AI English Translation, Pages 301-325
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If this is the case, can the two contracts concluded by the Mutawalli's agent be considered contracts of
donation, and the interpretation of the word "waiver" mentioned therein as a donation of the endowment's money and a forfeiture of one of its rights
without compensation?
Despite the fact that this waiver was in exchange for a known consideration amounting to (27,000) dinars received by the
Mutawalli's agent for the account of the endowment and within a contract of exchange added to the endowment? If conclusive evidence is established that
these two contracts are not donation contracts, but rather exchange contracts from which the endowment benefited
greatly, does there remain any basis for the claim that the endowment was harmed by the conclusion of the two mentioned contracts? And if the
occurrence of harm to the interest of the endowment is negated and the benefit to the endowment side is realized by concluding the two mentioned contracts, does
there remain any basis for saying that the agent exceeded the limits of his authority, regardless of the legal characterization of the two mentioned contracts??
The answer to all this is clear, and accordingly, the two mentioned contracts are exchange contracts which the
Mutawalli or his representative in the management of the endowment is entitled to initiate, and they are not donation contracts, and the agent did not exceed
the limits of his authority, and no harm was caused to the interest of the endowment by his conclusion of the two mentioned contracts.
All these matters and others were explained by us in the explanatory memorandum dated 3/20/963, but the question of
your esteemed court in the session dated 3/20/963 required us to clarify more than what we had explained.
First - The Court of First Instance did not address in its judgment the validity of the two contracts subject of the lawsuit, and this is
obvious because the claim is for the rescission of the two contracts and the return of the amount paid to our client with compensation,
and we did not request in our lawsuit the execution of the two contracts so that the research would be drawn to the subject of the validity of the two contracts. Also,
the defendant - the appellee - did not claim the invalidity of the two contracts or their non-enforceability, and therefore
any raising of this issue in the Court of Appeal constitutes a new claim, and this is not permissible in
the Court of Appeal.
Second - Since our lawsuit was focused on the request to rescind the two contracts and we explained the legal reasons for that, the
result resulting from the rescission has been clarified by Article 180 of the Civil Code,
which is the recovery of the paid consideration with compensation.
Third - Since the purpose of the two contracts subject of the lawsuit is the benefit intended by our client from
(Sarqafliya) or the increase in the rent in the event that the occupants of the endowments breach their lease contracts,
therefore, the method of gain intended by our client is considered a type of speculation stipulated in
Article (13) of the Commercial Law.
Since the annual rent of the endowments was considered a basis for determining the consideration paid by our client
to the appellee, and since the previous consideration was unknown to our client, our client stipulated
to the appellee in the third clause of the two mentioned contracts that the previous rent amounts
should not be less than the consideration he paid to him so that our client would at least guarantee the recovery of what he paid
to avoid loss, and this is his right under Article 13 of the Commercial Law.
Also, this condition is extremely appropriate for the purpose intended by our client from the benefit, and this condition is valid
under Article (131) of the Civil Code.
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⟦It is not permissible to raise⟧
⟦any statement⟧
⟦in the appeal⟧
⟦that was not⟧
⟦mentioned⟧
⟦and just as⟧
⟦the subject of⟧
⟦the rescission lawsuit⟧
⟦is the benefit⟧
⟦intended by⟧
⟦our client⟧
⟦from the two contracts⟧
⟦and that the recovery of⟧
⟦the consideration⟧
⟦and the Mutawalli⟧
⟦exceeded⟧
⟦the limits of⟧
⟦his authority⟧
⟦is his right and under the Article⟧
⟦expulsion of the consideration⟧
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Just as the fifth and seventh conditions of the two mentioned contracts came as an affirmation to avoid loss
and in agreement with the purpose of the contracting.
Fourth - And whereas the third condition of the two contracts is clear, and in it the amount of the annual consideration
paid by our client was determined on the basis of the same annual amount for the endowments' considerations, it follows obviously
that the lease period which may fall within our client's period, its consideration shall be owned by our client because
he paid its amount in full to the appellee; therefore, our client stipulated to the appellee in
the fourth and first clauses of the two contracts the waiver of the considerations and the endorsement of their promissory notes for the period that
may fall within our client's period.
This is the intent of the first and fourth conditions of the two contracts. These two conditions are considered binding
under Article (131) Civil and are fully consistent with the purpose intended by our client from the contracting
and they ensure for him the recovery of what he paid at least, should he fail to benefit from the rent difference
or the (Key Money/Sarqafliya).
It appears to your esteemed court that all the substantive conditions of the two contracts have combined to fulfill the intended
meaning of the contracting, which is to seek benefit from the key money or the increase in the lease consideration in
the event that the tenants breach their lease contracts. Exploiting this matter might be difficult
for the appellee due to his weakness against the strength and intransigence of the tenants, but for our client
the matter is easy given his knowledge of the provisions of the law, his lack of intimidation by the tenants, and his experience
in litigation as a lawyer. Had the two contracts been executed and not breached by the appellee, our client would have benefited greatly
given the vast difference between the lease consideration at the present time compared to what it was in the
tenants' contracts.
The law did not prohibit contracting for such matters; on the contrary, it has approved all contracts
whatever they may be, provided they do not violate public order or morals, Article (75) Civil.
The two contracts subject of the lawsuit have secured for the endowment the collection of the same previously determined lease considerations
from our client in a single deal for a period of three years in exchange for the speculation undertaken by our client with the intent
of profit, which he lost due to the appellee's violation of the provisions of the two mentioned contracts. Whatever
the result by which these two contracts should be named, they are valid and have secured for the endowment
its determined revenues for a period of three years in a single deal; therefore, the saying that the trustee's agent has
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has harmed the endowment and exceeded his authority is incorrect and contrary to reality.
Fifth - Since the two contracts subject to the lawsuit are explicit that the benefit of the endowments becomes the right of our client
starting from the first of Jumada al-Awwal in the year 1380 AH, and since the amount of this benefit has been determined
in the third clause of the aforementioned two contracts, and our client paid the equivalent of this benefit to
the appellee, it does not matter after this if those endowments were occupied for a part of the period
which became our client's right. Since our client did not intend from the contract to occupy the endowments
himself, but rather is satisfied with securing and guaranteeing their returns, and he obtained ⟦this⟧ through the first and fourth conditions of
the aforementioned two contracts, and therefore the tenants' occupation of a part of the period that may fall
within our client's period is irrelevant for our client and for the endowment because both have guaranteed
their rights.
The mind may turn from your honorable court's question to the fact that the trustee ⟦or⟧ his agent does not have the right to
lease the endowments to someone while they are leased to others, and even on this assumption, this matter concerns
the tenants alone because it relates to their right, but we did not find any objection or lawsuit from any of them.
The mind may also turn from the question to the fact that the trustee is not allowed to lease for more than three
years, and even on this assumption, the contract would not be void, but rather the excess in the period is what
is subject to rescission. Knowing that our lawsuit is a request to rescind the contract, not a request to execute it.
Therefore, searching for whether the endowments were leased and what is the remaining period for each tenant, this
subject is raised when the lawsuit is a request to execute the contract, while our lawsuit is a request to rescind the contract
and we have explained the reason for that.
Accordingly, we find no reason to search for the remaining periods for the tenants, as even assuming the existence of
periods for the tenants, they are overlapping with our client's period, and in the worst-case scenario, our client's contract would be
contingent on the tenants' approval and subject to rescission, and we did not request more than the rescission of the contract.
What is important in this regard from a legal standpoint is that the defendant - the appellee - did not
plead the invalidity of the contract or its lack of correctness, and the Court of First Instance did not address in its judgment
this subject, and therefore it is legally prohibited to raise the correctness of the contract or its invalidity in the Court of Appeal
because this depends on filing a new lawsuit, and that is not permissible in the Court of Appeal.
This is from one side, and from another side, a person is not obligated except by what is required by law or custom.
