AI en Translation, Pages 301-325
Page 301
Advocate Hassan Abdullah Muthafar
Advocate Hadi Latif
Sabri Bldg. - Mustansir Street
Tel. 82280 / 81442 / 83065
Lawyers' Office
Hassan Abdullah Muthafar
Hadi Al-Latif
Al-Mustansir Street - Sabri Tu'aima Building
Office Telephones 82280 - 81442 - 83065
Number: L / 417 / 62
Date: 9 / 12 / 1962
To the Honorable Judge of the Karkh Court of First Instance (Unlimited Jurisdiction)
Subject / Explanatory memorandum from the defendant's attorneys in
the civil lawsuit numbered 45 / B / 961
Plaintiff: - Hamid Majid Al-Obaidi - his attorney, Advocate Abdul Aziz Al-Shaher.
Defendant: - Head of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Daniel Endowments - his attorneys
Advocates Hassan Abdullah Muthafar and Shaul Moussa.
Further to the written memoranda submitted by us in this lawsuit and for the purpose of informing the honorable court of the extent of the violation
of the two contracts subject of the current lawsuit by the agent of the dismissed trustee regarding the terms of the endowment deed and the provisions of the endowment
and in confirmation of the third paragraph of our response memorandum dated 14 / 11 / 962 regarding the issuance of the aforementioned actions during a period
dominated by suspicion and doubt, in addition to the lack of prior permission from the supervisor, we have deemed it necessary to submit
to your honorable court a copy of the judgment issued in the dismissal lawsuit numbered 30 / Sh / 959, from which it is clearly evident
that the failure to obtain permission from the (Gismani Council) the Administrative Committee for Iraqi Jews in its capacity as the supervisor at that time for
the actions carried out by the dismissed trustee was one of the reasons for the dismissal judgment, as the Personal Status Court
had reviewed the actions of the dismissed trustee which he carried out against the endowment, including his leasing of the endowments without obtaining
prior permission from the supervisor, or his waiver of rents, which the dismissed trustee does not possess the authority to do based on
the provisions of the endowment deed, nor does any trustee have the right to waive without obtaining the judge's permission. The Personal Status
Court in Baghdad, in view of the mentioned actions, could not allow the management of the endowments to remain in the hands of the mentioned trustee
even until the outcome of the dismissal lawsuit, given the certain harm to the endowment. Therefore, it decided to suspend his hand during
the proceedings of the dismissal lawsuit. Accordingly, the responsibility for the actions carried out by the dismissed trustee or his agent that violate the
endowment deed and the provisions of the endowment falls upon them personally without any liability being incurred by the endowment.
Accordingly, we request the dismissal of the plaintiff's lawsuit and that he be charged with the court costs and attorney fees.
Please accept our highest respect.
Advocate Advocate
Shaul Moussa Hassan Abdullah Muthafar
Page 302
(Lawyer)
Abdul Aziz Mohammed Al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence
To the Honorable Judge of the Karkh Court of First Instance (Unlimited)
Subject / Responsive brief from the plaintiff's attorney to the responsive brief of the
defendant's attorneys in case No. 45 / B / 61
Plaintiff - Hamid Majid Al-Obaidi - represented by lawyer Abdul Aziz Mohammed Al-Shahiri.
Defendant - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Daniel Endowments.
Represented by lawyers Hassan Abdullah Muzaffar and Shaul Moussa.
First - The defendant's attorneys stated in their responsive brief that my client should have submitted the original notice
so that the legal effect would follow, and not merely rely on the debtor's statement. The colleagues have overlooked that
the original letter was received by the defendant's previous attorney, who acknowledged this in his written letter already
attached to the case file. Therefore, it is impossible 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 defendant's previous attorney, but rather
is governed by the terms of the two contracts subject of the lawsuit, as the agreement is the law of the contracting parties.
Second - As for the legal characterization of the two contracts subject of the lawsuit, I have explained this in detail in my responsive brief
dated 20 / 11 / 962 and I do not see a need for repetition.
Third - If your honorable court examines the endowment deed (Hujjat al-Waqf), it would be clear that the mentioned deed did not restrict
the trustee to specific actions, but rather came in absolute terms, and the absolute remains absolute. Accordingly, it is subject
to the provisions of the Civil Code in all actions and transactions carried out by the trustee or his representative. Add
to that, all the conditions mentioned therein relate to how the endowment is managed and how its proceeds are spent
on the entity for which it was endowed. Also, the endowment deed gave the trustee the right to spend any amount
even if it was not included in the budget, with the knowledge of the trustees and informing the Communal Council of that for the purpose
of providing information and nothing else.
- To be continued -
⟦signature⟧
Page 303
(Lawyer)
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
{ Residence
- 2 -
Therefore, the endowment deed (Waqfiyah) came absolute except for what relates to the method of submitting accounts and the entity to which
they are submitted. However, if the trustee (Mutawalli) or his agent fails to submit the accounts, they alone are responsible
for that towards the entity that has the right to hold them accountable, and the person who contracted with them is not responsible, nor does
any legal effect result on the contracts concluded by them in this capacity.
Summary:-
I repeat all that was mentioned in the minutes of previous sessions of statements and what was stated in my response brief
dated 11/20/1962, and I also repeat all the demands mentioned in the lawsuit summons ⟦line⟧
and I request the confirmation of the precautionary attachment.
Please accept my highest respect.
11/28/1962
Lawyer
Abdul Aziz Muhammad Al-Shahiri
Agent for the plaintiff Hamid Majid Al-Obaidi
⟦signature scribble⟧
Notes:
1- The necessity of obtaining permission for him (for information) on all actions of
the trustee, such that all actions of the trustee are considered
void if his permission is not sought or obtained
from the supervisor (Nazir), in his capacity as the one responsible for the validity
2- I see no leasing or construction for the endowment
as it does not ⟦befit⟧ in this brief, as well as
the point mentioned above
Page 304
Advocate Hassan Abdullah Muthafar
Advocate Hadi Latif
Sabri Bldg. - Mustansir Street
82280
Tel. 81442
83065
Lawyers' Office
Hassan Abdullah Muthafar
Hadi Al-Latif
Mustansir Street - Sabri Tu'aima Building
Office Telephones 82280 - 81442 - 83065
Number: L/417/62
Date: 9/12/1962
To the Honorable Judge of the Karkh Court of First Instance (Unlimited Jurisdiction)
Subject / Explanatory memorandum from the defendant's attorneys in
the civil lawsuit numbered 45/B/961
Plaintiff: ⟦line⟧ Hamid Majeed Al-Obaidi - his attorney, Advocate Abdul Aziz Al-Shaher.
Defendant: ⟦line⟧ Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Daniel Endowments - his attorneys
Advocates Hassan Abdullah Muthafar and Shaul Moussa.
