AI English Translation, Pages 226-250
1/22/72
⟦illegible⟧
⟦illegible⟧
1/20/72
In the name of God, the Most Gracious, the Most Merciful
The Honorable President of the Court of Cassation of Iraq
Appellant - Hamid Majeed Al-Obaidi - represented by attorney Hussein Al-Haj Ali
Appellee - Chairman of the Administrative Committee for Jews in addition to his guardianship over the endowments of Menahem and Sassoon Daniel - represented by
Attorneys Messrs. Ihsan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem
Zaidan
Subject of Cassation
Is that the Baghdad Regional Court of Appeals has ruled in the appellate case numbered 11/S/63
And issued its judgment ruling to dismiss the appeal and uphold the primary judgment numbered 45/61 Karkh and obligated my client to pay
Attorney fees amounting to five hundred dinars along with expenses.
And since this judgment is contrary to the law and prejudicial to my client's rights, I proceeded to appeal it before being notified
of it, requesting its reversal for the following reasons:-
First - The summary of the case was mentioned in the appealed decision, so there is no need to repeat it here, in accordance with Article (218) -
Paragraph (2) of the Civil and Commercial Procedures.
Second - The primary judgment upheld on appeal was based on only two reasons, which are:
1) That the agent exceeded the limits of his power of attorney, so he is personally liable for the claim, and there is no liability on the endowment.
2) That the waiver is a detriment to the endowment.
However, the Court of Appeals did not agree with the Court of First Instance in what it went towards and refuted the reasons for its judgment and concluded
that the agent did not exceed the limits of his power of attorney, and that what he did was within his powers, but nevertheless it upheld
the judgment in terms of the result, basing it on the following reasons:-
1 - That the assignment was accepted by the assignees, and therefore there is no room for recourse against the assignor - the appellee - and it said
that my client - the appellant - can sue the assignees to obtain his right from them. Then it called my client
(a tenant) and said (that the leasing of the property to others by the lessor does not affect the rights of the (tenant).
The Court of Appeals said all of that after preparing for it by saying (that the legal principles specific
to the assignment contract which the appellant - the appellant - relied upon in his defenses, we find that the assignment was accepted by
the assignees and became effective against them and he has the right of recourse against them and no recourse against the assignor - the appellee).
It seems clear that the Court of Appeals wanted with this preparation to cause us an admission that we
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Those whom we said that the assigned right - the claimed amount - has been transferred in its entirety to the liability of the assignees, and that is
through our interpretation of the legal provisions regarding the assignment of rights.
We do not wish to discuss this opinion more than to say that acknowledgment is one thing, and the interpretation of
the law is another (Article 461 Civil). In addition to that, we recalled and emphasized in
the statement dated 29/3/64 that the assigned right did not transfer from it to the liability of
the tenants - the assignees - except to the extent of what was in their liability to the assignor, which is the amount of (3285) Dinars
remaining in their liability from the annual rent value.
And the assignee - in the assignment of right - is not bound by law except to the extent of what is in his liability to the assignor, Article 362
Civil.
Also, the assignment of right is not permissible in the first place except to the extent of what was subject to seizure, Article 364 Civil.
How is it permissible after this for the Court of Appeal to say that my client can sue the tenants
- the assignees - and obtain the entire claimed amount from them.
Then how is it permissible for the Court of Appeal to call my client (a tenant) after it has taken a decision in
characterizing the two contracts subject of the lawsuit as (assignment of right). And it forced us to characterize our lawsuit on this
basis and prove the execution of this assignment. Is this not a contradiction.
And if the court was convinced that my client is a tenant as stated in the folds of its decision (page 3 line
4 before the last), then why does it not give him the right in his lawsuit according to Articles (753 and 782)
Civil. Then how can the lease be reconciled with the assignment of right, while the contract is the same and has not changed.
We see it useful to submit to your esteemed court a copy of the statement dated 26/3/64 which
we submitted to the Court of Appeal when it forced us to characterize our lawsuit on the basis of assignment of right, and it will become clear from
this statement that we repeated in more than one place in it that the assigned right did not transfer from it to the liability of
the assignees - the tenants - except (3285) Dinars and there remained of the assigned right (24615)
Dinars on the liability of the assignor - the respondent - which could have been collected from the rent of the endowments on the condition
that these endowments remain occupied by lease and provided that the assignment is presented to the tenants again for acceptance, and we said that this
is permissible given what the judiciary has ruled in Egypt.
This is what we said in the statement, and we never said that the assignees accepted the assignment in its entirety as it went
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Court of Appeal.
This means that the Court of Appeal ruled contrary to the facts of the case, and this is a ground for cassation
Article (222) of the Civil Procedure Code.
Now that we have finished discussing the first ground of the judgment, we move to discuss the second
ground of it, which is—as stated on page 3 of the decision, line 3 from the bottom, the court said:
(That the payment of the claimed amount to the appellee was not confirmed, and the admission of the trustee's agent of receiving
the amount is not sufficient as this amount did not appear in the endowment budget)
The court concluded from this that the apparent state of the endowment budget belies my client's claim.
Now we say: when and in which era of the judiciary in Islam, and who is the jurist, or rather what are
the judicial precedents in Iraq that say that the budget of—the defendant—is considered evidence of the truth
or falsehood of the plaintiff's claim.
This is, in fact, a very dangerous precedent that has no basis in law or Sharia, for how
can the debtor provide the instrument of proof for his creditor? Especially if the debtor is of the type of endowment trustees
whose betrayals and manipulation of endowment funds have caused the courts in Iraq to clamor, especially since the trustee in our case
has had his betrayal proven in the judgment issued for his dismissal. But what is my client's fault in the trustee's betrayal of the endowment
and his failure to enter the claimed amount into the endowment budget?