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or custom, and it is not the custom or usage in such contracts for people to ask whether the endowments
are leased and what the terms of each tenant are; rather, it is sufficient in the eyes of the people that the trustee or his agent commits before them to execute the contract
according to its terms, and if he refuses, he is legally held accountable before them.
This is the established rule by custom, and custom, as is not hidden from your esteemed court, is a binding legal rule, just as
habit is a judgment by law.
Therefore, it is not our client's business to ask or investigate the duration of each occupant of the endowments, but rather he was satisfied, and it is his right
to be satisfied with the conditions and guarantees he placed in his favor in the contract, especially since the contracting party with him is a person known among
the people for his agency over the endowments of Menachem and Sassoon Daniel. Despite all ⟦that⟧, this subject was not a matter of discussion in the Court of
First Instance and was not mentioned in the appealed judgment, nor was it held against our client or the appellee, and whoever wants to hold onto it must
follow it, in addition to the fact that the apparent question relates to the validity of the two contracts and the request for their execution, while our lawsuit includes a request
to rescind the two contracts and restore what was to what it was with compensation. Whatever the legal effect intended to be arranged based on
the court's question, the characterization of the two mentioned contracts as assignment contracts or the granting of the collection of endowment revenues
by way of commitment or otherwise does not change anything in the subject as long as the conditions of validity are met in them and they were among the
contracts that secure the previous endowment revenues, because the contract, according to the requirements of Article 140 of the Civil Code,
if it appears invalid in one respect but the elements of another contract are present in it, then this contract shall be valid as
the contract whose elements were met if it appears that the intention of the contracting parties was directed towards concluding this contract. And this
can all be assumed in the case of a request to execute the contract.
As for the existing lawsuits based on the request to rescind the contract and recover the amounts received for the account of
the endowment, there is no need to research it because in this case, whether the contract was valid and subject to rescission or was not
valid, the contracting party who received the consideration must return it to the other contracting party and the two contracting parties must be returned to
the state they were in before the contract (Art. 138 and 180 Civil).
This is what we wanted to clarify based on the clarification of the esteemed court.
Lawyer
Hussein Al-Haj Ali
⟦signature⟧
Lawyer
Abdul Jabbar Al-Tikriti
⟦signature⟧
22 / 5 / 964
Hassan Abdulla Mudhaffar
Lawyer
Hassan Abdulla Mudhaffar
ADVOCATE
Sabri Building - Mustansir St. Baghdad
Al-Mustansir Street - Sabri Building
OFF. 82280, 81442 & 83065
TEL. {
Office { 82280, 81442 & 83065
Telephone {
RES. 97091
Residence 97091
Number:
Date: 20 / 2 / 964
The appellant's agent was assigned to state whether the documents
presented attached to what is called (the file) within the specified period
and the period covered by the housing rentals and leased
for the purpose of the half by filing the lawsuit as soon as possible
To the Honorable President of the Baghdad Region Court of Appeal
Explanatory memorandum submitted by the attorneys of the appellant in the case
Appellate No. 11 S / 962.
Appellant - Plaintiff - Hamid Majid al-Hamidi - His attorneys, lawyers Abdul Jabbar al-Tikrli and Hussein
Al-Haj Ali
Appellee - Defendant - President of the Administrative Committee for Iraqi Jews in his capacity as trustee of the Menahem
and Sassoon Daniel Endowments - His attorneys, lawyers Hassan Abdullah Muzaffar and Shaul Moshi.
Presented:
The appealed preliminary judgment ruled to dismiss the lawsuit of our client, the plaintiff - the appellant - on the grounds that
the trustee's agent had exceeded the limits of his agency and harmed the interest of the endowment by concluding the two waiver contracts, and that the aforementioned agent is considered
personally liable, and no legal effect is incurred by the endowment because of that.... Therefore, we must discuss this appealed
judgment in light of the legal provisions in the following manner:
First - The court's adoption of this approach contradicts the wording of the power of attorney and the reality of the situation, which makes the appealed judgment
contrary to the law, because the trustee had appointed an agent on his behalf to manage the endowment and granted him all
the necessary powers for the acts of this management, including leasing the endowment's real estate for the consideration he deems appropriate
and collecting rent and expropriation fees and other matters mentioned in the power of attorney with the intent of preserving the
rights of the endowment. The agency in this respect is general, absolute, and delegated to the agent's discretion.
The trustee did not restrict his agent with specific restrictions in the core of the power of attorney nor by any other method, nor did he (the
trustee) object to any of the actions carried out by the agent, including the two contracts under
discussion in this lawsuit, despite the trustee's knowledge of that. If the agency was general, absolute, and not restricted by any limitation,
how can it be assumed that the agent exceeded the limits of his agency? For this assumption does not apply unless the
agency was restricted and the agent violated that restriction.
It remains for us here to state the text of Article (932 Civil) so that your honorable court may see the
erroneous interpretation adopted by the Court of First Instance. The text of this article states the following: (Discretion may be delegated
to the agent, so he may act in what he was authorized to do as he wishes, and it is valid to restrict him to a specific act) End of article. If we look
closely at this power of attorney in light of this text, we would find that the authorized matter is the management of the endowment and the collection of its fees
without any restriction appearing in this regard.
Accordingly, since the power of attorney under discussion is general and absolute regarding the authorized matter - which is the management of the endowment
and the collection of its fees - the claim that the agent exceeded the limits of his agency is irrelevant.
Second - It remains for us to know whether the two waiver contracts fall within the acts of management and within the limits of the authorized
matter or not.
This subject requires searching for the intention of the two contracting parties, meaning the agent and the principal, as it is not hidden
from your honorable court that the agency is a contract like all other contracts and is subject in its interpretation to the same rules
by which other contracts are interpreted. The rule in interpreting a contract is to search for the common intention
of the contracting parties. In light of this intention, it becomes clear whether the waiver under discussion falls within the limits of
the authorized matter or not.
- To be continued -
- 2 -
The intention upon which the agent and the principal met in this power of attorney contract is - in short -
preserving the rights of the Waqf, and this is clear within the contents of the power of attorney and does not need further evidence. Everything
that would preserve the right of the Waqf falls within the limits of what was authorized. Accordingly, we examine the two assignment contracts
from this perspective: if we find in them what preserves the right of the Waqf, they are within the limits of what was authorized,
otherwise they are not.
By referring to the two assignment contracts, we find that the Waqf has benefited greatly from them, as they stipulated
the necessity of paying the rent for the endowed properties for three coming years in one lump sum to the trustee.
This is what our client did, as he paid in one lump sum approximately an amount of (27,900 Dinars) for three
years starting from the first of Jumada al-Awwal, year 1380. Whereas this rent used to be taken by the trustee
from the tenants in the form of installments that might not be paid on time or might sometimes be lost to the Waqf.
Therefore, the two assignment contracts are not only covered by the power of attorney, but they are at the heart of what was authorized because
their subject matter is pure benefit for the Waqf. We have shown that the common intention of the trustee and his agent in the power of attorney contract is
preserving the rights of the Waqf, and this has actually been achieved.
Accordingly, the Court of First Instance's view that the agent exceeded the limits of his authority and harmed the Waqf is
incorrect and contrary to the documents of the lawsuit.
In addition to that, the agent Edward Yaqoub is authorized in the core of his power of attorney to collect rent payments
in an absolute manner. In this regard, all procedures he performs for the purpose of collecting rent payments
and ensuring their fulfillment are implicitly included in his authority and within the limits of his power of attorney, supported by Article (150 paragraph
2 Civil Code) which stated: ("The contract is not limited to binding the contracting parties to what is stated in it, but also includes
what is among its requirements according to law, custom, and justice.") End.
