period. Add to that
that the waiver contract, according to general rules, is one of the weakest rights exercised by the general agent for management. This
is what the Court of Cassation has held in its numerous decisions and the opinions of commentators and jurists of the Civil Code. Despite
this, it was stated in the core of the general agent's power of attorney that he has the ⟦general agent⟧ right to receive payments and lease, and that the waiver contract
is not considered one of the legal dispositions that requires special authorization for it. Rather, it is considered an act of management and a right
complementary to receiving payments and leasing according to general rules, and the agent has the right even if the disposition is not stipulated in the power of attorney document.
- To be continued -
Page 294
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Banks Street
Al-Damirji Building
Telephone { Office 86251
{ Residence
⟦My number⟧
⟦line⟧ 5 ⟦line⟧
Legal to perform legal acts as required by management for the purpose of completing the works that require management, and as long as
the general agent has the right of collection and leasing, the result of that is he has the right to waive in exchange for a known consideration, and that the trustee
Emile Saleh Shlimo, residing outside Iraq, has given his general agent all legal powers for the purpose of managing the affairs of
this endowment, and on the other hand, as we have shown in our briefs, there is no harm to the interest of the endowment.
It follows from this that what the trial court went to in its decision has collapsed from its foundation due to what we have shown
of legal reasons, therefore the decision is contrary to the law and must be overturned by your esteemed court.
Summary: The former agent of the dismissed trustee had added the two contracts, the subject of the lawsuit, when
concluding them before the notary public to his principal in addition to his trusteeship over the mentioned endowment according to his general power of attorney (942 Civil)
He also admitted before the trial court, explicitly recognizing that he concluded the contract in his capacity as an agent for the trustee and that the contract
was in addition to the trusteeship, and this admission before the trial court cannot be retracted in any case, and that the party
contracted upon in the two contracts is the endowment party, and the amount claimed by my client had been received by the former
agent in his capacity as an agent for the trustee and in exchange for his waiver of the endowment's rental considerations, the subject of the lawsuit, for a known consideration, and he did not receive
the mentioned amount in his personal capacity such that the trial court would go in its mentioned decision to consider Edwar Yaqoub responsible
for that personally.
Accordingly, as long as my client has been deprived of benefiting from the utility of the two aforementioned contracts, which the former agent
explicitly admitted before the notary public and before the trial court to have received their amounts in cash from my client, and as long as it has
become impossible for my client to continue implementing them for the reasons stated in the lawsuit petition, then the
appellant, in addition to his trusteeship over the endowment subject of the lawsuit, is obligated to return the amounts received by him in this capacity
to my client; whatever the form and formula of the contract, the consideration is for the intentions and meanings, not the words and structures.
As for the subject of the lawsuit from the formal side and its subject from the legal side, I repeat all that was stated in
statements which were recorded in the trial minutes and the written briefs attached to the lawsuit file.
For these legal reasons that I have mentioned, I request the overturning of the preliminary judgment and compelling the appellant, in addition
to his trusteeship, to return the claimed amount of (- / 24815) Dinars in the lawsuit petition and to rule against him
for legal interest starting from the date of filing the lawsuit until the date of payment, as well as ruling for the penal clause stipulated
in the two contracts and as stated in the lawsuit petition, and the confirmation of the precautionary seizure located in the seizure
file numbered 11 / H / 61 Karkh Court of First Instance, and that the seizure bond is attached to the lawsuit while charging him with the trial costs,
attorney fees, and brief fees.
Note: This is with the knowledge that the conclusion of the pleading in the lawsuit under discussion was on 12/18/62 and I was
informed of the decision orally on 1/5/63, and this is contrary to the text of Article 131, second paragraph, of the Civil and Commercial
Procedure Law, which requires the court not to delay the issuance of the judgment and its notification for more than ten days
from the date of concluding the trial, and I leave this legal violation and its assessment to your respected court.
In conclusion, please accept my utmost thanks and respect.