Is there a legal or Sharia rule ⟦...⟧ that dictates that the party contracting with the trustee is responsible for
his honesty or a guarantor for him towards the endowment? There is absolutely nothing of the sort.
When my client proceeded to contract with the trustee through his general agent, he knew that these
two persons represented the endowment, as the trusteeship was standing and the general power of attorney was standing, and it was not known of them that they had betrayed
the endowment previously. Their betrayal was not proven until two years after the date of contracting with my client. As for the saying that—
there was a lawsuit between the trustee and the endowment before the date of contracting, this does not mean that people are presumed
to know about this lawsuit, or even if they knew about it, it does not serve as evidence of the trustee's betrayal until—
the judgment is issued therein.
So how is it if my client did not know about this lawsuit at all and proceeded to contract in good faith?
The agents of the respondent did not provide any evidence of my client's bad faith in contracting or at least
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his knowledge of the filed lawsuit. Furthermore, the contested judgment was also devoid of any evidence of bad faith
on the part of my client, and we do not know how it is permissible for judgments to be built on conjectures.
It is understood by default from the court's statement that the delivery was not proven to it, meaning that the court
was not convinced of the seriousness of the contract. If that was the case in the court's view, why did it bother itself to delve into the subject
of the assignment of rights and concluded from it the judgment that the claimed amount has been transferred to the liability of the assignees and there is no recourse
against the assignor - the appellant - is this not a contradiction in the same judgment? Contradiction in a judgment is a ground for cassation
Article (222) paragraph (5) of the Civil Procedure Code.
Third - The apparent state of affairs is not inferred by the budget of the time, but rather by what is usually or rationally unacceptable, such as if a
destitute poor person claims to have lent someone who does not need a loan a massive sum of money at a time when it is not
rationally possible that the lender owns even a small part of what he claimed, while the borrower is wealthy enough that it is rationally
impossible for him to borrow such an amount. This is a simple example compared to the extensive examples provided by
jurists in their explanation of this text.
What indicates the legislator's strictness in cases to which this text applies is what Article (465)
of the Civil Code stated, where it said (It is required that the apparent state of affairs does not contradict the acknowledgment; if a person acknowledges the filiation of another older than him in age,
his acknowledgment is not valid).
From this, it is understood that the application of this text is not as easy as imagined by the contested decision. For it was
incumbent upon the Court of Appeal - while intending to apply this text - to investigate my client's financial capacity and whether
he is able to pay this amount, and after that, issue its judgment in light of what appears to it. We have clarified to the esteemed
and respected court in the last session that we are ready to prove our client's financial capacity, and we also clarified to it
that my client is ready to prove the delivery and receipt by personal evidence in addition to the evidence certified by the Notary
Public, but the court did not pay attention to this; on the contrary, it said that we are satisfied with the delivery by the acknowledgment
of the appellee. This statement attributed to us by the court is contrary to the record of the lawsuit in that last
session and is a ground for cassation under paragraph (5) of Article (222) of the Civil Procedure Code.
Fourth - Most importantly, the subject of delivery and receipt was not a matter of discussion in the primary proceedings,
and the opposing counsel did not raise it in all their briefs and pleadings until the lawsuit ended and was concluded with a decision.
How is it permissible after this to raise a new defense in the Court of Appeal, knowing that the opposing counsel did not adhere to it?
⟦line⟧ to be continued ⟦line⟧
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with it, and they did not raise it even in the appellate trials, neither in the case record nor in the briefs.
How can the Court of Appeal rule on a matter that the adversary did not claim? This is contrary
to Article (222), paragraph (5), and warrants the reversal of the judgment.
Furthermore, the apparent state of affairs was also not a subject of discussion in the primary proceedings until the issuance
of the decision in the case. How can this new defense be raised in the Court of Appeal?
This is a clear violation of the law and is prohibited from being accepted under Article (5), paragraph (4) -
Pleadings.
From this, it is clear that the Court of Appeal violated the law by accepting new defenses that were not a subject
of discussion in the Court of First Instance, which led to ⟦depriving us⟧ of one level of the court hierarchy in discussing the statements
of our adversaries.
For these reasons and for what we have explained in the briefs dated 3/20/1963, 5/22/1963, 3/29/1964,
and 7/8/1964, I request the summoning of the papers, the review of the judgment on appeal, its reversal, and charging the respondent with all fees,
expenses, and attorney's fees.
With respect.
⟦signature⟧
Attorney
Hussein Al-Haj Ali
10/31/1964
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 459 K / 64
Date 22 / 11 / 64
The Honorable Judge of the First Unlimited Karkh Court of First Instance
Subject / Lawsuit 45 B / 961
⟦line⟧
Since the judgment issued by your esteemed court in the primary lawsuit numbered 961/45 filed
by Mr. Hamid Majid Al-Obaidi against the trustee of the Menahem and Sassoon Daniel endowments, ruling to dismiss the case
and lift the precautionary seizure placed on the revenues of the endowments, and it has been ratified by the Baghdad Court of Appeal
pursuant to its decision issued in the appellate case numbered 11 / S / 962 (a copy of which is
attached herewith).
We kindly request the disbursement of the amounts accumulated at your esteemed court from the rental fees of the endowments belonging
to the aforementioned endowments, which the tenants deposited with you, to our client, the Administrative Committee for Iraqi Jews,
in its capacity as the trustee over the aforementioned endowments.
With highest respect
The General Agents
On behalf of the Administrative Committee for Iraqi Jews in its capacity as the trustee over the Menahem and Sassoon Daniel endowments
Lawyer
Shaul Moussa
Lawyer
Hassan Abdullah Muzaffar
⟦Amanat Abdullah Khudair⟧
Honorable Mr. President of the Baghdad Region Court of Appeal
A memorandum submitted by the attorneys of the appellant in the lawsuit
Numbered 11/S/962.
