AI English Translation, Pages 276-300
- 5 -
B: Even if the lease contracts with the occupants are assumed to be valid, they are contracts contingent upon the approval of the
Community Council according to the text of the endowment deed (Waqfiyah), which prohibits leasing for more than one year, and the lease for this year
must be pre-authorized by the Community Council. Therefore, anything exceeding one year is void by the text of the founder's condition,
and the lease for the first year is void due to the lack of permission from the Community Council to lease. According to the ruling principle:
"If a thing is void, what is contained within it is also void." Since the lease contracts with the occupants are void, the
assignment contracts based on the lease contracts do not bind the endowment in any way.
Third: The power of attorney is specific, and the trustee did not grant the agent the right to waive lease payments, as the trustee did not possess
this right originally. Therefore, the agent has exceeded the limits of the agency and was not authorized such a right
by the principal, who does not possess it at all.
Fourth: Contracts in Islamic Sharia are "named" (Nominate) and it does not recognize any contract that has no place in the books of jurisprudence,
as Islamic Sharia rejects the theory of contract (obligation) and does not recognize it at all. The assignment contract
has no place among the named contracts mentioned in the books of jurisprudence.
Fifth: While Islamic Sharia only recognizes named contracts, it affirms, on the other hand, the principle of:
"In contracts, consideration is given to intentions and meanings."
Regarding the assignment contract, assuming its validity and applying the principle of "intentions and meanings" in contracts, then
these two contracts are nothing but loan contracts—a loan provided by the appellant and borrowing by the trustee's agent—on the condition
that the loan is repaid from the rental income of the endowment properties over three years.
Borrowing by the endowment is subject to conditions:
1 - An urgent necessity required by the state of the endowment to ward off a liability.
2 - That the endowment bears no harm from paying interest or a guarantee.
3 - That the judge authorizes this loan after confirming the two previous matters.
4 - That this loan is spent on the purpose for which the money was borrowed.
In our lawsuit, not one of these four conditions is met at all. Therefore, this contract
is not binding on the endowment's liability, even assuming its validity.
Thus, even if the loan contract were valid—though it is absolutely invalid—the agent would be personally responsible for it. Whatever
may be said about the lender's good faith, his position as a man of law and an attorney does not exempt him from ignorance
of the law's ruling, and he must bear the responsibility himself.
Seventh: The agent's acknowledgment of receiving the amount of 27,900 Dinars as a loan on the account of the endowment ⟦line⟧
this loan is not binding on the endowment for the reasons mentioned above.
To be continued
— 6 —
Just as the plaintiff's acknowledgment of receiving this amount is not binding on the Waqf's liability, because the Waqf did not need this
money on one hand, and because the judge did not authorize this borrowing on the other hand. Furthermore, this acknowledgment
is contradicted by the apparent circumstances, because the act of delivering and receiving an amount of 27,900 dinars cannot take place except by what
confirms the reality of its delivery and receipt and negates any doubt or suspicion regarding the validity of the incident. The magnitude of this amount
is such that it is not paid except through a bank or financial institution. Also, the plaintiff's retention of this amount would only be at
the bank, and this is what did not happen. Neither the amount of 27,900 dinars was paid in whole or in part by a bank or
money changer, nor was this amount or part of it deposited or kept in the Waqf's account at the bank.
Therefore, no weight is given to an acknowledgment contradicted by apparent circumstances according to the provisions of Islamic Jurisprudence, Article 1577 of the Majalla
and Article 465 of the Civil Code.
The Second Aspect:
Judicial Protection of Waqf Property:
We do not see a necessity to explain the care and protection that Islamic Jurisprudence has bestowed upon Waqf property, making
the judiciary a supervisor
and overseer of Waqf funds and its protection, and the annulment of every contract containing harm or injustice to the Waqf. This is a
recognized matter, and books of jurisprudence have elaborated on it until they equated Waqf property with the property of the House of Muslims.
The civil legislator followed this same direction, making everything related to the Waqf a matter of public order —
(Paragraph of Article 130) and treated Waqf property as state property (Paragraph 2 of Article 124 Civil) and the annulment of
every contract containing injustice to Waqf property (Paragraph 3 of Article 124 Civil).
The waiver contract is a pure harm par excellence to the Waqf property, and therefore the esteemed court is obliged to protect the Waqf property from
a person who conspired against it since the first day of his appointment over it. This protection is achieved by upholding the preliminary judgment.
From all this, it is clear to the esteemed court that the appealed preliminary judgment was in accordance with Islamic Sharia
and the Civil Law as well.
Discussion of the Appellant's Attorneys' Defenses:
The defenses of the appellant's attorneys, in substance and basis, relied on a wrong interpretation of the Civil Law.
Even though this lawsuit of ours is not governed by the Civil Law, but rather by Islamic Sharia.
With our firm confidence that the esteemed court will apply the principles of Islamic Sharia to this lawsuit of ours,
we see no embarrassment in refuting and debunking the defenses of the appellant's attorneys.
First: The contradiction stems from hearing the claim:
This contradiction in the characterization of the two waiver contracts appears and becomes clear in five places:
A — The lawsuit petition says literally (I request .... and after hearing my evidence on —
To be continued
- 7 -
waiving the rent allowances, his obligation to terminate the contract).
B - The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1961 that the two contracts,
even if they were contracts for the waiver of rent allowances, are legally considered lease contracts
based on the text of Article (777) of the Civil Code.
This approach was confirmed in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C - The appeal of the appeal went in the second paragraph to the fact that (the contract of waiver of rent allowances -
is legally considered a lease contract based on the text of Article (777) of the Civil Code, and that these
two contracts' provisions were stated according to the texts of the Civil Code in the chapter on the lease contract.
D - The appellant's two attorneys went in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
to the fact that the two waiver contracts are compensation contracts between the two parties, but as for the nature of this compensation, they remained silent about it.
E - The appellant's two attorneys went in the sixth paragraph of their brief dated 3/10/963 to the fact that
the two contracts are explicitly lease contracts, and they confirmed this approach several times in their brief.
In the session on 4/21/963, the appellant's attorney, Mr. Hussein Al-Haj, emphasized that the contract is an
explicit lease contract. While his colleague, Mr. Abdul Jabbar Al-Tikriti, went to the fact that the waiver contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were based on no foundation of Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf money. This
money which the law required the judiciary to protect from every aggression.
