Private Law

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Discontinuation of the Civil Lawsuit under the Palestinian Law: A Comparative Study
(2009) Saed Wahid Kamel Hamdullah; Dr. Akram Daoud
The Civil Lawsuit is considered the legal way of protecting rights and demanding them. Some jurisprudents define the lawsuit as "the authority of resorting to law to acquire a right ratification or for protecting it" or "the authority of resorting to law for the purpose of its application". The lawsuit is practiced by any person who thinks that s/he has a right protected by the law, or has a right she wants to reveal by using his/her right in suiting. This judicial demanding starts as the right owner follows certain procedures demanded by the Palestinian Civil and Commercial Trials Assets Law No. 2/2001, and the first one is to submit the list of the lawsuit, to get a final arbitration in the lawsuit and executing it. The argument is defined as" a group of procedures that starts from the time of announcing the lawsuit, till a judgment is made with regard to its subject or its expiration without a judgment. Other jurisprudents define " the civil argument as a moving phenomenon, and from its features the sequence through following procedural work, that time chronically in sequence, and technically bonding for the purpose of reaching to acquiring the subjective or timely judicial protection of the rights that are disputed on" However, a number of hindrances that eliminate it sometimes and pause it other times may emerge during the lawsuit. These hindrances are represented by: First: the discontinuation of the lawsuit that follows the procession of argument procedures, as it hinders it from movement and advancing. It makes them stagnant procedures, that can't be trespassed unless the reasons behind it are trespassed. Second: stopping the procession of the lawsuit based on the arguers agreement. Article (127/1) of the Palestinian Civil and Commercial Trials Assets Law stipulates the following: "the court has the right to postpone the lawsuit based on the agreement of the arguers, in a period no more than 6 months from the date of its ratification by the court". The court is also allowed, on its own, to decide to stop the lawsuit according to Article 126 of the same law. "1- The court is allowed, on its own, or based on the arguer request, to stop the lawsuit procession, if it sees that the judgment in its subject depends on the decision made in another issue, 2- any of the arguers is allowed to ask for speeding the lawsuit procession as soon as the reason for stooping is ends". From this we find that the discontinuation is above the will of the lawsuit parties and the court, while stopping it is the decision of the arguers or the court itself. Third: dropping the lawsuit, by the claimer, through two ways: exonerated dropping, or non exonerated dropping, and on the second type, the claimer can hold a new lawsuit. Fourth: the End of argument, as the defendant has the right to demand the judgment by the end of the argument after six months period starting of the last procedure taken at the lawsuit, and then it was not proceeded by the claimer. The argument legally ends two years after the date of conducting the last procedure. The discontinuation of the argument in the civil lawsuit is considered as one of the most important hindrances that follows the procession of the argument's procedures, hinders its movement, and stops its development which makes it stagnant that it can't be stirred or trespassed unless the reason behind them is. From this, we conclude that the discontinuation of the lawsuit's procession makes the procedures stop, under the occurrence of something that hinders its advancement above the will of lawsuit parties and the court, as the court become unable to ignore it whenever its reasons occur. The Palestinian legislator has approached the subject of the discontinuation of the civil lawsuit in the 8th chapter, section 2, of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 No. 2/2001, under the title "argument hindrances". The subject of discontinuation in the lawsuit procession is referred to one of the reasons defined by the legislator, exclusively, in the Article 128/1 of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 which leads to paralyze the effectiveness of the rights of defense. The subject of discontinuation of the lawsuit procession has a considerable importance in the Palestinian Civil and Commercial Trials Assets Law, for the purpose it protects. It is ratified to protect the civil lawsuit parties, which give them the right to practice all the civil lawsuit procedures in a way that guarantees to the suitors their judicial rights, and in a way that the sacred right of defense is not violated, and that justice is being in progress. The proceeding of a civil suit is discontinued before a first degree court as a subject court and an appeal court to review appeals before the court of appeal according to articles of law 128/1 which mentioned earlier and also according to the articles of law 224 of the same above mentioned law. This law indicates that " rules of appeals applies to a first degree law which are related to the presence of liabilities or their absence or the regulations and rules which do not contradict the articles of law. The matter of discontinuation which is related to a civil suit does not apply to procedures before the Court of Cassation because of the special procedures. This does not rely on the confrontation between liabilities but they have the opportunity to be at court according to the instructions of their attorneys unless if they request that in writing. The court has it evaluative authority in this regard. Moreover, reasons for appeal are indicated by legislators in article 226 of the principles of civil and commercial Palestinian courts (No 2 for 2001) which are made to guarantee a respect for the court of appeal to implement the law. It is worth noting that discontinuation is not mentioned in executive law suit before an executive judge which the article 12 of Executive Palestinian Law number 23 for 2005 ;: 1. those who break a law or an agreement in the place of creditor, they have the right to be replaced by it in executive procedures. 2. those who implement the verdict according to article 1 in all cases which there is an impediment which is created between creditor and the following up of procedures as absence, demise of potential, and demise who represent them according to article 14 of the same law. If creditor loose the potential or dies, his or her inheritors or who represent him or after, can after 10 days after receiving necessary papers of execution, start the execution process. It is possible to notify the inheritors of creditor that that of his or her last residence without the clarification of their names and personal details which are matched with the amount of money left by the creditor.