Further to the written memoranda submitted by us in this lawsuit and for the purpose of informing the honorable court of the extent of the violation
by the plaintiffs regarding the subject of the ongoing lawsuit by the attorney of the dismissed trustee of the terms of the endowment deed and endowment rulings
and in support of the third paragraph of our response memorandum dated 11/14/962 regarding the issuance of the aforementioned actions during a period
dominated by suspicion and doubt, in addition to the lack of prior permission from the supervisor, we have deemed it necessary to submit
to your honorable court a copy of the judgment issued in the dismissal lawsuit numbered 30/S/956, from which it is clearly evident
that the failure to obtain permission from the (Communal Council) the Administrative Committee for Iraqi Jews in its capacity as the supervisor at that time for
the actions taken by the dismissed trustee was one of the reasons for the dismissal judgment, as the Personal Status Court
had reviewed the actions of the dismissed trustee that he carried out against the endowment, including his leasing of the endowments without obtaining
prior permission from the supervisor, or his waiving of rents, which the dismissed trustee does not possess the authority to do based on
the provisions of the endowment deed, nor does any trustee have the right to waive without obtaining the judge's permission. The Personal Status
Court in Baghdad, in view of the mentioned actions, could not allow the management of the endowments to remain in the hands of the mentioned trustee
even until the outcome of the dismissal lawsuit, given the certain harm to the endowment. Therefore, it decided to suspend his authority during
the proceedings of the dismissal lawsuit. Accordingly, the responsibility for the actions taken by the dismissed trustee or his attorney that violate the
endowment deed and endowment rulings lies with them personally without any liability being incurred by the endowment.
Accordingly, we request the dismissal of the plaintiff's lawsuit and that he be charged with the court costs and attorney fees.
Please accept our highest respect.
Advocate
Shaul Moussa
Advocate
Hassan Abdullah Muthafar
Page 305
Lawyers' Office
Hassan Abdullah Muthafar
Hadi Latif
Mustansir Street - Sabri Tuaima Building
Office Telephones 82280 - 81442 - 83065
Advocate Hassan Abdullah Muthafar
Advocate Hadi Latif
Sabri Bldg. - Mustansir Street
Tel. 82280 / 81442 / 83065
Number :: 3L / 408 / 62
Date :: 26 / 11 / 1962
To the Honorable Judge of the Karkh Court of First Instance
Subject / Responsive brief from the defendant's attorneys in response to
the brief of the plaintiff's attorney in lawsuit No. 45 / B / 61
Plaintiff: Hamid Majeed Al-Obaidi - his attorney, Advocate Abdul Aziz Al-Shaher.
Defendant: Chairman of the Administrative Committee for Iraqi Jews in addition to his trusteeship over the Menahem Daniel Endowments
His attorneys, Advocates Hassan Abdullah Muthafar and Shaul Moussa.
In response to the plaintiff's attorney's brief dated 20 / 11 / 1962, we suffice with what we stated in our brief
dated 14 / 11 / 1962, and we would like to clarify the following points:-
First: The respected colleague stated: that the notice may be in writing, and this is something we did not deny in our previous brief
as being impermissible, but rather we clarified that the mentioned letter cannot be considered a notice for the reasons stated
in the brief, and also it is not sufficient to arrange the legal effect of the notice by the mere word of the debtor, but rather
the original notice must be submitted so that the honorable court can determine whether rescission results from that or not -
(Al-Sanhuri - Part Two) and the plaintiff did not submit the original notice.
Furthermore, the plaintiff's attorney's brief remained silent regarding the second paragraph of the first item of our brief dated
14 / 11 / 1962, where we clarified that compensation is not due except after notifying the debtor, especially
since the presented letter is devoid of any request for compensation.
Second: The plaintiff's attorney's explicit admission that the two contracts subject of the lawsuit are assignment contracts:
We have clarified in our previous brief all the legal points regarding the lack of authority of the trustee to perform an assignment
as the legal characterization of the two mentioned assignment contracts is the borrowing and loaning of sums for the account
of the endowment, as the endowment assets subject to the assignment are leased by the assignor and their rental amounts are due
To be continued
⟦signature⟧
Page 306
— 2 —
gradually according to lease contracts, so his assignment of unearned installments to another person ⟦cannot⟧
be considered anything other than borrowing and taking a loan, and this is what the trustee does not possess without the judge's permission. On this occasion,
none of these amounts entered the endowment's liability. As for the plaintiff's attorney citing the text of Article
(777) Civil, it is outside the scope of this subject, as this article discusses the legal
effect of assignment regarding a lease contract concluded by an ordinary person and cannot be applied in the case where
the contracting party is a trustee, as the trustee is bound by the conditions of the endower first and the general provisions of the endowment second.
Third: The fundamental aspect of this lawsuit—given that the subject of the contract is endowed properties governed by a deed of
endowment and the provisions of the endowment—is to verify the authority of the trustee to conduct the contracts subject of the lawsuit, and we have
explained in detail the lack of authority of the trustee to conduct the two assignment contracts based on the endowment deed
and the provisions of the endowment, as the endowment deed requires prior permission from the supervisor, and the provisions of the endowment also require
the judge's permission. We attach herewith a copy of the endowment deed numbered 87 / 935 issued by the Court of Personal
Status in Baghdad.
From all this, it appears to your esteemed court that the two assignment contracts are nothing more than a disposition by a person
without legal capacity to exercise it, and thus the two mentioned contracts are void regarding the endowment,
and the endowment is not responsible for them, as the plaintiff can seek recourse against the person who contracted with him personally, especially
since they both expected that, as evidenced by their execution of the contract in their personal capacity and as trustees over the endowment, knowing that
the subject of the two assignment contracts is located on the endowment assets only.
Fourth: We repeat what we stated in our previous brief regarding the lack of authority of the contracting agent, Edward Yaqoub, to conduct
any assignment contract in his capacity as an agent for the endowment trustee, as the latter restricted the right of assignment, waiver,
and discharge to his private properties only.
Fifth: We emphasize what we stated in our previous brief regarding the occurrence of this disposition, which violates the endowment deed and the provisions
of the endowment, during a period dominated by suspicion and doubt. As for the subject of good faith raised by the plaintiff's attorney
in his responded-to brief, it is not such as to bind the endowment with responsibilities for actions carried out by the
dismissed trustee or his agent in violation of the endowment deed and the provisions of the endowment, especially since those actions were the main
reason for issuing the dismissal judgment as a result of the trustee's betrayal; rather, those responsibilities—if
good faith is established—fall upon the dismissed contractor personally.
Summary:
What we have stated in this brief by way of summary is merely a confirmation and repetition of what we have previously clarified.
