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- ItemAmending Condition of Contractual Responsibility in the Egyptian Civil Law(2006) Ahmed Saleem Fariz Al-Nasrah; Dr. Gassan KhaledThis study examined the amending conditions in the contractual responsibility. In an introductory chapter, several issues related to this study were raised. One was the pillars of contractual and inadequate responsibility. The focus was on the pillar of error. It was explained that personal responsibility of the moneylender (creditor) extends to his responsibility for the errors of his/her followers and the act of doing the thing. A comparison was held between the two responsibilities. The issues of combination and choice between the two responsibilities were presented. It was found that considering the choice between the two responsibilities would lead to the lack of order of the two exempting and mollifying conditions of the impacts of the two responsibilities.A definition of these two conditions was presented and so was their scope. It was found that the idea of amendment in the responsibility is blemished with ambiguity by same law expounders. The researcher distinguished it from compensation agreement system and responsibility insurance. Then the researcher presented the effects of conditions on the persons. He explained what could be considered an exception in these effects and showed the partial and total impact of the invalidity of these conditions on the contract, thus rendering the application of the general rule in the lessening of contracts. Chapter one was devoted to the exempting condition from responsibility. In this context, the researcher presented the fiqh (Islamic Law) position towards this condition. He also presented the position of the Egyptian law and court of justice. It was found that the Egyptian civil law has allowed explicitly this condition but introduced two exceptions to it. One exception is serious error; the other is the error of the other. The researcher criticized this position because the creditor’s responsibility in this case is a personal responsibility. Further, the Egyptian civil law has failed to put rules or sufficient restrictions on this condition. The researcher suggested taking a number of these rules, derived from fiqh and court of justice and others derived from some special applications These restrictions don’t allow this condition if it poses danger to man’s safety. They also don’t allow this condition if it has to do with a key commitment in the contract. In addition, it was necessary for the condition to be written; otherwise, it would be related to the relationship between the consumer and the merchant. It shouldn’t be stated in the submissive contract. The researcher found that despite allowing this condition as a general rule, several applications were cited and considered this condition devoid. The researcher concluded that this condition would lead to the lack of responsibility of the creditor although he would be originally responsible pursuant to the general rules. He has to transfer the burden of evidence, in the case of cheating and serious error. Chapter two was devoted to the mollifying condition. The researcher noticed that this condition had several versions. He, however, limited them to the two general versions. One is the mollifying cases of commitment. Added to them was a special version pertinent to the condition which dictates that the period of course of the time be shortened. The researcher, in this context, found that the first and second versions would be allowed. The third version, however, would not be allowed except in narrow situations. Of the mollifying condition versions, the version that would refer to the sum of compensation was ruled out. It was not considered a mollifying condition of responsibility. Rather it was a compensation: either agreement or legal. Concerning the partial exemption from obligation or commitment, it was attached to the provision of exempting condition because there was no difference between them. What applies to most of the mollifying condition provisions apply also to the exempting condition given the same cause most of the time. In chapter three, the researcher dealt with the stiff condition in responsibility. He presented the condition which holds the moneylender the foreign cause. He explained its notion, what it includes and showed that it has had two faces. The first is included in the concept of guarantees. It is considered a commitment in its accurate meaning. The second remains within the framework of responsibility. Every adaptation necessitates different effects. They were all explained in the context of the research. The researcher presented the effects of this condition on the burden of evidence and money lender’s responsibility. He also explained the exceptions to it. He also dealt with the condition of toughening the evaluation of the moneylender’s conduct and explained its versions and its impact of evidence and moneylender’s responsibility. He also presented several applications for the stiff condition in responsibility in several contracts. In addition, he presented the restrictions stated in the stiff condition in responsibility: writing, clarity, physical safety of men, non-violation of general order, and good intention and non-violation of the condition of justice. In the conclusion, the researcher presented general conclusions. Details pertinent to applications of conditions, however, were not all presented. The suggestions were also restricted to the wording of a general text which has to be included in the civil law in addition to another text pertinent to the permission of choice between the two responsibilities.
- ItemTrade Marks and the Ways of Protection in the Laws which is Valid in Palestine(2006) Mahmoud Ahmed Abed-Hameed Mubarak.; Dr.Gahssan Omer KhaldThe main function of the trademark is to enable consumers to identity a product (wherever a good or a service) of a particular company so as to distinguish it from other identical or similar products provided by competitors. Consumers who are satisfied with a given product are likely to buy or use the product again in the future, for this; they need to be able to distinguish easily between identical or similar products.In general any distinctive, words, letters, numerals, drawings, colours, pictures, shapes, logotypes, labels, or combinations of the above used to distinguish between the goods and the services of different companies may be considered a trademark. The subject of the trade mark includes the following points: Chapter one includes: The concept of the trade marks، and the different kinds of the trademarks, such as the name, signatures, words, letters, numbers….elc, that can be used as trade marks, and in this chapter will deal with the necessary conditions of the trade marks, which are distinguished, new and legal. This study treats the different aspects of the legal protection of the trade marks which are: the civil protection and criminal protection. Chapter tow includes: The civil protection of the trade mark is available for registered trademarks only as for unregistered trade mark it's not covered by the civil protection according to the amended trademarks law except for the well-known trade marks. Chapter three includes: The criminal protection such as: 1-The crime of imitation of trademarks. 2-The usage of falsified trademarks. 3-The usage of trademarks belonging to anther merchant. 4-To sell or expose for selling materials under falsified trademarks or marks belonging to another. These crimes receive penal punishments such as imprisonment and fines.