This contradiction alone is sufficient to support the preliminary judgment, as contradiction prevents the hearing of the claim as required
by the seventh article of the Civil Procedure and Commercial Law.
Thus, the only legal characterization of the two waiver contracts - assuming their validity, non-nullity, and that
the apparent situation does not contradict them - is that they are a loan conditioned to be repaid from the rent allowances of the Waqf properties, especially
since the appellant's two attorneys denied that the two waiver contracts were a transfer of ⟦debt⟧ or a transfer of right.
Newness of the contract ⟦line⟧
There are considerations that prevent us from explaining the manner in which the two contracts were made, but a person may be driven
without will or choice; we say nothing but the truth if we say that the two waiver contracts, bad faith was the only motive
for their conclusion, and the explanation for that is:
1 - That Amin Saleh Shaluwa was appointed as a trustee on 1/22/955, according to the document numbered 8/55
issued by the Personal Status Court in Baghdad.
2 - That the aforementioned trustee appointed Edwar Yaqoub as his attorney on 5/20/1955.
3 - That the appellant addressed two notices to the aforementioned attorney in which she requested adherence to the condition of the Waqf founder and its observance.
To be continued
- 8 -
Endowment funds and the non-disposal thereof. However, the agent did not respond to the two aforementioned warnings.
4 - The appellee filed lawsuit No. 56/75 before the Personal Status Court in Baghdad
on 3/6/196 requesting the dismissal of the aforementioned trustee from the trusteeship due to the betrayal committed
by the agent. When the court dismissed the lawsuit on the grounds that the original trustee was unaware of his agent's
treacherous actions, our client filed another lawsuit to dismiss the trustee for the betrayal of his agent in lawsuit No.
30/Sh/59. The aforementioned agent employed countless methods and tricks to prolong
the duration of the dispute. When he found that the noose was tightening and that the court would remove his hand from the trusteeship,
he carried out actions and sham contracts to harm the endowment and his clients. Regarding what Daniel said, it is enough
that this agent is currently lying in prison for acts of forgery and betrayal.
It is sufficient that he created subsequent contracts for the same location of the two contracts subject of this lawsuit with Mr.
Hassoun Al-Ansari in a period of less than a month. So where is the good faith? And where are the amounts received by the agent
mentioned on account of the endowment, which exceed one hundred thousand dinars?
We emphasize to the esteemed court that the contract has no shadow of truth and that the aforementioned agent wanted
to leave the endowment burdened with debts, and for this reason, he created many contracts. The claim that
the appellant was in good faith is a claim refuted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a new number of lawyers in the cases of dismissing his client from the trusteeship. Therefore,
the appellant should have ensured that the person he was contracting with was in good faith, not restricted, and not
subject to a dismissal lawsuit for his betrayal, and that he was authorized to enter into this contract and that the endowment rules permit it. As for
adhering to good faith, it collapses before the reality and circumstances in which the contract took place.
For these reasons and for the reasons stated in our primary and appellate briefs and defenses, we hope to uphold the primary judgment.
With our highest thanks and respect.
Agents of the Appellee
Lawyer | Lawyer
Mohamed Salem Zaidan | Hassan Abdullah Mukhles
The Lawyers
Hassana Abdullah Mazhar
Shaul Moussa
Number: 63/172/L
Date: 63/6/24
Honorable President of the Baghdad Court of Appeal
A memorandum submitted by the agents of the appellee in
Notification No. ⟦11⟧ S / 962
⟦line⟧
It is not hidden from your honorable 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 squandering it, a protection considered by Islamic jurisprudence and Civil
Law to be within public order.
Our belief that your honorable 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⟧
Our lawsuit 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 its leasing as original real rights, following
the Syrian Civil Law in Article 85 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 Part
Two (Rights Derived from the Right of Ownership), and this chapter starts with Article 999 and ends with Article 1014, and in
this chapter, it discussed the leasing of Waqf.
This is despite the fact that the Syrian Civil 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.
To be continued
- 2 -
Logic dictated that it should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of the Waqf
and its leasing, as it did for all the real rights mentioned in Article 68, but it did not do so, nor did it
speak about the leasing of the Waqf in the lease contract as the Syrian and Egyptian civil legislators did, because everything
related to the Waqf falls under the jurisdiction of the Sharia courts according to the Temporary Sharia Procedure Law of the year
1922, and for this reason, the Iraqi civil legislator refrained from detailing provisions within the jurisdiction of the
Sharia courts that apply Islamic jurisprudence.
From this comparison, it becomes clear to your esteemed court that the Iraqi civil legislator intentionally did not follow -
the Egyptian and Syrian legislators in detailing the provisions of the Waqf and its leasing and others, due to Iraq's social circumstances
which prevented it from interfering in matters affecting personal status, Sharia rulings, or the endowments of Muslims.
Therefore, it intentionally 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 jurisprudence of the Court of Cassation 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 2/6/1962 ( ⟦.......⟧ it was found that what governs the substantive points
required by Mugharasa contracts 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, and these matters are:-
1 - The powers of the trustee Emil Saleh Shlomo.
2 - The power of attorney granted by the aforementioned trustee to his agent Edward Yaqoub.
3 - The lease contract concluded by the trustee's agent with the occupying tenants.
4 - The two waiver contracts concluded by the trustee's agent with the appellant.
First: The powers of the trustee Emil Saleh Shlomo:-
The aforementioned trustee derives his powers from:-
A - The Waqf deed numbered 87/935.
B - The Waqf provisions from Islamic jurisprudence.
As for the Waqf deed, it permits the trustee to lease the Waqf properties for a period of one year only, and the trustee must obtain
the approval of the Communal Council for this lease. This means that the trustee's lease for a period of one year is contingent upon
the authorization of the Communal Council; if authorized, it is executed, and if not authorized, the lease is nullified.
— 3 —
According to the provisions of Islamic Sharia, the rental value must 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 must grow the endowment's assets and not diminish them, regardless of the reasons or motives.
Furthermore, any contract that fluctuates between benefit and harm is contingent upon the judge's permission.
Second: The nature of the power of attorney granted by the trustee to Edward Yaqoub:
It is agreed upon in Islamic jurisprudence that 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, generalization, and inclusiveness are negated, and the generalization no longer serves 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.