Among the requirements of the power of attorney contract - according to law, custom, and justice - is the preservation of
the rights of the Waqf, and this has actually been achieved by the two contracts subject of the lawsuit, as there is nothing in these two contracts
more than the fulfillment of rent payments in advance for three years, and in this there is pure benefit for the Waqf. It is
the right of the trustee or his agent, under the provisions of the Waqf and the law, to contract the lease for this period and collect
its payments ⟦...⟧ (744 Civil Code).
How is it permissible after this for the Court of First Instance to say in its ruling that the agent has exceeded the limits of his powers
and restrict the responsibility to him without his principal? This statement is contrary to the law and contrary to the Sharia rulings
of the Waqf.
Third - Since the two assignment contracts subject of the lawsuit have secured for the Waqf the fulfillment of rent payments in advance, and this
is a pure benefit for the Waqf, the trustee would inevitably agree to these two contracts even if they were not explicitly stated in
the power of attorney. In this regard, the two contracts are legally within the limits of the power of attorney, and this was stated in
Article (933 Civil Code) which stated the following: ("There is no blame on the agent if he departs in his actions from
the limits of his power of attorney whenever it was impossible for him to notify his principal in advance and the circumstances were such that it is most likely
that the principal would have only agreed to these actions... etc.") End. Note that the trustee did not
object to these two contracts until the filing of this lawsuit; rather, he did not object to any contract he concluded.
To be continued ⟦line⟧
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The agent during the period of his agency.
So how was it permissible for the court after this to limit the liability to the agent without the principal - the Mutawalli -
in addition to the Waqf.
The law stipulated in Article (942 Civil) that the rights of the contract return to the contracting party.
If the agent contracts with a third party in the name of the principal, then the contract occurs for the principal and the rights of the contract return to him.
The agent contracting with our client concluded the two mentioned contracts in the name of his principal added to the Waqf within the limits of
his agency, so how is it permissible to disable the provision of the law and limit the liability to the agent without the principal contrary to the mentioned
article.
A judgment such as this is worthy of annulment for its explicit violation of the law.
Fourth - The court's judgment was built contrary to the documents and the facts of this lawsuit, as it considered the agent as waiving
the right of the Waqf, while the two contracts subject of the lawsuit, although the word waiver was used in them, they are
two compensation contracts between two parties and are not two donation or waiver contracts from one side. Accordingly, the direction of
the Court of First Instance in its appealed judgment that the agent of the Mutawalli has harmed the rights of the Waqf by concluding
the two waiver contracts contradicts the truth and reality. Because this waiver was not of the nature of a donation and did not cause
harm to the Waqf as the court erroneously went, but rather it was within a compensation contract and in exchange for a consideration amounting to
(27900) dinars received by the agent of the Mutawalli from our client in advance for the account of the Waqf and its interest. Thus, the Waqf
in this case has actually benefited and obtained what is equivalent to all the rental considerations owed by the tenants
from our client in advance and in one deal without any effort or expenses for collecting those considerations from the tenants
under the two mentioned contracts, and it was required by the two mentioned contracts that our client obtains the considerations
of the contracted benefit in exchange for what he paid in cash compensation, but the agent of the Mutawalli surprised our client by interfering
with his disposal to fulfill his rights from the tenants under the two mentioned contracts, by concluding
another lease contract with Mr. Khairi Hassoun Al-Ansari on the same subject and the aforementioned person notifying the tenants
of the necessity of paying the rental considerations to him and not handing over any of it to anyone else, which led to the tenants stopping
the payment of rental considerations to our client Mr. Hamid Majeed Al-Obaidi, which caused him severe damages
and deprived him of fulfilling his legitimate rights.
So how was it permissible for the court to state in its appealed judgment that the agent of the Mutawalli, by performing the two mentioned
contracts, has harmed the interest of the Waqf, while the matter is exactly the opposite, as all the benefit and gain went to the side of
the Waqf and all the damage and loss went to our client - the appellant - and how was it permissible for it to build its judgment
on dismissing our client's lawsuit on an unrealistic and untrue reason. A judgment built on incorrect facts is undoubtedly
contrary to the law and the facts of this lawsuit. And this is a cause for annulment.
Fifth - The appellee has pleaded saying that the Mutawalli and consequently his agent is not authorized to conclude contracts with others
unless he obtains in advance permission from the Spiritual Council, claiming that this is a condition stipulated by the Waqif
in his Waqf deed and conditioned on the Mutawalli in his appointment, while this statement from the side of the appellee
is nothing more than a mere claim only, not supported by the Waqf deed nor the appointment, and all there is to this subject is that
the Mutawalli, after estimating the revenues that may come from the Waqf properties, determines the amount of expenses that
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- 4 -
It is spent on the designated endowment entities, and a budget is organized for this purpose and submitted to the Corporeal Council for approval.
There is nothing in the endowment deed or the trusteeship that limits the authority of the trustee in managing the endowments
and entering into contracts regarding them; rather, this matter was left to his absolute discretion, and he has delegated in this regard
his agent, Edward Yaqoub, who contracted with our client on behalf of the endowment. Therefore, the statements of the appellee
regarding the alleged permission were nothing more than a mere claim unsupported by any evidence.
As for the possibility that the trustee or his agent betrayed the endowment, this subject—assuming its correctness—has no
relation to our client, who contracted with the representative of the endowment in good faith. Furthermore, this contracting occurred before
the dispute arose between the trustee and the Administrative Committee for Jews, and before any doubt arose regarding the conduct and integrity
of the trustee or his agent. If there had been such a doubt as the appellee claims, this doubt would have been announced
by every possible means, at least in the local newspapers, so that the good-faith third party would be aware of the situation.
However, if none of this happened and the Administrative Committee did not disclose
its doubt regarding the conduct and integrity of the trustee or his agent, while knowing that the trusteeship is standing and the agency is standing
and in effect, and that the trustee or his agent has the right to enter into contracts in the name of the endowment with third parties, and the Administrative Committee
for Jews remained silent about all of this while people did not know, then it comes later to say that the endowment is not responsible
and that the responsible party, according to its claim, is the trustee's agent alone, to the extent that it even excluded the trustee from responsibility
as well. This statement by the Committee - the appellee - is incorrect and contrary to the simplest
rules of justice, for what is the fault of the people, including our client, to be victims of the Menachem Daniel Endowment,
which grows wealthy at their expense and absorbs their money without right.
When our client proceeded to contract with the representative of the endowment, he was seeking the benefit of the (Sarqafliya - key money)
known among merchants, utilizing his legal knowledge as a lawyer in terminating the contracts of the endowment occupants
and giving them to others or to them for a higher consideration than before, and in this there was great benefit for our client. This benefit
was lost to him, as were all his funds which he collected by the sweat of his brow, not for any fault
or error on his part, but rather the fault and responsibility lie on the shoulders of the endowment alone. Because it is legally
responsible for the contracts of its representative, even if this representative capacity were to cease without the good-faith third party
knowing of it, the responsibility remains on the endowment. This was stipulated in Article (948 Civil Code),
which stated (The termination of the agency cannot be invoked against a good-faith third party who contracted with the agent before
knowing of its termination).
If this is the rule of law even in the case of dismissing the agent or terminating his agency, then what is the case
when the agency is standing and the trusteeship is standing and people do not know the secrets...
Therefore, our client's right is attached to the liability of the trustee in addition to the endowment, and he is legally responsible for clearing
the liability of his agent Edward Yaqoub, as stipulated in Article (941 paragraph 2 Civil Code) which stated (And
the principal must clear the agent's liability from the obligations he entered into in his own name for the sake of executing the agency).
Accordingly, the Court of First Instance's approach in limiting responsibility to the agent without the principal is contrary to the law
and warrants reversal.
- To be continued -
Sixth - The legal characterization of the two contracts subject to the lawsuit:
While it is sufficient for us to say that the two contracts subject to the lawsuit are legally valid by virtue of
Articles (75, 126, and 145 Civil) and that leasing by way of assignment is a common and recognized matter among
people, we want here to prove that the two mentioned contracts are explicitly lease contracts
and that the will of the contracting parties met on this matter, and the following is a clarification of the subject.
