AI English Translation, Pages 251-275
- 2 -
He does not have 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 Spiritual 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 permit the trustee to perform such an action, as the trustee must
grow the endowment's money, not decrease it, regardless of the reasons, motives, and contracts he concludes; they must
be beneficial to the endowment, and any ⟦contract⟧ 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 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 of the dismissed trustee, to conclude assignment of rights contracts.
Second: The lack of authority of the dismissed trustee to conclude assignment of rights contracts, due to:
1 - Violation of the endower's condition.
2 - Violation of the endowment 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 upholding of the preliminary ruling, and charging the appellant
all costs and attorney fees.
With respect,
Attorneys for the Appellee
Attorney | Attorney | Attorney
Mohammed Salem Zaidan | Shaul Moussa | Hassan Abdullah Shalfer
⟦illegible signature/stamp⟧
To the Honorable President of the Baghdad District Court of Appeal
Explanatory memorandum submitted by the attorneys of the appellant in
the appellate case numbered 11 S / 962.
Appellant - Plaintiff - Hamid Majid Al-Obaidi - his attorneys, lawyers Abdul Jabbar Al-Tikriti and Hussein
Al-Haj Ali.
Appellee - Defendant - President of the Administrative Committee for Iraqi Jews in addition to his trusteeship over
the Sassoon Daniel Endowments. His attorneys, lawyers Shaul Moshi and Hassan Abdullah
Mufassir.
Presented:
Since your honorable court has decided to characterize the two contracts attached to this case
as assignment of rights contracts, and has tasked us with proving the execution of this assignment, we can only
respond to this decision while reserving our previous defenses.
⟦circle with '1' or 'C'⟧
The legal provisions related to the assignment of rights place us in the position of the assignee, and the appellee
in the position of the assignor, and the tenants in the position of the debtors, and the rental amounts as the
assigned right.
The assignment of right is nothing more than a contract like any other contract; it is subject to its own specific provisions
just as it is subject to contractual simulation.
⟦circle with 'C' or '2'⟧
The legal provisions in this regard require that the debtors be indebted
to the assignor for the amount of the assigned right, Article (362 and 368 Civil). The law also requires the assignor
to enable the assignee to collect the assigned right, Article (367 Civil), and this assignment is not effective
against the debtor unless they accept it or it is notified to them, Article (363 Civil), provided that the assignor is a guarantor against infringement
even if non-guarantee was stipulated, Article (371 Civil).
These are the provisions of the assignment of rights relevant to our case, and in light of them, we review the facts
of the case.
1- The appellee - the assignor - has received from our client ( ) Dinars according to
the two contracts presented in the case, while he did not have a claim against the tenants at the time of the assignment
⟦line⟧ to be continued ⟦line⟧
- 2 -
only (3285) Dinars, and this amount is the remainder of the installments of the annual rental value, and
part of these installments is documented by promissory notes endorsed by the assignor - the appellee - to the order of our client
in accordance with the fourth condition of the assignment contract, and the tenants paid them to our client upon maturity.
2- The assignor did not hand over to our client the documents of the assigned right except for the amount of the right he had
against the assignees - the tenants - and there remained (24615) Dinars of the assigned right
without a document.
There was no
document
3- It is obvious that the responsibility of the assignees - the tenants - is limited to the amount of the right they owe
to the appellee at the time of their acceptance of the assignment, and therefore this acceptance did not transfer from the assigned
right to their liability except (3285) Dinars, and as for the remainder amounting to (24615) Dinars
it remained the responsibility of the assignor - the appellee - and he is responsible for returning it to our client with compensation.
There was no
remainder
4- Since the assignees - the tenants - have paid the right they owed, there is no longer
importance in knowing whether the acceptance has a fixed date or not, as the assignment was executed against them
to the extent of the right they owed to the assignor, and they paid it to our client and recovered their promissory notes from him, noting
that the notification of the assignment to them was oral, and their acceptance of it was partial.
Responsibility
of the tenants
ended
There is no
right for the assignor
5- Since it has become clear that the responsibility of the assignees arises from their acceptance of the assignment and is limited to the amount
of the right they owe to the assignor (Articles 362 and 363 Civil), the responsibility of the assignor is determined by the assignment contract
and the common intention of the contracting parties, and accordingly, for the purpose of determining the responsibility of each of the contracting parties in
this assignment of ours, we must examine it in isolation from the assignees - the tenants - i.e., before
notifying them or their acceptance of it.
Before clarifying this subject, it is good for us to refer to the judicial applications in Egypt in
(regarding the assigned right).
The judiciary in Egypt has gone towards the permissibility of the property owner assigning the installment of the yield produced by his property
in the future, and it also went towards the permissibility of the contractor assigning to a bank the fee that
will be due to him in return for the works entrusted to him by the employer as a guarantee for a current account opened
for him by the bank (Al-Waseet Part Three page 453 by Al-Sanhuri), noting that the texts of the assignment of right
in the Egyptian law are the same texts in the Iraqi law.
The intention exists and the intention is not realized
- To be continued -
- 3 -
What supports the direction of the judiciary in Egypt is what Article (129) paragraph (1) of
stipulated, as it said (The object of the obligation may be non-existent at the time of contracting if it is possible to obtain in the future
and if it is identified in a way that negates ignorance and risk) end.