Furthermore, the principal 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.
The civil legislator 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, relying on the following phrase:
(... the aforementioned is an agent for me in pursuing all lawsuits to the last degree of the courts,
and he has the use of all authorities that I can legally use for myself to preserve my rights.)
Therefore, the absolute nature of the authorities applies to the practice of lawsuits only, 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 myself.
2 — The authorities 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, specifically in its decision numbered
and dated / / 962, that if some rights are mentioned in a power of attorney, it is a special power of attorney.
⟦illegible⟧
- 4 -
And it is not general, and that is in the lawsuit numbered 61/1601 filed at 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 allegation that Edward
Yaqub had waived to him the rental fees for her shares in the branches of the endowment and for the same period in our lawsuit
this, and the court dismissed the lawsuit on the grounds that the power of attorney of Edward Yaqub to perform -
the waiver was a special power of attorney, and this decision was upheld by the Court of Cassation and confirmed by the General Assembly upon the request
for correction.
Third: - 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 25/87, it prevents the trustee from leasing for more than one year only, and it requires
him to obtain in advance the approval of the Spiritual Council for his authorization to lease the endowment properties for a period of -
three years, then this lease is void according to the endowment deed 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 Spiritual Council for this lease.
Third: - For gross imbalance in the rental fees (Article 441 of the Majalla, paragraph 2 of Article 124 of the Civil Code).
Therefore, the lease contracts, assuming they exist, are void, and a void contract is not concluded and does not yield a judgment at all.
Fourth: - The two waiver contracts: -
Since the power of attorney given by the trustee Emil Saleh Shlomo to Edward Yaqub in addition to his trusteeship over the endowment
is a special power of attorney, and the trustee did not grant the mentioned agent the right to waive the rental fees in the power of attorney instrument
that is because the trustee does not possess this right at all, as one who lacks something cannot give it.
Since the waiver is nothing but a reduction of the endowment's yields, and Islamic jurisprudence has mandated the judge to protect
the endowment's money 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 legislator
of the Civil Code followed the same direction as Islamic jurisprudence and considered the judicial protection of endowment money to be part of public order
(paragraph 2 of Article 130).
From all this, it is clear to your esteemed court that the two waiver contracts do not bind the endowment's liability for the following reasons:
First: - The endowment is governed by the principles of Islamic Sharia, which refuses the reduction of the endowment's liability if permission
is not obtained from the judge. The two waiver contracts are 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
- 5 -
- That the lease contracts with the occupants, assuming their validity, are contracts suspended upon the approval of the Communal
Council according to the text of the endowment deed, which prohibits leasing for more than one year, and that the lease for this year
must be authorized in advance by the Communal Council. Whatever exceeds one year is void by the text of the founder's condition.
Therefore, the lease for the first year is void due to the lack of permission from the Communal Council for the lease, and pursuant to the rule stating
that (if a thing is void, what is within it is void), and since the lease contracts with the occupants are void, the
assignment contracts based on the lease contract do not bind the endowment in any way.
- Especially since the trustee (Mutawalli) did not grant the agent the right to waive the rental payments, as the trustee did not possess
the right in the first place; therefore, the agent exceeded the limits of the power of attorney and was not authorized such a right
by the principal, who does not own it originally.
- However, Islamic Sharia is tolerant and does not recognize any contract that has no place in the books of jurisprudence.
Islamic Sharia rejects the theory of contract (obligation) and does not recognize it at all, and the assignment contract
is not among the named contracts mentioned in the books of jurisprudence.
- If Islamic Sharia only recognizes named contracts, it establishes, on the other hand, the rule that
the criteria in contracts are the intentions and meanings.
- Based on the assumption of its validity and applying the rule of criteria in contracts for intentions and meanings, then
the two contracts are considered a loan by the appellant and borrowing by the agent of the trustee. Provided that
the loan is repaid from the rental payments of the endowment properties within three years.
And the loan is subject to conditions:
1 - An urgent necessity required by the state of the endowment to pay a fine.
2 - That the endowment does not bear any damage from paying interest or a guarantee.
3 - That the judge authorizes this loan after verifying the two previous matters.
4 - That this loan is spent on the reason for which the money was borrowed.
- Since these are the facts, none of these four conditions are met, and therefore this contract
does not bind the endowment even assuming its validity.
- If the loan contract has become totally invalid, the agent is personally responsible for it. And regardless of
the lender's good faith, his position as a man of law and advocacy does not exempt him from ignorance
of the law, and he must bear his responsibility himself.
- The agent admitted receiving the amount of 27,900 Dinars as a loan on the account of the endowment ⟦line⟧
and this loan is not binding on the endowment for the reasons mentioned above.
To be continued
- 6 -
Furthermore, Edward's acknowledgment of receiving this amount is not binding on the Waqf's liability because the Waqf did not need this
money on one hand, and because the judge did not authorize this borrowing on the other hand. Also, this acknowledgment
is contradicted by the apparent circumstances, because the act of delivering and receiving an amount of 27,900 dinars cannot take place except by what
confirms the reality of its delivery and receipt and negates any doubt or suspicion regarding the validity of the incident. The magnitude of this amount
is not paid except through a bank or a financial institution. Also, Edward's retention of this amount would only be at
the bank, and this is what did not happen. Neither the amount of 27,900 dinars was paid in whole or in part by a bank or
a money changer, nor did Edward keep this amount or part of it in the Waqf's account at the bank.
Therefore, no weight is given to an acknowledgment contradicted by apparent circumstances according to the provisions of Islamic Jurisprudence, Article 1577 of the Majalla
and Article 465 of the Civil Code.
The Second Aspect: -
Judicial Protection of Waqf Property: -
We do not see a necessity to explain the care and protection that Islamic Jurisprudence has bestowed upon Waqf property, making
the judiciary a supervisor and guardian over Waqf funds and its protection, and invalidating every contract containing harm or injustice to the Waqf. This is a
recognized matter, and books of jurisprudence have elaborated on it until they equated Waqf property with the property of the Muslims' Treasury.
The civil legislator followed this same direction, making everything related to the Waqf a matter of public order
(Paragraph of Article 130) and treated Waqf property as state property (Paragraph 2, Article 124 Civil Code) and invalidated
every contract containing injustice to Waqf property (Paragraph 3, Article 124 Civil Code).