1- It is agreed upon in jurisprudence and judiciary that the interpretation of the contract means searching for the common intention of the contracting parties, and
Professor Al-Sanhuri pointed out this rule in his book Al-Waseet (Vol. 1, page 610).
It is also established that the terms of the contract interpret one another, and it is not permissible to isolate a single phrase from the rest of the
phrases; rather, they must be interpreted as part of a whole, which is the contract (same source, page 610
also), just as the contract is interpreted according to what is required by current custom in transactions (same source, page
610) ⟦VH⟧
From these rules, we can address the two contracts subject to the lawsuit.
Although the term "assignment" was used in the two mentioned contracts by custom, the fifth clause of them
reveals the will of the contracting parties and their common intention, as it stated in this clause that in the event of
the government enacting a law providing for the reduction of rent amounts, the appellee alone shall bear this
reduction. It is not important whether this condition is binding or non-binding; what is important is that this condition
has revealed that the intent of these two contracts is leasing, and the assignment terms present in
the two contracts are only to express the intent of the contracting parties. In contracts, consideration is given to intentions and meanings,
not to words and structures. Furthermore, assignment is excluded from these two contracts because they are compensatory contracts
and not donation contracts.
What also supports that leasing is what was intended by these two contracts is what was stated in the second clause of them,
where it was mentioned in the clause that the consideration received by the Mutawalli from our client is a lease consideration, just as the receipt
given by the agent of the Mutawalli to our client acknowledging receipt of the remainder of the consideration stated that the amount
received is lease consideration.
Our client has also pointed out in all his pleadings that the intent of the two contracts subject to the lawsuit
is leasing.
Therefore, the court should have taken these matters into consideration and looked at the two contracts as a whole
and clarified the intent of the contracting parties from all the words and phrases of the two contracts, and not limited itself to the words of assignment
while leaving the rest of the words and phrases, because the terms of the contract interpret one another as we have shown, and
the law dictates that giving effect to speech is better than neglecting it.
The court, in its characterization of the rights presented before it, is not bound by the statements of the parties, but rather applies the rule of
law to what appears to it from the intent of the contracting parties and what they agreed upon. If these matters were observed
and the Court of First Instance had scrutinized what was stated in the fifth and second clauses of the two mentioned contracts, it would have concluded
that the intent of the two contracts is leasing, and since this leasing is within the powers of the agent Edward
Yacoub according to his power of attorney, the Waqf becomes explicitly responsible for the two contracts and ends the matter.
- To be continued -
6
The court's neglect of this aspect and its consideration of the two contracts as a waiver of the Waqf's right is contrary to the two contracts
themselves and contrary to the law and the rules of interpretation.
As for the appellee's claim that the two contracts subject of the lawsuit are loan and borrowing contracts,
this statement is incorrect and is not supported by the wording and phrases of the two contracts and is far from the intention of the parties. Otherwise,
how do we reconcile the loan contract with what was stipulated in the fifth and second clauses of the two contracts? And what
is the relationship between loan and borrowing and the government's enactment of a law requiring the reduction of rental fees? In addition to
that, the loan contract has known forms and terms that are not hidden from the contracting parties, especially since our client
is a lawyer who appreciates this matter as it should be. If our client did not intend to lease in his contract with the Waqf, he would have sought
to guarantee his rights through the provisions of bail, transfer of debt, or transfer of right, and would have made the Waqf's tenants a party
to these contracts without resorting to the lease contract.
Accordingly, the appellee's statement that the two contracts are a loan and borrowing contract is incorrect
and contrary to the text of the aforementioned two contracts.
Seventh - The guarantee stipulated in the two contracts:
The two mentioned contracts were attributed to the trusteeship and the Waqf, and the trustee's agent received the amounts
agreed upon in the two mentioned contracts from our client - the appellant - amounting to (27,900) dinars
for the account of the Waqf. Therefore, the Waqf trusteeship is responsible for returning the claimed amount from the amounts
received for the account of the Waqf under the two mentioned contracts, amounting to (24,615) dinars, as well as for the amount of
compensation arising from the penalty clause amounting to (8,000) dinars because the two mentioned contracts
were attributed to the Waqf trusteeship and the amounts received entered the Waqf's liability and were spent on the entities
endowed. If there is an amount of the received funds still with the agent, the trustee has the right to demand
the agent to hand it over to the Waqf in accordance with the requirements of Articles 935, 937, and 942 of the Civil Code.
The Waqf, in this case, is responsible in any event for returning the amounts that entered its liability and were spent on
its expenditures.
Eighth - Edward Yaqoub, according to his power of attorney for the trustee, is legally bound and by virtue of the two contracts concluded by him in addition
to the Waqf, not to interfere with our client in the implementation of the two mentioned contracts and not to breach their terms. He pledged
in Clause 6 of each of the two mentioned contracts to return the amounts received by him to our client with compensation
amounting to (5,000) dinars in the first contract and (3,000) dinars in the second contract if he or any
person from the Waqf beneficiaries took a path contrary to this contract by leasing or waiving for the purpose of receiving
rental fees, in order to confirm the guarantee of non-interference with our client in the implementation of the two mentioned contracts. The
guarantee against interference is established by law even if it is not stipulated in the contract (Paragraph 2 of Article 753 Civil).
However, only a short period had passed since the conclusion of the two mentioned contracts until the trustee's agent violated
his obligations therein and interfered with our client in the matter of their implementation, by concluding a lease contract with Mr. Khairi Hassoun
for the purpose of receiving rental fees. The new tenant then sent notices to the tenants calling upon them
to hand over the rental fees to him, and by this, he violated the terms of the two contracts and interfered with our client in the matter of their implementation.
To be continued =
- 7 -
Indeed, the administrator, in addition to the endowment, is liable for the conditional and specified compensation amount in the two contracts
without the need for a formal notice because he is legally bound by the terms of the two mentioned contracts to refrain from an act, which is
not interfering with our client in the execution of the two contracts. There is no necessity to notify the debtor if the obligation is to refrain
from an act and the debtor breached it, as stipulated in the last sentence of paragraph (a) of Article (258)
of the Civil Code. Added to that, the execution of the two contracts has become impossible and beyond the will of the endowment's agent
due to the involvement of Khairi Hassoun, the new tenant, in the matter. Therefore, notification is not required according to the first
paragraph of Article (258 Civil Code). Nevertheless, our client did notify the administrator's agent via a written request as
permitted by Article 257 of the aforementioned law. He received a letter from him dated 2/25/1961 in which he admits
to concluding a new contract with Khairi Hassoun and claims he will attempt within five days to rescind the said contract,
however, he did not take any action in this regard.
Accordingly, the obligation to compensate for the damage suffered by our client as a result of the administrator's agent violating the terms
of the two mentioned contracts has been established, and the administrator, in addition to the endowment, is responsible for the compensation amount as specified
in Clause 6 of each of the two mentioned contracts. If there is personal liability falling upon
the administrator's agent as indicated in the preliminary judgment, it does not exceed criminal liability. As for
civil liability and compensation, it falls upon the administrator in addition to the endowment, as we explained above.
Accordingly, we reiterate all the demands contained in the appellate
lawsuit petition.
Respectfully yours.
Attorneys for the Appellant
Attorney | Attorney
Hussein Al-Haj Ali | Abdul Jabbar Al-Tikriti
⟦illegible⟧
The Lawyers
Hassan Abdullah Muzaffar
Shaul Moussa
Number: 5 L / 63/18
Date: 14 / 1 / 963
Honorable President of the Baghdad Court of Appeal
Through the Honorable Judge of the Karkh Court of First Instance (Unlimited)
Subject / Responsive brief from the attorneys of the Appellee for the
First Instance case numbered 45 / B / 961.