Confirmation | cannot be denied | unknown | and not | realized | and the tenant | instead of | rent | no increase | nor decrease | payment | two | the date
From this text and from the judicial rulings in Egypt and what the two assignment contracts included of explicit conditions
it becomes clear that the intention of the contracting parties was directed towards fulfilling the assigned right from the rent allowances that
are realized in the liability of the tenants as a result of the renewal of the lease contracts with them, especially since the rent allowances have
been identified in a way that negates ignorance and it is possible to obtain them after renewing the contract with them, however the appellee
deliberately violated the two assignment contracts, and leased the properties to persons other than the assignees, as he agreed with
Khairi Hassoun Al-Ansari and leased the properties to him for a period of two years starting from 1/1/1961 until 30/12/1963, which is
the same period included in the two assignment contracts, and the appellee received the rent allowances from the new tenant
to the end of what was stated in this contract certified by the Notary Public of Kadhimiya under general number 2129 and date
17/12/1960 and by virtue of this contract the benefit of the leased properties became owned by the new tenant as
the allowances for this benefit also became owned by him. This situation led to the loss of our client's rights
especially since the assignment is not effective against the right of the new tenant because he is considered a third party. And the date of acceptance
of the assignment is not officially fixed for him Article (363 Civil). In addition to the fact that the acceptance was limited
to the right existing at the time of the assignment and our client has fulfilled it.
As for the rights that will arise in the liability of the tenants as a result of the renewal of the lease contracts with them, it needs
a new acceptance and this has become impossible after the benefits of the properties were transferred to someone other than the assignor. The matter
which caused the loss of our client's rights and brought him grave damages, all of which happened by the act of the appellee
and his violation of the two assignment contracts. And he is liable for the guarantee stipulated in the sixth clause of the two assignment contracts.
6- The appellee has admitted to his contracting with Khairi Al-Ansari and his breach of the terms of the two assignment contracts
as he admitted to receiving the written notice addressed to him by our client, but he promised to rectify what was issued
from him but to no avail, as he did not find it in his power to implement the obligation in kind due to the attachment of
that to another will, which is the will of the new tenant. And the guarantee has become due from him by force of law
without the need for a notice Article (258 paragraph (2)) in addition to the fact that our client notified him and he admitted
to that in the first session of the preliminary trials.
7- Before we conclude this memorandum, we summarize the most important points mentioned in it:
- To be continued -
- 4 -
The acceptance by the transferees - the tenants - of our client's assignment was partial and limited to what ⟦illegible⟧
their liability of the assignor's right, amounting to (3285/-) dinars, while the remainder, amounting to (24615/-)
dinars, remained as a liability of the assignor.
B - This remainder could have been collected from the tenants after the right arose in their liability as a result of
renewing the lease contracts with them and notifying them of the assignment again. However, leasing the properties to others
deprived our client of his rights.
C - The common intention of the appellant and the appellee in the assignment contract was directed towards collecting the assigned
right from the tenants after the renewal of the lease contracts with them, but the appellee's breach
of the terms of the two contracts deprived our client of his rights and harmed him, which requires the appellee to return what remains
in his liability along with the guarantee stipulated in the sixth clause of the two contracts pursuant to Articles
(371 and 170 Civil).
D - Evidentiary grounds:
1- The two assignment contracts presented in the lawsuit.
2- The appellee's breach of the terms of the two contracts.
3- The appellee's admission of receiving the written notice sent to him by our client and also his admission
of his error and his promise to rectify what occurred to no avail.
For these reasons, we request a judgment against the appellee to return what remains in his liability with the compensation
stipulated in the sixth clause of the two contracts and to charge him with the trial costs, fees, and attorney
fees.
With respect.
Lawyer Lawyer
Hussein Al-Haj Ali Abdul Jabbar Al-Tikriti
29 / 2 / 964
Faculty of Arts and Summer Sciences
⟦line⟧
Every student ⟦...⟧ begins with the work done by the head of the guard ⟦...⟧
Article 260 of the Civil Code stipulates that he is bound by a group ⟦...⟧ if
it was ⟦...⟧ and Article 262 of the Civil Code as well, except
that ⟦...⟧ he has implemented ⟦...⟧ this case ⟦...⟧ assigned ⟦...⟧
by a statement ⟦...⟧ for it ⟦...⟧ and that ⟦...⟧ Article ⟦...⟧ Law ⟦...⟧
⟦illegible⟧
⟦illegible⟧
25 / 3 / 961 AD
6 / 6 / 60
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number ⟦L⟧/283/63
Date 17/10/1963
D / ⟦illegible⟧
⟦Presidency of the Court⟧
The Honorable President of the Baghdad District Court of Appeal
Subject / Explanatory memorandum from the agents of the Appellee
In the appellate case numbered 11/S/963
Appellant: - Mr. Hamid Majid Al-Obaidi, his agents are lawyers Abdul Jabbar Al-Tikriti, Hussein Al-Haj Ali
and Abdul Aziz Al-Shahiri.
Appellee: - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem Salih Daniel Endowments
his agents are lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
In response to the decision of your esteemed court, we attach to this memorandum the seizure report conducted by the Personal Status Court
in Baghdad on 26/4/961, number 29/Sh/959, when it decided to suspend the previous trustee
on 13/3/961, and it includes the numbers of the properties subject to this lawsuit and the names of the tenants.
All the shops were on 21/8/960 (which is the date of the two waiver contracts) occupied by their tenants
whose rental year began on the first of Jumada al-Awwal in the year 1379 AH, as they are rented year by year according to the lunar calendar
for decades, and ends on 30 Rabi' al-Thani in the year 1380 AH, corresponding to 21/10/1960.