The waiver contract is pure harm by diminishing the Waqf property; therefore, the esteemed court is obliged to protect the Waqf property from
a person who conspired against it since the first day of his appointment over it. This protection is achieved by upholding the preliminary ruling.
From all this, it becomes clear to the esteemed court that the appealed preliminary ruling is in accordance with Islamic Sharia
and the Civil Law as well.
Discussion of the Appellant's Attorneys' Defenses: -
The defenses of the appellant's attorneys, both initially and on appeal, were based on a wrong interpretation of the Civil Law,
even though this lawsuit of ours is not governed by the Civil Law, but rather by Islamic Sharia.
While we have firm confidence that the esteemed court will apply the principles of Islamic Sharia to this lawsuit of ours,
we see no embarrassment in refuting and debunking the defenses of the appellant's attorneys.
First: Contradiction in hearing the claim: -
This contradiction in the characterization of the two waiver contracts appears and becomes clear in five places: -
1- The lawsuit petition says literally (I request .... and after presenting my evidence on -
To be continued
- 7 -
waiving the rent allowances, obligating him to terminate the contract).
B - The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1962 that the two contracts,
even if they were contracts for the waiver of rent allowances, are legally considered lease contracts
based on the text of Article (777) of the Civil Code.
He confirmed this approach in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C - The appeal petition stated in the second paragraph that (the contract for the waiver of rent allowances -
is legally considered a lease contract based on the text of Article (777) of the Civil Code, and that these two
contracts' provisions were set forth according to the texts of the Civil Code in the chapter on lease contracts.
D - The appellant's attorneys stated in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
that the two waiver contracts are compensation contracts between the two parties, but they remained silent about the nature of this compensation.
E - The appellant's attorneys stated in the sixth paragraph of their brief dated 3/20/963 that
the two contracts are explicitly lease contracts, and they confirmed this approach several times in their brief.
In the session on 4/21/963, the appellant's attorney, Mr. Hussein Al-Haj, emphasized that the contract is an
explicit lease contract. Meanwhile, his colleague, Mr. Abdul Jabbar Al-Tikriti, stated that the waiver contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were established on no basis of Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf property. This
property, which the law has mandated the judiciary to protect from every aggression.
This contradiction alone is sufficient to support the preliminary judgment, as contradiction prevents the hearing of the claim as required
by Article Seven of the Civil and Commercial Procedure Law.
Thus, the only legal characterization of the two waiver contracts - assuming their validity, non-nullity, and that
the apparent facts do not contradict them - is that they are a loan contract conditioned on its repayment from the rent allowances of the Waqf properties, especially
since the appellant's attorneys denied that the two waiver contracts were a ⟦debt⟧ assignment or a right assignment.
Seriousness of the contract: ⟦line⟧
There are considerations that prevent us from explaining the manner in which the two contracts were concluded, but one may be led
without will or choice to say nothing but the truth if we say that the two waiver contracts were driven solely by bad faith
in their conclusion, and the explanation for that is:
1 - Adele Saleh Shlomo was appointed as a trustee on 2/22/955, pursuant to the deed numbered 8/55
issued by the Personal Status Court in Baghdad.
2 - The aforementioned trustee appointed Edward Yaqoub as his agent on 5/30/1955.
3 - The appellant sent two notices to the aforementioned agent requesting compliance with and observance of the founder's condition ⟦line⟧
To be continued
— 8 —
Endowment funds and the lack of negligence therein. However, the agent did not respond to the two aforementioned warnings.
4 — The appellee filed lawsuit No. 56/75 before the Court of Personal Status in Baghdad
on 6/3/1956, requesting the dismissal of the aforementioned trustee from the trusteeship due to the betrayal committed
by the agent. When the court dismissed the lawsuit on the grounds that the original trustee was unaware of his agent's
treacherous actions, our client filed another lawsuit to dismiss the trustee for the betrayal of his agent in lawsuit No.
30/Sh/59. The aforementioned agent employed countless methods and tricks to prolong
the duration of the dispute. When he found that the noose was tightening around his neck and that the court would remove his hand from the trusteeship,
he carried out fictitious actions and contracts to harm the endowment and his clients, as Daniel said, and it is enough
that this agent is currently lying in prison for acts of forgery and betrayal.
It is sufficient that he created a subsequent contract for the same location as the two contracts subject of this lawsuit with Mr.
Hassoun Al-Ansari in a period of less than a month. So where is the good faith? And where are the amounts received by the agent
mentioned on the account of the endowment, which exceed one hundred thousand dinars?
We assure the esteemed court that the contract has no shadow of truth and that the aforementioned agent wanted
to leave the endowment burdened with debts, and for this reason, he created many contracts. The claim that
the appellant was in good faith is a claim contradicted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a large number of lawyers in the cases of dismissing his client from the trusteeship. Therefore,
the appellant should have ensured that the person he was contracting with was in good faith, not restricted, and that
no dismissal lawsuit had been filed against him for his betrayal, and that he was authorized to enter into this contract and that the endowment rules permit it. As for
clinging to good faith, it collapses in the face of the reality and circumstances in which the contract was concluded.
For these reasons and for the reasons stated in our primary and appellate briefs and defenses, we hope to uphold the primary judgment.
With highest thanks and respect to your Excellencies.
Agents of the Appellee
Lawyer | Lawyer
Muhammad Salem Zaidan | Hassan Abdullah Muzaffar
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number ⟦the⟧ / 2 / ⟦...⟧
Date 24 / 6 / 63
The Honorable President of the Baghdad Court of Appeal
A memorandum submitted by the attorneys of the appellee in
Case file number 11 S / 962
The importance and seriousness of this case are not hidden from your esteemed court from two aspects: -
First: - Determining the substantive law that governs this case and whether it is Islamic Sharia or Civil Law.
Second: - Judicial protection for Waqf property and not neglecting it, a protection that Islamic jurisprudence and Civil Law consider to be within public order.
Our belief that your esteemed court is most keen on observing these two aspects is what prompts us to present our viewpoint.
The first aspect: -
Islamic Sharia is the one applicable, not Civil Law: -
This lawsuit of ours concerns Waqf property, and Waqf is governed by the principles of Islamic Sharia, and the evidence for that is: -
1- Article (68) of the Civil Code considered the right of Waqf and the right of its lease as original real rights, following the Syrian Civil Code in Article 585 and the Egyptian Civil Code in Article (583).