Electronic Contract Council
(2008) Lama Abdalah Sadeq Salhab; Dr. Akram Daoud
Internet is considered one of the most important innovations developed by the human being, in the field of informatics since the end of the past decade, as it removed all the geographical borders between countries, converting the world into a small village. In accord with this context, the electronic commerce appeared and developed, and the Internet became one of the important intermediaries, through which electronic contracts are made. The electronic contract can be defined as an agreement, in which the acceptance encounter the offer, at an international open communication net, over distance through audiovisual manners, creating reaction between the offerer and the offeree,and these manners are not limited only to the Internet, but it comprises other electronic communication devices, such as Fax, Telex, Facsmail, and Telephone, as these devices through which the electronic contract is made, is one of the most important features of the electronic contract, that distinguishes it from the conventional one. Considering that the internet and its divers services, is one of the most important sidesthat give the electroniccontract its specialty,differentiating it from the conventional contract. The electronic contract belongs to a group of contract made through distance, using electronic devices without physical presence of the contractors. Because of that, its proving and fulfillment is done in special ways, different from those of the conventional contract. The validity of the electronic contract is materialized as a result of the materialization of the validity of its bases, which is the object, the cause, the satisfaction (approval) and the eligibility, which are regulated with the same frame of general principles, that regulate the conventional contract, with the particularity of these bases, as the general principles do not have the ability to expand, in order to comprise the eligibility of the contractor, as a result of the difficulty of the assurance of the identity of the contractors and their eligibility, and because of that the electronic signature and the electronic certifying bodies were created. The negotiation stage usually proceed the concluding of the contract, during this stage the suggestions and the bargaining are exchanged, and it is known as the duration before contracting, although the contract could be made without going through this stage, disagreement arisen about the nature of the responsibility as a consequence of the interruption of the negotiation, and whether it is considered as delinquency or contractual responsibility, also disagreement has been roused about the legal nature of the contract, and whether it is considered as contentment or submissiveness contract, which is determined according to the method used to conclude the contract on the Internet, as the contract made through the Internet is in general a contentment one, but those made through Email or Chatting is considered as submissiveness contract. The electronic contract is concluded by the submissiveness of its parties, the presence of the submissiveness depends on the concordant of the concurrence of wills, expressing the offer and the acceptance, using one of the expression methods considered according to the general principles,as expressing orally, by writing, signs will known traditionally and the attitude of the parties of which the situation and all the circumstances do not leave any suspicion regarding its significance, also there are special ways for expressing the will in the electronic contract concluded through Internet, from which according to the general principles we can consider, the expression using Email, websites and chatting, in which an electronic data letters could be used to express the will through the mentioned ways, in addition to other ways regulated by the general principles. The essence of the electronic offer does not differ from that of the conventional one, except in the manner used to express it. The importance of distinguishing between the offer and the invitation to treat, is the possibility of regression of the offer, as the engagement of the acceptance with the offer lead to the conclusion of the contract, so the offerer will not be able to regress his offer, while in the case of the invitation to treat, the offerer has the right to regress his offer despite the engagement of the acceptance with the offer. There are several requirements of the electronic contract, among these: it should be clear and directed to a concrete person or persons, decisive and exactly defined. In the same manner that the general principles applied on the electronic offer, it is also applied on the electronic acceptance, there are special ways of the electronic acceptance, in accordance with the nature of the electronic contract concluded through Internet. The expression of the acceptance could be explicit or implicit, but the silence is not considered as an acceptance, except in exceptional cases, although this assumption is difficult to be applied on the contract made through Internet. The Egyptian and the Jordanian legislator of the civil law, adopted the same approach as Islamic jurisprudence regarding the contract council, as it gave the offeree a rational period of time in order to express his acceptation, without slackness that lead to harm the offerer, the importance of the contract council exists in the determination of place and time of conclusion, in addition to the type of law that should be applied, and the court that has the jurisdiction in the case of disagreement regarding the contract. There are two types of contract council, a true one and a propositional one, in the case of the true one, the contractors are meeting in the same place contacting and hearing each other directly, and they should not be diverted by something else other than the contractual matter, the council begins with an offer and end with acceptance or rejection, or dissolved with out