- ItemSale of a Properly Belongs to Another A Compartive Study Under Positive Law & Islamic Jurisprudence(2006) Ayman Mohammed Hussein Nasser; Dr. Ali Al-SartawiThe subject of this research is the issue. Sale of a properly Belongs to Another a Compartive Study under Positive Law & Islamic Jurisprudence. The research includes a preliminary section where I stated the essence of sale in language, law & doctrine where I have compared among these three concepts. In the first section, I’ve tackled the concept of sale in the positive law & Islamic jurisprudence, comparing between these two concepts. Then I’ve limited the range Sale of a properly Belongs to Another, determining what might be included in this sale or not, distinguishing it from a few other suspected systems. In the second section, I’ve dealt with the issue of legal nature for the Sale of a properly Belongs to another in the positive law, discussing the theories said in this concern as follows: 1.The theory of cancellation; 2.The theory of absolute nullity; 3.The theory of relative nullity; 4.The theory of suspended contract; 5.The theory of annulment, for a special kind. Then I dealt with the theories said in rooting the. Sale of a properly Belongs to Another according to the Islamic jurisprudence; such as: 1.The theory Sale of a properly Belongs to Another cancellation. 2.The theory Sale of a properly Belongs to Another stopping. Then I compared between the two doctrines: the Islamic & legal in determining the lawful nature Sale of a properly Belongs to Another where I studied the rule of suspended contract & the rules of contract liable to cancellation; as well as which of the two contracts is more appropriate for the case Sale of a properly Belongs to Another. In the third section, I researched the subject Sale of a properly Belongs to another where I started with determining the legal nature of real-estate sale in the positive law & Islamic jurisprudence, comparing between the two trends. Then, I moved to limiting the nature of the lawful nature for the selling Sale of a properly Belongs to Another according to the positive law & Islamic jurisprudence, comparing between the two concepts, the lawful & doctrinal from the issue Sale of a properly Belongs to Another. In the fourth section, I took the rules Sale of a properly Belongs to Another where I studied first the rules Sale of a properly Belongs to Another between the contracting parties; and the right of the buyer & seller in revoking the Sale of a properly Belongs to Another and the position of Islamic jurisprudence in this concern; as well as the extent of buyer’s right to claim compensation according to the two doctrines: the legal & Islamic; as well as the source of this compensation on the basis of the lawful & Islamic trends. Then, I took the cases of correcting the Sale of a properly Belongs to Another, sush as: 1.The lapse of buyer’s right to sue for an action-at-law against annulment by prescription. 2.The licensing of buyer for the sale. 3.The possession of buyer for the sale. 4.The possession of seller for the sale. Then, I took the rules Sale of a properly Belongs to Another according to the true proprietor where I studied the issue of fixing or licensing the proprietor for the sale inscribed on his proprietorship. This needed at first studying the concepts of fixing & licensing according to the lawful & Islamic concepts; as well as the difference between the two terms in the shade of the two doctrines. And I moved afterwards to the hypothesis of not confirming the proprietor for the sale where in this supposition there were two relations for the true proprietor: the 1st, his relation with the buyer; and the 2nd, his relation with the seller. Yet, in the hypothesis of fixing the true seller for the sale, three results have emerged: 1.The validity of selling in the right of the proprietor. 2.The lapse of the buyer’s right to claim for annulment. 3.The relation between the true proprietor & the buyer. Finally, I researched the rules of 3rd. Party’s Sale in the case of successive sales. Then, there was the end which included the results of the research and recommendations.
- ItemPillar Fault of Omissive Responsibility Comparative Study of Egyptian and Jordanian Civil Laws(2007) Asma' Musa As'ad Abu Sroor; Dr. Ali SartawiThis study researched and analyzed fault on which all topics have dwelt. First, the study researched into responsibility as a method which considers fault as its basis. Then the study moved to identify the concept and nature which necessitate a blame for breaching one of the regulations. The study also examined the diversity of regulations which eventually lead to the emergence of diversity in responsibility, legal responsibility and omissive responsibility in particular given the fact that the fault is its basis in the majority of laws. In this context, the researcher surveyed the historical stages which responsibility has passed through and compared between responsibility and security in terms of the latter's concept, elements of difference and similarity with responsibility as a method very close in its objectives to those of omissive responsibility, albeit outwardly. In chapter two, the researcher elaborated on fault as an abstract concept in language and in law. The researcher provided an analysis of some juristic terms which sought to control and specify the concept of fault in order to control its legal status, pertinent to it, and determine its presence or lack of it and the difficulty if not the impossibility of so doing. The abstract concept of fault, by its nature, was intended to form as a basis or foundation for a legal status requiring accuracy which no definition can succeed in describing a concept of an abstract nature. The researcher also investigated the effect of difference in the shape of act, positive or negative, which the fault is based on as well as the impact of difference in descriptions pertinent to the fault, serious or trivial, deliberate or not, on the role of fault in responsibility. Through investigation of the types of fault (civil and criminal) it was found that there was an inevitable link between civil responsibility and criminal responsibility. That is, every criminal fault is necessarily a civil fault but the other way is not true. It should be maintained that the basis of discrimination or differentiation between the two responsibilities was not the act and its description. The differentiation, rather, was based on harm and its difference from both responsibilities. The researcher also found that the fabrication of a new type of fault neglects the abstract pillar and founds for fault and holds the responsibility on the physical/material pillar. It also failed, according to the concept of responsibility, in finding it a necessity to assign it rationality by overcoming the lack of justice resulting from the assumption of rationality as a non-material pillar in the fault. Accordingly, there was failure to account irrationality for harm inflicted on others. The second half of the study examined the pillars of the fault. Chapter three investigated the material pillar, on the assumption of its realization of aggression on the normal person's behavior in the same circumstances which surrounded the perpetrator at the time of committing the