Presented:
Your honorable court decided in its last session held on 6/14/964 to assign our client,
the appellant, to prove the place of delivery, the delivery of the amounts acknowledged as received before the court and according to the contract
presented, which the court characterized as an assignment of right, on the grounds that the aforementioned contract was made during the
suspicious period that preceded the dismissal of the trustee. This decision is not based on a legal or Sharia basis,
so we object to it and request its withdrawal for the following reasons:
1- Article 82 of the Civil and Commercial Procedure Code states that "the proof of
the lawsuit shall be carried out by the evidence provided for in Chapter Six of Book One of the Civil Code,
and in commercial lawsuits, the provisions stipulated by the Commercial Law shall be observed."
Article 449 of the Civil Code states that official documents and recognized ordinary documents
shall be full evidence under the law. Accordingly, the presented contract document, which is recognized and acknowledges the receipt of
the amounts listed therein, is full and valid evidence to prove the lawsuit and act upon it without the need for
other evidence by law. Therefore, the court's assignment of our client to provide evidence to prove the content of
the aforementioned document violates legal texts and rules of evidence because what is established by a recognized document
does not need other evidence. The recognized document is the full legal evidence.
2- Evidence - legally and religiously - is only established for the purpose of proving the opposite of the apparent, so how is it permissible
that we establish evidence to prove what is established by a document authenticated by the Notary Public and acknowledged by the appellant
and its content before the judiciary..
Yes, it may be permissible for the debtor to recognize the document issued by him, but he denies its content; in this case,
law and Sharia agreed on one solution and one solution only, which is for the creditor to swear an oath of non-falsehood
regarding the acknowledgment, and this is what Article (111) of the Procedure Code and Article (1581) of the Mejelle
of Legal Provisions stipulated. We mention the Mejelle here because the religious matters of non-Muslim
sects are subject to Hanafi jurisprudence, and the Mejelle is nothing but a summary of what Hanafi jurisprudence has settled upon
regarding rulings. Furthermore, the court informed us orally that it might move towards applying Islamic Sharia
in this lawsuit.
Accordingly, it is clear from the Mejelle and the law that the court's decision to assign our client to prove the place of delivery
has no basis in law or Islamic Sharia.
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⟦signature⟧
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3- The defenses of the appellee have been limited to specific matters, namely: (that the Waqf is not responsible for what
the trustee received from our client because the contract, according to his claim, is a donation contract and it is not permissible for the trustee to donate, then
he called it a loan contract and it is not permissible for the trustee to borrow, then he claimed that the power of attorney is restricted and not absolute
general). When he came to the Court of Appeal, he added to his previous defenses that Islamic Sharia
is the one applicable in this lawsuit.
All these defenses were stated by the appellee, but he never said, neither in the Court of First Instance nor in
the Court of Appeal, that the delivery and receipt did not take place, or that the trustee's agent did not receive from our client
the subject of the claim. So how is it permissible at this point to raise a new topic in the Court of Appeal that was not
a subject of research in the Court of First Instance.
Yes, it is permissible for the appellee to provide new evidence in the Court of Appeal to prove his original defenses,
just as it is also permissible for the court to clarify ambiguous points in the lawsuit, or to conduct
any physical investigations it deems necessary, but all of that must be done within the limits of the defense and the claim
in application of the rule stating that the judge does not rule based on his personal knowledge.
While the decision taken by your esteemed court has brought a new matter that our client did not claim and the
appellee did not plead.
This decision, even if it wears the cloak of judicial investigations, in its meaning includes a new defense, or
a new lawsuit, and this is not permissible in the Court of Appeal by virtue of Article (5) paragraph (4) and Article
(201) paragraph (1) of the Civil and Commercial Procedure Law. Moreover, this
decision leads, in terms of result, to a judgment on what was not previously a lawsuit, and this is not permissible Sharia-wise
and legally, and the Majalla also stipulated that in Article (1829) where it said - A judgment is not valid
without a prior lawsuit - and therefore the court's decision to task our client with proving the act of delivery is not based
on a legal or Sharia rule and is explicitly contrary to the law.
4- As for the (suspicious period) mentioned in the aforementioned decision and the validity of contracts occurring during it
or their invalidity, it is a special subject limited to the state of commercial bankruptcy as stipulated in
Articles 156, 157, and 158 of the Ottoman Commercial Law - Bankruptcy Section - which
is still in force in Iraq. The provisions of these articles of the Commercial Law cannot be applied except to
the merchant adjudged bankrupt within the conditions and circumstances stipulated therein. The trustee is not
a merchant and the contracts he conducts are not commercial contracts, and the judgment to dismiss the trustee is not a judgment of his bankruptcy.
What is permissible for the trustee and what is not permissible for him in terms of actions regarding the Waqf are determined by jurisprudential rulings, and
his contracts that he is allowed to conduct are subject to the provisions of the Civil Law, and these provisions did not ⟦stipulate⟧ ⟦on⟧
stipulate a suspicious period for the dismissed trustee that makes his permissible actions during it subject to challenge
and questioning of their integrity. The dismissed trustee is prevented and prohibited from acting in Waqf matters after
the issuance of the judgment for his dismissal, so his actions after the dismissal are considered void, while his permissible actions that
he conducted before the dismissal during his accounting or before that are considered valid and effective unless it appears
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after his dismissal that he performed an action that he was not permitted to perform before his dismissal, then that action is void.
An example of this is if the trustee was dismissed because of his leasing some of the endowment properties for less than the fair rent
and with gross deception, and it appeared after that that he leased some other endowment properties during his accounting
or before that for more than the fair rent ⟦or⟧ it appeared that he leased one of the endowment properties to himself
and lived in it, then the lease contracts he executed for more than the fair rent remain valid and effective.