Appellant: Hamid Al-Obaidi, his attorney Lawyer Abdul Aziz Al-Shahiri.
Appellee: President of the Administrative Committee for Iraqi Jews in his capacity as trustee of the endowments of Menahem and Sassoon
Daniel, his attorneys Lawyers Hassan Abdullah Muzaffar and Shaul Moussa.
We were notified on 8 / 1 / 963 of the appeal brief for case number 45 / B / 61, to which we respond as follows:-
The decision of the Karkh Court of First Instance (Unlimited) to dismiss the case on its merits is in accordance with the law, the terms
of the endowment deed, and the general provisions of the endowment for the following legal reasons:-
First - Characterization of the two contracts subject of the case:-
The contract for the assignment of rental fees for the endowed properties leased by the agent of the dismissed trustee to
other persons is considered as borrowing and loaning amounts for the account of the endowment. The detail of this is that the endowed properties
in the two contracts are leased by the contracting party to the occupying persons under contracts, and the fees
become due gradually in installments. His action in assigning those fees is borrowing and loaning.
The legal characterization of the assignment contract concluded by the dismissed trustee appears to your esteemed court:
A - The dismissed trustee did not authorize his agent, Edward Yaqoub, under the general power of attorney attached to the case,
to borrow or assign the fees, as the powers he possesses were specifically designated.
B - Even assuming that the dismissed trustee had given his agent the authority to assign, he cannot do so
as the trustee does not possess the right to waive the rights of the endowment.
Second - The authority of Edward Yaqoub Shashoua:-
It is clear to your honorable court from the power of attorney given by the dismissed trustee, Mr. Emile Saleh,
to his agent, Mr. Edward Yaqoub Shashoua, that the aforementioned person does not possess the right of assignment, as the
said power of attorney specified the powers possessed by the agent and did not stipulate authorizing the agent the right
which must be in explicit terms, and the agent must execute the power of attorney without exceeding its drawn limits.
— 2 —
The endowment deed (Waqfiyah) No. 935/87 attached to the case file and the deeds based on it, whose
numbers are mentioned within the said deed, have limited the authority of the trustee (Mutawalli) to leasing the endowed properties and stipulated for the validity of
this lease that he must first obtain permission from the Lay Council of the Mosaic community, currently replaced by the Administrative Committee
for Iraqi Jews, in its capacity as the supervisor (Nazir) of the endowment.
It is not hidden from your esteemed court that the condition of the endower (Waqif) is like the text of the Legislator in the necessity of following it and acting upon it, and that whatever
contradicts the condition of the endower is a violation of the text, and ruling by it is a ruling without evidence (Vol. 3, p. 467 of the book Radd al-Muhtar
by the scholar Muhammad Amin, known as Ibn Abidin).
From this, it is clear to your court that the permission must be prior to the action if this action
is a lease contract at a fair market rent; so how about if the action is a waiver? A waiver is a relinquishment of part of the endowment's rights,
and the trustee does not possess this right as it is a definite harm and an explicit violation of the endowment deed. It is stated in
Article (10) of the book Tartib al-Sunuf fi Ahkam al-Wuquf by the late Ali Haydar the following: (The actions of
the trustee and the judge regarding the endowment are contingent upon the public interest). Accordingly, this action by the agent of the dismissed trustee
is contrary to the endowment deed and the provisions of the endowment for the following reasons:-
A — It is not within the authority of the trustee, according to the endowment deed, to waive the rights of the endowment.
B — The authority of the trustee to lease the endowed properties at a fair market rent requires for its validity obtaining prior permission from
the supervisor (The Administrative Committee for Iraqi Jews).
C — The provisions of the endowment do not grant the trustee the right to waive the rights of the endowment because the waiver is a definite harm to the endowment
and an explicit violation of the endowment deed.
D — Even if necessity requires the trustee to violate the condition of the endower, in this case, he must obtain
the permission of the judge, and this is what is stipulated in Article (867 of Tartib al-Sunuf fi Ahkam al-Wuquf)
by the late Ali Haydar.
From all the above, it appears to your esteemed court that the two waiver contracts subject of the lawsuit are in violation of the endowment deed
and the general provisions of the endowment, and the trustee does not have the power to initiate them, and consequently, his agent does not have the power to execute them even assuming for the sake of argument
that he was authorized to do so under his power of attorney.
Fourth — The occurrence of the action during a period dominated by suspicion and doubt:-
We explained in the fourth paragraph of our memorandum submitted to the Court of First Instance No. 2/L/62/402 dated
11/14/62 in its third paragraph that the two waiver contracts were executed by the agent of the dismissed trustee during —
the period in which the supervisor filed lawsuit No. 30/Sh/59 against the dismissed trustee Emil Saleh Shlomo.
To be continued
X
⟦line⟧
Where the right of waiver, dropping, and discharge was limited to his private property only, and the dismissed trustee has confirmed
in his power of attorney by specifying the actions he performs towards the endowment by including the expression (and he has the use of all
powers granted to me by law and which I can use for myself legally to preserve my rights
in general). What is meant by this expression is the release of powers for the agent regarding his personal rights
only, and those powers are restricted regarding the endowment, as the expression came using all powers
that I can use for myself, specified for himself only and not in addition to his position, as well as the expression (to preserve
my rights), for the generality includes the personal rights of the principal and does not extend to the endowment.
It is clear that the presented power of attorney is not absolute general regarding the powers of the dismissed trustee's agent concerning the endowment.
And since Article (931 Civil) stipulates that it is valid to specify the power of attorney by specifying the subject matter and to generalize it
by generalizing it, the special power of attorney is that which is defined by a specific legal act or acts (Part 5, Page 45
Preparatory works for the Egyptian law).
As for the general power of attorney, it is that which is issued in general terms without specifying a particular legal act for it; it is that which occurs in
the general power of attorney in which nothing is named specifically, for if the thing is named, it does not benefit from generalization and delegation
(Bidayat al-Mujtahid Vol. 2, p. 238). Accordingly, the power of attorney given by the dismissed trustee to his agent
is limited to the actions mentioned therein and did not stipulate waiver, especially regarding the endowment, since the trustee
himself does not possess the right to waive, so not authorizing this right to his agent is natural since (one who lacks something
cannot give it).
As we have shown in our preliminary briefs, the waiver subject of the lawsuit is a dropping of part of the endowment's rights,
and it is not permissible for the trustee to perform what results in the loss of the endowment's assets or its yield, as will become clear to your esteemed court
in the following paragraph:-
Third - The powers of the trustee regarding the provisions of the endowment and the endowment deed:-
The decision of the Court of First Instance rejected the appellant's lawsuit in view of the contracting party - the agent of the dismissed trustee - exceeding
the limits of his power of attorney and concluding the waiver contract subject of the lawsuit, which the general power of attorney did not authorize him to use,
and that he performed this contract to the detriment of an actual interest; no legal effect is entailed on the endowment, but rather this act of his is considered
an exceeding of the limits of his power of attorney for which he is personally responsible. We have shown in the previous paragraph that the contracting party exceeded the powers
authorized to him by concluding the two waiver contracts subject of the lawsuit, as the trustee himself does not possess the right to waive the endowment's rights,
since the powers of the trustee are defined according to the endowment deed and the general provisions of the endowment. The details are as follows:-
To be continued
- 4 -
before the Personal Status Court in Baghdad, requesting his removal from the trusteeship based on his illegal
actions that violate the endowment deed and the provisions of the endowment, which ended with his removal from the trusteeship. Before the judgment was issued,
the court noticed that the removed trustee was continuing his illegal actions against the endowment, including
leasing the endowments without obtaining prior permission from the supervisor or waiving the rental values to several persons.