act, in order to the considered an aggressive person if he/she deviates from the social control to whom the judiciary was granted wide powers, to determine its presence or lack of it, than it should, particularly given the ambiguity and disagreement over the circumstances taken to describe the act as aggressive from other circumstances which can be taken but accompanied the act and impacted it. Those accompanying the perpetrator have been marginalized and even neutralized on the basis of objective necessity of argument as if the average person, in his carefulness, intelligence and wittiness were enough to explain who the ordinary person is and how he is expected to behave, thus achieving objectivity and neutrality in the legal text. The researcher, at the end of the chapter, analyzed the argument in the Jordanian civil law and Islamic Sharia concerning the concept of aggression, its appropriateness or lack of it with effective system in both of them. Chapter four was devoted to the psychological or non-material pillar in terms of its concept, nature and the truth of its presence in the fault and in the responsibility as a condition of assigning the responsibility or a condition to attribute the fault to the perpetrator. The researcher held a comparison between systems followed in the Jordanian and Egyptian civil laws- and the Islamic Sharia necessarily –for each of them follows a different system. In the light of the research into the validity of the fault as a pillar to establish responsibility, it was found that such establishment was not valid, pertinent to the fault and its nature, thus preventing it from becoming a legal basis, in the accurate and abstract sense, required in any legal foundation. Considering the fault as a basis for making the responsibility a civil one, at the beginning of its separation from the criminal responsibility, didn't emerge as different from the criminal. Rather, it was a case that extends to criminal responsibility assumed by the emergence of the legal principle. However, the difference of assumed purpose from both of them necessitates flexibility in the foundation of the omissive responsibility, hence the fault. The nature of responsibility and omissive responsibility in particular, and assumption of coercion and compensation as an end for it has revealed more clearly the non-validity of the fault as a basis for responsibility and even the non-validity of responsibility as a method that aims at rectifying the harm, bringing back the balance to financial reliabilities coupled with what the responsibility holds of appropriateness of nature which assumes that a deviant act is a basis for it regardless of its description and the necessity for differentiation of perpetrators when it comes to accountability
- ItemContractual Relations Between Parties to the Contract of Letter of Credit(2007) Samah Yousef Ismail Al-Said; Dr. Hussen MashaqeOur study theme focuses on the Letter of Credit , as it is one of the banking operations that played and is still playing a great important commercial and economic role at international commercial and economic role at international commercial level. And due to the lack of legal studies on this theme, I handled in my study an important aspect of the Letter of Credit, that is the Legal Relation which connects the relevant parties to each other based on the following international publications : ·The United Rules Group of International security Practices (ISP), Buletin No. 590 issued in 1998 by the International Chamber of Commerce in Paris, which entered into force as from 1st January, 1998. ·United Nations Convention (UN Convention) of independent Warranties and security, of 1996. ·The United traditions and Conventions Group of Letters of Credit, UCP Buletin No. 500 issued in 1993 by the International Chamber of Commerce in Paris, which entered into force as from 1st January, 1994 . The contents of my study included three major chapters divided into subjects, requirements and sections. In my study, I handled the Letter of Credit and its legal organization implying jurisprudent, legislative and judicial opinions. if I want to give a comprehensive legal definition for the approach to the Letter of Credit, I find in dr. Jorgeit's definition the inclusiveness of definition, as she defined it as a written undertaking issued by a bank called the issuing bank addressed to the seller who is called "The beneficiary", according to the buyer's request who is called the ordering client; in it, the bank undertakes to pay to the beneficiary a certain sum of money when the beneficiary submits the documents which are mentioned in the letter addressed to him, and this letter is called, " he Letter of Credit", during the period specified in it. The contract of the Letter of Credit is independent from the sale contract which is made according to it, as well as from all relations resulted from the operation of the Letter of Credit. Then I presented its importance, benefits and characteristics with which it is distinguished from other contracts. I also handled the cases which show the law that should be applied on the contract of letter of credit. We also have not forgotten to mention the most important documents which should be included in the Letter of credit such as ( the commercial invoice, bill of lading, insurance policy, certificate of origin…etc), and their compliance with the provisions of the Letter of Credit, and the terms which are used in the international commerce in accordance with the rules issued by the International Chamber of Commerce in Paris (ICC) . As it has been dealt with since ancient times, several types of it appeared and it has been divided into traditional and modern types as follows: -The Irrevocable Letter of Credit and Revocable Letter of Credit. -The Enhanced and Non-Enhanced Letter of credit. -The Transferable Letter of credit. -The payable at Sight Letter of credit; Acceptance Letter of credit and Deferred payment Letter of Credit. -The Totally and partially Transferred Letters of credit. -The Security Credit. -The open credit and restricted credit. Then we mentioned the most important principles on which the contract of Letter of Credit is based; the most important principles are the independence of the contract of the Letter of Credit, the principle of apparent coincidence of the documents. Then we mentioned the parties to the contractual relation; the Bank, the ordering client and the beneficiary; and I briefly explained the impacts and obligations of each one of them towards the other and the results of breaching such obligations. But in discussing the legal nature of the Letter of Credit we only discussed the jurisprudent theories which contradicted each other in specifying this legal base. We also discussed briefly the theory of single will, the agency theory, the guarantee theory and the theory of provisions for the benefit of others . Then we concluded with the adaptation of the legal nature of the contract of the Letter of credit , as it is a promise of contracting after giving it the characteristic of abstraction. Then we studied the impacts of the contractual relations on the parties to the Letter of credit by explaining the obligations of each party and the relation of the relevant parties with the intermidiator banks.