As for the lease contract he executed for himself, it is considered void due to the presence of suspicion in it; this is what the jurists decided
regarding what is permissible and what is not permissible of the actions performed by the trustee, and they did not say that there is
a suspicious period preceding the dismissal during which the contracts concluded by the trustee are subject to challenge, and even
on the assumption that one of the jurists said this, then this saying is not taken into account and does not constitute a rule because the criterion
is for the common majority, not the rare, especially if what was paid to the trustee was equal to the fair rent and a single
deal for two years in the hope that our client would benefit from the (Sarkafliya) as we explained previously.
And before we come to the end of this memorandum, it must be said that the trustee has the right ⟦to⟧ admit - before
the judiciary in the lawsuit filed against him - the contracts issued by him, and the Majalla has stipulated that
in Article (1634).
And since this text was mentioned in the discussion of litigation and the trustee standing as a litigant in lawsuits of contracts
issued by him, it must be said - in clarification of the subject - (that the litigant is the one whose
admission results in a judgment on the assumption that the lawsuit is proven) Article (2) paragraph (3) and (4) of the Code of
Civil and Commercial Procedure. And Article (1634) of the Majalla.
This, and since our lawsuit relates to a contract admitted by the trustee, and it is his right to admit it by virtue of Islamic Sharia
and in view of the legal rulings and Sharia texts we have presented, we request your esteemed court
to reverse its aforementioned decision while repeating our previous demands.
May you remain respected.
Counsel for the Appellant
Lawyer
Hussein Al-Haj Ali ⟦Issa⟧
⟦Signature⟧
⟦24 / 5 / 64⟧
⟦illegible⟧
(3)
⟦illegible⟧
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number JA / ⟦28⟧ / 64
Date 22 / 4 / 1964
To the Honorable President of the Baghdad District Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
For the appellate case numbered 11 / S / 963
The Appellant: - Mr. Hamid Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti and Aziz Al-Shaher
and Hussein Al-Haj Ali.
The Appellee: - The President of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menahem
Saleh Daniel - his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad
Salem Zaidan.
First: - While we reserve all our preliminary and appellate defenses, and we do not agree with what your honorable court
has concluded in characterizing the two contracts subject of the lawsuit as an assignment of right, we would like to remind
the honorable court of what we have previously stated in our previous memoranda that the subject of the lawsuit relates
to endowment property, and endowments in general are governed by the principles of Islamic Sharia and Islamic jurisprudence, which
does not recognize the assignment of right in its various schools of thought. Furthermore, the Menahem Saleh Daniel endowment,
in addition to that, is governed by the endowment deed numbered 87 / 935, which does not permit the guardian and consequently his agent
to perform an assignment of right, according to the following details: -
1 - The contracting party is an agent and not a principal: -
The contracting party, Edward Yaqoub Shashoua, has, pursuant to his power of attorney, contracted with the appellant, and it has been proven
to your honorable court that the aforementioned power of attorney specified the powers possessed by the agent and did not stipulate in
the power of attorney the authorization of the agent with the power of assignment of right, as the power of attorney specified the powers
possessed by the agent regarding the endowment, and the contracting party exceeded his authority by concluding these two contracts as an assignment
of right based on Article 933 of the Civil Code, which stipulates the following: -
(The agent must execute the agency without exceeding its prescribed limits)
And Article 931 of the Civil Code, which stipulates the following: -
(It is valid to specify the agency by specifying the subject matter and to generalize it by generalizing it)
To be continued
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There is no need to repeat what we have stated in all our pleadings regarding the agent exceeding the limits of his power of attorney, nor to refer
to the discriminatory decisions and other legal articles.
B - The contracting party is the agent of the administrator (Mutawalli), and the subject of the contract is endowment properties (Awqaf) and not private properties, and the dispute
relates to the invalidity of the endowment ⟦line⟧ :
The agent derives his authority from the principal; if the principal does not have the authority to
conclude a contract for the assignment of rights, then it follows that the agent cannot do so, as the principal is an administrator and the administrator
derives his powers from the terms of the endowment deed and the general provisions of the endowment, and he may not in any case
violate them. The administrator does not possess the right to conclude an assignment of right under the terms of the endowment deed nor under
the general provisions of the endowment ⟦line⟧ .
Violation of the grantor's condition and the general provisions of the endowment:
Professor Shafiq Al-Ani says in his book "Provisions of Endowment," p. 71, literally the following:
(The administrator is obligated to implement the condition of the grantor and has no right to violate ⟦line⟧).
Article 840 of the book "Arrangement of Classes in the Provisions of Endowments" states the following:
(The condition of the grantor is considered, in terms of the necessity of following it and the impermissibility of violating it, like the text of the Lawgiver).
In light of the above, the administrator, according to the grantor's condition, does not have the right to transfer the right belonging to the endowment,
as the grantor's condition is explicit in that regard, since the endowment deed No. 35/87 did not permit
him to conduct such a transfer.
Second: Assuming the characterization of the two contracts as an assignment of right, we have clarified in paragraph (second) of our pleading
dated 10/17/1963 that the assignment of right is only permissible to the extent that it is subject to seizure (Article 262
of the Iraqi Civil Code).
Article 152 of the Civil Procedure Code has also defined the right subject to seizure as being a known
debt, immediately due and not restricted by a condition ⟦line⟧ etc.
And on the date of 8/21/1960, there was no right for the endowment against the tenants, and that
is because the start of the tenants' contracts begins on 1 Jumada al-Ula, which coincides with 10/21/1960.