Therefore, it decided to restrain his hand from acting, and that was on 11/3/13, as it was confirmed to it that the remaining of the
removed trustee managing the affairs of the endowment is a matter of certain harm to the endowment, which forced it to restrain his hand from the trusteeship
and entrust the management of the endowed properties to it until the dismissal lawsuit is decided and a new trustee is appointed. The two waiver contracts,
the subject of the lawsuit, are among the illegal actions carried out by the agent of the removed trustee, thereby violating
the condition of the endower and the general provisions of the endowment. This action was during the period in which the
stubborn agent expected the issuance of the judgment against his client for removal and shortly before the date of restraining the hand from acting. Accordingly,
harming the endowment and obtaining gains and funds by the removed trustee and his agent for themselves at the
expense of the endowment is the true goal of those actions. In this case, no responsibility arises for the endowment
as a result of that.
⟦XX⟧ Fifth - We have clarified in our briefs submitted to the Court of First Instance and requested the necessity of dismissing the lawsuit on formal grounds
for the following reasons:
1 - The necessity of the formal notice which the plaintiff did not perform before filing the lawsuit based on paragraph - a - of
Article 177 Civil.
2 - The necessity of the formal notice which the plaintiff did not perform before filing the lawsuit to claim compensation according to paragraph - a -
of Article (177 Civil) and paragraph - a - of Article (256 Civil).
As for the subject of the reply letter presented by the appellant's agent as a formal notice, that reply
letter is not sufficient to arrange the legal effect of the notice, as Professor Al-Sanhuri says (Al-Waseet Vol. 2):
(The mere statement of the debtor is not sufficient to arrange the legal effect of the notice; rather, the original notice must be submitted, as
the court can determine whether rescission results from that or not). ⟦Regarding the debtor's notice⟧
The plaintiff did not submit the original notice and remained silent throughout the sessions without answering, as it is required
to notify the debtor when requesting compensation based on paragraph - a - of Article (256 Civil).
The presented letter, which has no fixed date and was presented - as a remedy - after our request to submit the notice
and after we were appointed as counsel for the current trustee, ⟦is only⟧ an acknowledgment by the agent of the two waiver contracts, and this
acknowledgment is valid within the limits in which the trustee or his agent is permitted to perform acts of disposition, as the right of acknowledgment over
To be continued
- 5 -
The suspended [act] is not enforceable (Shafiq al-Ani).
In addition to that, the dismissed acting agent, according to his power of attorney presented in the case file, has no right of admission [confession],
as admission is not valid from a general agent unless the power of attorney issued to this agent explicitly states his authorization
for admission (Al-Sanhuri, Al-Waseet, Vol. 2, p. 447).
In conclusion, it is necessary to clarify some points mentioned in the brief of the respected colleague, the appellant's agent, including
his citation of cassation decisions and interpretations that have no relation to the subject of the two waiver contracts, the subjects of the lawsuit, as their subject matter
is endowments (Awqaf), and the endowment has its own rules according to the conditions of the endowment deed and the general rules of endowment, so it cannot be compared
to others. As for his interpretation of Article (777 Civil) on the basis that the waiver contract is considered a lease contract,
we say about it: - This legal article discussed the legal effect of the waiver, and it is natural
that its application requires the capacity of the waivor to conduct the waiver contract, and in the field of endowment, the trustee (Mutawalli) and consequently
his agent do not possess the power to conduct a waiver contract for the reasons we have detailed in the previous paragraphs, for the trustee is not an owner but
is restricted by the conditions of the endowment deed and the rules of endowment.
Accordingly, it is clear to your respected court that the appellant's agent's citation of cassation decisions, interpretations, and legal articles
relating to transactions carried out by owners in (private property) cannot be applied in the field of endowments -
for the reasons above. We reiterate our defenses mentioned in our primary briefs, especially the brief numbered 2 L / 62 / 402
dated 11/14/1962.
Summary: -
⟦line⟧
The decision of the Karkh Court of First Instance (Unlimited), which ruled to dismiss the appellant's claim regarding the endowment
and considered the former agent who contracted personally liable for the transaction, is in accordance with the law, the endowment deed,
and the rules of endowment for the following reasons: -
1 - The lack of authority of the contractor, Edward Yaqoub Shashoua, under his power of attorney to conduct the waiver with the appellant regarding the
endowment's rental fees according to Articles 933 and 931 Civil and what the rulings of the Court of Cassation have established.
2 - The trustee (Mutawalli) does not possess the authority to waive for the following reasons: -
A - The endowment deed No. 87 / 935 does not permit the trustee to conduct a waiver, and other transactions
authorized by it require for their validity that he previously obtain permission from the supervisor (The Administrative Committee
for Iraqi Jews).
B - The rules of endowment do not permit the trustee the right of waiver because in the waiver there is certain harm to the endowment and because it is a debt
in its legal characterization, and borrowing by the trustee is not permitted except with the judge's permission.
To be continued
X
- 6 -
8
3 - The issuance of the disposition in a period dominated by doubt and suspicion, as the two waiver contracts were executed by the agent of the dismissed
trustee shortly before the trustee was restrained from acting and shortly before the issuance of the dismissal judgment, and that the real
purpose is his personal benefit at the expense of the endowment.
⟦X⟧
4 - The necessity of notification before filing the lawsuit and before claiming compensation according to paragraph - A - of the two articles
(177, 256 Civil).
Therefore, we request the confirmation of the preliminary judgment and charging the appellant with the trial costs and appellate attorney fees
and lifting the precautionary seizure, while our client reserves the right to claim from the appellant the amounts he received on account of the two contracts
subject of the lawsuit.
With respect to your Excellency.
Attorneys for the Appellee
Lawyer | Lawyer
Shaul Moussa Hassan | Abdullah Muzaffar
Presidency of
Baghdad Court of Appeal
« Summons for the Appellee »
Case Number:
S: 195 /
Name of the Appellee and his title | His profession | His place of residence | Name of his attorney
It has been decided to set the day ( ) corresponding to / / 195 to hear the case appealed against you
by the appellant, therefore you must appear before this court at
( ) o'clock on the morning of the mentioned day, and in the event of your failure to attend or send an attorney on your behalf, the trial will proceed
against you in absentia.
Written on: / / 195
Clerk:
President
Presidency
Baghdad Court of Appeal
Summons for the Appellee
Case Number: S / 195
Name of the Appellee and his title | Occupation | Place of residence | Name of his attorney
⟦illegible⟧ | | |
It has been decided to set the day ( ) corresponding to / / 195 to hear the case appealed against you
by the appellant, therefore you must appear before this court at
( ) o'clock on the morning of the mentioned day, and in the event of your failure to attend or send an attorney on your behalf, the trial will proceed
against you in absentia.
Written on / / 195
Clerk
President
⟦illegible⟧
Lawyer
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Banks Street
Al-Damerji Building
Telephone { Office 86251
Telephone { Residence
To the Honorable President of the Baghdad Region Court of Appeal
Through the Honorable President of the Karkh Court of First Instance (Unlimited)
Case Number 45 / B / 61
Appellant (Plaintiff) - Hamid Al-Obaidi - his general agent Abdul Aziz Muhammad Al-Shahiri.
Appellee (Defendant) - President of the Administrative Committee for Jews in addition to his trusteeship over the endowments of Menachem and Sassoon
Daniel - his lawyers Ihsan Abdullah Muzaffar and Shaul Moussa.
Subject of Appeal:-
The Karkh Court of First Instance (Unlimited) issued decision No. 45 / B / 61, which was announced on
5 / 1 / 963, ruling to dismiss my client's lawsuit on the grounds that the agent exceeded the authority of his general power of attorney. Since the
aforementioned decision is contrary to the law and prejudicial to my client's rights, I have initiated its appeal before being notified of it, requesting its annulment for the following reasons:-
And this is the text of the decision:-
(Upon deliberation, scrutiny, and observation of the copy of the endowment deed No. 87 / 35 and the notification of the Personal Status Court No.