To be continued
Page 308
(Lawyer)
Abdul Aziz Mohammed Al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251 / Residence ⟦illegible⟧ }
Date: 20 / 11 / 1962
To the Honorable Judge of the Karkh Court of First Instance (Unlimited Jurisdiction)
Subject / Responsive memorandum from the plaintiff's attorney regarding the
responsive memorandum of the defendant's attorneys in the lawsuit
Numbered 45 / B / 60
Plaintiff - Hamid Majeed Al-Obaidi. His attorney, Lawyer Abdul Aziz Mohammed Al-Shaher
Defendant - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Daniel Endowments. His attorneys, Lawyers
Hassan Abdullah Muzaffar and Shaul Moussa.
What was stated in the responsive memorandum of the defendant's attorneys is rejected for the following reasons:-
First - The subject of the lawsuit from a formal perspective.
A - Article (257) of the Civil Code clarified that the notification of the debtor is done by any written request, and this is what the Court of
Cassation of Iraq held in its decision No. 648 / H / 59, which states: Article (257) of the Civil Code
clarified that the notification of the debtor is done by any written request, and therefore the creditor is not liable for compensation if he uses the method of
announcement in local newspapers (Judicial Principles, Civil Section, pp. 108 and 109 by Mr. Abdul Rahman Allam
as well as the Cassation Decision No. 648 / H / 56, which states: Upon scrutiny and deliberation, it appeared that the appealed judgment
is correct and sound, as the respondent did not commit an act that caused material or moral harm to the appellant, but in fact he has
notified him through newspapers, a notification in which he clarified his rights in the land under discussion, and since notification is acceptable by any written
request under the provisions of the Civil Code, the respondent is not liable for choosing the newspaper method to state his rights in the land
which the appellant began to dispose of and sell, using newspapers as a means to announce those sales, in addition to the fact that what the respondent published
did not contain any defamation, slander, or any phrase indicating a degradation of the appellant's reputation; therefore, and since the appealed judgment
- To be continued -
⟦handwritten mark⟧
Page 309
(Lawyer)
Abdul Aziz bin Mohammed Al-Shahri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence }
In accordance with the law, it has been decided to ratify it and charge the appellant the cassation fee, and the decision was issued by consensus. (Al-Qadaa Magazine, Issue Four,
Year 1956)
From this, it is clear to your esteemed court that Article (257) Civil did not require formality in the notice, and therefore the notification of the former agent of
the defendant by a written letter from my client and his written response in his own handwriting on it on its date, which is originally attached to the case
file, serves as the notice.
B - Article (257) Civil did not explicitly require the official verification of the date of the written evidence.
C - Add to that, the former agent of the defendant had previously appeared before this esteemed court and explicitly admitted the validity of
my client's contract and requested a period of time to be granted to him so that he could terminate Mr. Khairi's contract, which he admitted was a contract made by mistake. And what
is not hidden from your esteemed court is that an explicit confession before the competent court cannot be retracted. This is what
the Court of Cassation of Iraq held in its decision No. 965 / Civil / 58 Diwaniyah (Iraqi Civil Judiciary, Part Two
by Professor Salman Bayat, p. 165.
Also, this confession is considered, in turn, a notice to the former agent, and the explicit confession before the competent court is considered a waiver
of his right to demand notice as well.
D - If the lease contract includes a penalty clause, this means entrusting the right of termination to both parties of the contract. This is what
the Court of Cassation of Iraq held in its decision No. 72 and 77 / S / 939, and this is its text: If the lease contract includes a condition
restricting the obligation of the breaching party to the penalty clause, this means entrusting the right of termination to both parties; if the lessor leases the property
to another person, he has exercised his right to terminate and breached the delivery, so there is no room for a judgment against him to deliver the property, but
he must provide the conditional guarantee. (Judicial Principles, Civil Section, by Professor Abdul Rahman Allam, p. 216)
E - The response to the aforementioned letter is not considered an admission as claimed by the defendant's agents, but rather it is considered a notice, as
the definition of admission is: a person's recognition of a right against him for another, whether he intended to establish this right in his liability or did not intend.
- To be continued -
⟦Abdul Aziz⟧
Page 310
(The Lawyer)
Abdul Aziz Mohammed Al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence }
Therefore, an acknowledgment is not the creation of a right against a person by a legal act or a legal fact, such as a buyer being obligated to pay the price. That
is because the creation of a right is different from the recognition of it. Since the creation of a right by a legal act requires a written document for its proof if the value
of this right exceeds ten dinars, this document is evidence of proof, not an acknowledgment, because it was prepared from the outset to establish
the legal act. (Al-Sanhuri in Volume Two, p. 471, Al-Waseet in the Explanation of Civil Law)
Second - Characterization of the lawsuit from a legal perspective:
A - Characterization of the contract subject of the lawsuit.
The two contracts subject of the lawsuit, although they are contracts for the assignment of rental payments, are considered from a legal
perspective as lease contracts based on the text of Article (777) Civil. This is what the Court of Cassation of
Iraq held in its decision No. 1520 / H / 54 in paragraph B thereof, and this is its text: The assignee replaces
the lessee in all rights and obligations arising from the lease contract pursuant to the provisions of Article (777) Civil.
(Judicial Principles, Civil Section, by Professor Abdul Rahman Allam, p. 40)
B - Accordingly, the contract for the assignment of rental payments is not considered as a debt or a loan as stated in the defendant's attorney's
response brief, but rather it is considered a lease contract as stated in Article (777) Civil, which explicitly stipulates the
replacement of the assignee for the lessee in all rights and obligations arising from the lease contract.
Third - Powers of the Waqf trustee regarding the leasing of endowed properties.
A - The Waqf trustee has the right to lease endowed properties or assign their rental payments for a period of three years only, even
if the lease or assignment of its payments was conducted through two separate contracts for a single lessee.
This is what the Court of Cassation of Iraq held in its decision No. 498 / H / 54, and this is its text: The
Waqf trustee does not possess the power to lease endowed properties for a period exceeding three years without the permission of the Sharia Court, even
if the lease was conducted through two separate contracts for a single lessee, Article (724) Civil. Judicial Principles
- To be continued -
Alaa
Page 311
(The Lawyer)
Abdul Aziz Muhammad al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence
Civil Section page 28 by Professor Abdul Rahman Allam).
As well as 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 / 58 which ruled the necessity of conducting an auction for what the Department of
Awqaf leases of real estate, and if the lease period exceeds three years, it must be accompanied by the approval of the Council of Ministers. Since the mentioned
conditions were not met, the Awqaf Department has no right to claim the previous named rent and its conditional addition. After the Court of
Appeal clarified those conditions, it issued its ruling confirming the primary ruling which included the dismissal of the claim. Since its issued ruling came
in accordance with the law, it was decided to ratify it on 18 / 2 / 1960. This decision was issued by the General Assembly of the Court of Cassation by consensus.