The appellant's agents have not settled on a legal characterization for the two waiver contracts, and we have previously explained in our previous
memoranda, including the response memorandum dated 14/1/963 (paragraph 1), that the two waiver contracts are characterized as
borrowing and a loan for the account of the endowment, and we also indicated that the trustee is not permitted, based on the provisions of the endowment and the conditions of the endowment deed
numbered 935/87, to waive the rights of the endowment, and if he is permitted to do so, he must first
obtain the permission of the supervisor (the Administrative Committee for Iraqi Jews at the time) and the permission of the Personal Status Judge.
The provisions of the endowment do not allow the trustee the right to waive because it causes definite harm to the interest of the endowment and because it is borrowing and a loan in
its legal characterization, and this is not permissible except with the judge's permission.
In addition to all that, we have detailed in our previous memoranda the lack of authority of the contracting party, Edward Yaqoub, under his power of attorney
from the dismissed trustee, Emil Salih Shlomo - who himself does not possess the right to waive the rights of the endowment - as
the previous trustee did not authorize his agent with this right, which he restricted to his private properties only, excluding the endowed properties under
his trusteeship, and our statement is supported by the case numbered 1601/61 between the appellant himself and Mrs. Regina
To be continued
- 2 -
Sassoon Daniel (the mother of the former administrator), since her agent Edward Yaqoub (who is the same contractor in the contract of
waiver subject of this lawsuit) had waived the allowances of her pure properties to the appellant himself.
The court decided to dismiss the lawsuit by characterizing the power of attorney as a special power of attorney limited to the actions mentioned therein
and it cannot be considered a general power of attorney since it was not phrased in general terms but rather specified certain acts for it, nor was the agent authorized
therein the right of waiver, which must be stated in explicit terms, and the aforementioned decision was upheld by cassation and rectification.
If Edward Yaqoub does not possess the right to waive under a power of attorney related to pure properties, then he is even more so not entitled to waive
under a power of attorney related to endowments because his principal himself does not possess this right, as the aforementioned right was restricted to his private properties
only ⟦line⟧ .
It is worth mentioning that the waiver contract subject of the lawsuit cannot be legally characterized as an assignment of rights (noting
that the appellant's agents themselves denied that the two aforementioned contracts were an assignment of rights), which is the transfer of an obligation from a creditor
to another creditor, and we have clarified in our memorandum dated 24/6/1963 that Islamic Sharia is the one mandatory
to be applied, not the civil law, and despite all that, we will show that the two contracts subject of the lawsuit cannot
be considered an assignment with respect to Islamic Sharia first and with respect to civil law second.
First: Regarding Islamic Sharia:
⟦line⟧
The assignment of rights with respect to Islamic Sharia, as Professor Al-Sanhuri says in Al-Waseet, Volume
Three, is not accepted by Islamic jurisprudence, and Dr. Hassan Dhanoun says in his book 'Provisions of Obligation in Civil Law'
paragraph 218, p. 207, that Islamic Sharia approved the assignment of debt but not the assignment of rights, as
all three schools—Hanafi, Shafi'i, and Hanbali—do not recognize the assignment of rights, and Islamic Sharia
did not originally recognize assignment, neither due to death nor between the living.
From all this, it becomes clear to your esteemed court that since Islamic Sharia is the one to be applied
to the subject of this lawsuit, it is impossible in this case to characterize the two aforementioned contracts as an assignment of rights.
Second: Regarding the Civil Law:
⟦line⟧
The assignment of rights in civil law is for the creditor to agree with a third party to transfer to him his right
which is owed by the debtor, so the third party replaces the creditor in this right with all its components and characteristics.
Furthermore, the purposes and objectives of the assignment of rights are varied, as the assignor may intend to sell his right to the assignee
and at that point, he receives a price for this right from him.
The pillars of assignment of rights in civil law are the same as the pillars of a contract, namely:
1 - Mutual Consent
To be continued
- 3 -
2 - The Subject Matter.
3 - The Cause.
Regarding mutual consent:-
It must be issued by someone with legal capacity, and the fact is that the agent of the trustee does not possess the legal
capacity to enter into an assignment of rights contract, as he does not possess it under his power of attorney, and his principal, the former trustee, does not
have this right because the mere transfer of this right to another involves a reduction of the endowment's rights and certain
harm to it, as it is inconceivable that the assignee would agree to pay amounts equal to or more than the rent allowances,
otherwise what would be his benefit in this contract.
Regarding the subject matter:-
It is the thing that the debtor is obligated to perform, and it is required to exist at the time the obligation arises. If it
does not exist, the obligation is not established even if the subject matter could exist in the future (Al-Sanhuri -
Al-Waseet).
If we look at the two waiver contracts, we find they were concluded on 8/21/1960, provided that the rent allowances
due on 1 Jumada al-Awwal 1380 (which corresponds to 10/21/1960) apply. Article 362 of the Civil Code
does not permit the assignment of a right except for what is subject to seizure, and Article (152) of the Civil Procedure (paragraph 2)
has specified the conditions for a right subject to seizure as being a known, immediate debt not restricted by a condition. Since
the conclusion of the two waiver contracts was on 8/21/1960 to begin on 10/21/1960, therefore the subject matter of
the contract did not exist, and it is also unknown due to the change of tenants for the endowment shops and some of them leaving
their shops at the end of the contract.