Third: The decision of your esteemed court dated 3/8/1964 was to charge the appellant to state whether
the elements of Article 363 of the Civil Code were met, i.e., whether the assignment was executed against the tenants and they accepted it,
and in the event they did not accept it, whether they were officially notified. The appellant's attorneys delved in their pleading
dated 3/29/1964 into matters unrelated to the subject of the decision, but they cited two points we deemed
necessary to discuss:
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The first point:-
That the lessees have partially accepted the assignment, as they have paid their client an amount
of 3285/- Dinars, which is the remainder of the installments of the annual rent, and they received promissory notes
for this amount (Paragraph 1) of the appellant's attorneys' brief.
And our answer to this point:-
The amount of 3285/- Dinars, documented by promissory notes to the order of the attorney of the dismissed
trustee, Edward Yaqoub Shashoua, against the lessees, has no relation to the subject of this lawsuit, as this amount, by the admission
of the appellant's attorneys:
(is the remainder of the rent for the two years preceding the contract subject of the lawsuit)
Furthermore, promissory notes are subject to the provisions and rules of commercial law regarding the transfer of debt and have no relation
to the provisions of the assignment of rights mentioned in the Civil Code. This was the view taken by the Court of
Cassation in its decision No. 34/S/58 dated 1/15/58, published on page 396 in
the first part of the Iraqi Civil Judiciary by Professor Salman Bayat, and this was also the view of the collection of
preparatory works for the Egyptian Civil Code in its comments on Article 302 Egyptian, which corresponds to
Article 362 Iraqi Civil (p. 111, Part Three of the aforementioned collection).
The second point:-
That the assignment was announced to the lessees orally (Paragraph 4, p. 2 of the appellant's attorneys' brief)
As for our answer to it:-
The appellant's attorneys have admitted that the announcement of the assignment was oral, even though Article (363)
of the Iraqi Civil Code, which matches Article 305 Egyptian, stipulated the necessity of official notification (p.
316 of the aforementioned collection, Vol. 3). This was also the view of the late Dr. Muhammad
Kamil Mursi, emphasizing that a registered letter does not replace official notification, pp. 611 and 612, Part
Six, Named Contracts.
Summary:-
1 - While reserving all our primary and appellate defenses and our disagreement with your esteemed court on
the characterization of the two contracts subject of the lawsuit as an assignment of rights, and assuming their characterization
as an assignment of rights, the trustee and consequently his attorney do not possess the authority to perform an assignment of rights, neither under
the Waqf deed No. 35/37 nor under the provisions of the General Waqf, as Islamic jurisprudence
prohibited
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Assignment of rights is not recognized in its various doctrines.
2 - The elements of Article 362 of the Civil Code are not met.
3 - The elements of Article 363 of the Civil Code are also not met.
As for the remaining points mentioned in the appellant's agents' brief, they have no relation to the subject of the court's decision
Respectfully ⟦dated⟧ 3/8/64, and therefore we saw no justification for discussing them.
We reiterate our statements and what was stated in our previous briefs, and we request the dismissal of the appeal and that the appellant bear the costs
and attorney fees.
With respect,
Agents of the Appellee
Attorney Attorney Attorney
Mohammad Salem Zaidan Shaul Moussa Hassan Abdullah Muzaffar
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number JA ⟦28/12/64⟧
Date 12 / 4 / 1964
To the Honorable President of the Baghdad Regional Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
For the appellate lawsuit numbered 11 / S / 1963
The Appellant: - Mr. Hamid Al-Hamidi - His lawyers are Abdul Jabbar Al-Tikriti, Aziz Al-Shahir
and Hussein Al-Haj Taha.
The Appellee: - The Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee over the endowments of Menachem
Saleh Daniel - His lawyers are Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad
Salem Zaidan.
First: - While we reserve all our preliminary and appellate defenses, and we do not agree with what your honorable court
has concluded in characterizing the two contracts subject of the lawsuit as an assignment of right, we wish to remind
the honorable court of what we have previously stated in our previous memoranda that the subject of the lawsuit relates
to endowment property, and endowments in general are governed by the principles of Islamic Sharia and Islamic jurisprudence which
does not recognize the assignment of right in its various schools of thought. Furthermore, the Menachem Saleh Daniel endowment
is additionally governed by the endowment deed numbered 87 / 935, which does not permit the trustee and consequently his agent
to perform an assignment of right, as detailed below: -
1 - The contracting party is an agent and not a principal: -
The contracting party, Edward Yaqoub Shashoua, has, by virtue of his power of attorney, contracted with the appellant, and it has been proven
to your honorable court that the aforementioned power of attorney specified the powers possessed by the agent and did not stipulate in
the power of attorney the authorization of the agent to assign rights, as the power of attorney specified the powers
possessed by the agent regarding the endowment, and the contracting party exceeded his authority by concluding these two contracts as an assignment
of right based on Article 933 of the Civil Code, which stipulates the following: -
(The agent must execute the agency without exceeding its prescribed limits)
And Article 931 of the Civil Code, which stipulates the following: -
(It is valid to specify the agency by specifying the subject matter and to generalize it by generalizing it)
To be continued
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There is no need to repeat what we have stated in all our pleadings regarding the fact that the agent has exceeded the limits of his agency, nor to
the discriminatory decisions and other legal articles.
B - The contracting party is the agent of the trustee, and the subject of the contract is endowment properties and not private properties, and the dispute
relates to the annulment of the endowment ⟦line⟧ :
The agent derives his authority from the principal. If the principal does not have the authority to
conclude an assignment of right contract, then by priority the agent cannot do so, as the principal is a trustee and the trustee
derives his powers from the conditions of the endowment deed and the provisions of public endowment, and he has no right in any case
to violate them. The trustee does not possess the right to conclude an assignment of right under the conditions of the endowment, nor under
the provisions of public endowment ⟦line⟧ .