2- The Syrian Civil Code, in the book of ⟦original⟧ real rights, dedicated a special chapter titled (On Waqf, the two leases, and the long lease) starting with Article 998 and ending with Article 1027.
The Egyptian law also dedicated a special chapter in the book of original real rights, which is the second chapter of the second part (Rights derived from the right of ownership), and this chapter starts with Article 999 and ends with Article 1014, and in this chapter, it discussed the leasing of Waqf.
This is despite the fact that the Syrian Civil Code dedicated a special chapter in the lease contract under the title (Lease of Waqf) starting with Article 595 and ending with Article 601.
And the Egyptian Civil Code dedicated a special chapter in the lease contract under the title (Lease of Waqf) starting with Article 628 and ending with Article 634.
3- As for the Iraqi Civil Code, it has dedicated a special chapter for every real right mentioned in Article 68 except for the right of Waqf and its lease.
To be continued
- 2 -
Logic dictated that he should follow the Syrian and Egyptian legislators by dedicating a special chapter to the provisions of Waqf
and its leasing, as he did for all the real rights mentioned in Article 68, but he did not do so, nor
did he speak about the leasing of Waqf in the lease contract as the Syrian and Egyptian civil legislators did, because everything
related to Waqf falls under the jurisdiction of the Sharia courts according to the Temporary Sharia Procedure Law of the year
1922, and for this reason, the Iraqi civil legislator refrained from detailing provisions within the jurisdiction of the
Sharia courts that apply Islamic jurisprudence.
From this comparison, it becomes clear to your esteemed court that the Iraqi civil legislator intentionally did not follow
the Egyptian and Syrian legislators in detailing the provisions of Waqf and its leasing and others, due to Iraq's social circumstances
which prevented him from interfering in what touches personal status or Sharia rulings or the endowments of Muslims,
and for this reason, he intended this silence and left that to the principles of Islamic Sharia according to the second paragraph of
the first article of the Civil Code, provided that these principles are compatible with the Civil Code.
The Court of Cassation's jurisprudence has established that the principles of Islamic Sharia are what govern Waqf cases.
Despite the fact that the Iraqi Civil Code dedicated ten articles (824 - 833) to the Mugharasa contract,
apart from the general rules included in the lease contract, the Court of Cassation stated in its decision numbered
997 / H / 962 dated 2 / 6 / 1962 ( ⟦.......⟧ it was found that what governs the substantive points
required by Mugharasa contracts related to Waqf property and Mugharasa are the provisions of Waqf from Islamic jurisprudence ).
If we conclude that Waqf cases are governed by the principles of Islamic Sharia, then we must examine the following
matters in light of the principles of Islamic Sharia, and the matters are:-
1 - The powers of the trustee Emil Saleh Shlomo.
2 - The power of attorney granted by the aforementioned trustee to his agent Edward Yaqoub.
3 - The lease contracts concluded by the trustee's agent with the occupying tenants.
4 - The two waiver contracts concluded by the trustee's agent with the appellant.
First: The powers of the trustee Emil Saleh Shlomo:-
The aforementioned trustee derives his powers from:-
A - The Waqf deed numbered 87 / 935.
B - The provisions of Waqf from Islamic jurisprudence.
As for the Waqf deed, it allows the trustee to lease the Waqf properties for a period of one year only, and the trustee must obtain
the approval of the Communal Council for this lease. This means that the trustee's lease for a period of one year is contingent upon
the authorization of the Communal Council; if authorized, it is executed, and if not authorized, the lease is invalidated.
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As for the rulings of Islamic Sharia, they require that the rental value be equivalent to the fair market rent, and if a contract is concluded with gross unfairness,
the contract is considered voidable in the view of the Majalla (Article 441) and null in the view of the Civil Law (Paragraph 2,
Article 124). The trustee (Mutawalli) must develop the endowment (Waqf) property and not diminish it, regardless of the reasons or motives.
Furthermore, any contract that fluctuates between benefit and harm is contingent upon the judge's permission.
Second: The nature of the power of attorney granted by the trustee to Edward Yaqoub:
It is agreed upon in Islamic jurisprudence that general power of attorney is the rule and specification is the exception.
This is because a general power of attorney is one issued in general, absolute terms without specifying a legal act for it, and which
does not mention one right over another or one authority over another. If some rights and authorities are named, the
absoluteness, generality, and delegation are negated, and the absoluteness and generality no longer serve a purpose.
By referring to the power of attorney document given by the trustee to Edward Yaqoub, we find it includes two appointments:
First: Appointing him as an agent for himself.
Second: Appointing him as an agent in addition to the endowment.
Furthermore, the principal has detailed the rights and authorities granted to his agent until they exceeded one hundred rights and authorities.
Therefore, this power of attorney is not general, but rather restricted to the rights and authorities listed in the power of attorney document.
Civil law in Article (931) agrees with Islamic jurisprudence in this view, and therefore this
power of attorney is a special power of attorney in the view of Islamic jurisprudence and civil law.
As for the argument of the appellant's agents that the power of attorney is general, based on the following phrase:
(...from him, the aforementioned is an agent for me in pursuing all lawsuits to the last degree of the courts,
and he has the use of all authorities that I can use for myself legally to preserve my rights.)
Therefore, the absolute nature of the authorities applies only to what the lawsuits require, and this absoluteness applies to
the principal's personal rights only and does not extend to the trusteeship. This is evidenced by the fact that the principal emphasized this matter in
three expressions:
1 - An agent for me.
2 - The authorities that I can use for myself.
3 - To preserve my rights.
Therefore, the power of attorney is a special power of attorney, and the agent is bound by the power of attorney document and cannot perform any procedure or
disposition not explicitly mentioned in the power of attorney document, and this document is devoid of the agent's right to waive the
endowment's rental values.
The Court of Cassation has previously decided in its general assembly, in its decision numbered
and dated / / 962, that if some rights are mentioned in the power of attorney, it is a special power of attorney.