From this, it is clear to your esteemed court that the subject matter of the contract did not exist at the time of conclusion, as there was not
any debt owed by the tenants at the time the contract was concluded on 8/21/1960.
Regarding the cause:-
It is the direct purpose that the obligor intends to achieve through his obligation, and it must be
lawful, meaning it must not be legally prohibited or contrary to public order or morals. The waiver by the agent of the
dismissed trustee of the endowment rent allowances in exchange for certain amounts is intended for ⟦the return⟧ of borrowing and loaning
on behalf of the endowment, and this is something that neither the endowment deed nor the endowment provisions permit the trustee to do without obtaining
prior permission from the judge, and this is what the former trustee and his agent did not do.
Accordingly, the two waiver contracts, the subject of the lawsuit, cannot be characterized as an assignment under the Civil Law.
To be continued
- 4 -
Due to the absence of the three pillars: consent, subject matter, and cause.
From all of this, it is clear to your esteemed court that the legal characterization of the two waiver contracts can only be
indebtedness and borrowing for the account of the Waqf, and this is not permissible except under the conditions we detailed in this memorandum and the previous
memoranda ⟦line⟧ .
On this occasion, we emphasize that the subject of this lawsuit is ⟦governed by⟧ the general provisions of the Waqf and the conditions of the Waqf deed
No. 935/87, as it is a Waqf, and that Islamic Sharia is the applicable law, not the provisions of the Civil
Law. Therefore, the actions of the Mutawalli (trustee) cannot be compared to the actions of ⟦those⟧ who hold pure rights, as the actions of
the Mutawalli in the subject of our lawsuit are governed by the provisions of the Waqf and the Waqf deed, as there are certain actions
—including waiver, indebtedness, and borrowing—that the Mutawalli is not permitted to perform without the permission of the supervisor ⟦line⟧
first, and the judge second. Furthermore, Islamic Sharia did not permit the assignment of rights at all.
Therefore, we request the affirmation of the initial judgment and that the appellant be charged with the trial costs and attorney fees for the following reasons:-
First: The lack of authority of the contracting party, Edward Yaqoub Shashoua, under his power of attorney from the previous Mutawalli, to execute the waiver under
the two contracts subject to the lawsuit, in accordance with Articles 931 and 933 of the Civil Code and according to what the Iraqi judiciary has established.
Second: The lack of authority of the Mutawalli himself to conclude the two waiver contracts, as in their legal characterization they are indebtedness and borrowing
for the account of the Waqf, which he does not possess under the Waqf deed No. 935/87 and the general provisions of the Waqf, which
do not permit waiver without prior permission from the judge.
Second: The lack of authority of the Mutawalli himself to conclude the waiver contract, as in its legal characterization it is indebtedness and borrowing
for the account of the Waqf, which he does not possess under the Waqf deed No. 935/87 and the general provisions of the Waqf, which
do not permit waiver without prior permission from the judge.
Third: The action took place during a period dominated by doubt and suspicion, as the contracting party executed the waiver contract during the course of
the dismissal lawsuit due to his betrayal and a few months before the date of his removal from the trusteeship for proven betrayal.
Fourth: The waiver contract cannot be characterized as an assignment of right, as Islamic Sharia is the applicable
law first, and because the pillars of assignment of right under the Civil Law are not present in the two mentioned contracts
due to the absence of the pillar of consent, the non-existence of the subject matter, and the illegality of the cause.
For these reasons and other reasons mentioned in our previous memoranda, we request the affirmation of the initial judgment.
With respect,
Attorneys for the Appellee
Attorney | Attorney | Attorney
Mohammed Salem Zaidan | Shaul Moussa | Hassan Abdullah Mukhlis
Two Professors
(2)
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: L/283/63
Date: 17 / 10 / 963
To the Honorable President of the Baghdad Region Court of Appeal
Subject / Explanatory brief from the agents of the Appellee
In the appellate case numbered 11/S/963
Appellant: - Mr. Hamid Majeed Al-Obaidi, his agents are lawyers Abdul Jabbar Al-Tikriti, Hussein Al-Haj Ali
and Abdul Aziz Al-Shahiri.
Appellee: - Chairman of the Administrative Committee for Iraqi Jews in addition to his guardianship over the endowments of Menachem Saleh Daniel
his agents are lawyers Hassan Abdullah Muzaffar, Shaul Moussa, and Muhammad Salem Zaidan.
In response to the decision of your esteemed court, we attach to this brief the seizure report conducted by the Personal Status Court
in Baghdad on 26 / 4 / 961, number 29/Sh/959, when it decided to suspend the hand of the previous guardian
on 13 / 3 / 961, and it includes the numbers of the real estate properties subject to this lawsuit and the names of the tenants.
All the shops were on 21 / 8 / 960 (which is the date of the two waiver contracts) occupied by their tenants
whose lease year began on the first of Jumada al-Awwal in the year 1379 AH, as they are leased year by year according to the lunar
calendar for decades and end on 30 Rabi' al-Thani in the year 1380 AH, corresponding to 21 / 10 / 1960.
The appellant's agents have not settled on a legal characterization for the two waiver contracts, and we have previously explained in our previous
briefs, including the response brief dated 14 / 1 / 963 (paragraph 1), that the two waiver contracts are characterized as
borrowing and lending for the account of the endowment, and we also indicated that the guardian is not permitted, based on the provisions of the endowment and the conditions of the endowment
deed numbered 87 / 935, to waive the rights of the endowment, and if he is permitted to do so, he must first
obtain permission from the supervisor (the Administrative Committee for Iraqi Jews at the time) and the permission of the Personal Status Judge.