- ItemDelegation in Payment: Comparative Study Of Egyptian and Jordanian Civil Laws and The Palestinian Draft Civil Law(2007) Reem Adnan Abdel-Rahman e-Shanti; Dr. Ali SartawiThe subject of this thesis is about the delegation system in payment or to put more accurately the role of the delegation system in performance. The role of delegation is determined by the legal nature of delegation in payment and legal system of delegation. This study holds a comparison between the Egyptian, Jordanian civil laws and the Palestinian draft civil law. The study in divided into preparation and two chapters. Chapter one held a comparison between the delegation system and novation and assignment and transfer of debt. The basis of this comparison is scientific methodology which depends on comparison between the laws and the legislations, subject of this research, in dealing with the three systems in terms of concept, pillars, types and effects to identify areas of weakness and strength, points of difference and similarity to arrive at the sound legal adaptation of delegation in payment, investigated in the fourth requirement of the last section of this chapter. Chapter two was devoted to the delegation system in payment in the framework of a scientific, analytical, legal, objective detailed study of the delegation system in payment and how delegation is different from characteristics of expressions, terms and similar close legal systems. The chapter also dwelt on the legal characterization given to it given its being a source of obligation. Then the chapter moved to types of delegation in payment according to classification accredited by the common laws. The two types of delegation are prefect and imperfect delegations. Sections two and three of chapter one tackled both types. In section two, the researcher examined perfect delegation, in terms of concept and legal adaptation, be it a contract or not and if so, what are pillars and required conditions for its fulfillment. The researcher dealt with the second requirement in the section explaining the reason for characterizing it as perfect and illustrating the benefits which this type of delegation achieves. The second type of delegation, namely imperfect delegation, was dealt with in the third section of this chapter. The researcher illustrated its concept and pillars and explained its characterization as imperfect, and differentiating it from other close legal systems. The researcher, further, illustrated the embodiment of this delegation in legal posts in the framework of civil transactions and in the framework of international trade. This last framework led me to the necessity of calling for its standardization with the modern common civil legislations and fostering it with in the rules of international trade. In the fourth section, the researcher tackled the rulings which result from delegation of the two types (perfect and imperfect) Based on that, the researcher illustrated the extent of the lawmaker's accuracy in underlining delegation under causes of expiry that equals payment. The study concluded with several results and recommendations.
- ItemThe Contract of Surety ship and Consequences of Applying it: Comparative Study of Almagalaa and Egyptian Civil Law(2007) Su'ad Tawfiq Suleiman Abu-Mashayekh; Dr. Ghassan KhalidThis study examined the consequences resulting from the application of the contract of surety ship. It's a comparative study of Almagalaa and the Egyptian Civil Law. The researcher began with a definition of suretyship, its characteristics and parties according to Islamic fiq and Almagalaa , on one hand, and the Egyptian Civil Law on the other hand. Chapter one was devoted to types of suretyship interms of source of liability. This suretyship is one of agreement which the judicial and legal lawbook was content with. The chapter also dwelt on the practical importance of differentiating between the three types. It was found that suretyship falls into civil and commercial, in terms of nature, and there is a practical significance in differentiating between the two types given the difference between civil and commercial works in general. In this chapter, suretyship was distinguished from similar legal systems. It was found that the position of consequential bailsman is what distinguishes it from other legal provisions. In chapter two, the researcher examined the pillars of the contract given the fact that the suretyship is a contract itself. 1.Satisfaction. In this pillar, there are two opinions. One opinion conditions the bailsman's agreement only for the suretyship to take effect. The other opinion conditions the consent of the bailsman and the creditor's acceptance. The researcher gave greater weight to the opinion that conditions the consent of the bailsman only for the suretyship to hold if it's a donation. Accordingly, the bailsman shall have the qualification of donor. However, if the suretyshp is in return for something, it's conditioned on the competence of discretion, pertaining to the bailsman and the creditor but it's not conditioned on a certain competence, pertaining to the creditor, for the suretyship to take effect. The chapter also investigated the necessity for the bailsman's will to be free from shortcomings/ drawbacks of satisfaction: coercion, error, deception and exploitation. The researcher examined the proof of suretyship contract, its interpretation according to Almagalaa and the Egyptian Civil Law. The section was entitled "Satisfaction". 2.Venue. The researcher studied the presence of the original liability or the possibility of its presence. The liability has to be true and legitimate. It has to be specified in order for the venue of suretyship contract liability valid because the bailsman's liability is void, existence and otherwise. 3.Reason. The reason for the suretyship contract, between the bailsman and the creditor, might be one of compensation or donation. There is no relevance to the reason for the relationship of the bailsman with the creditor unless its illegitimate. In this case, the bailsman may hold on, in front of the creditor, the revocation of the suretyship of contract given the void of the reason for liability between the bailsman and the creditor. Chapter three was devoted to the study of the consequences resulting from the application of the suretyship contract. In this chapter, the researcher tackled the creditor's right. That is, the right to ask the bailsman and execution on the bailsman's assets unless agreed upon otherwise, or if the bailsman's assets unless agreed upon otherwise, or if the bailsman fails to pay upon the creditor's request first in accordance with what the law stipulates for him. In contrast, the bailsman's rights are the rebuttals according to the original liability in terms of void and expiry and exceptions stipulated as a provision. That is, the payment upon the request of the borrower by the bailsman. This right is stipulated in the Egyptian Civil Law. In Almagalaa, the bailsman may not do so unless agreed upon in the contract or in a subsequent contract that stipulates that the bailsman may not ask the borrower. The payment ruling of the request applies to the rebuttal ruling on execution. Concerning the payment by division, it was found that there was no difference between Almagalaa and the Egyptian Civil Law. The other exceptions, loss of deposits, due to creditor's error, exception due to the creditor's taking of execution procedures against the borrower after the bailsman's warning of him and the exception of the creditor's failure to apply in the borrower's bankruptcy. This was stipulated in the Egyptian Civil Law only. The researcher, however, okayed that on the basic of general legal rules in Almagalaa which give the bailsman the right to hold on to such exceptions. The study concluded with the consequences of the bailsman's execution of his commitment to the suretyship contract in terms of the extent of his right of recourse to other personal bailsmen and recourse of real bailsman or owner of estate upon the bailsman's faithfulness. The study ended with the results of the study, conclusions and recommendations.