response, while the council is considered a propositional council, if one of contactors is absent, and it is usually the case of electronic council. The time parameter is considered the appropriate and the most flexible, in order to distinguish between these two types of contracting, because this parameter is able to follow the real development of the modern communication media, according to this parameter, the contract council when using the telephone and the similar devices, is considered in general as contracting between absents with respect to the place, andattendant with respect to the time, also the contract council using the fax and similar devices, is considered as contracting between absents regarding both place and time, however with respect to contracting using Internet, the state differs according to the way of the contract conclusion, as the contracting using Email, usually considered as contracting between absents regarding both place and time, except in the case of direct connection using Email with out time gap between the issuance of the acceptance, and the awareness of the offere, in the case of contracting using the web page, the contracting is considered as contracting between absents regarding both place and time, although in the case of contracting using direct chatting with vision through camera, the contracting considered as contracting between attendant regarding both place and time, and if only writing is used in chatting, without time gap between sending the letter and the awareness of the other part, in order to respond with immediate letter or oral communication, then the contracting is considered as contracting between attendant regarding time and absent regarding place, although in the case of the presence of time gap between the issuance and awareness of the letter in order to respond to it, then the contracting is considered as contracting between absents regarding both time and place, this ultimate case is the one that could be applied on sending SMS using mobile. As a result of the challenged appeared regarding the determination of the time and place of contract council, legal and jurisprudence solutions appeared in order to resolve this issue, as it is the most important problem facing contracting between absents. These solutions were represented in the unilateral and bilateral theory, the unilateral theory does not separate between time and place of the contract council, from which we can mention the announcement of acceptance theory, theexpedition of acceptance theory, receiving the acceptance theory, and theawareness of acceptance theory, while the bilateral theories does not bind between time and place of contract council, these theories are represented by the Malory and Chevalier theories.
Governance of insurance companies in Palestine Assess the Current Situation and the Requirements for) Updating-"A Comparative Study")
(2014) Samah Mahmoud Najem; Dr. Akram Daoud; Dr. Sameh Atout
The study examined the subject of insurance corporations governance in Palestine by analysis, debate, and evaluating there current situation and there update requirement. This Empirical Study applied to insurance companies registered in Palestine Securities Finance. The study aims to identify the reality of Palestinian insurance corporations governance, Based on international standards of Governance and the range of commitment the Governance rules in Public Shareholding Companies in Palestine. And the suitability of the fabric in the Palestine Legislative represented by the law firms of Jordan No. 12 of 1964 and other laws related to insurance as law No. 20 for the year 2005 to the principles of corporate governance adopted by the International Organization for Economic Cooperation and Development (OCED), It also aims to identify the regulatory environment for the insurance sector and what should be on the institutions and regulatory bodies to follow the mechanisms for activating the principles of corporate governance through the provisions of the law and the adoption of addition modify it so as to promote the concept of corporate governance. The researcher used the descriptive analytical approach in conducting the study by collecting data from primary and secondary sources, a questionnaire has been designed specially prepared for this purpose, includes several axes falls below the principles and guidelines for corporate governance. In order to measure the extent of the application of insurance companies Palestinian to these principles, and distributed to a sample study of (31) of the board of directors and executives, And financial managers, and internal audit, and members of the executive committee, the insurance companies listed and the number (7). The researcher used statistical analysis software (SPSS) to analyze data and test hypotheses, To ensure the veracity of the answer to the questionnaire have been relying on the data and information published in annual reports to insurance companies and its own website, as well as personal interviews with specialists. The study found that insurance companies in Palestine come a long way in the application of standards of governance evidence that the level of governance of insurance companies Palestinian than the average, Be it possible to be a level better than that, which means that there are obstacles standing in front of commitment to the principles of corporate governance, notably lack of conviction by the management of these companies to the concept of governance, As well as the legal obstacles identical in the obsolescence of law firms. The study recommended a series of recommendations including amending some legal texts related to the management of the company, And protecting the rights of shareholders, And follow the rules of disclosure and transparency, And preserve the rights of stakeholders, And activating the role of regulatory bodies on insurance companies, And a culture of corporate governance, The trend towards issuing a guide to governance of insurance companies.