Violation of the endower's condition and the provisions of the general endowment:-
Professor Shafiq Al-Ani says in his book "Provisions of the Endowment", p. 71, verbatim as follows:-
(The trustee is obliged to implement the endower's condition and has no right to violate it ⟦line⟧ ).
Also, Article 840 of the book "Arrangement of Ranks in the Provisions of Endowments" stipulates the following:-
(The endower's condition is considered, in terms of the necessity of following it and the inadmissibility of violating it, as a text of the Legislator).
In light of the above, the trustee, according to the endower's condition, does not have the right to transfer the right belonging to the endowment
since the endower's condition is explicit in that, as the endowment deed No. 35/87 did not permit
him to perform such an assignment.
Second: Assuming the adaptation of the two contracts as an assignment of right, we have clarified in paragraph (second) of our pleading
dated 10/17/63 that an assignment of right is only permissible to the extent that it is seizable (Article 362
Iraqi Civil Code).
Furthermore, Article 152 of the Civil Procedure Code has defined a seizable right as being a known,
immediate debt not restricted by a condition ⟦line⟧ etc.
And on the date of 8/21/1960, there was no right for the endowment against the tenants because
the start of the tenants' contract begins on 1 Jumada al-Ula, which coincides with 10/21/1960.
Third: Your respected court's decision dated 3/8/1964 was to task the appellant to clarify whether
the elements of Article 363 of the Civil Code were met, i.e., was the assignment executed against the tenants and did they accept it,
and in the event they did not accept it, was it officially notified to them? The appellant's attorneys delved in their pleading
dated 3/29/1964 into matters unrelated to the subject of the decision, but they cited two points we deemed
necessary to discuss.
— 2 —
The first point:
That the lessees have partially accepted the assignment, as they have paid to their client an amount
of 3285 dinars, which is the remainder of the installments of the annual rent, and they received promissory notes
for this amount (paragraph 1) of the appellant's attorneys' brief.
In response to this point:
The amount of 3285 dinars, documented by promissory notes to the order of the attorney of the dismissed
trustee, Edward Yaqoub Shashon, against the lessees, has no relation to the subject of this lawsuit, as this amount, by the admission
of the appellant's attorneys:
(is the remainder of the rent for the two years preceding the contract subject of the lawsuit)
Furthermore, promissory notes are subject to the provisions and rules of commercial law regarding the transfer of debt and have no relation
to the provisions of the assignment of rights contained in the Civil Law. This was the view taken by the Court of
Cassation in its decision No. 34/S/258 dated 1/15/58, published on page 316 in
the first part of the Iraqi Civil Judiciary by Professor Salman Bayat, and this was also the view of the collection of
preparatory works for the Egyptian Civil Law in its comments on Article 23 Egyptian, which corresponds to
Article 362 of the Iraqi Civil Code (p. 111, Part Three of the aforementioned collection).
The second point:
That the assignment ⟦which⟧ was announced to the lessees orally (paragraph 4, p. 2 of the appellant's attorneys' brief)
As for our response to it:
The appellant's attorneys have admitted that the announcement of the assignment was oral, even though Article (363)
of the Iraqi Civil Code, which matches Article 305 Egyptian, stipulated the necessity of official notification (p.
316 of the aforementioned collection, Vol. 3), as was also the view of the late Dr. Muhammad
Kamel Morsi, emphasizing that a registered letter does not replace official notification, pp. 611 and 612, Part
Six, The Guarantee Contract.
Summary:
1 — While reserving all our preliminary and appellate defenses and our disagreement with your esteemed court regarding
the characterization of the two contracts subject of the lawsuit as an assignment of rights, and assuming they are characterized
as an assignment of rights, the trustee and consequently his attorney do not have the power to perform an assignment of rights, neither under
the endowment deed No. 37/35 nor under the provisions of the general endowment, as Islamic jurisprudence
from it
- 4 -
Assignment of rights is not recognized in its various schools of thought.
2 - The elements of Article 362 of the Civil Code are not met.
3 - The elements of Article 363 of the Civil Code are also not met.
As for the remaining points mentioned in the appellant's agents' brief, they are unrelated to the subject of the court's decision
Respectfully ⟦dated⟧ 3/8/64, and therefore we saw no justification for discussing them.
We reiterate our statements and what was stated in our previous briefs, and we request the dismissal of the appeal and that the appellant bear the costs
and attorney fees.
With respect,
Agents of the Appellee
Lawyer | Lawyer | Lawyer
Muhammad Salem Zaidan | Shaul Moussa | Hassan Abdullah Muzaffar
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 8/L/104/64
Date 29 / 2 / 1964
To the Honorable President of the Baghdad Regional Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee for the lawsuit
Appeal No. ⟦illegible⟧ S/1963
The Appellant: - Mr. Hamad Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti, Aziz Muhammad
Al-Shaher and Hussein Haj Ali.
The Appellee: - Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh
Daniel, his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa and Muhammad Salem Zaidan.
We have detailed in our previous memoranda the following: -
First: - The lack of authority of the contracting party, Edward Yaqoub Sha'shou', under his power of attorney from the dismissed trustee, to perform a waiver
under the two contracts subject of the lawsuit in accordance with Articles 931 and 932 of the Civil Code and in accordance with what has been established
by the Iraqi judiciary.
Second: - The lack of authority of the trustee himself to conclude the two waiver contracts as they are, in their legal characterization,
borrowing and a loan for the account of the endowment, and this is not within the trustee's power.
Third: - The trustee is not permitted to violate the condition of the endower stated in the endowment deed No. 935/87, which
allows him only to lease the endowment assets for a period of one year only, and the trustee must obtain the approval of the Council
of the Body (the Supervisor) for this lease before carrying out the transaction.