Agent of the Appellant
Lawyer Abdul Aziz Muhammad Al-Shahiri
Page 295
Al-Karkh Court of First Instance (Unlimited)
Number 45/B/1961
The Al-Karkh Court of First Instance (Unlimited) was formed on 12/18/1962 by its judge, Mr. Muhammad al-Bahrani,
authorized to adjudicate in the name of the people, and issued its following decision:
Plaintiff: Hamid Majid al-Ubaidi - his attorney, lawyer Abdul Aziz al-Shahir
Defendant: Emile Saleh Shlomo, the trustee of the Menachem Daniel Endowments, his attorney lawyer Edward Yaqoub, his attorney the head of
the Administrative Committee for Iraqi Jews - his attorneys, lawyers Hassan Abdullah Muzaffar and Anwar Shaul
The plaintiff claimed that an agreement was previously reached between him and the defendant in his capacity as an agent for the trustee of the endowments of
Menachem Daniel, pursuant to two contracts certified by the Notary Public on 11/24/1960, providing that the defendant
in his capacity as an agent waives the rental fees due to the aforementioned endowment for the share of 297/504 belonging to the shops
and the upper rooms thereof located in Khan Ajfan in the Bab al-Agha neighborhood for a period of three years starting from 1/Jumada
al-Awwal/1380 AH in exchange for an amount of 27,900/- twenty-seven thousand nine hundred dinars, which the defendant received
from me in cash as they are equal to the rental fees agreed upon with the occupants of the shops. He has received from the rental
fees an amount of 1,500/- one thousand five hundred dinars in cash and 1,785/- one thousand seven hundred and eighty-five dinars
by virtue of promissory notes drawn to the order of the defendant and endorsed in his name, due on their dates. Whereas the defendant
concluded another contract with Mr. Khairi Hassoun al-Ansari, certified by the Notary Public of Kadhimiya for a period of two years starting
from 1/1/1961, and Mr. Khairi sent warnings in this regard to the occupants of the shops and rooms in Khan
Ajfan demanding that they pay the rental fees to him or to the Notary Public of Kadhimiya. Thus, the defendant
has violated the terms of the two contracts concluded between us. I was forced to request the placement of a precautionary seizure, so the
court decided to place a precautionary seizure on the defendant's property located in his house and on his shares in the Zia Hotel.
The plaintiff requested that the defendant be summoned for trial and that a judgment be rendered against him to rescind the contract and pay the claimed amount of
24,615/- twenty-four thousand six hundred and fifteen dinars with the penal clause amounting to 8,000/- eight
thousand dinars and legal interest from the date of filing the lawsuit until actual payment, and to confirm the precautionary
seizure that took place and to charge the defendant all costs, fees, and attorney's fees. On the day appointed
for the trial, the plaintiff and his attorney attended with the defendant, and the trial proceeded in person. The plaintiff's attorney repeated the
petition of the lawsuit and requested the rescission of the contract and to obligate the defendant to pay the claimed amount with legal interest and the compensation amount,
and to charge the defendant the trial costs and attorney's fees based on Article 754 and Article 782 of
the Civil Code because the defendant violated the terms of the two contracts <del>the con</del> and concluded a second contract after his contract with him and submitted
a copy of the contract certified by the Notary Public of Kadhimiya under general number 2929 / 960 and dated 12/17/1960
concluded between Mr. Khairi Hassoun al-Ansari on one hand and Mr. Edward Yaqoub according to his power of attorney for Emile Saleh
Shlomo in his personal capacity and his trusteeship over the Menachem Daniel Endowments on the other hand. This contract was concluded on
1/1/1961 until 12/30/1963. The defendant's conclusion of this last contract forced me to file
the lawsuit against him and request the rescission of the contract between the aforementioned parties due to my inability to benefit from my contract after Mr.