The provisions of the endowment do not grant the guardian the right to waive because it causes certain harm to the interest of the endowment and because it is borrowing and lending in
its legal characterization, and this is not permitted except with the judge's permission.
In addition to all that, we have detailed in our previous briefs the lack of authority of the contracting party, Edward Yaqoub, under his power of attorney
from the dismissed guardian, Emil Saleh Shlomo - who himself does not possess the right to waive the rights of the endowment - as
the previous guardian did not authorize his agent with this right, which he restricted to his private properties only, excluding the endowed properties under
his guardianship, and our statement is supported by the case numbered 1601 / 61 between the appellant himself and Mrs. Regina
To be continued
- 2 -
Sassoon Daniel (mother of the former trustee) since her agent Edward Yaqub (who is the same contractor in the two contracts -
of waiver subject of this lawsuit) has waived the allowances of her pure properties to the appellant himself.
The court decided to dismiss the lawsuit, characterizing the power of attorney as a special power of attorney limited to the actions mentioned therein
and it cannot be considered a general power of attorney as it was not stated in general terms but rather specified certain acts for it, nor was the agent authorized
therein the right of waiver, which must be stated in explicit terms, and the aforementioned decision was upheld in cassation and correction.
If Edward Yaqub does not possess the right of waiver under a power of attorney related to pure properties, then he is more likely not to possess the right of waiver
under a power of attorney related to endowments because his principal himself does not possess this right, as the aforementioned right was limited to his private properties -
only.
It is worth noting that the two waiver contracts subject of the lawsuit cannot be legally characterized as an assignment of right (noting
that the appellant's agents denied that the two mentioned contracts were an assignment of right), which is the transfer of the obligation from a creditor
to another creditor, and we have clarified in our memorandum dated 6/24/1963 that Islamic Sharia is the one that must be
applied, not the Civil Law. Despite all that, we will clarify that the two contracts subject of the lawsuit cannot
be considered an assignment with respect to Islamic Sharia first and with respect to the Civil Law second.
First: - With respect to Islamic Sharia: -
The assignment of right with respect to Islamic Sharia, as Professor Al-Sanhuri says in Al-Waseet, Part
Three, is not accepted by Islamic jurisprudence, and Dr. Hassan Dhannun says in his book Provisions of Obligation in Civil
Law, paragraph 218, p. 207, that Islamic Sharia approved the assignment of debt without the assignment of right, as
the three schools of thought, Hanafi, Shafi'i, and Hanbali, do not all approve the assignment of right, and Sharia did not
originally approve the assignment, neither due to death nor between the living -
From all this, it becomes clear to your esteemed court that since Islamic Sharia is the one that must be applied
to the subject of this lawsuit, the two mentioned contracts cannot, in this case, be characterized as an assignment of right.
Second: - With respect to the Civil Law: -
The assignment of right in the Civil Law is for the creditor to agree with a third party to transfer to him his right
which is owed by the debtor, so the third party replaces the creditor in this right with all its elements and characteristics,
and the purposes and objectives of the assignment of right are diverse, as the assignor may intend to sell his right to the assignee
and at that time he receives a price for this right from him.
The pillars of the assignment of right in the Civil Law are the same pillars of the contract, which are: -
1- Mutual consent
To be continued
- 3 -
2 - The Object.
3 - The Cause.
Regarding mutual consent:-
It must be issued by someone with legal capacity, and the fact is that the agent of the trustee does not possess the legal
capacity to enter into a contract for the assignment of a right, as he does not possess it under his power of attorney, just as his principal, the former trustee, does
not have this right because the mere transfer of this right to another involves a reduction of the rights of the endowment and certain
harm to it, as it is inconceivable that the assignee would agree to pay amounts equal to or more than the rental values,
otherwise what would be his benefit in this contract.
Regarding the object:-
It is the thing that the debtor is obligated to perform, and it is required that it exists at the time the obligation arises; if it
does not exist, the obligation does not arise even if the object could exist in the future (Al-Mashhouri -
Al-Waseet).
If we look at the two waiver contracts, we find they were concluded on 21/8/1960, provided that the rental values
due on 1 Jumada al-Awwal 1380 (which corresponds to 21/10/1960) apply. Article 362 of the Civil Code
does not permit the assignment of a right except for what is subject to seizure, and Article (152) of the Civil Procedure (paragraph 2)
has specified the conditions for a right subject to seizure as being that the debt is known, immediate, and not restricted by a condition. Since
the conclusion of the two waiver contracts was on 21/8/1960 to begin on 21/10/1960, therefore the object of
the contract did not exist, and it is also unknown due to the change of tenants for the endowment shops and because some of them left
their shops at the end of the contract.
From this, it is clear to your esteemed court that the object of the contract did not exist at the time of conclusion, as there was
no debt owed by the tenants at the time the contract was concluded on 21/8/1960.
Regarding the cause:-
It is the direct purpose that the obligor intends to achieve through his obligation, and it must be
lawful, meaning it must not be legally prohibited or contrary to public order or morals. The waiver by the agent of the
dismissed trustee of the endowment rental values in exchange for certain amounts is intended to initiate borrowing and lending
on behalf of the endowment, and this is what the endowment deed and the provisions of the endowment do not permit the trustee to do without obtaining
prior permission from the judge, and this is what the former trustee and his agent did not do.