- ItemWarranty of Exposure and Maturity In the Sale Contract: Comparative Study(2007) Ribhi Muhammad Ahmed Hazim; Dr. Hussein MashaqiThis study has tackled, in research & analysis, one of the commitments laid on the shoulders of sellers; that is the warranty of exposure and maturity in the contract of selling, a comparative study. And I've dealt with this topic of research in four chapters as follows: A preliminary chapter, entitled the essence of the selling contract and the compliance with the warranty; where I've taken in it the essence of the sale contract; its nature and identification; as well as its distinction from the contract of barter simply because the barter contract is the basis of establishing the sale contract.This chapter come in three topics; such as, First, I've talked about the essence of selling contract in various legislations; as well as the development of the sale contract in the Roman, French, Egyptian and Jordanian laws. Second, is where the study has tackled the selling contract simply because it is characterized by several characteristics; such as, it is a consensual contract, an opposition contract, obligatory to both sides and transferring for property. Third, is where I've discussed the essence of commitment by warranty besides stating its causes & kinds. The first chapter is entitled the warranty of exposure.I've talked in it about the opposition; and I've discussed in it as well the opposition in general throughout four topics:First, is where I've illustrated the concept of the seller's commitment after his personal opposition; and the interactions of opposition issued from it; and the merits of the seller's compliance by the warranty of that opposition.And I've mentioned the provisions of the seller's commitment by the warranty of his personal opposition.Second, I've stated in this topic the creditor and debited by the warranty of opposition which is already issued by the seller.It is where the purchaser is a creditor in it by the warranty; and the seller might be indebted towards the purchaser.Then, I've discussed the proprietorship of selling by prescription as a few legislations have authorized the proprietorship of the seller fro the sale in prescription. In the third topic, I've manifested the concept of the seller's commitment by the warranty of opposition issued by the 3rd.party; and I've talked about the merits of that commitment and its provisions.And I've tackled as well the sale establishing warranty; then, the sale registered & not registered; and later on, the sale establishing commitment in the liability of the seller by the warranty of opposition and maturity towards the purchaser. In the fourth topic, I've researched the creditor and debtor by the warranty of opposition issued by the 3rd.party where the purchaser will be a creditor in it and the seller becomes a debtor by the warranty of opposition issued by the 3rd.party; and I've demonstrated in it who is the compliant by the warranty in case of consecutive sales. The second chapter is entitled the commitment with the warranty of maturity.I've showed in it the concept of maturity where there are tow topics:First, I've talked about the merits of commitment with the maturity and the prosecution of demanding; and I've shown as well the impact of the seller's intervention in the prosecution of maturity and not. Second, I've talked about the effects of maturity; such as, its effect between the seller and creditors, the purchaser and creditors; and the effect of the whole maturity between the seller and purchaser as well as manifesting the value of compensation demanded and its amount. The title of the third chapter was the amendment of the warranty rules; their alleviation, strictness and indemnity.The chapter was divided into two topics:I've shown in the first one the alleviation and severity of warranty rules where the seller is to commit to more or less than what is set in the general statutes of the warranty rules; as well as showing the attitude of the comparative law concerning alleviating and strictness of the warranty rules. In the second topic, I've talked about the consent to indemnify from warranty, the cases of its falling; and I've demonstrated the concept of indemnity from the warranty and its provisions; and I've stated the attitudes of comparative law concerning indemnity from the warranty; and I've talked as well about the attitude of the comparative law in the cases of warranty falling where there are cases that the right of the purchaser falls in them wholly or partially. The recommendations of the study are the following: First, the amendment of article (551) in the Jordanian civil law because it considers the suspended contract a true one after its authorization; and I, personally, look upon it in such a way even before it is being authorized; and the test of it is to be as follows: 1.In case the proprietor has acknowledged the sale, the contract would be valid, executive and compliant in the right of the purchaser. 