35 Sh / 960 and the general power of attorney certified by the Karkh Notary Public under general number 383, by which the principal
Emile Saleh Shleimou, in his own capacity and as trustee of the endowments of Menachem and Sassoon Saleh ⟦President⟧, authorized the agent Mr. Edward Yaqoub
Sha'shua to perform the following acts, as stated in the first paragraph: "In leasing all properties, lands,
and common shares belonging to me and the properties of the endowment referred to above to whomever he wishes for the consideration he deems appropriate,
collecting the rent for the mentioned properties and endowments, signing and terminating lease contracts and agreements, and he has
the right of discharge and waiver regarding my private properties only and ⟦all⟧ settlements with tenants and acknowledgment." Whereas the former agent
the defendant had concluded the two waiver contracts subject of the lawsuit, certified by the South Baghdad Notary Public on
24 / 11 / 960 for a period of three years starting from 1 / Jumada al-Awwal 1380 AH for a known amount, and that he concluded
these two contracts in his capacity as agent for the trustee of the Menachem Daniel endowments.
It has been proven that the agent (the former dismissed trustee) exceeded the limits of his agency and concluded the waiver contract subject of
the lawsuit, which the general power of attorney No. 383 authorizes him to use, and that he entered into these two contracts to the detriment of the interest
of the endowment. Therefore, no legal effect is entailed upon the endowment; rather, this act of his is considered an exceeding of the limits of his agency for which he is personally
liable. Accordingly, and upon request, it was decided to rule to dismiss the plaintiff's lawsuit and charge him all court costs and lift the precautionary seizure
placed, and charge the plaintiff the attorney fees amounting to 500 Dinars. The decision was issued in presence, subject to appeal and cassation.
The legal grounds on which we base our request to annul the judgment.
First - The authority of the endowment trustee or his general agent regarding the leasing of endowed real estate:-
The endowment trustee or his general agent has the right to lease endowed real estate or waive its rents
for a period of three years only, even if the lease or waiver of its rents was conducted in two separate contracts for one
tenant. This is what the Court of Cassation of Iraq held in its decision No. 918 / J / 54, and this is its text
- To be continued -
(The Lawyer)
Abdul Aziz Muhammad Al-Shaharli
Baghdad - Al-Bunook Street
Al-Damirji Building
Telephone ( Office 86251
( Residence
- 2 -
"The trustee of the endowment (waqf) does not have the right to lease the endowed properties for a period exceeding three years without the permission of
the Sharia Court, even if he conducts the lease through two separate contracts for one tenant. Article 724 Civil, Judicial
Principles, Civil Section, page 28, Abdul Rahman Allam." Likewise, the cassation decision numbered 1110/Rights/
59, and this is its text: "It was found that the Court of Appeal followed the decision of the Court of Cassation numbered 1246/Rights/58
dated 7/10/⟦158⟧ which stipulates the necessity of conducting an auction for the properties leased by the Endowment Department, and that what
exceeds a lease period of three years must be coupled with the approval of the Council of Ministers. Since the specified conditions
were not met, the Endowment Department has no right to claim the previously named rent and its conditional addition. After the
Court of Appeal clarified those conditions, it issued its ruling upholding the primary judgment which included the dismissal of the claim. Since
its issued judgment was in accordance with the law, it was decided to ratify it on 18/2/⟦960⟧. The decision was issued by the General
Assembly of the Court of Cassation by consensus. Iraqi Judiciary, Salman Bayat, page 167, Part Two.
B- The trustee may initiate lease contracts for the endowment's investments and collect their rents. Provisions of the Endowment,
Muhammad Shafiq Al-Ani, page 46.
As long as the trustee or his agent has the right to initiate lease contracts, he has, a fortiori, the right to waive the
considerations and receive the agreed-upon consideration in exchange for the waived amounts. This is all that the agent of the previous
trustee did, as he waived the lease considerations for the duration of the two contracts and received their value in cash from my client,
as is clear in the two contracts subject of the lawsuit. These actions are considered nothing but acts of administration that he has the right
to practice legally.
C- What the interest of the endowment requires:-
It is accepted that no harm should befall the endowment when leasing it or waiving the lease considerations.
Therefore, they said that the minimum for the conclusion of contracts regarding the endowment side to be valid
is the fair market rent or what is ⟦less⟧ than it by a small amount, and the small amount is what is less than one-fifth. But if a lease contract is concluded
at a rate where people are not cheated, and it is one-fifth less than the fair market rent or its reduction is more than that,
it is concluded as invalid, and the tenant is obliged to complete the fair market rent and pay what was missing from it in the past period
from the time of the contract. Provisions of the Endowment by Professor Shafiq Al-Ani, pages 56 and 57.
It appears to your esteemed court that there is no cheating of the endowment or harm to it in my client's two contracts subject of the lawsuit.
On the contrary, the endowment benefited greatly from the two contracts subject of the lawsuit
as a result of the previous agent receiving the consideration in cash in exchange for his waiver of the lease considerations for the duration of the two contracts. Thus,
the previous agent was able, as a result of receiving the agreed-upon consideration in cash in exchange for this waiver, to manage
the affairs of the endowment and ⟦arrange⟧ its matters, not as the court of first instance went, stating that these two contracts harmed the endowment.
If we were to follow what the court of first instance went with, the endowment side would have been enriched at the expense of others.
Therefore, all that the previous trustee's agent did regarding these two contracts was within the limits of his authority
authorized by law, and the trustee and his agent did not violate the condition of the endower because the endowment deed did not limit
and define the authority of the trustee over the endowment for managing the endowment's affairs.
- To be continued -
(Lawyer)
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Al-Bunook Street
Al-Damirji Building
Telephone { Office 86251
Residence
- 2 -
Second - The powers of the contracting general agent, Edward Yaqoub, in light of the rights mentioned in the general power of attorney
A- It was stated in the first clause of the general power of attorney No. 383 dated 5/30/955, certified
by the Karkh Notary Public, on behalf of his principal, Emil Saleh Shlimo, and in addition to the endowment under
his guardianship, that he has the right to perform the following acts: 1- In leasing all properties, state lands, and common
shares belonging to me and to the endowment properties - referred to in the aforementioned power of attorney document - to
whomever he wishes and for the consideration he deems appropriate, and to receive the rental amounts for the mentioned properties and endowments, and to sign
lease contracts, terminate them, and contracts... etc.
It appears to your esteemed court from the text of the power of attorney that Mr. Edward Yaqoub, the former general agent, has the right
to waive rental amounts and receive their value. As long as the agent has the right to lease and receive, he has, by priority,
the right to waive rental amounts, especially if it is in exchange for a known amount. He who owns the more, owns
the less. The agent, according to his general power of attorney, has the right to manage and conduct the affairs of the endowment. Despite this, it was
stipulated in the body of the power of attorney that he has the right to receive and lease. In light of this, the waiver contract is among the weakest
rights that fall within the scope of the management right. This is all that the former agent did in terms of actions
during his conclusion of the two contracts subject of the lawsuit. Add to that the fact that the contract for waiving rental amounts is considered
from a legal standpoint a lease contract based on the text of Article 777 of the Civil Code, and these two contracts were subject to
their provisions according to the texts of the Civil Code in the chapter on lease contracts. Therefore, the subject of their conclusion is within
the authority of the general agent authorized to manage the affairs of the endowment, not as the court of first instance concluded.