(Iraqi Civil Judiciary, Salman Bayat, p. 167, Part Two)
B - The trustee has the right to initiate lease contracts for the endowments' investments and obtain their rents. (Provisions of Waqf by Professor Muhammad Shafiq
al-Ani, p. 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 previous trustee's agent did, as he waived the lease considerations
for the duration of the two contracts and received their value in cash from my client as shown in the two contracts subject of the lawsuit. These actions are considered
nothing but administrative acts that he has the right to practice legally.
C - It is recognized that no prejudice should befall the endowment when leasing it or waiving the lease considerations. Therefore, they said that the
minimum for it to be validly concluded is the fair market rent or slightly less than it. The slight amount is what is less than one-fifth. However, if the lease is contracted
at a rate that people do not consider unfair, which is for it to be less than one-fifth of the fair market rent, or if 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 Waqf by Professor Shafiq
al-Ani, pp. 56 and 57).
It appears to your honorable court that there is no prejudice to the endowment or harm to it in my client's two contracts subject of the lawsuit, but on the contrary
- To be continued -
⟦illegible⟧
Page 312
(The Lawyer)
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence
Consequently, the Waqf benefited greatly from the two contracts subject of the lawsuit as a result of the former agent receiving the consideration in cash
in exchange for his waiver of the rent allowances for the duration of the two contracts. Thus, the former agent was able, by receiving the agreed-upon consideration in cash
in exchange for this waiver, to manage the affairs of the Waqf and arrange its matters.
Therefore, everything the former trustee's agent did regarding ⟦these⟧ ⟦two contracts⟧ was within the limits of his legally authorized powers.
Fourth - The authority of the contracting party, Edward Yaqoub Shashoua.
A - It was stated in the first clause of the general power of attorney numbered 383 and dated 30 / 5 / 955, certified by
the Notary Public of Karkh, in his personal capacity for his principal Amin Saleh Shlomo and in addition to the Waqf under his trusteeship, that he has
the right to perform the following acts: - 1 - In leasing all properties, state lands, and common shares belonging
to me and the Waqf properties - referred to in the aforementioned power of attorney deed - to whomever he wishes and for the consideration he deems
appropriate, and to receive the rent allowances ⟦for⟧ the mentioned properties and endowments, and to sign lease contracts and terminate them
and on contracts... etc.)
It appears to your esteemed court from this text that Mr. Edward Yaqoub, the former agent, has the right to waive
rent allowances and receive their value.
As long as the agent has the right to lease and receive, he has, a fortiori, the right to waive rent allowances in exchange for a known amount.
And whoever owns the more owns the less, and this is all that the former agent did during his conclusion of the two contracts
subject of the lawsuit. Add to that the fact that the contract for waiving rent allowances is considered from a legal standpoint
a lease contract based on the text of Article (777) Civil, as indicated above.
B - It was stated in the last section of the aforementioned general power of attorney as follows: - And he has the use of all powers that
the law grants me and which I can legally use for myself.
It is clear to your esteemed court from this text that the principal has authorized and released to the agent the right to use all his powers.
- To be continued -
⟦illegible⟧
Page 313
(Lawyer)
Abdul Aziz Muhammad Al-Shaharli
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence
Legal based on the text of Article (931) Civil. This is what the Court of Cassation of Iraq went to in its decision numbered
3667 / Conciliation / 59 Mandali and this is its text: - That 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
and in this regard, it includes the lease contract as well, so the court's going to the contrary is a deficiency that impairs the validity of the appealed judgment
6/19/1960 (Iraqi Civil Judiciary page 339 Part Two Salman Bayat)
Fifth - The two contracts subject of the lawsuit were concluded by the former agent of the dismissed trustee during the period of his agency and before
the issuance of the decision to dismiss his principal and about more than two years ago, so what suspicion and what doubt prevails over these two contracts.
Add to that that my client is in good faith and has no knowledge of the subject of the dismissal lawsuit, and is his knowledge of that assumed in advance
just as the agent of the former trustee possessed at the time of the contract all rights and powers, so his hand had not yet been stayed
and no decision to dismiss him or to dismiss the trustee had been issued, and is it assumed in advance that the agent or the trustee will be dismissed
after two years or more or that their hands will be stayed from the agency or the trusteeship, and is it supposed that others know what
will happen in the future so as not to proceed with concluding such contracts before the notary public?
The important thing then is the time of concluding the contract, that the trustee or his agent has the right to perform the actions permitted by law
for them, and there is no blemish affecting the actions of the agent or the trustee as long as those actions were issued while he was an agent
for the trustee and as long as he was not dismissed and his hand was not stayed, as well as his principal.
Rather, the Iraqi Civil Code has gone further than that in Article (948) thereof, as it stipulated
the following: - The termination of the agency may not be invoked against a third party in good faith who contracted with the agent before his knowledge of its termination.
So what is the ruling on the contract that is concluded while the agent enjoys all his legal rights? Is such a contract considered
a contract tainted by doubt and suspicion? This is what neither reason, logic, nor law accepts.
And the summary - to be continued -
⟦Alaa⟧
Page 314
(Lawyer)
Abdul Aziz Muhammad Al-Shaharli
Baghdad - Bank Street
Al-Damirji Building
Telephone { Office 86251
Residence
Summary:
The former agent of the dismissed trustee had attributed the two contracts, which are the subject of the lawsuit, when they were concluded before the notary public,
to his principal, in addition to his trusteeship over the mentioned endowment according to his general power of attorney for him (Article (942) of the Civil
Code).
Furthermore, the party for whom the two contracts were concluded is the endowment entity, 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 rent payments of the endowment subject of the lawsuit
for a known consideration.
Accordingly, as long as my client has been deprived of benefiting from the utility of the two aforementioned contracts, for which the former agent explicitly
confessed before the notary public to receiving their amounts in cash from my client, and as long as it has become impossible for my client to continue
executing them for the reasons stated in the lawsuit petition, the defendant, 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, regardless of the form of the contract
and its wording, as the criterion is the intentions and meanings, not the words and structures.
It is evident from this to your esteemed court that everything stated in the response brief of the defendant's agents is rejected for the reasons
I have previously explained in this response brief of mine. Accordingly, I reiterate the demands stated in the lawsuit petition and I request
the validation of the precautionary seizure.