⟦illegible stamp⟧
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And it is not complete, and that is in the lawsuit numbered 1601/61 filed before the Baghdad Court of First Instance
Appealed against Regina Sassoon, the mother of the trustee Emil, for her claim of an amount of 24 thousand dinars, alleging that Edward
Yaqub had waived to him the rental fees for her shares in the same endowment properties and for the same period in our lawsuit
this, and the court dismissed the lawsuit considering the power of attorney of Edward Yaqub to perform -
the waiver as a special power of attorney, and this decision was upheld by the Court of Cassation and confirmed by the General Assembly upon the request
for correction.
Third: - Lease contracts concluded by the trustee's agent with the occupants: -
The trustee's agent derives his powers from the endowment deed and the power of attorney document in his creation of lease contracts for the endowment properties
⟦.........⟧ .
As for the endowment deed numbered 87/35, it prohibits the trustee from leasing for more than one year only, and it requires
him to obtain in advance the approval of the Communal Council. Even assuming the validity of the agent's lease of the endowment properties for a period of -
three years, this lease is void by the endowment deed itself from three aspects: -
First: - Void in the last two years by the text of the founder's condition which prohibited leasing for more than one year only.
Second: - Void in the first year for failing to obtain the prior approval of the Communal Council for this lease.
Third: - For gross imbalance in the rental fees (Article 441 of the Majalla, paragraph 2 of Article 124 of the Civil Code).
Therefore, the lease contracts, assuming they exist, are void, and a void contract is not concluded and does not produce any legal effect at all.
Fourth: - The two waiver contracts: -
Since the power of attorney given by the trustee Emil Saleh Shlomo to Edward Yaqub in addition to his trusteeship over the endowment
is a special power of attorney, and the trustee did not grant the mentioned agent the right to waive the rental fees in the power of attorney document
because the trustee does not possess this right in the first place, as one who lacks something cannot give it.
For the waiver is nothing but a reduction of the endowment's property, and Islamic jurisprudence has mandated the judge to protect
the endowment's property if it suffers imbalance or reduction. Therefore, any contract revolving between benefit and harm concluded by the trustee
requires the judge's permission first; otherwise, the contract does not bind the endowment's liability to anything. Furthermore, the civil
legislator followed the same direction as Islamic jurisprudence and considered the judicial protection of endowment property to be part of public order
(paragraph 2 of Article 130).
From all this, it becomes clear to your esteemed court that the two waiver contracts do not bind the endowment's liability for the following reasons:
First: - The endowment is governed by the principles of Islamic Sharia, which refuses the reduction of the endowment's liability if the
judge's permission is not obtained. The two waiver contracts are pure harm to the endowment and a loss of an amount of 27,900 dinars to it.
Therefore, this contract does not bind the endowment's liability due to the failure to obtain the judge's permission.
To be continued
— 5 —
Second:— That the lease contracts with the occupants, assuming their validity, are contracts suspended pending the approval of the
Ecclesiastical Council by the text of the endowment deed (Waqfiyah), which prohibits leasing for more than one year, and that the lease for this year
must be pre-authorized by the Ecclesiastical Council. Therefore, anything exceeding one year is void by the text of the founder's condition,
and the lease for the first year is void due to the lack of permission from the Ecclesiastical Council to lease, and according to the established rule:
if a thing is void, what is contained within it is also void. Since the lease contracts with the occupants are void, the two
assignment contracts based on the lease contracts do not bind the endowment to anything.
Third:— That the power of attorney is specific, and the trustee (Mutawalli) did not grant the agent the right to waive the lease payments, as the trustee did not possess
this right in the first place. Therefore, the agent has exceeded the limits of the power of attorney and was not authorized for such a right
by the principal, who does not possess it at all.
Fourth:— That contracts in Islamic Sharia are named (Nominate), and it does not recognize any contract that has no place in the books of jurisprudence,
as Islamic Sharia rejects the theory of contract (obligation) and does not recognize it at all, and the two assignment contracts
have no place among the named contracts mentioned in the books of jurisprudence.
Fifth:— If Islamic Sharia only recognizes named contracts, it establishes, on the other hand, the rule:
"In contracts, consideration is given to intentions and meanings."
And the two assignment contracts, assuming their validity and applying the rule of consideration in contracts for intentions and meanings, then
the nature of these two contracts is a loan from the appellant and a borrowing by the trustee's agent, provided that
the loan is repaid from the lease payments of the endowment properties over three years.
Borrowing by the endowment is subject to conditions:—
1 — An urgent necessity required by the state of the endowment to pay off a liability.
2 — That the endowment does not bear any harm from paying interest or a guarantee.
3 — That the judge authorizes this loan after verifying the two previous matters.
4 — That this loan is spent on the reason for which the money was borrowed.
In our lawsuit, none of these four conditions are met at all; therefore, this contract
is not binding on the endowment's liability, assuming its validity.
Therefore, if the loan contract were valid—and it is not valid at all—the agent would be personally responsible for it. Whatever
is said about the good faith of the lender, his position as a man of law and advocacy does not exempt him from ignorance
of the rule of law, and he must bear his responsibility himself.
Seventh:— Regarding the agent's acknowledgment of receiving an amount of 27,900 Dinars as a loan on the account of the endowment,
this loan is not binding on the endowment for the reasons mentioned above.
To be continued
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Furthermore, Edward's acknowledgment of receiving this amount is not binding on the Endowment's liability, because the Endowment did not need this
money on one hand, and because the judge did not authorize this borrowing on the other hand. Moreover, this acknowledgment
is contradicted by the apparent circumstances, because the event of delivering and receiving an amount of 27,900 Dinars cannot take place except through what
confirms the reality of its delivery and receipt and negates any doubt or suspicion regarding the validity of the incident. The magnitude of this amount
is not paid except through a bank or a financial institution. Also, Edward's retention of this amount would only be at the
bank, and this is what did not happen; neither the amount of 27,900 Dinars was paid in whole or in part through a bank or
a money changer, nor did Edward keep this amount or part of it in the Endowment's account at the bank.
Therefore, no weight is given to an acknowledgment that is contradicted by the apparent circumstances, according to the provisions of Islamic Jurisprudence, Article 1577 of the Majalla
and Article 465 of the Civil Code.