B- It was stated in the last section of the aforementioned general power of attorney as follows:-
And he has the right to exercise all the powers granted to me by law and which I can exercise for myself -
legally
It is clear to your esteemed court from this text that the principal has authorized and granted the agent the right to use
all legal powers based on the text of Article 931 of the Civil Code. This is what the Court of Cassation of
Iraq went to in its decision No. 1667 / Conciliation / 59 Mandali, and this is its text: "The general power of attorney is signed
by the plaintiff as well, and after the matters explained therein were specified, it stated that the agent shall have
all the rights and powers that she legally possesses. In this regard, it includes the lease contract -
also. Thus, the court's going to the contrary is a deficiency that invalidates the validity of the appealed judgment 6/19/960 Iraqi Civil
Judiciary, page 369, Part Two, Salman Bayat. In light of this, the agent, according to
the clarity of his power of attorney, did not exceed the limits of his power of attorney, as exceeding occurs if the agent acts with a right outside
the limits of the powers authorized to him. This was not established by the court of first instance; rather, what was stated in the power of attorney is evidence
for us against our opponent that the conclusion of the waiver contract was within his legal authority.
- To be continued -
- 4 -
Discussion of the trial court's decision from a legal perspective.
In light of the legal defenses, reasons, and grounds we have presented to your esteemed court as an explanation
and characterization of the authority of the Mutawalli (trustee) and his general agent, Edward Yaqoub, according to his general power of attorney, we see that the trial court was not
successful in analyzing and justifying its decision, the subject of the lawsuit, as is clearly and explicitly evident from its aforementioned decision. All
that the trial court relied upon in its decision is that the general agent, Edward Yaqoub, had exceeded the limits of his agency's authority,
and thus he is personally liable for this ⟦exemplary⟧ transgression. The trial court did not rely on a legal text, a legal
rule, or a jurisprudential opinion to support its viewpoint; rather, it used the expression (exceeding authority in his general power of attorney is considered
an arbitrary expression). This is a legal deficiency on the part of the trial court, as the Law of Civil and Commercial
Procedure requires it to justify and explain its decision according to the text of Article 131 of the aforementioned law.
In view of the legal reasons we have stated in our brief, the trial court's decision is considered collapsed due to its lack of
reliance on a legal reason upon which the dismissal of the lawsuit is based.
The trial court, in light of what was stated in its decision, bound itself when it decided that the agent Edward Yaqoub
is a general agent for the Mutawalli with the right to receive payments and lease. Thus, the <del>principal</del> principal result is that the general agent
who manages the affairs of the Mutawalli, who resides outside Iraq, has absolute management defined by the provisions and texts of the Civil
Code. This same opinion was adopted by the Personal Status Court in its decision No. 35 / Sh / 59, which ruled
to remove the Mutawalli (and a ⟦copy⟧ copy of this decision is attached to the lawsuit), which stated that the Mutawalli Emile Saleh
Shalimo resides outside Iraq and that (i.e., the Mutawalli supports his client's side and the agent used to attribute the legal acts
and dispositions he performed to his principal in addition to the trusteeship. The Mutawalli was managing the affairs of the Waqf through his agent.
Add to that, the general agent Edward Yaqoub had received an amount of - / 32,000 thirty-two thousand
dinars belonging to the Waqf from the Personal Status Court in his capacity as an agent for the Mutawalli. Is what he did
in terms of receiving the mentioned amounts considered something he is personally responsible for? In light of what the trial court concluded
in its decision, considering what Edward Yaqoub did as something he is personally liable for. If that were the case, how could the
Personal Status Court hand over to him funds belonging to the Waqf as long as the general agent Edward Yaqoub is responsible for
the act of receiving personally and not the Waqf? And would the Personal Status Court bear that in light of what the
trial court concluded in its decision?
From all this, it is clear that the Personal Status Court did not proceed with its decision to hand over the mentioned amounts until after
it was verified that the general agent Edward Yaqoub, as an agent for the Mutawalli, has the right to receive payments and manage the affairs of the Waqf, and that
his legal dispositions and acts are attributed to the Waqf as he is an agent for the Mutawalli, and that his dispositions do not belong to him personally.
Accordingly, the general agent Edward Yaqoub, through his actions, did not go beyond his legally authorized power
by concluding the waiver contract, as is proven by his actions and management of the Waqf's affairs over a long period. Add to that
that the waiver contract, according to general rules, is one of the weakest rights exercised by the general agent for management. This
is what the Court of Cassation has held in its numerous decisions and the opinions of commentators and jurists of the Civil Code. Despite
this, it was stated in the core of the general agent's power of attorney that he has the ⟦general agent⟧ right to receive payments and lease, and that the waiver contract
is not considered one of the legal dispositions that requires special authorization for it. Rather, it is considered an act of management and a right
complementary to receiving payments and leasing according to general rules, and the agent has the right even if the disposition is not stipulated in the power of attorney document.
- To be continued -
Abdul Aziz Muhammad Al-Shahiri
Baghdad - Banks Street
Al-Damirji Building
Telephone { Office 86251
{ Residence
⟦My number⟧
⟦line⟧ 5 ⟦line⟧
Legal to perform legal acts as required by management for the purpose of completing the works that require management, and as long as
the general agent has the right of collection and leasing, the result of that is he has the right to waive in exchange for a known consideration, and that the trustee
Emile Saleh Shlimo, residing outside Iraq, has given his general agent all legal powers for the purpose of managing the affairs of
this endowment, and on the other hand, as we have shown in our briefs, there is no harm to the interest of the endowment.
It follows from this that what the trial court went to in its decision has collapsed from its foundation due to what we have shown
of legal reasons, therefore the decision is contrary to the law and must be overturned by your esteemed court.
Summary: The former agent of the dismissed trustee had added the two contracts, the subject of the lawsuit, when
concluding them before the notary public to his principal in addition to his trusteeship over the mentioned endowment according to his general power of attorney (942 Civil)
He also admitted before the trial court, explicitly recognizing that he concluded the contract in his capacity as an agent for the trustee and that the contract
was in addition to the trusteeship, and this admission before the trial court cannot be retracted in any case, and that the party
contracted upon in the two contracts is the endowment party, and the amount claimed by my client had been received by the former
agent in his capacity as an agent for the trustee and in exchange for his waiver of the endowment's rental considerations, the subject of the lawsuit, for a known consideration, and he did not receive
the mentioned amount in his personal capacity such that the trial court would go in its mentioned decision to consider Edwar Yaqoub responsible
for that personally.
Accordingly, as long as my client has been deprived of benefiting from the utility of the two aforementioned contracts, which the former agent
explicitly admitted before the notary public and before the trial court to have received their amounts in cash from my client, and as long as it has
become impossible for my client to continue implementing them for the reasons stated in the lawsuit petition, then the
appellant, in addition to his trusteeship over the endowment subject of the lawsuit, is obligated to return the amounts received by him in this capacity
to my client; whatever the form and formula of the contract, the consideration is for the intentions and meanings, not the words and structures.
As for the subject of the lawsuit from the formal side and its subject from the legal side, I repeat all that was stated in
statements which were recorded in the trial minutes and the written briefs attached to the lawsuit file.
For these legal reasons that I have mentioned, I request the overturning of the preliminary judgment and compelling the appellant, in addition
to his trusteeship, to return the claimed amount of (- / 24815) Dinars in the lawsuit petition and to rule against him
for legal interest starting from the date of filing the lawsuit until the date of payment, as well as ruling for the penal clause stipulated
in the two contracts and as stated in the lawsuit petition, and the confirmation of the precautionary seizure located in the seizure
file numbered 11 / H / 61 Karkh Court of First Instance, and that the seizure bond is attached to the lawsuit while charging him with the trial costs,
attorney fees, and brief fees.
Note: This is with the knowledge that the conclusion of the pleading in the lawsuit under discussion was on 12/18/62 and I was
informed of the decision orally on 1/5/63, and this is contrary to the text of Article 131, second paragraph, of the Civil and Commercial
Procedure Law, which requires the court not to delay the issuance of the judgment and its notification for more than ten days
from the date of concluding the trial, and I leave this legal violation and its assessment to your respected court.
In conclusion, please accept my utmost thanks and respect.
Agent of the Appellant
Lawyer Abdul Aziz Muhammad Al-Shahiri