Fourth: - The two waiver contracts cannot be characterized as an assignment of rights, as the general endowment provisions
and the noble Sharia are applicable in the subject of our lawsuit, and the elements of an assignment of rights
under the Civil Code are not present in the two mentioned contracts due to the absence of consent, the absence
of the object, and the illegality of the cause.
Fifth: - As we detailed in the previous memoranda regarding the seriousness of the contract and the actions of the trustee's agent, which
are not hidden from your honorable court and which led to his dismissal for his betrayal, and that the two contracts subject of the lawsuit
were concluded when he found that his hand would be removed from the trusteeship, as he began to perform sham and forged
actions and contracts, which led to him entering prison to receive his punishment for some of his criminal acts.
As long as your honorable court has characterized the two contracts subject of the lawsuit as an assignment of rights, we follow your court
To be continued
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⟦illegible⟧ went to it (even if we do not agree with her on that) and she says that the appeal is rejected for the legal reasons
follow⟦line⟧ing :-
First: The contracting party is an agent and not a princi⟦line⟧pal :-
That the ⟦illegible⟧ Edward Yaqoub Sha'shou' has, by virtue of his power of attorney, contracted with the appellant, and it has been proven to your court
respected that the mentioned power of attorney has specified the powers possessed by the agent and did not stipulate in the power of attorney
on authorizing the agent the power to assign the right, as the power of attorney has specified the powers th⟦line⟧at
the agent possesses with respect to the contractor ⟦illegible⟧
⟦illegible⟧ the powers possessed by the agent and did not stipulate in the power of attorney
on authorizing the agent the power to assign the right, as the power of attorney has specified the powers that
the agent possesses with respect to the endowment (Waqf) and that the contracting party has exceeded his authority by concluding these two contracts
as an assignment of right based on Article 923 of the Civil Code, which stipulates the following :-
(The agent must execute the agency without exceeding its drawn limits)
And Article 931 of the Civil Code, which stipulates the following :-
(It is valid to specify the agency by specifying the subject matter and to generalize it by generalizing it)
There is no need to repeat what we have stated in all our pleadings that the agent has exceeded the limits of his agency
nor to the discriminatory decisions and other legal articles.
Second: The contracting party is the agent of the trustee (Mutawalli) and the subject of the contract is endowments and not pure property and that the dispute
There is no need to repeat what we have stated in all our pleadings that the agent has exceeded the limits of his agency ⟦line⟧
nor to the discriminatory decisions and other legal articles.
Second: The returnee is the agent of the trustee and the subject of the contract is endowments and not pure property and that the dispute
relates to the endowment money ⟦line⟧ :-
The agent derives his authority from the principal, so if the principal does not have the authority to conclude a contract
assignment of right, then it is more appropriate that the agent cannot do so, as the principal is a trustee and the trustee
derives his powers from the conditions of the endowment deed and the general provisions of the endowment and he has no way whatsoever
to violate them, as the trustee does not have the right to conclude an assignment of right under the conditions of the endowment nor under
the general provisions of the endowment.
Violation of the condition of the endower (Waqif) and the general provisions of the endowment :-
Professor Shafiq al-Ani says in his book Provisions of the Endowment p. 77 the following text :-
(The trustee is obliged to implement the condition of the endower and he may not violate it ⟦line⟧ )
Also, Article 840 of the book Arrangement of Categories in the Provisions of Endowments stipulates the following :-
(The condition of the endower is considered, in terms of the necessity of following it and the impermissibility of violating it, like the text of the Legislator)
In light of the above, the trustee, according to the condition of the endower, does not have the right to transfer the right belonging to the endowment,
since the condition of the endower is explicit in that regard, as the endowment deed numbered 35/87 did not permit it.
To be continued
- 2 -
he does not have the right to such an assignment, as the endower permitted the trustee to lease the endowment properties for a period of one year only, provided that
he obtains the approval of the Communal Council for this lease only.
Accordingly, if we assume that the trustee's power of attorney to his contracting agent was a power of attorney in which the assignment of rights was specified in addition
to the endowment, then the principal does not have such powers, as the conclusion of these two contracts is a violation
of the endower's condition, and the endowment has no responsibility for them.
Furthermore, the general provisions of the endowment do not allow the trustee to carry out such a disposition, as the trustee must
develop the endowment's property and not decrease it, regardless of the reasons, motives, and the contracts he concludes must
be beneficial to the endowment, and any ⟦contract⟧ that fluctuates between benefit and harm is not binding on the endowment unless
it is contingent upon the judge's permission.
From all of the above, and despite our concurrence with your esteemed court's decision that the two contracts subject to the lawsuit apply
to the assignment of rights, the endowment is not responsible for the actions of the dismissed trustee's agent for the following reasons:
First: The lack of authority of the contractor, Edward Yaqoub Shashoua, the agent for the dismissed trustee, to conclude the assignment of rights contract.
Second: The lack of authority of the dismissed trustee to conclude the assignment of rights contract, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment's provisions.
Accordingly, since the contractor does not have the authority to perform an assignment of rights for the reasons mentioned above, he is the one responsible
personally for the two waiver contracts subject to the lawsuit, and there is absolutely no responsibility on the endowment.
We reiterate our previous statements and what was stated in our briefs, and we request the dismissal of the appeal, the affirmation of the preliminary judgment, and charging the appellant
with all costs and attorney fees.
With respect,
Attorneys for the Appellee
Attorney | Attorney | Attorney
Muhammad Salem Zaidan | Shaul Moussa | Hassan Abdullah Muzaffar
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number 8 L / 402 / 15
Date 29 / 2 / 1964
Mr. President of the Baghdad District Court of Appeal, Respected
Subject / Explanatory brief from the agents of the Appellee for the lawsuit
Appellate No. ⟦...⟧ S / 963
Appellant: - Mr. Hamid Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti and Aziz Muhammad
Al-Shaher and Hussein Haj Ali ⟦...⟧
Appellee: - Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh
Daniel, his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
As we have explained in our previous briefs in detail as follows: -
First: - The lack of authority of the contracting party, Edward Yaqoub Shamshua, under his power of attorney from the dismissed trustee, to perform a waiver
under the two contracts subject of the lawsuit in accordance with Articles 931 and 933 of the Civil Code and in accordance with what has been established
by the Iraqi judiciary.