Accordingly, the two waiver contracts, the subject of the lawsuit, cannot be characterized as an assignment under the Civil Law.
To be continued
⟦due⟧
- 4 -
Due to the absence of the three pillars: consent, subject matter, and cause.
From all of this, it is clear to your honorable court that the legal characterization of the two waiver contracts can only be
borrowing and loaning for the account of the endowment (Waqf), and this is not permissible except under the conditions we detailed in this memorandum and the previous
memoranda ⟦line⟧ .
On this occasion, we emphasize that the subject of this lawsuit is governed by the general provisions of the Waqf and the conditions of the Waqf deed
No. 935/87 as it is an endowment, and that Islamic Sharia is the applicable law, not the provisions of the Civil
Law. Therefore, the actions of the trustee (Mutawalli) cannot be compared to the actions of owners of absolute rights, as the actions of
the trustee in the subject of our lawsuit are governed by the provisions of the Waqf and the Waqf deed, as there are certain actions
- including waiver, borrowing, and loaning - that the trustee is not permitted to perform without the permission of the supervisor
first and the judge second. Furthermore, Islamic Sharia does not permit the assignment of rights at all.
Therefore, we request the confirmation of the preliminary judgment and that the appellant be charged with court costs and attorney fees for the following reasons:-
First: The lack of authority of the contracting party, Edward Yaqoub Shamshoun, under his power of attorney from the previous trustee, to carry out the waiver under
the two contracts subject to the lawsuit, in accordance with Articles 931 and 932 of the Civil Code and according to what the Iraqi judiciary has established.
Second: The lack of authority of the trustee himself to conclude the two waiver contracts, as in their legal characterization they are borrowing and loaning
for the account of the Waqf, and this is something he does not possess under the Waqf deed No. 935/87 and the general provisions of the Waqf which
do not allow waiver without prior permission from the judge.
Third: The transaction took place during a period dominated by doubt and suspicion, as the contracting party executed the two waiver contracts during the course of
the dismissal lawsuit due to his betrayal and a few months before the date of his removal from the trusteeship for proven betrayal.
Fourth: The two waiver contracts cannot be characterized as an assignment of rights because Islamic Sharia is the applicable
law first, and because the pillars of assignment of rights under the Civil Law are not present in the two mentioned contracts
due to the absence of the pillar of consent, the non-existence of the subject matter, and the illegality of the cause.
For these reasons and other reasons mentioned in our previous memoranda, we request the confirmation of the preliminary judgment.
With respect,
Attorneys for the Appellee
Attorney Attorney Attorney
Mohammed Salem Zaidan Shaul Moussa Hassan Abdullah Mukhlis
File Number ⟦illegible⟧
Date ⟦illegible⟧
Seizure Minutes
1560
Judge ⟦illegible⟧
Based on the decision issued by the Personal Status Court in Baghdad on ⟦illegible⟧
Which includes the removal of the trustee ⟦illegible⟧ son of Saleh Shaloush from the trusteeship over ⟦illegible⟧
Inside ⟦illegible⟧ neighborhood ⟦illegible⟧ as the appointment of ⟦illegible⟧ the trustee ⟦illegible⟧
has not been officially completed by the endower, so the purpose of ⟦illegible⟧ ⟦illegible⟧ attended
with the committee ⟦illegible⟧ ⟦illegible⟧ and we found ⟦illegible⟧ and it was established ⟦illegible⟧
pursuant to ⟦illegible⟧ to ⟦illegible⟧ from us ⟦illegible⟧ inside ⟦illegible⟧ ⟦illegible⟧
And based on the notification of the committee, it became necessary to refer to the Personal Status Court ⟦illegible⟧
to pay the ⟦illegible⟧ rent that is due from them and not to pay it to the trustee
or his agent, and since ⟦illegible⟧ last ⟦illegible⟧ signatures ⟦illegible⟧
as listed below ⟦illegible⟧ 1/9/1957
⟦line⟧
from the sect and the first of them was ⟦illegible⟧
Name | House | Signature
⟦line⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
Signature ⟦illegible⟧
Judge of the Personal Status Court
Baghdad Court ⟦illegible⟧
File Number ⟦illegible⟧
Date ⟦illegible⟧
Property Type | Register Number | Owner Name
Shop | 246 / 17 | Sadoun ⟦illegible⟧
" | 246 / 19 | Zaki ⟦illegible⟧
" | 246 / 22 | Mori ⟦illegible⟧
" | 246 / 23 | Sarkis ⟦illegible⟧
" | 246 / 25 | Muhammad Mustafa ⟦illegible⟧
" | 246 / 27 | Salem ⟦illegible⟧
" | 246 / ⟦illegible⟧ | Muhammad Sultan
" | 246 / 2 | Abdul Hamid ⟦illegible⟧
" | 246 / 84 | Abdul Razzaq ⟦illegible⟧
" | 246 / 12 | Nazim ⟦illegible⟧
" | 246 / 16 | Al-Sham ⟦illegible⟧
" | 246 / 18 | Taha ⟦illegible⟧
" | 246 / 22 | Souri ⟦illegible⟧
" | 246 / 24 | Ali ⟦illegible⟧
" | 246 / 26 | Abdul Jabbar ⟦illegible⟧
" | 246 / 27 | ⟦illegible⟧
" | 246 / 20 | ⟦illegible⟧
" | 246 / 2 | Haj ⟦illegible⟧
" | 246 / 28 | Kamil Mustafa ⟦illegible⟧
" | 247 / 1 | Muhammad Saeed ⟦illegible⟧
" | 247 / 1 | ⟦illegible⟧
" | 247 / 2 | ⟦illegible⟧
Representative of the Community
Agent of the Community
⟦signature⟧
⟦signature⟧
Hands
(2
⟦illegible⟧
Presidency of
Baghdad Court of Appeal
« Summons for the Appellee »
Case Number:
S: ⟦illegible⟧ / 195
Name and title of the Appellee | His capacity | Place of residence | Name of his attorney
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
It has been decided to set the day ( ⟦illegible⟧ ) corresponding to / / 195 to hear the case appealed against you
by the appellant ⟦illegible⟧ son of ⟦illegible⟧, therefore you must appear before this court at
( 9 ) o'clock in the morning of the mentioned day, and in the event of your failure to attend or send an attorney on your behalf, the trial will proceed
against you in absentia.