Please accept my highest thanks and respect
⟦signature⟧
Lawyer
Abdul Aziz Muhammad Al-Shahar
⟦signature⟧
Page 315
Lawyers' Office
Advocate Hassan Abdullah Muthafar
Hassan Abdullah Muthafar
Advocate Hadi Latif
Hadi Al-Latif
Sabri Bldg. - Mustansir Street
Mustansir Street - Sabri Tu'aima Building
82280
Office Telephones 82280 - 81442 - 83065
Tel. 81442
83065
Number: 2L / 402 / 62
Date: 14 / 11 / 1962
Honorable Judge of the Karkh Court of First Instance
Subject / Statement of defense from the defendant's attorneys in the lawsuit
Numbered 45 / B / 60 ⟦line⟧
Plaintiff: Hamid Majeed Al-Obaidi - His attorney Advocate Abdul Aziz Al-Shahir
Defendant: Head of the Administrative Committee for Iraqi Jews in his capacity as the administrator of the Menachem
Daniel Endowments - His attorneys Advocates Hassan Abdullah Muthafar and Shaul Moussa ⟦line⟧
The plaintiff's lawsuit is dismissed for the following reasons:
First: Dismissal of the lawsuit from a formal aspect:
A - The necessity of notification before filing a rescission lawsuit:
Paragraph (A) of Article (177) of the Civil Code stipulates that in bilateral binding contracts,
if one of the contracting parties does not fulfill their obligations under the contract, the other party may, after notification, request rescission
along with compensation if there is cause for it.
From this text, it appears to your honorable court that notification is an essential condition to be performed by the party requesting rescission, as
notification before requesting rescission is of great importance, as Professor Sanhouri says, and notification has
conditions required by law, and the reply to the letter that the colleague claimed to have received from the attorney of the
dismissed administrator is not considered proof of notification. In addition, the issuance of this letter by the attorney
of the dismissed administrator cannot be relied upon by your honorable court for the following reasons:
A - The presentation of the letter was after our request in our memorandum dated 4 / 11 / 1962.
B - The mentioned letter is not officially dated.
C - It was issued during a period dominated by suspicion and doubt, especially since its presentation by the plaintiff was after
the dismissal of the administrator and our entry into the lawsuit as attorneys for the current administrator.
To be continued
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While that is despite the fact that we believe that the response to the mentioned letter is not considered a formal notice in the form and meaning required
legally, as it is nothing more than an admission issued by the agent of the dismissed trustee, and this admission is valid within the limits
in which the trustee or his agent is permitted to perform acts of disposal for the trustee, as the right of admission regarding the endowment does not
take effect as stated by (Professor Shafiq al-Ani).
In addition to that, the trustee's agent, according to the presented power of attorney, does not have the right of admission, as admission is not valid from a general
agent unless the power of attorney issued to this agent explicitly states his authorization to make admissions (Al-Sanhuri — Al-Waseet
Part Two, p. 447).
All of this is in the case of assuming that the two contracts verified by the agent of the dismissed trustee fall within the authority
of the trustee in accordance with the provisions of the endowment and the conditions of the endower, which is what he does not possess as will be explained later.
2 — The necessity of formal notice when requesting compensation:—
The plaintiff's requests in his lawsuit petition include two requests: the first is to rescind the contract and pay an amount of 24,615 dinars
(twenty-four thousand six hundred and fifteen dinars).
The second: is his request for compensation in the amount of 8,000 dinars (eight thousand dinars).
Article (177) paragraph (1) of the Civil Code stipulates:
"..... In bilateral contracts ..... the other contracting party may, after formal notice, request
rescission with compensation if there is a justification ........ etc.).
The plaintiff did not provide the required legal notice based on this article and paragraph (1) of Article (256)
of the Civil Code, which stipulates (compensation is not due except after notifying the debtor).
As for the response to the letter presented to your esteemed court, it does not indicate the plaintiff's request for compensation, and its entire content,
assuming its validity, is that the agent of the dismissed trustee has acknowledged the contract and the disposal, claiming that no —
legal measures were taken to rescind the concluded contract and granting him a period of five days to rescind another void contract, which is the contract of Mr.
Khairi Hassoun, which he claimed he had concluded by mistake. This is while knowing that the trustee does not originally have the right to agree
with anyone to obligate the endowment to pay any compensation for any reason whatsoever, and if that is required, then after obtaining the permission of —
the judge — as obligating the endowment to pay compensation is a pure harm to the endowment and contrary to the condition of the endower
specified in the endowment deed, and the trustee may not violate the condition of the endower except with the judge's permission if the
interest of the endowment so requires.
Second: Dismissal of the lawsuit on the merits:—
1 — Characterization of the two contracts subject of the lawsuit:—
To be continued
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The two contracts for the assignment of rent allowances for the endowed properties leased by the agent of the dismissed trustee to
other persons are considered as borrowing and loaning amounts for the account of the endowment. The detail of this is that the endowed properties subject to
the two contracts are leased by the contracting party (the agent of the dismissed trustee) to persons under contracts
in which they pledged to pay the rent allowances in installments, and he has already received an installment of them. His action of assigning
the remaining unearned installments is considered borrowing and loaning.
B - The powers of the trustee regarding the provisions of the endowment and the endowment deed:-
The endowment deed No. 935/87 regarding the endowments of Menachem Sassoon Saleh Daniel
issued by the Personal Status Court in Baghdad and the deeds based on it, whose numbers and dates are mentioned
within the aforementioned deed and attached herewith, have limited the authority of the trustee to lease the endowed properties at a fair rent
and stipulated for the validity of this lease that the trustee must obtain the permission of the Spiritual Council of the Mosaic Community
(the Administrative Committee for Iraqi Jews currently acting in its place), as the endowment deed obligated the trustee to submit
to the Spiritual Council (the supervisor of the affairs of the mentioned endowment before the dismissal of the trustee Emil Saleh Shlomo and the transfer of
the trusteeship to the Administrative Committee for Iraqi Jews) a budget including the expected revenues from the endowed properties,
i.e., the rent allowances and expected expenses, and he is not permitted to act except after the approval of the supervisor
(the Administrative Committee for Iraqi Jews) and obtaining its permission.
It is not hidden from your esteemed court that the condition of the endower is like the text of the Legislator in the necessity of following it and acting upon it, and whoever
violates the endower violates the text, and ruling by it is a ruling without evidence (Part Three, p. 467 of the book Radd al-Muhtar
by the scholar Muhammad Amin, known as Ibn Abidin).