The second aspect:
Judicial protection of Endowment property:
We do not see a necessity to explain the care and protection that Islamic Jurisprudence has bestowed upon Endowment property, making
the judiciary a supervisor and overseer of Endowment funds and its protector, and nullifying every contract involving harm or unfairness to the Endowment. This is a
settled matter, and books of jurisprudence have elaborated on it to the point of equating Endowment property with the property of the Muslim treasury ⟦line⟧
The civil legislator followed this same path, making everything related to the Endowment a matter of public order
(Paragraph of Article 130), and treating Endowment property the same as state property (P 2, Article 124 Civil), and nullifying
every contract involving unfairness to Endowment property (Paragraph 3, Article 134 Civil).
The waiver contract is pure harm by diminishing the Endowment's property; therefore, the esteemed court is obliged to protect the Endowment property from
a person who conspired against it since the first day of his appointment over it. This protection is achieved by upholding the preliminary judgment.
From all of this, it is clear to the esteemed court that the appealed preliminary judgment was consistent with Islamic Sharia
and with the Civil Law as well.
Discussion of the appellant's attorneys' defenses:
The defenses of the appellant's attorneys, initially and on appeal, were based on an erroneous interpretation of the Civil Law.
Even though our lawsuit is not governed by Civil Law, but rather by Islamic Sharia.
With our firm confidence that the esteemed court will apply the principles of Islamic Sharia to our lawsuit,
we see no harm in refuting the appellant's attorneys' defenses and debunking them.
First: Contradiction prevents the hearing of the claim:
This contradiction in characterizing the two waiver contracts appears and becomes clear in five places:
1- The petition of the lawsuit says literally (I request ⟦....⟧ and after hearing my evidence on -
To be continued
— 7 —
Assignment of rental allowances, compelling him to terminate the contract).
B — The plaintiff's attorney stated in the second paragraph of his brief dated 11/20/1962 that the two contracts,
even if they were assignment contracts for rental allowances, are legally considered lease contracts
based on the text of Article (777) of the Civil Code.
He confirmed this approach in paragraph B of the same second paragraph and in the fourth paragraph ⟦line⟧
C — The appeal of the appeal stated in the second paragraph that (the contract of assignment of rental allowances —
is legally considered a lease contract based on the text of Article (777) of the Civil Code, and these two
contracts were governed by the provisions of the Civil Code in the chapter on lease contracts.
D — The appellant's attorneys stated in the fourth paragraph of their brief dated 3/20/63 and 5/22/963
that the two assignment contracts are compensatory contracts between the two parties, but as for the nature of this compensation, they remained silent about it.
E — The appellant's attorneys stated in the sixth paragraph of their brief dated 3/20/963 that
the two contracts are explicitly lease contracts, and they confirmed this approach several times in their brief.
In the session on 4/21/963, the appellant's attorney, Mr. Hussein Al-Hajj, emphasized that the contract is an
explicit lease contract. Meanwhile, his colleague, Mr. Abdul Jabbar Al-Tikriti, stated that the assignment contract is an unnamed contract.
From this contradiction, it is clear to your esteemed court that the two contracts were established on no basis in Islamic jurisprudence
or civil law, due to the lack of a cause for the contract except for conspiracy and collusion over the Waqf funds. This
money, which the law has mandated the judiciary to protect from every aggression.
This contradiction alone is sufficient to support the preliminary judgment, as contradiction prevents the hearing of the claim as required
by Article Seven of the Civil and Commercial Procedure Law.
Thus, the only legal characterization for the two assignment contracts — assuming their validity, non-nullity, and that
the apparent facts do not contradict them — would be a loan contract conditioned on repayment from the rental allowances of the Waqf properties, especially
since the appellant's attorneys denied that the two assignment contracts were a ⟦debt⟧ transfer or a right transfer.
Seriousness of the contract: —
There are considerations that prevent us from explaining the manner in which the two contracts were concluded, but one may be led
without will or choice; we do not speak falsely if we say that bad faith was the sole motive for the two assignment
contracts, and the explanation for that is: —
1 — Emil Saleh Shlomo was appointed as a trustee on 2/22/955, pursuant to the deed numbered 8/55
issued by the Personal Status Court in Baghdad.
2 — The aforementioned trustee appointed Edward Yaqoub as his agent on 5/30/1955.
3 — The appellant sent two notices to the aforementioned agent requesting adherence to the condition of the endower and the care
To be continued
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Endowment funds and the lack of negligence therein. However, the agent did not respond to the two mentioned warnings.
4 - The appellee filed lawsuit No. 56/75 before the Personal Status Court in Baghdad
on 6/3/1956, requesting the dismissal of the mentioned trustee from the trusteeship due to the betrayal committed
by the agent. When the court dismissed the lawsuit on the grounds that the original trustee was unaware of his agent's
treacherous actions, our client filed another lawsuit to dismiss the trustee for the betrayal of his agent in lawsuit No.
30/Sh/59. The mentioned agent employed countless methods and tricks to prolong
the duration of the dispute. When he found that the noose had tightened around his neck and that the court would remove his hand from the trusteeship,
he carried out fictitious actions and contracts to harm the endowment and his client ⟦Atta Taha⟧ Daniel. It is sufficient
that this agent is currently lying in prison for acts of forgery and betrayal.
It is sufficient that he created subsequent contracts for the same location of the two contracts subject of this lawsuit with Mr.
Hassoun Al-Ansari in a period of less than a month. So where is the good faith? And where are the amounts received by the mentioned agent
on account of the endowment, which exceed one hundred thousand dinars?
We assure the esteemed court that the contract has no shadow of truth and that the mentioned agent wanted
to leave the endowment burdened with debts, and for this reason, he created many contracts. The statement by the
appellant that he was in good faith is a statement contradicted by reality, as Edward Yaqoub was a client of the court for six
continuous years, mobilizing a large number of lawyers in the cases of dismissing his client from the trusteeship. Therefore,
the appellant should have ensured that the person he was contracting with was in good faith, not restricted, and that
no dismissal lawsuit had been filed against him for his betrayal, and that he was authorized to conduct this contract and that the endowment provisions permit it. As for
clinging to good faith, it collapses before the reality and circumstances in which the contract took place.
For these reasons and for the reasons stated in our primary and appellate briefs and defenses, we hope to uphold the primary judgment.