2.And it would be valid, executive and compliant in the right of the purchase as well in case the proprietorship of the sale was transferred to the seller after the issuance of the contract. Second, the amendment of the third paragraph of article (505) in the destiny of complementary improvements performed by the purchaser on the sale as it did not distinguish whether the seller was of good-willing or not.The text of it is to be as follows: 3-And the seller guarantees to the purchaser what he has innovated in the sale where the former guarantees the to latter the value of those innovations if the seller was of bad-willing. Third:The Jordanian legislator should frankly state whether it was possible to amend the rules of warranty in the sale because such texts were ignored in the Jordanian civil law. Fourth, the amendment of first paragraph in the text of article (467) from the Palestinian civil law project because this article did not state the effect of the purchaser's knowledge concerning the maturity of the sale to the 3rd.party on the selling, or the effect perpetrated on that.I suggest that the text of the fifth paragraph is to become as follows: 5-In case the maturity of selling on the action of 3rd.party arises, the seller will be responsible for the returning of the whole amount of the sale on maturity unless it was confirmed that the purchaser aware in time of selling of the cause of maturity; or that he has purchased a falling option. Fifth, we wish the Palestinian legislator might change article (455) of the Egyptian civil law by article (455) of the Egyptian civil law when comparing it with article (467) in the Palestinian civil law project because article (445) in the Egyptian civil law talks about the warranty of hidden defects in the sale whereas the comparison occurs on the amendment of warranty rules in the Palestinian civil law project compared with the Egyptian civil law. Sixth, we wish Egyptian legislator on classifying the selling of the 3rd.party's proprietorship to consider the contact a suspended one instead of making it a revocable contract because the revocable contract has valid impacts on its parties.And the revocable contract as it was quoted in the Egyptian civil law has been based on two rules:the contract might be revoked by the purchaser; and the impacts of the contract are not valid on the right of the real proprietor of the sale.The purchaser is not entitled to revoke the contract simply because the revocation of it by the purchaser or authorizing it is authorizing it is issued by a personal who does not own the sale.
- ItemThe Legal Regulation of Electronic Contracts(2007) Yahia Yousef Falah Hassan; Dr. Ghassan KhaledInternet as other interventions evolved gradually from military use to civil use, trade and an electronic contracts in which agreement is done with an open communication net through a seen and heard mechanism that facilitate the interaction between the acceptor and the taker. Globally, electronic contracts are negotiable and not obligatory. There is always a possibility to negotiate on these electronic contracts according to the nature of each electronic contact. Electronic contracts are considered international contracts, crossing boundaries, and not confined by boundaries of any country. Electronic contracts may be commercial, civil, or mixed according to the nature of each contract, and the relationship that governs the parties of the contracts. The acceptance in the electronic contract should be obvious and containing all necessary elements. The showed image on the screen of the computer must reflect the real situation for the goods without unexplained or lost items. The acceptance should be clear and explicit. Silence is not considered as acceptance in electronic contracts. Electronic contracts are governed by administrative law which the parties choose. In case there is no agreement between the parties on the law, the judge may extract the hidden well from similar situation and adopt the closest law to the electronic contract based on the place of the contract or the nationality of the parties. For approval of the electronic contact, the Palestinian law deals with the modern communication instruments in the spectrum of exceptions, so it does not obligate the existence of complete written evidence to made it legal. It considers the freedom of obligation in trade goods, taking into account that the nature of the basics of Law of Evidence is completive not forcible, and the parties can agree on its opposite. The signature on the electronic contracts takes different forms depending on its nature, including biometric, numerical, and pen signatures. There are a lot of legislations to govern the type of the signature to give it the needed legal entity. The researcher concluded that electronic signature may be used under the Palestinian Law of Evidence after the agreement of the parties, and this returns to the freedom of the parties to agree on the way to guarantee their activities. Electronic signature is accepted according to the Palestinian law in certain situations like the formal documents, and the documents agreed upon by the parties. However, electronic signature is not accepted according to the Palestinian law in certain sensitive and special situations like Islamic Waqf, wills and its revisions, the disposition of immovable properties, entrusts, and the personal documents.