From all this, it becomes clear to your esteemed court that the permission must precede the disposition if
this disposition is a lease contract at a fair rent, not the contract conducted by the claimant in the agreement, as the contract
presented by the claimant is not a lease contract, but rather, as we explained previously, it is a contract for the assignment of rent allowances
of the endowed properties leased by the agent of the dismissed trustee to the tenants. The assignment contract is considered a waiver
of part of the endowment's rights, and the trustee does not possess this right, as the assignment of endowment rights is a definite harm to the endowment
and an explicit violation of the endowment deed. It was stated in Article (10) of the book Tartib al-Sunuf fi Ahkam al-Wuquf -
by the late Ali Haidar, the following:-
(The disposition of the trustee and the judge in the endowment is contingent upon the interest). Accordingly, this disposition by the agent of the trustee
dismissed is contrary to the provisions of the endowment and the endowment deed for the following reasons:-
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a- It is not within the authority of the trustee, under the terms of the endowment deed, to waive the rights of the endowment.
b- The validity of the trustee's authority to lease the endowed properties at a fair market rent is conditional upon obtaining prior permission from
the supervisor, and the contract subject of the lawsuit was not preceded by the agent obtaining permission from the supervisor.
c- The provisions of the endowment do not permit the trustee the right to waive the rights of the endowment because the waiver is a definite harm to the endowment
and a clear 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 permission from
the judge, and this is what Article (867) of the Arrangement of Classes in the Provisions of Endowment stipulates (It is permissible
for the trustee, after taking the opinion of the judge, to violate the conditions of the endower if necessity requires it and if the violation
achieves the interest of the endowment).
Accordingly, this action is outside the limits of the authority of the trustee and his agent, and they are personally responsible for it, and the agent of
the trustee and the dismissed plaintiff were colluding in this, as evidenced by the fact that the trustee's agent had executed the waiver contract
in his capacity as an agent for Emil Saleh Shalum, personally and as a trustee, knowing that the subject of the waiver contract is located on endowed properties.
c- The authority of the contracting party, Edward Yaqoub Shashoua:-
According to his general power of attorney No. 383 dated 5/30/1955, certified by the Notary Public of Karkh.
It appears to your honorable court from the power of attorney granted by Emil Saleh Shalum, the dismissed trustee, to the contracting party
Edward Shashoua, that the aforementioned person does not possess the right to waive, as the mentioned power of attorney specified the powers
owned by the agent and did not stipulate authorizing the agent to waive, which must be in explicit terms,
and the agent must execute the power of attorney without exceeding its prescribed limits (932) Civil.
Also, Article (931) Civil stipulates that it is valid to specify the power of attorney to the person of the principal and to generalize it
by his generalization; thus, a special power of attorney is one that is defined by a specific legal act or acts (Part (5) p. 198 Preparatory
Works of the Civil Law). As for the general power of attorney, it is that which is stated in general terms without specifying a particular legal
act for it; it is that which occurs in a general power of attorney in which nothing is named specifically "for if the thing is named"
the generalization and delegation are not utilized (Bidayat al-Mujtahid Vol. 2 p. 283). Accordingly, the power of attorney granted
by the dismissed trustee to his agent is limited to the actions mentioned therein and did not refer to any of those actions
regarding waiver, especially concerning the endowment. There are several decisions, including the Cassation Decision No. (2569 / Legal 67)
dated 1/7/62, which upheld the primary judgment No. (1601/61) filed by Mr.
Hamid Ali Rajina, whose agent is the same agent as the dismissed trustee. Where he had exceeded his authority
and executed a waiver of shop rents at a time when he did not possess this right according to his power of attorney.
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(Iraqi Civil Judiciary Part II p. 339) And not giving the dismissed Mutawalli (trustee) the right to waive
to the aforementioned agent is a natural matter as he does not possess this right (one who lacks a thing cannot give it) and
the waiver, the subject of the lawsuit, is a forfeiture of part of the Waqf's rights, and it is not permissible for the Mutawalli to perform what involves
the loss of the Waqf's assets or its yields, as we have previously explained. On this occasion, the Mutawalli himself restricted the right
of discharge, forfeiture, settlement, and admission in the general power of attorney discussed to his private properties only.
Third: The source of the disposition during a period dominated by suspicion and doubt: -
The supervisor (The Administrative Committee for Iraqi Jews) filed lawsuit No. 30/Sh/959 against
the (dismissed) Mutawalli ⟦Emile⟧ Saleh Shleimou before the Court of Personal Matters in Baghdad, requesting his dismissal from
the trusteeship, basing his request on legal actions contrary to the Waqf deed and the provisions of the Waqf issued by the
aforementioned Mutawalli against the Waqf. After numerous hearings and the court's review of the aforementioned Mutawalli's actions, it decided
to dismiss him from the trusteeship according to its decision issued on 6/11/1962, which has acquired final status.
It appears to your honorable court from reviewing the judgment in the aforementioned lawsuit and the decision to dismiss him from the trusteeship
over the Ezra Menachem Daniel Waqf No. 29/Sh/959 issued on 5/6/1961 by the same
aforementioned court, that both judgments were based, among other reasons and causes, on the Mutawalli's betrayal of the Waqf
and his violation of the founder's condition, which is equivalent to the legislator's text, and his negligence of the Waqf's rights.
The Court of Personal Matters reviewed the actions of the responsible Mutawalli which he carried out against the Waqf, including
his leasing of the Waqf properties without obtaining prior permission from the supervisor or his waiver of leases to several persons, so it decided
to restrain his hand from disposing of the Waqf's affairs during the course of the lawsuit, and that was on 3/13/1961,
as it was confirmed to it that the dismissed Mutawalli's continued handling of the Waqf's affairs is a matter of certain harm to the Waqf,
which forced it to issue the restraint and entrust the management of the endowments to it until the dismissal lawsuit is decided
and a new Mutawalli is appointed.
The waiver contract, the subject of the lawsuit, is one of the illegal actions carried out by the agent of the dismissed Mutawalli,
thereby violating the founder's condition and the general provisions of the Waqf.
Accordingly, the occurrence of the aforementioned disposition, which violates the Waqf deed and the provisions of the Waqf, during the period in which
the dismissal lawsuit was ongoing and being considered by the competent court and shortly before the date of restraining his hand from disposition, makes
the former Mutawalli and his agent personally responsible for this disposition, and the responsibility for
this disposition cannot extend to the Waqf for the reasons mentioned.
To be continued
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Summary: The plaintiff's claim is rejected for the following reasons:
First: From a formal standpoint: 1- The necessity of a formal notice which the plaintiff did not perform before filing the lawsuit based on paragraph
(1) of Article (177) of the Civil Code.
2- The necessity of a formal notice which the plaintiff did not perform before filing the lawsuit to claim compensation
according to paragraph (1) of Article (177) of the Civil Code and paragraph (1) of Article (256)
of the Civil Code.
Second: From a substantive standpoint: 1- The lack of authority of the contracting party, Edward Yaqoub Shamshua, under his general power of attorney to contract
with the plaintiff via a waiver contract for the endowment (Waqf) rent allowances according to Articles (933) and
931 of the Civil Code and in accordance with the established rulings of the Court of Cassation.
2- The lack of authority of the trustee (Mutawalli) to conclude a waiver contract, namely:
A- It is not within the authority of the trustee under the endowment deed No. 935/87 to waive
the rights of the endowment.
B- Failure to obtain prior permission from the supervisor (The Administrative Committee for Iraqi Jews).