Impacts Resulting From Insurance Contract Related to Civil Responsibility "Contrastive Study"
(2009) Bahaa Al-een Masoud Said Khwaireh; Dr. Akram Daoud; Dr. Ghassan Khaled
This study aimed at investigating the impacts resulting from the insurance contract related to civil responsibility. The insurance contract has become so important that it exceeds all the other various types and forms of insurance. This fact is manifested by the legislator intervention by enforcing some of its types by forcible legal texts such as the case of responsibility resulting from road traffic accidents. The subject of the study is divided to introductory chapter and three main chapters within a contrastive study between the Palestinian Insurance Law, the Jordanian and Egyptian Civil Laws. In addition, the study explained what is included in the special legislations related to compulsory insurance of the responsibility resulting from road traffic accidents. In the introductory chapter, the study dealt with the general frame of the insurance contract related to responsibility including its definition, identification of its legal nature, highlighting some of its characteristics, and shedding light on its most important jurisprudence divisions so that the reader may comprehend the legal frame of this type of insurance before dealing with the consequences resulting from its issuance. The first chapter deals with the obligations of the insured person. Since such obligations are numerous, I found it more reasonable to divide them to two sections. In the first section, I discussed the obligations of the insured person within the general frame of the insurance contract including the insured person's obligation of paying the insurance premium, obligations related to risk, obligations related to notification of risk occurrence, and supplying the documents that prove such occurrences. I have discussed such obligations in three successive sub-sections to present the contents of such obligations and the consequences resulting from violating them, in accordance with the nature of the insurance contract whether elective or compulsory. In the second section, I discussed the most important stipulations that are included in the insurance documents related responsibility that comprise basic obligations held by the insured person and related to the presence of responsibility in the insurance contract. These are discussed in three sub-sections. In the first one, I discussed the stipulation of not confessing to responsibility; in the second, the stipulation of non-settlement with harmed party; and in the third, I discussed the stipulation of the insured person's management of the responsibility claim. The second chapter is dedicated to investigate the insurer's obligation in the insurance contract regarding responsibility. This is done in two sections. In the first section, I discussed the legal nature of insured risk in insurance regarding responsibility which, upon its occurrence, drives the insurer to pay the reimbursement amount. In two successive sub-sections, I presented the viewpoints of the legal jurisprudence to the issue of determining the insured risk in insurance regarding responsibility. Then, I presented the stand of contrastive legislations related to this issue. In the second section, I discussed the limits of the insurer obligations within the frame of the insurance contract related to responsibility according to the limitations that refer to the stipulations of the insurance contract related to responsibility, in addition to the limits that are related to various types of insurance contracts. Since the insurance contract related to responsibility is not restricted in its effects on the relationship between both parties of the insurer and the insured but there must be a third harmed party to whom the insured person is responsible. The third chapter is dedicated to discussing the impact of the insurance contract related to responsibility on the relationship between the insurer and that third harmed party due to the legal effects arising from such relationships that might be incomprehensible. In this chapter, I discussed the issue of how the harmed third party refers directly to the insurer by clarifying the legal basis on which the right of the third harmed party depends on to refer against the insurer in direct claim, and the stipulations that must exist so that the harmed party can practice their rights in such claim and the related impacts. Finally, the conclusion of this study contains the significant findings, recommendations, and suggestions that I have reached in the study.