Written on: ⟦illegible⟧ / ⟦illegible⟧ / 195
Clerk:
President
⟦illegible circular stamp⟧
The Lawyers
Hossam Abdullah Mazhar
Shaul Moussa
Number: A/171/63
Date: 24/6/63
Honorable President of the Baghdad Court of Appeal
A memorandum submitted by the representatives of the Appellee in
Notification No. ⟦11⟧/S/1962
⟦line⟧
It is not hidden from your esteemed court the importance and seriousness of this case from two aspects:-
First:- Determining the substantive law that governs this case and whether it is Islamic Sharia or Civil
Law.
Second:- The judiciary's protection of Waqf property and not neglecting this protection, which Islamic jurisprudence and Civil
Law have considered part of public order.
Our belief that your esteemed court is most keen on observing these two aspects is what prompts us to present our point
of view.
The First Aspect:-
Islamic Sharia is the one applicable, not the Civil Law:-
⟦line⟧
This lawsuit of ours concerns Waqf property, and Waqf is governed by the principles of Islamic Sharia, and the evidence for that is:-
1- Article (68) of the Civil Law considered the right of Waqf and the right of its lease as original real rights, and that
is in accordance with the Syrian Civil Law in Article 585 and the Egyptian Civil Law in Article (583).
2- The Syrian Civil Law, in the book of original real rights, dedicated a special chapter titled (On Waqf, the Two Leases,
and the Long Lease) starting with Article 998 and ending with Article 1027.
The Egyptian Law also dedicated a special chapter in the book of original real rights, which is the second chapter of the second
part (Rights branching from the right of ownership), and this chapter starts with Article 999 and ends with Article 1014, and in
this chapter, it discussed the leasing of Waqf.
This is despite the fact that the Syrian Civil Law dedicated a special chapter in the lease contract under the title (Leasing of Waqf)
starting with Article 595 and ending with Article 601.
And the Egyptian Civil Law dedicated a special chapter in the lease contract under the title (Leasing of Waqf) starting
with Article 628 and ending with Article 634.
3- As for the Iraqi Civil Law, it dedicated a special chapter for every real right mentioned in Article 68 except for the right of Waqf and its lease.
To be continued
⟦illegible stamp⟧
- 2 -
Logic dictated that it should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of Waqf
and its leasing, as it did for all the real rights mentioned in Article 68. However, it did not do so, nor did it
speak about the leasing of Waqf in the lease contract as the Syrian and Egyptian civil legislators did, because everything
related to Waqf falls under the jurisdiction of the Sharia courts according to the Temporary Sharia Procedure Law of the year
1922. Therefore, the Iraqi civil legislator refrained from detailing provisions within the jurisdiction of the Sharia
courts, which apply Islamic jurisprudence.
From this comparison, it is clear to your esteemed court that the Iraqi civil legislator intentionally avoided following
the Egyptian and Syrian legislators in detailing the provisions of Waqf, its leasing, and others, due to Iraq's social conditions
which prevented it from interfering in matters affecting personal status, Sharia rulings, or Muslim endowments.
Therefore, it intentionality remained silent and left that to the principles of Islamic Sharia according to the second paragraph of
the first article of the Civil Code, provided that these principles are compatible with the Civil Code.
The Court of Cassation's jurisprudence has established that the principles of Islamic Sharia are what govern Waqf cases.
Despite the fact that the Iraqi Civil Code dedicated ten articles (824 - 833) to the Mugharasa contract,
in addition to the general rules included in the lease contract, the Court of Cassation stated in its decision numbered
997/H/962 dated 6/2/1962 (⟦line⟧ it was found that what governs the substantive points
required by the Mugharasa contract related to Waqf property and the planter are the Waqf provisions from Islamic jurisprudence).
If we conclude that Waqf cases are governed by the principles of Islamic Sharia, then we must examine the following
matters in light of the principles of Islamic Sharia, namely:-
1 - The powers of the trustee Emil Saleh Shlomo.
2 - The power of attorney granted by the aforementioned trustee to his agent Edward Yaqoub.
3 - The lease contract concluded by the trustee's agent with the occupying tenants.
4 - The two assignment contracts concluded by the trustee's agent with the appellant.
First:- The powers of the trustee Emil Saleh Shlomo:-
The aforementioned trustee derives his powers from:-
A - The Waqf deed numbered 935/87.
B - The Waqf provisions from Islamic jurisprudence.
As for the Waqf deed, it permits the trustee to lease Waqf properties for a period of one year only, and the trustee must obtain
the approval of the Communal Council for this lease. This means that the trustee's lease for a period of one year is contingent upon
the authorization of the Communal Council; if authorized, it is executed, and if not authorized, the lease is invalidated.