- ItemResponsibility of the Contractor and the Engineer for the Guarantee of Building Solidity in the Jordanian Civil Law: Comparative Study(2007) Adel Abdul Azeez Abdul Hameed Samarah; Dr. Gassan KhaledThis study examined the responsibility of both the contractor and the engineer for the solidity of a building after its completion and delivery to its owner. The significance of this study lies in many aspects: protection of the owner of the building who usually has little experience in building matters especially when it comes to defects، which may appear after completion and delivery، which threaten the solidity and safety of the building. This subject is also important because it protects public interest if buildings and other permanent installations are solid and safe. The study began with the legal nature of responsibility in order to find out the legal basis on which it rests whether this basis is in a contract or a harmful act or law. It was found that the legal responsibility was founded by the law. Its provisions are different from those of contractual or inadequate responsibility given the fact that it's a responsibility pertinent to the public system and it has a specified timeframe. It only concerns one specific kind of damages. It also has specific range in terms of persons on whom it applies: the contractor and the engineer، on one hand، and the owner، on the other hand. The Jordanian lawmaker has regulated the provisions of the responsibility pertinent to the contractor and the engineer in the articles of the Civil Law (articles 788،789 and 790).Article 788/1 stipulates، if the contracting contract is based on acceptance of the building designed by an engineer provided that it's executed by the contractor under his/her supervision، then the two shall be guarantors in compensating the owner of the building if a whole or partial demolition occurs to buildings or installations within ten years. They shall also compensate the owner for any defects that threaten the solidity and the safety of the building if the contract does not include a longer period This text clearly shows that the Jordanian lawmaker has put the responsibility on the contractor، and the engineer who produces the architectural design only. As such، the lawmaker has narrowed down the scope of personal responsibility and has limited it to the contractor and the architect although the architectural process has been carried out by several engineers who have different specializations. Those people also have contracting agreements with the building owner، and therefore، they should be engaged in this personal responsibility for the sake of protecting the owner's interest as well as the public interest. It is worth nothing that the civil engineer plays a leading role in the execution and supervision of the work. Therefore، it is necessary to amend the aforementioned text، thus expanding the scope of personal responsibility to include all engineers employed in the building processes. In conclusion، this study explained the provisions of responsibility of the contractor and the engineer. It specifically pointed out the penalty involving the responsibility: compensation of the building owner for any damages caused during the execution whose conditions are spelled out، or through implementation in its two forms: cash and non-cash. The study also investigated the implications of selecting the engineer's and the contractor's responsibility. That is only possible if the force majeure is proved or it s the owner's mistake or the mistake of the others which also has the nature of force majeure. Finally، the study dwelt on the role of will in amending the provisions of this responsibility. It was found that conditioning or agreement on limiting the responsibility or exempting from it may not be permitted and any condition demanding otherwise is considered legally null. However، the owner has the right to exempt the contractor and the engineer from compensating him when it's due.
- ItemElectronic Contract Council(2008) Lama Abdalah Sadeq Salhab; Dr. Akram DaoudInternet 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.
- ItemCivil Accountability for Doctors: Comparative Study(2008) Wael Tayseer Moh.Asaf; Dr. Hussein MashaqiMedicine in a sacred human, moral, and scientific pretension; it has it. Own permanent importance thin profession in the real source for the relation between the doctor and the patient Moreover, it in a humanitarian and legal in nature which dictates on the doctor to take care of him patient and to do everything to cure him/her due to what thin profession requires. The Jordanian legislature, as his peers in most Arced countries has not considered the medical accountability in some special terms, but left it to the general rule in the civil accountability; this state of not dealing with it, left thin accountability unclear. In this respect, I have studied it in details in an introductory chapter and in other four detailed chapters as follow, the introductory chapter where I dealt with the historical development of the medical accountably from the old ages till them medieval ages to the Islamic Sharia and finally to the modern ages. I also stated the development in each stage. In the first chapter, I have dealt with the civil accountability in its two sections, the contract and the shortage section and diagnosed the features and characteristics of each one of them. After that, I looked of the legal nature of the civil accountability for them doctor and the available difference in the points of the legal view on its adaptability. Some trend rightly consider it a shortage accountability, while other trend rightly consider it a control accountability. I have stated the confirmed view from the juries diction and jurisprudence (Fiqh) opinion taking into account the French Cassation Court resolution in 20/5/1936 which considers it a contract accountability in origin, and a default in exception. I also have searched in the commitment of the doctor toward. the patient and the relevant legal opinion on whether thin goes with taking care or achieving a result. The study shows that the commitment of the doctor in to take care in origin and to achieve a result in exception. The doctor care in not as any other care, it has to be vigil and authentic and goes with the fixed scientific terms. In the second chapter. I have dealt with the elements of this medical a accountability which chare this error (incorrect action) and undamaged and this reason relationship. At of error linguistically and legally. In addition, h have defined the medical error which in the corner store for out study moreover, I have clarified the attitude of the Jordanian legislature who build that accountability on the damage rather than these error. The medical error generally deals with the deviation of these doctor away from him morals and not meeting his duties of being vigil. Then, I moved into the attitude of juries diction, Arabic jurisprudence, and Islamic jurisprudence towards them gradualist of medical errors. The decision in thin respell in to question the doctor on all faults he makes to his patients on condition of their reliability. At the end of this chapter, I have discussed these criterion of the medical error and the other relived opinions. This in the criterion of the layman i.e then behavior of the ordinary doctor of the same specialization and the same scientific level for these mistaken doctor. In the third chapter, I have discussed the medical mistaken from a scientific point of view. This in an important issue since clarifies the medical mistakes committed by workers in the field of medicine. I also indicated the most spread mistakes through real detailed cases and real court verdicts such as: diagnoses mistakes not taking medicine, treatment mistakes, plastic surgery mistakes, anesthetic and delivery mistakes, transcription mistakes. Supervision mistakes, disclosing medical secret, and finally performing treatment not for cure purposes. In the third chapter, h have discussed the legal responsibility of the doctor, on the legal responsibility of the doctor, on the mistakes committed by his staff in the different medical profession, there are two trend, relevant to this issue, one in commenced with the doctor who work, in public or private hospital, and his legal relaters with the patient; thin other trend deals with the doctor who work, for his own and the responsibility relevant to his aids toward the affected person. I also discussed the responsibility of the doctor on the mistaken resulted from machines, apparatuses used to trial patients. In this respect, I discussed then issue of proving the medical mistake which lies on the patient and the hardships he faces to prove this mistake because of lack of experience which commotion with the issue of friendship among doctors and the legal tends, around this issue. After that, I have shifted into the second characteristic of the doctor civil accountability and that in the medical damages its types, conditions and its problems. This could hurt this individual in one of his rights relevant to his body, money, passion, honor, freedom or dignity. This damage could be physical or moral, it differs from one person to another. Indicting, this reason relationship between this mistake and the damage which goes under the public rules of civil responsibility in the patients role to prove. There are three different theories in this respect theory of equal reasons, theory of suitable reasons, and theory of missing chances.