Khairi al-Ansari sent warnings to all shop occupants demanding the rental fee, and the defendant also received
part of the rental fees. Therefore, I repeat my previous requests in the lawsuit petition. The defendant answered, admitting
the validity of the plaintiff's lawsuit and the contracts referred to by the plaintiff, and that he has from Mr. Khairi al-Ansari signed
Page 296
Number 45 / B / 961 Page ( 2 )
by mistake and he will annul it, and thus the plaintiff's rights will be preserved, and he supports them. The plaintiff's attorney added
that the contract of Mr. Khairi Al-Ansari was concluded a period after the contract with the plaintiff. In the following session, the attorney for
the plaintiff submitted a request asking for a notification to the Personal Status Court in Baghdad to appoint a representative for the defendant
in this lawsuit, especially since the defendant's hand has been withdrawn from the trusteeship. A letter arrived from the Personal Status
Court in Baghdad under number 29 / Sh / 59 and dated 22 / 3 / 961 confirming that the hand of the trustee Amin Saleh Shlomo
has been stayed from the trusteeship of the mentioned endowments and requesting not to accept his appearance or his agents and that a lawsuit
has been filed against him. Upon deliberation, the court found that the adversary in this lawsuit is Amin Saleh Shlomo, the trustee of
the Menahem Daniel endowments, and the lawsuit is filed against him in this capacity. Based on the plaintiff's request and the letter from the Personal Status
Court, the court decided to stay this lawsuit until a trustee is appointed for the mentioned endowment or a decision is made
regarding the fate of (the trustee) the defendant. Based on the follow-up of the plaintiff and his attorney and the letter from the Personal Status
Court in Baghdad numbered 153 / Sh / 962 and dated 9 / 10 / 962, the court set a date for the hearing and summoned
both parties. On the appointed day for the hearing, the attorneys for both parties attended, and the hearing commenced in person and publicly. The attorney for
the plaintiff repeated the statement of his claim and requested judgment accordingly. The defendant's attorney replied and requested to be notified of the documents
given that we have recently been retained in this lawsuit. The plaintiff's attorney presented a copy of the general power of attorney numbered under general number
383 and dated 30 / 5 / 955 certified by the Karkh Notary Public, and a letter dated 5 / 2 / 961 addressed to
the lawyer ⟦the⟧ Hamid Al-Obaidi (the plaintiff) and signed with the signature of the general agent for the trustee of the Menahem Daniel endowment
Edward Yaqoub, and a copy of the two contracts concluded between him and the defendant, and a copy of a written receipt for the receipt of an amount of
-/600 Dinars from (the plaintiff). The defendant's attorneys were notified of them, and he replied to the lawsuit with a written brief stating
therein that the plaintiff's lawsuit is rejected for the following reasons: First - From the formal aspect 1- The necessity of formal notice
⟦which⟧ the plaintiff did not perform before filing the lawsuit based on paragraph (1) of Article 177 of the Civil
Law. Second - From the substantive aspect 1- The lack of authority of the returnee Edward Yaqoub under the general power of attorney
to contract with the plaintiff by a contract of waiver of the rental fees for the endowment according to Articles 932 and 931 of the Civil Code. 2- The lack of
authority of the trustee to conclude the waiver contract under the endowment deed numbered 87 / 635, as he has no authority to waive
the rights of the endowment. 3- The failure to obtain prior permission from the supervisor. 4- The provisions of the endowment do not allow the trustee the right to
waive because the waiver is a definite harm to the endowment, in addition to being a debt in its legal characterization, and borrowing by
the trustee is not permitted except with the judge's permission. 5- The transaction occurred during a period dominated by doubt and suspicion, as this
waiver contract took place before his hand was stayed from the trusteeship and management and shortly before the issuance of the judgment for his removal; therefore, the
waiver contract is void regarding the endowment and does not entail any liability, but rather is considered a transaction for which the contractor is personally liable
or his principal. For these reasons, we request the dismissal of the plaintiff's claim and charging him with all costs and attorney fees and lifting the
precautionary attachment. Then the plaintiff's attorney submitted a responsive brief stating: First - The subject of the lawsuit from the formal aspect,
Article (257) of the Civil Code clarified that the notification of the debtor is done by any written request and did not require formality
in the notice. Accordingly, the notification of the defendant's attorney by a written letter from my client and his written reply in his own handwriting
on it with its date attached to the lawsuit papers serves as the notice. Furthermore, the previous attorney for the defendant
confessed ⟦explicitly⟧ before this court to the validity of my client's contract and requested a grace period to annul his second contract which
he concluded with Mr. Khairi Al-Ansari and which he concluded by mistake. It is not hidden from the esteemed court that the explicit
confession before the competent court cannot be retracted and that it is considered a notice to the previous agent and a waiver of the right
to demand formal notice. Second - The legal aspect - the two waiver contracts are considered from the legal aspect
Page 297
Number 45 / B / 967 Page ( 3 )
Two lease contracts based on Article ( 777 ) Civil, where the assignee replaces the lessees in all
rights and obligations arising from the lease contract and it is not considered as borrowing or lending. Third - Powers