Second: - The lack of authority of the trustee himself to conclude the two waiver contracts as they are, in their legal characterization,
indebtedness and borrowing for the account of the endowment, and this is not something the trustee possesses.
Third: - The trustee is not permitted to violate the condition of the endower stated in the endowment deed No. 87/935, which
allows him only to lease the endowment assets for a period of one year only, and the trustee must obtain the approval of the Council
of the Body (the Supervisor) for this lease before carrying out the transaction.
Fourth: - The two waiver contracts cannot be characterized as an assignment of rights, as the general provisions of the endowment
and Sharia, which are applicable in the subject of our lawsuit, and the elements of the assignment of rights
under the Civil Code are not available in the two mentioned contracts due to the absence of consent and the absence
of the subject matter and the illegality of the cause.
Fifth: - As we detailed in the previous briefs regarding the seriousness of the contract and the actions of the trustee's agent, which
are not hidden from your respected court and which led to his dismissal for his betrayal, and that the two contracts subject of the lawsuit
were concluded when he found that his hand would be removed from the guardianship, as he began to perform simulated and
forged actions and contracts, which led to him entering prison to receive his punishment for some of his criminal actions.
As long as your respected court has characterized the two contracts subject of the lawsuit as an assignment of rights, we follow your court
To be continued
⟦signature⟧
- 3 -
he has no such assignment, as the endower permitted the trustee to lease the endowment properties for a period of one year only, provided that
he obtains the approval of the Communal Council for this lease only.
Accordingly, if we assume that the trustee's power of attorney to his contracting agent was a power of attorney in which the assignment of rights was specified in addition
to the endowment, then the principal does not have such powers, as the conclusion of these two contracts is in violation
of the endower's condition, and the endowment has no responsibility for them.
Furthermore, the general provisions of the endowment do not permit the trustee to carry out such a disposition, as the trustee must
develop the endowment's property and not diminish it, regardless of the reasons and motives, and the contracts he concludes must
be beneficial to the endowment, and any ⟦let it be⟧ contract that fluctuates between benefit and harm is not binding on the endowment unless
it is contingent upon the judge's permission.
From all of the above, and despite our concurrence with the decision of your esteemed court that the two contracts subject of the lawsuit apply
to the assignment of rights, the endowment is not responsible for the actions of the dismissed trustee's agent for the following reasons:
First: The lack of authority of the contractor, Edward Yaqoub Shashoua, the agent for the dismissed trustee, to conclude assignment of rights contracts.
Second: The lack of authority of the dismissed trustee to conclude an assignment of rights contract, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment's provisions.
Accordingly, since the contractor does not have the authority to perform an assignment of rights for the reasons mentioned above, he is personally
responsible for the two waiver contracts subject of the lawsuit, and there is absolutely no responsibility on the endowment.
We reiterate our previous statements and what was stated in our briefs, and we request the dismissal of the appeal, the affirmation of the preliminary ruling, and charging the appellant
with all costs and attorney fees.
With respect,
Agents of the Appellee
Lawyer Lawyer Lawyer
Mohammed Salem Zaidan Shaul Moussa Hassan Abdullah Muzaffar
⟦Correct⟧
29 / 2 / 64
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: 8 / L / 64 / ⟦illegible⟧
Date: 29 / 7 / 1964
To the Honorable President of the Baghdad Region Court of Appeal
Subject / Explanatory brief from the agents of the Appellee for the lawsuit
Appeal No. ⟦line⟧ S / 963 / 11
The Appellant: - Mr. Hamid Al-Obaidi - his agents, lawyers Abdul Jabbar Al-Tikriti and Aziz Muhammad
Al-Shaher and Hussein Haj Ali ⟦line⟧
The Appellee: - The President of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh
Daniel, his agents, lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
We have previously explained in our previous briefs in detail the following: -
First: - The lack of authority of the contracting party, Edward Yaqoub Shamshua, under his power of attorney from the dismissed guardian, to perform a waiver
under the two contracts subject of the lawsuit in accordance with Articles 931 and 932 of the Civil Code and in accordance with what has been established
by the Iraqi judiciary.
Second: - The lack of authority of the guardian himself to conclude the two waiver contracts, as they are, in their legal characterization,
a debt and borrowing for the account of the endowment, and this is not something the guardian possesses.
Third: - The guardian is not permitted to violate the condition of the endower stated in the endowment deed No. 87/935, which
only allows him to lease the endowment assets for a period of one year only, and the guardian must obtain the approval of the
Lay Council (the Supervisor) for this lease before carrying out the transaction.
Fourth: - The two waiver contracts cannot be characterized as an assignment of rights, as the general provisions of the endowment
and Sharia, which are applicable in the subject of our lawsuit, and the elements of the assignment of rights
under the Civil Code are not present in the two mentioned contracts due to the lack of consent, the absence
of the subject matter, and the illegality of the cause.
Fifth: - As we detailed in the previous briefs regarding the seriousness of the contract and the actions of the guardian's agent, which
are not hidden from your honorable court and which led to his dismissal for his betrayal, and that the two contracts subject of the lawsuit
were concluded when he found that his hand would be removed from the guardianship, as he began to perform sham and forged
actions and contracts, which led to him entering prison to receive his punishment for some of his criminal acts.
As long as your honorable court has characterized the two contracts subject of the lawsuit as an assignment of rights, we follow your court
To be continued