C- The provisions of the endowment do not permit the trustee the right of waiver because waiver is a definite harm
to the endowment and because it is characterized legally as a debt, and borrowing by the trustee
is not permissible except with the judge's permission.
3- The transaction occurred during a period dominated by doubt and suspicion, as the waiver contract took place
shortly before the trustee's hand was stayed from acting and shortly before the dismissal judgment was issued.
From all of the above, it appears to your court that the two waiver contracts are null and void regarding the endowment and do not entail any responsibility
on the endowment; rather, they are considered actions for which the contracting party or his principal is personally liable.
Therefore, we request the dismissal of the plaintiff's claim and that he be charged with the trial costs and attorney fees and the lifting of the seizure, while reserving our right to claim
from the plaintiff the amounts he received on account of the contract subject of the lawsuit.
Please accept our deepest thanks and respect.
Lawyer | Lawyer
Shaul Moussa | Hassan Abdullah Muzaffar
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Advocate Hassan Abdullah Muthafar
Advocate Hadi Latif
Sabri Bldg. - Mustansir Street
Tel. 82280
81442
83065
Lawyers' Office
Hassan Abdullah Muthafar
Hadi Latif
Al-Mustansir Street - Sabri Tu'aima Building
Office Telephones 82280 - 81442 - 83065
Number :: 2 / L / 62 / 402
Date :: 14 / 11 / 1962
To the Honorable Judge of the Karkh Court of First Instance
Subject / Responsive memorandum from the defendant's attorneys in the lawsuit
Numbered 45 / B / 60 .
Plaintiff: Hamid Majid Al-Mahdi - his attorney, Advocate Abdul Aziz Al-Shahir
Defendant: Chairman of the Administrative Committee for Iraqi Jews in his capacity as the administrator of the Menahem
Daniel Endowments - his attorneys, Advocates Hassan Abdullah Muthafar and Shaul Moussa .
The plaintiff's lawsuit is rejected for the following reasons :-
First: Rejection of the lawsuit on formal grounds:
A - The necessity of a formal notice before filing a rescission lawsuit :-
Paragraph (A) of Article (177) of the Civil Code stipulates that in a bilateral contract,
if one of the contracting parties does not fulfill his obligations under the contract, the other party may, after formal notice, request rescission
with compensation if there is justification for it.
From this text, it appears to your honorable court that the formal notice is an essential condition to be performed by the party seeking rescission, as
the formal notice before requesting rescission is of great importance, as Professor Al-Sanhuri says, and the formal notice is
a condition required by law, and the reply to the letter which the colleague claimed to have received from the attorney of the dismissed
administrator is not considered proof of formal notice. In addition, the issuance of this letter by the attorney
of the dismissed administrator cannot be relied upon by your honorable court for the following reasons :-
A - The presentation of the letter was after our request in our memorandum dated 4 / 11 / 1962 .
B - The mentioned letter does not have an officially fixed date .
C - It was issued during a period dominated by suspicion and doubt, especially since its presentation by the plaintiff was after
the dismissal of the administrator and our entry into the lawsuit as attorneys for the current administrator .
To be continued
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While that is despite the fact that we believe the response to the mentioned letter is not considered a formal notice in the form and meaning required
legally, as it is nothing more than an acknowledgment issued by the agent of the dismissed trustee, and this acknowledgment is valid within the limits
in which the trustee or his agent is permitted to perform acts of disposition for the trustee, since the right of acknowledgment over the endowment does not
take effect as (Professor Shafiq al-Ani) says.
In addition to that, the trustee's agent, according to the presented power of attorney, does not have the right to acknowledge, as acknowledgment is not valid from a general
agent unless the power of attorney issued to this agent explicitly states his authorization to acknowledge (Al-Sanhuri — Al-Waseet
Part Two, p. 447).
All of this is in the case of assuming that the two contracts concluded by the agent of the dismissed trustee are within the authority
of the trustee according to the provisions of the endowment and the conditions of the endower, which is what he does not possess as will be explained later.
2 — The necessity of formal notice when requesting compensation:—
The plaintiff's requests in his lawsuit petition include two requests: the first is the rescission of the contract and the payment of an amount of 24,615 dinars
(twenty-four thousand six hundred and fifteen dinars).
The second: is his request for compensation in the amount of 8,000 dinars (eight thousand dinars).
Article (177) paragraph (1) of the Civil Code stipulates:
⟦line⟧ in bilateral contracts ⟦line⟧ the other contracting party may, after formal notice,
demand rescission with compensation if there is a justification ⟦line⟧ etc.).
The plaintiff did not provide the required legal notice based on this article and paragraph (1) of Article (256)
of the Civil Code, which stipulates (compensation is not due except after notifying the debtor).
As for the response to the letter presented to your esteemed court, it does not indicate the plaintiff's request for compensation, and its entire content,
assuming its validity, is that the agent of the dismissed trustee acknowledged the contract and requested the plaintiff not to take any —
legal measures to rescind the concluded contract and to grant him a period of five days to rescind another void contract, which is the contract of Mr.
Khairi Hassoun, which he claimed he had concluded by mistake. This is while knowing that the trustee does not originally possess the right to agree
with anyone to obligate the endowment to pay any compensation for any reason whatsoever, and if that were necessary, then after obtaining the permission of —
the judge, since obligating the endowment to pay compensation is pure harm to the endowment and contrary to the condition of the endower
specified in the endowment deed, and the trustee may not violate the condition of the endower except with the permission of the judge if the
interest of the endowment so requires.
Second: Dismissal of the lawsuit on the merits:—
1 — Characterization of the two contracts subject of the lawsuit:—
To be continued
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This waiver of rent allowances for the endowment properties leased by the agent of the dismissed trustee to
other persons is considered a borrowing and loaning of amounts on behalf of the endowment. The detail of this is that the endowment properties subject
to the two contracts are leased by the contracting party (the agent of the dismissed trustee) to persons under contracts
in which they pledged to pay the rent allowances in installments, and he has actually received an installment of them. His waiver
of the remaining unearned installments is considered borrowing and loaning.
B - The powers of the trustee regarding the provisions of the endowment and the endowment deed:
The endowment deed No. 935/87 regarding the endowments of Menachem and Sassoon Saleh Daniel
issued by the Personal Status Court in Baghdad and the deeds based on it, whose numbers and dates are mentioned
within the said deed and attached herewith, specified the power of the trustee to lease the endowed properties at a fair rent
and stipulated for the validity of this lease that the trustee must obtain permission from the Body Council of the Mosaic Community
(the Administrative Committee for Iraqi Jews currently acting in its place), as the endowment deed required the trustee to submit
to the Body Council (the supervisor of the mentioned endowment affairs before the dismissal of the trustee Emil Saleh Shlomo and the transfer of
the trusteeship to the Administrative Committee for Iraqi Jews) a budget including the expected revenues from the endowed properties,
i.e., the rent allowances and expected expenses. He is not permitted to act except after the approval of the supervisor
(the Administrative Committee for Iraqi Jews) and obtaining its permission.