With our highest thanks and respect to your Excellency.
| Agents of the Appellee |
Lawyer | | Lawyer
Hassan Abdullah Mazhar | | Muhammad Salem Zaidan
60/8/21
60/11/24
961/1/2
Kadukuri 20
961/7/2
For a period of two years
Starting from 1 Muharram 81 until 1 Muharram 83 AH until 42 ⟦illegible⟧
Thousand
Dinar
4/ The first party must provide to the second party within
twenty days from the date of signing this agreement
⟦illegible⟧ detailed with the names of its personnel and all its tools
and the party with their rental rates and what is not occupied
of them, and the second party shall not replace the personnel
without opposition or interference
Al-Muharram 1380 on 60/6/26 on 60/8/21
60/11/24 61/4/2 62/1/7
62/4/28 63/4/2 64/4/28
64/4/29 61/7/2 61/8/16 ⟦illegible⟧
6/25
8/21
11/24
⟦illegible⟧ in the contract ⟦illegible⟧
As much as it may have been ⟦illegible⟧
Is it permissible for the lessee to guarantee 402 a clause exempting other parties
Execution of his obligations 400 a clause if the debtor breaches ⟦illegible⟧ ⟦illegible⟧
by a foreign person
This article speaks about the lessee's assignment to others
And there is no article in the lease contract mentioned
in the Civil Law that speaks about the lessor's assignment
of the lease payments due to him to others
which may or may not be realized
The Chosen One
822 - 824
It was found that what governs the substantive activity
which regulates real estate contracts attached
to the Waqf and real estate are the provisions of the Waqf
from Islamic jurisprudence.
Syrian | Egyptian
85 | 82
991 - 1027 | 999 - 1014 and the rights branching from
in the Waqf, the two leases, and the long lease | the pure which are in the Waqf property
995 - 601 | 828 - 834
2997 / 2 / 1964
2 / 2 / 64
Guardianship deed No. 55/8 on 4/22/55
Dismissal lawsuit 56/75 on 6/2/56
The first house of the deed 87/24, the budget and the inheritance share were submitted
1- A decision must be made on the substantive law that applies to the subject
of our lawsuit: whether Sharia or Civil law applies.
Deciding on this aspect <del>will determine</del> will facilitate our task
in discussing the power of attorney, the lease contract, the
consumption contract, and the waiver.
2- The appellant's attorney based his appeal on the fact that the contract
between his client and Al-Jari is a waiver contract governed by Articles 775 and 776
thereof.
3- This article is located in the fourth chapter of shops
(and his waiver of the lease)
Article 775 states that the lessee may sublease the leased property
And Article 776 states that in the event the lessee subleases the property, the relationship
between the lessor and the first lessee remains subject to the provisions of the first
lease contract, while the relationship between the first and second lessee is governed
by the provisions of the second lease contract.
As for Article 777, which the appellant relied upon, it states that in the case of waiver
where the lease is waived, the assignee replaces the lessee
in all rights and obligations under the terms of the first
lease contract; however, the lessee remains a guarantor for the assignee in
In the beginning, especially the advertisements, decisions, and previous fees mentioned
and the temporary advertisement that was prepared at the time, in a manner that does not prevent
the implementation of rental allowances upon advertisement and the mentioned land
and the signing and termination of lease contracts, and regarding administrative and basic
stories and objections concerning his properties only, and reconciliation with
tenants and acknowledgment.
Under letter No. 2/1/24
Date of power of attorney 20/5/955
And he has the right to drop all lawsuits filed for personal rights
which can be dropped for benefit in ⟦intentions⟧
Paragraph 4 of the regulation dated 22/2/20
In the contractual fronts, it is accepted in the mention, and if a word is received from it, it is only lowered
my entitlement is a certification between two parties and not for some in conflict
while the appellate and primary regulations were built on other conditions
in Article 101 Civil
Paragraph 6 of regulation 7/2
The previous claims that the contract is explicitly a lease contract and that
the will of the contracting parties met on this matter
Also, the waiver is excluded from this case because it is ⟦illegible⟧
Governorate
First Lawyer Nasser Sobhi
To the Honorable President of the Baghdad Region Court of Appeal
Appellant - Plaintiff - Hamid Majid Al-Obaidi - represented by lawyers Abdul Jabbar Al-Tikriti and Hussein
Al-Haj Ali.
Appellee - Defendant - Chairman of the Administrative Committee for Iraqi Jews in his capacity as trustee of
the endowments of Menahem and Sassoon Daniel - represented by lawyer Shaul Moshi.
Explanatory memorandum submitted by the Appellant's lawyers:
Our client's appeal is based on the appealed judgment of the Court of First Instance, which ruled
to dismiss our client's case on the grounds that the trustee's agent exceeded the limits of his authority, thereby harming the interest of the endowment by concluding
the two waiver contracts, and that because of this, he is held personally liable, and no legal effect is entailed upon the endowment ⟦...⟧
The point that requires consideration and adjudication on appeal in this regard is whether
the trustee's agent, by concluding the two waiver contracts, harmed the interest of the endowment and exceeded the limits of his authority or not?
The word (waiver) may be used in the sense of donation and the relinquishment of a right without compensation, and it may be used
in the sense of leaving a specific property or a specific right in exchange for a specific consideration. The intended meaning of this
word when used in some contracts is derived from the form of the contract, its content, and the intention of the contracting parties.
If a person waives, within a contract, a property or a right belonging to him without compensation, the contract is a contract of donation or a contract
of release and relinquishment. However, if he waives that in exchange for consideration, the contract is a contract of exchange. The capacity required
in donation contracts differs from the capacity in exchange contracts.
The trustee, and naturally his agent, does not possess the capacity to enter into a donation contract regarding endowment property or to relinquish
one of its rights. If he does so, he is personally liable for the results of the contract, because donating endowment property
is a pure harm to the endowment.
However, the trustee or his authorized agent for the management of the endowment possesses the right to enter into any contract of
exchange required by the type, nature, and good management of the endowed properties. He has the right to lease them and collect the rent
himself or through his messenger or agent. He has the right to cultivate them himself or through his agent and collect and sell their yields
if the endowment is agricultural land. He also has the right to enter into sharecropping, irrigation, or plantation contracts regarding them.
He has the right to give the yields and fruits of the trees by way of commitment and collect their prices. He is authorized by Sharia
and law to perform any of these contracts and others as the situation requires, provided that there is no gross
injustice and that the consideration is not less than the fair rent or fair price.
- To be continued -