of the Waqf trustee to lease the endowments - The Waqf trustee has the right to lease the endowed properties or assign their
lease amounts for a period of 3 years only, even if the lease or assignment was conducted through two separate contracts for one lessee, and this is what
the Court of Cassation has held and based on Article ( 724 ) Civil. Furthermore, as long as the trustee or the trustee's agent
has the right to initiate lease contracts, he also has, a fortiori, the right to assign the amounts and receive the agreed-upon
consideration for the assigned amounts, and this is what the previous trustee's agent did, and these actions are considered management
actions and it is his legal right to practice them. In addition to that, the Waqf was not harmed by my clients' contracts, the subject of
the lawsuit; rather, the Waqf benefited and received amounts in cash. Fourth - The authority of the contracting party, Edward Yaqoub Shashoua, as stated
in the first clause of the General Power of Attorney No. 383 dated 30 / 5 / 1955, certified by the Karkh Notary Public,
personally on behalf of his principal, Emile Saleh Shlomo, and in addition to the Waqf under his trusteeship, to perform the following actions:
1- Leasing all properties, state lands, and common shares belonging to me and the Waqf properties referred to
in the aforementioned power of attorney document to whomever he wishes and for the consideration he deems appropriate, and receiving the lease amounts
for the properties etc... And as long as the agent has the right to lease and receive, he has, a fortiori, the right to assign the lease
amounts for a known sum, and this is what the previous agent did. This is in addition to what was stated in the General Power of Attorney
in its final section: and he has the use of all powers granted to me by law and which ⟦I cannot⟧ use
for myself as a matter of proof). This text authorized and released the agent to use all powers in the law based on
Article ( 931 ) Civil. Fifth: The two contracts, the subject of the lawsuit, were contracted by the previous dismissed agent during
the period of his agency and before the issuance of the decision to dismiss him by a period of more than two years; therefore, no suspicion or
doubt prevails over these two contracts. Because what matters is the time of concluding the contract, and this is what Article ( 948 ) Civil stipulated. This is in addition to
the fact that the previous agent of the dismissed trustee had added the two contracts, the subject of the lawsuit, when they were concluded before the Notary
Public, to his principal in addition to his trusteeship over the mentioned Waqf and according to his general power of attorney from him based on Article ( 942 )
Civil. Also, the party with whom the two contracts were made is the Waqf entity, and the amount claimed by my client has
been received by the previous agent in his capacity as an agent for the trustee and in exchange for his assignment of the lease amounts of the Waqf, the subject
of the lawsuit, for a known consideration. And as long as my client was deprived of benefiting from the utility of the two contracts, the subject of the lawsuit, which
the previous agent explicitly admitted before the Notary Public to have received their amounts in cash from my client, and due to my client's inability
to continue implementing them for the reasons I mentioned, therefore the plaintiff therein, in addition to his trusteeship over the Waqf
subject of the lawsuit, is obligated to return the amounts received by him in this capacity. Accordingly, I repeat the demands stated in the lawsuit petition
along with the confirmation of the precautionary seizure. Then the two agents of the plaintiff therein submitted a response brief to the plaintiff's brief
which included a confirmation of what we explained in our previous brief, and that the assignment contract is void regarding the Waqf and does not entail
any responsibility on the Waqf; rather, they are considered a disposition for which the contracting party is personally liable or his principal. Therefore, they requested the dismissal of the plaintiff's lawsuit
and charging him with expenses and attorney fees and lifting the precautionary seizure. Then the plaintiff's agent submitted a response brief stating
that the original notice was received by the previous agent of the plaintiff therein and he admitted that in his written letter attached to the lawsuit.
Therefore, it was not possible for my client to submit the original. Furthermore, the claim for compensation is not required to be stipulated in the letter written
by my client to the previous agent of the plaintiff therein, and that is governed by the terms of the two contracts, the subject of the lawsuit. Also, the argument
To be continued
Page 298
Number 45 / B / 962 Page ( 4 )
The endowment deed did not restrict the trustee to specific actions, but rather came in absolute terms, therefore it is subject to the provisions of the Civil Law and all
actions and deeds performed by the trustee or his agent, and all the conditions mentioned in the endowment deed relate to the manner of
managing the endowment and spending its proceeds on the entity for which it was endowed. And the endowment deed gave the trustee the right to spend
any amount and inform the Lay Council for information purposes only, and the endowment deed came in absolute terms except for what relates to -
the manner of submitting accounts and the entity to which they are submitted, and if the trustee or his agent does not submit the accounts, they
alone are responsible for that towards the entity that has the right to hold them accountable, and the trustee is not responsible for contracting
with them, and no legal effect arises from the contracts concluded by them in this capacity, and he repeated his previous requests.