It is not hidden from your esteemed court that the condition of the endower is like the text of the Lawgiver in the necessity of following and acting upon it, and whoever
violates the endower's condition violates the text, and ruling based on it is a ruling without evidence (Part Three, p. 467 of the book Rad al-Muhtar
by the scholar Muhammad Amin, famously known as Ibn Abidin).
From all this, it is clear to your esteemed court that the permission must precede the action if
this action is a lease contract at a fair rent, not the contract leased by the plaintiff in the agreement, as the contract
presented by the plaintiff is not a lease contract, but rather, as we previously explained, a contract of waiver of rent allowances
of the endowed properties leased by the agent of the dismissed trustee to the tenants. The waiver contract is considered a forfeiture
of part of the endowment's rights, and the trustee does not possess this right, as the waiver of endowment rights is a definite harm to the endowment
and an explicit violation of the endowment deed. It 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 conditional on the benefit). Accordingly, this action by the agent of the dismissed trustee
violates the provisions of the endowment and the endowment deed for the following reasons:
To be continued
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A — It is not within the authority of the trustee, under the endowment deed, to waive the rights of the endowment.
B — The authority of the trustee to lease the endowed properties at a fair market rent requires for its validity obtaining prior permission from
the supervisor, and the contract subject of the lawsuit did not have the agent obtain prior permission from the supervisor.
C — The provisions of the endowment do not permit the trustee the right to waive the rights of the endowment because the waiver is a definite harm to the endowment
and an explicit violation of the endowment deed.
D — Even if extreme necessity calls for violating the condition of the endower, in this case, permission must be obtained from
the judge, and this is what Article (867) of the Arrangement of Classes in the Provisions of Endowments stipulates (It is permissible
for the trustee, after taking the opinion of the judge, to violate the conditions of the endower if necessity requires it and if the violation achieves
the interest of the endowment).
Accordingly, this action is outside the limits of the authority of the trustee and his agent, and they are personally responsible for it, and the agent of
the trustee and the dismissed plaintiff expected that, as evidenced by the fact that the trustee's agent had executed the waiver contract
in his capacity as an agent for Emil Saleh Shlomo personally and as a trustee, knowing that the subject of the waiver contract is located on endowed properties.
C — The authority of the contracting party, Edward Yaqoub Shamshoun:—
Under his general power of attorney No. 383 dated 1955/5/30, certified by the Karkh Notary Public.
It appears to your esteemed court from the power of attorney granted by Emil Saleh Shlomo, the dismissed trustee, to the contracting party
Edward Shamshoun, that the aforementioned person does not possess the right to waive, as the mentioned power of attorney specified the powers
owned by the agent and did not stipulate authorizing the agent to waive, which must be in explicit terms,
and the agent must execute the power of attorney without exceeding its drawn limits (933) Civil.
Also, Article (931) of the Civil Code stipulates that it is valid to specify the power of attorney by specifying the subject matter and to generalize it
by generalizing it. A special power of attorney is one that is limited to a specific legal act or acts (Part (5) p. 198 Preparatory Works
of the Egyptian Law). As for the general power of attorney, it is that which comes in general terms without specifying a particular legal act
for it; it is that which occurs in a general power of attorney in which nothing is named "over another thing." That is because if the thing is named,
"it does not benefit from generalization and delegation (Bidayat al-Mujtahid Vol. 2 p. 283). Accordingly, the power of attorney granted
by the dismissed trustee to his agent is limited to the actions mentioned therein, and no action among those actions was mentioned
regarding waiver, especially concerning the endowment. There are several decisions, including the Cassation Decision No. (3569 / Legal 67)
dated 67/1/7, which upheld the primary judgment No. (61/1601) filed by Mr.
Hamid Ali Rajab against the one whose agent is the same agent of the dismissed trustee. Where he had exceeded his authority
and executed a waiver of the rent for shops at a time when he did not possess this right according to his power of attorney.
To be continued
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(Iraqi Civil Judiciary, Part Two, p. 239) and that not granting the dismissed trustee the right to waive
to the aforementioned agent is a natural matter since he does not possess this right (one who lacks a thing cannot give it) and that
the waiver, which is the 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 involves
the loss of the endowment's assets or its yields, as we have previously explained. On this occasion, the trustee himself restricted the right
of discharge, forfeiture, settlement, and admission in the general power of attorney discussed for his private properties only.
Third: Non-disposal during a period dominated by suspicion and doubt:-
The supervisor (The Administrative Committee for Iraqi Jews) filed lawsuit No. 30/Sh/1961 against
the (dismissed) trustee Emil Saleh Shlomo before the Court of Personal Matters in Baghdad, requesting his dismissal from
the trusteeship, basing his request on the legal actions contrary to the endowment deed and the provisions of the endowment issued by the trustee
mentioned against the endowment. After numerous hearings and the court's review of the mentioned trustee's actions, it decided
to dismiss him from the trusteeship according to its decision issued on 6/11/1962, which has acquired final status.
It appears to your esteemed court from reviewing the judgment in the mentioned lawsuit and the decision to dismiss him from the trusteeship
over the Ezra Menachem Daniel endowment No. 29/Sh/1959 issued on 5/6/1961 by the same
mentioned court, that the two judgments were based, among other reasons and causes, on the trustee's betrayal of the endowment
and his violation of the founder's condition, which is equivalent to the text of the legislator, and negligence of the endowment's rights.
The Court of Personal Matters reviewed the actions of the dismissed trustee which he carried out against the endowment, including
his leasing of the endowments without obtaining prior permission from the supervisor or his waiver of rents to several persons, so it decided
to restrain his hand from disposing of the endowment's affairs during the course of the lawsuit, and that was on 2/13/1961
as it was confirmed to it that the dismissed trustee's continued disposal of the endowment's affairs is a matter of certain harm to the endowment,
which forced it to issue the restraint and entrust the management of the endowments to it until the dismissal lawsuit is decided
and a new trustee is appointed.
The waiver contract, the subject of the lawsuit, is one of the illegal actions carried out by the agent of the dismissed trustee,
thereby violating the founder's condition and the general provisions of the endowment.
Accordingly, the occurrence of the mentioned disposal, which violates the endowment deed and the provisions of the endowment, during the period in which
the dismissal lawsuit was ongoing and being considered by the competent court and before the date of restraining his hand from disposal, makes
the former trustee and his agent personally responsible for this action, and the responsibility for
this action cannot be enforced against the endowment for the mentioned reasons.
To be continued