Mushir
— 3 —
As for the rulings of Islamic Sharia, they require that the rental value be equivalent to the fair market rent, and if a contract is concluded with gross unfairness,
the contract is considered voidable in the view of the Majalla (Article 441) and null in the view of the Civil Law (Paragraph 2,
Article 124). The trustee (Mutawalli) must grow the endowment (Waqf) property and not diminish it, regardless of the reasons and motives.
Furthermore, any contract that combines benefit and harm is contingent upon the judge's permission.
Second: The nature of the power of attorney granted by the trustee to Edward Yaqoub:
It is agreed upon in Islamic jurisprudence that a general power of attorney is the rule and specification is the exception.
This is because a general power of attorney is one issued in general, absolute terms without specifying a legal act for it, and which
does not mention one right over another or one authority over another. If some rights and authorities are named, the
absoluteness, generality, and delegation are negated, and the generality and absoluteness no longer serve a purpose.
By referring to the power of attorney deed given by the trustee to Edward Yaqoub, we find it includes two appointments:
First: Appointing him as an agent for himself.
Second: Appointing him as an agent in addition to the endowment.
The principal has detailed the rights and authorities granted to his agent until they exceeded one hundred rights and authorities.
Therefore, this power of attorney is not general but rather restricted by the rights and authorities listed in the power of attorney deed.
Civil law in Article (931) agrees with Islamic jurisprudence in this view; therefore, this
power of attorney is a special power of attorney in the view of Islamic jurisprudence and Civil Law.
As for the argument of the appellant's agents that the power of attorney is general, based on the following phrase:
(... the aforementioned person is an agent for me in pursuing all lawsuits to the last degree of the courts,
and he has the use of all authorities that I can legally use for myself to preserve my rights.)
Therefore, the absolute nature of the authorities applies only to what the lawsuits require, and this absoluteness applies to
the principal's personal rights only and does not extend to the trusteeship. This is evidenced by the principal emphasizing this matter in
three expressions:
1 - An agent for me.
2 - The authorities that I can use for myself.
3 - To preserve my rights.
Therefore, the power of attorney is a special power of attorney, and the agent is restricted by the power of attorney deed and cannot perform any procedure or
disposition not explicitly mentioned in the power of attorney deed, and this deed is devoid of the agent's right to waive the
endowment's rental payments.
The Court of Cassation has previously decided in its general assembly, in its decision numbered
and dated / / 1962, that if some rights are mentioned in a power of attorney, it is a special power of attorney.
- 4 -
And it is not general, and that is in the lawsuit numbered 1601/61 filed in the Baghdad Court of First Instance by
the appellant against Regina Sassoon, the mother of the trustee Emil, to claim an amount of 24 thousand dinars on the claim that Edward
Jacob had waived the rent allowances to him for his contribution to the branches of the endowment and for the same plaintiff in our lawsuit
this, and the court dismissed the lawsuit considering the power of attorney ⟦...⟧ Edward Jacob to perform -
the waiver is a special power of attorney, and this decision was upheld by the Court of Cassation and confirmed by the General Assembly upon request
correction ⟦...⟧
Third: The lease contract concluded by the trustee's agent with the occupants:
The trustee's agent derives his powers from the endowment deed and the power of attorney instrument in his creation of lease contracts for the endowment properties
⟦...⟧ .
As for the endowment deed numbered 87/35, it prohibits the trustee from leasing for more than one year only, and it requires
him to obtain in advance the approval of the Lay Council. Assuming the validity of the agent's lease of the endowment properties for a period of -
three years, then this lease is void by the endowment deed itself from three aspects:
First: Void in the last two years by the text of the founder's condition, which prohibited leasing for more than one year only.
Second: Void in the first year for not obtaining the prior approval of the Lay Council for this lease.
Third: For gross imbalance in the rent allowances (Article 441 of the Majalla, paragraph 2, Article 124 Civil).
Therefore, the lease contracts, assuming their existence, are void, and a void contract is not concluded and does not yield a judgment at all.
Fourth: The waiver contract:
Since the power of attorney given by the trustee Emil Saleh Shalamou to Edward Jacob, in addition to his trusteeship over the endowment,
is a special power of attorney, and the trustee did not grant the mentioned agent the right to waive the rent allowances in the power of attorney instrument,
that is because the trustee does not possess this right at all, as one who lacks a thing cannot give it.
Since the waiver is nothing but a reduction of the endowment's property, and Islamic jurisprudence has mandated the judge to protect
the endowment's property if it suffers imbalance or reduction, and therefore any contract that revolves between benefit and harm concluded by the trustee
requires the judge's permission first.
⟦...⟧ otherwise, the contract does not bind the endowment's liability for anything. Also, the civil ⟦line⟧
legislator followed the same direction as Islamic jurisprudence and considered the judicial protection of the endowment's property to be of public order
(paragraph 2, Article 130).
From all this, it becomes clear to your esteemed court that the waiver contract does not bind the endowment's liability for the following reasons:
First: The endowment is governed by the principles of Islamic Sharia, which refuses the reduction of the endowment's liability if the
judge's permission is not obtained. This waiver is pure harm to the endowment and a loss of an amount of 27,900 dinars for it.
Therefore, this contract does not bind the endowment's liability for not obtaining the judge's permission.
To be continued
⟦illegible stamp⟧