Then the defendant's attorneys submitted a response brief with a copy of the judgment issued in the case for the dismissal of the previous trustee -
numbered 30 / Sh / 959 for the purpose of determining the extent of the violation of the two contracts subject of the lawsuit by the agent of the dismissed
trustee of the condition of the endowment deed and the provisions of the endowment and his suspicious actions and his failure to obtain prior permission from
the supervisor (the Lay Council), the Administrative Committee for Iraqi Jews in its capacity as the supervisor, and its warning regarding -
the ongoing actions by the dismissed trustee, and they repeated their requests. Then the defendant's attorney clarified that the endowment deed
numbered 935/87 on which he relied restricted the trustee with constraints, including the necessity of obtaining prior permission
from the supervisor for all financial and other actions, and that the plaintiff's attorney's statement that the trustee's function is to inform
the supervisor only is invalid, as prior permission is what is required in the endowment deed. Then the plaintiff's attorney clarified that
the previous agent of the dismissed trustee had added the two contracts subject of the lawsuit when they were concluded before the Notary
Public to his power of attorney in addition to his trusteeship over the mentioned endowment, and he also admitted before this court according to his general power of attorney
on his behalf, in addition to the fact that the entity with which the two contracts were concluded is the endowment entity, and the amount claimed by
my client had been received by the previous agent in his capacity as an agent for the trustee and in exchange for his waiver of the rental values of
the endowment subject of the lawsuit for a known consideration, and this is the same as what the Personal Status Court concluded in its decision numbered
30 / Sh / 959. And as long as my client has been deprived of benefiting from the utility of the two contracts which the previous agent
(Edouard Yaqoub) explicitly admitted before the Notary Public to receiving their amount in cash from my client, and due to my client's inability to continue
executing them for the reasons I explained in the lawsuit petition, therefore the defendant, in addition to his trusteeship over the endowment,
is obligated to return the amounts received by him in this capacity to my client, and lawyer Edouard Yaqoub has all the legal
powers under his general power of attorney numbered 383 and dated 30 / 5 / 955 certified by the Karkh Notary Public
based on the text of Article 931 of the Civil Code, and as long as the endowment deed did not limit the trustee to specific powers, therefore
he is subject in all the actions and deeds he performs to the provisions of the Civil Law (724) Civil, and he repeated his statements
and previous requests. Then the defendant's attorney clarified regarding the estimated budget that if the court reviewed the merits of
the presented judgment numbered 30 / Sh / 959, it would find that what is meant by it is the budget of revenues and expenditures for the academic
year before it occurs, which is what is called the estimated budget, as the endowment deed stipulates obtaining the permission of
the supervisor for every financial action before it occurs in the manner we mentioned in our brief, and both parties repeated their previous statements.
And since there is nothing left to be said, the conclusion of the pleading was announced.
The Decision
Upon deliberation, scrutiny, and noting the copy of the endowment deed numbered 935 / 87 and the notification of the Personal Status Court
in Baghdad numbered 35 / Sh / 959 and the general power of attorney certified by the Karkh Notary Public under general number
To be continued
Page 299
Number 45 / B / 962 Page ( 5 )
383 by which the principal Emil Saleh Shalum, in his personal capacity and as the trustee of the endowments of Menahem
<del>Daniel</del> and Sassoon Saleh Daniel, authorized (the agent) Mr. Edward Yaqoub Shashoua to perform the following actions which
were stated in the first paragraph thereof as follows: - (In leasing all properties, lands, and common shares belonging
to me and the endowment properties referred to above to whomever he wishes for the consideration he deems appropriate and to receive the rent payments
for the mentioned properties and endowments and to sign lease contracts and terminate them and on contracts and he has the right of clearance and waiver
regarding my private properties only and to settle with tenants and individuals) and whereas the former agent (
the defendant) had concluded the two assignment contracts subject of the lawsuit and certified by the Notary Public of South Baghdad
on 24 / 11 / 960 for a period of three years starting from 1 / Jumada al-Awwal / 1380 AH for a known amount
and that he concluded these two contracts in his capacity as an agent for the trustee of the Menahem Daniel endowments, it has been proven that the agent (the former
dismissed trustee) has exceeded the limits of his agency and concluded the assignment contract subject of the lawsuit which was not authorized by
the general power of attorney numbered 383 for his use and that he entered into this contract to the detriment of an actual interest, therefore no
legal effect is entailed upon the endowment, but rather this action of his is considered an exceeding of the limits of his agency and he is personally liable for it -
and upon request, it was decided to rule to dismiss the plaintiff's lawsuit and charge him with all court costs and to lift the precautionary seizure placed
and to charge the plaintiff with attorney fees amounting to - / 500 five hundred dinars and the decision was issued in presence, subject to appeal
and cassation and was announced publicly.
Expenses
Fils Dinar
Judge
Muhammad al-Bahrani