The responsibility of insurance companies to compensate the Victims of road accidents and the amount of compensation " Acomparative study"
(2012) Hussam Adnan Mohammad Hattab; Dr. Akram Daoud
Researcher of this study dealt with the responsibility of insurance companies to compensate victims of road accidents, this topic is of great importance that the laws that the legislature in the comparison gave an aura of sacredness to the right of the injured road accident as a weak point in front of insurance companies. The researcher has divided the subject of study into two main as part of a comparative study between the Palestinian and insurance law insurance legislation in force in both Jordan and Egypt, which is stated in the doctrinal explanations of the relationship. The first chapter dealt with by the researcher over the responsibility of insurance companies to compensate the Victims of road accidents, after dividing it into two sections between the two main grounds and limits of responsibility and the scope and extent of insurance coverage and staff responsibility. Chapter II appropriated the researcher to address the issue of the effects of insurance compulsory and divided it into two sections, highlighted in the first research on the subject of payments emergency imposed by law on the insurance company for the benefit of the victim and that pending the decision in the case against the insurance company or that will be set against it, after the split of the two requirements, where between the first demand payment request urgent and urgent elements of calculation of payments and legally committed to notify the urgent payments, while the second requirement was allocated to the procedures for requesting emergency payments to the competent court, and the conditions of application, stop payments and modify the decision of the application and implementation. In the second section, the researcher explained, the amount of compensation the victims of road accidents, compensation, both moral and material compensation, indicating the roof of each type and the basis of their calculated and officer compensation in it. Then followed by a conclusion included the main conclusions and recommendations and suggestions reached by the researcher through this study.
Subordinated Responsibility for his Subordinate's Act in the Palestinian Civil Bill A comparative study
(2008) Rabee Najeh Rajeh Abu Hasan; Dr. Akram Daoud
The subordinated responsibility for his subordinate's act (fault) is a form of responsibility for the action of others, and responsibility for the action of others is a case of tortuous responsibility and the tortuous, along with the contractive represent the civil responsibility, which in turn is a part of legal responsibility, and all of these types are within the item responsibility in general, so we began the research with the introductory chapter, through which we showed the concept of responsibility in general, and showed also the types of this responsibility and distinguished between these types, and in this chapter we discussed the case of availability of conditions of the opinionative and tortuous responsibilities in a single act, in this case we found that the combination of the two responsibilities is not legal, but it is legally to choose between them, and then We dealt with the basis of tortuous responsibility in law and jurisprudence under consideration, some of which founded it on the injury and the others did not specify their position clearly. Chapter I was started with a historical entrance of the subordinated responsibility, and dealt with the subordinated responsibility in the old laws which are the historical sources of the laws under consideration , so we addressed this responsibility in the Roman law, the French law, the Islamic jurisprudence, and the English law. Chapter II dealt with the conditions of subordinated responsibility and the basis for this responsibility, and it was found that the subordinated responsibility, and to be valid, there must be a relationship of subordination between the subordinate and the subordinated, and that the subordinate really committed an act that defects others, and that this act is done during or because of job, this in addition to terms of the civil infractions law, but regarding the act done by function or foreign act, they do not cause subordinated responsibility, as We dealt with the exceptions provided by the civil infractions law on this responsibility. Regarding the subordinated responsibility, it was found that the doctrine differed markedly in determining this basis, Some estimate it on a personal basis and some evaluate them on an objective basis, but for the jurisdiction and law we found that they tend to introduce the idea of security or bond. We have allocated Chapter III to study the effects of responsibility, within two basic relations, the first is the relationship of the injured with the subordinate and the subordinated, and the second has focused on the relationship between the subordinate and the subordinated, the injured in some of the laws has the option to return on the subordinate and the subordinated or on both, and in other laws the injured can return only on the subordinate, and he can return on the subordinated only after the availability of certain conditions. As for the relationship between the subordinate and the subordinated, we found that the subordinated has the right to return his subordinate to recover what he had paid to the injured, although some laws (civil infractions) did not expressly provide that in the context of their organization of the subordinated responsibility, but it was by reference to the general rules.

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