- ItemTort Liability of a Non-discerning Person : A Comparative Study(2008) Fadel Maher Mohammad Askalan; Dr. Ali SartawiIn this study, I discussed the Tort Liability of a non-discerning person. In the first chapter, I discussed the cause of Tort Liability of a non-discerning person in the Judicial Regulation Journal and positive laws. Theses causes include non-discernment for minor age, insanity, idiocy, and stupidity. These cases are stated by the regulations of both the Journal and the civil positive laws. In addition, the Judicial Regulation Journal stated cases of non-discernment other than those stated by the positive laws such as: indebtedness, fatal disease, coercion, unconsciousness, sleeping and drunkenness. I have carried out a comparison between the system of competence incidents and what it contains of causes and regulations in the Judicial Regulation Journal on the one hand and what is included in the civil positive laws on the other. I have reached several findings including that the Judicial Regulation Journal does not provide clear criteria to judge whether the person is completely insane or not. I suggested that the technical medical opinion should be taken as a criterion to investigate diseases that affect the mind, and that should not be left to the abstract legal regulations and provisions. I also concluded that the system of competence incidents in the civil positive laws is inadequate. There are cases of non-discernment or when discernment is spoilt that are not covered by the system of competence incidents such as drunkenness. I proposed a legal text that may decide the cases of discernment more comprehensively. In the second chapter, I discussed the Tort Liability of a non-discerning person in the Egyptian civil law. In this respect, I found out that the Egyptian law takes in consideration the idea of mistake in Tort Liability, and the origin in the Egyptian law is non-liability of the non-discerning person except in exceptional cases and that such exceptional cases are inadequate to achieve justice. Therefore, the Egyptian civil law should have held the non-discerning person liable for his detrimental acts. On the other hand, I discussed in this chapter, the jurisprudent bases and the various theories on which the liability of the non-discerning person is based in the French civil law due to the fact that the Egyptian civil is influenced by it. I traced the developments related to the regulations of this liability in the French law, attempting to find out to what extent the Egyptian civil law is affected by the French jurisprudent schools and their theories, as can be seen clearly from the explanations and comments of the Egyptian jurisprudents. At the end of this chapter, I found out that the theory of holding liability which is stated in most of the Egyptian jurisprudence remains the legal basis of the non-discerning person included in the text of Article (164/2) in the Egyptian civil law. The third chapter is dedicated to the liability of the non-discerning person in the Islamic jurisprudence and the Jordanian civil law. In this respect, I investigated the stand of the Islamic jurisprudence related to the liability of the non-discerning person in light of the two important rules stated in the Islamic jurisprudence: initiation and causing. I discussed the definitions of both the initiation and causing and to what extent their regulations are in conformity with the non-discerning person. I found out that there are two directions: the first sees that the non-discerning person is not liable in the case of causing and the other states the necessity to hold the non-discerning person liable of acts that are detriment to the others whether in their capacity as initiator or causer. In addition, I discussed in this chapter the stand of the Jordanian civil law related to the liability of the non-discerning person by studying the legal texts that govern this liability and the regulations included in these texts. At the same time, I compared these texts with their similar texts in the Western civil laws. Following this, I criticized the formation of some of these legal texts that govern the liability of the non-discerning person in this law. At the end of this chapter, I discussed the legal basis of the liability of the non-discerning person in the Jordanian civil law by studying the liability theory in the Islamic jurisprudence and its basis that damage is the basis of holding liability. Meanwhile, I discussed the evidence of holding liability in the Islamic religion and the liability of the non-discerning person in light of the general principles of the Holy Quran and the Noble Sunna of the Apostle. Finally, I put a conclusion to record my various deductions and viewpoints regarding the liability of the non-discerning person in the two civil laws that I studied, in addition to the proposed text that I put forward regarding the cases of non-discernment that are not covered by the positive laws.
- ItemConsequences of Civil Transfer Contract : A Comparative Study(2008) Ameer Ahmad Fatooh Hajjeh; Dr. Ali AsrtawyThis study researched into the legal consequences arising from the civil transfer. To this end, the researcher used the comparative analytical method. He held a comparison between the Egyptian Civil Law and the Jordanian Civil Law and provided an illustration of the position of the Palestinian Civil Law draft. It was found that it was found that it was literally affected in its organization of the civil transfer by the Egyptian Law. In illustration of these consequences, the researcher depended on the general concept of the civil transfer in both laws. It was found that the Egyptian law maker had formulated this concept depending on Western division of civil transfer into two types right transfer and debt transfer. In contrast, the Jordanian legislator had formulated this concept depending on the Islamic figh (jurisprudence)'s division: absolute transfer and controlled transfer. The researcher also found that the Egyptian lawmaker had organized the right transfer in terms of concept, provisions and consequences according to the French Civil Law while the debt transfer was organized according to the German Civil Law. In contrast, the Jordanian legislator was influenced in his organization of the transfer and illustration of its consequences by the Hanafi figh and Majalat al-Ahram Al-Adliyah and Murshed al-Hairan li-Ma'rifat Ahwal al-Insan. He was also influenced by the Egyptian lawmaker in his drafting of the following Jordanian Civil Law articles: 1010, 1011, 1015, 1016. Against the background divisions aforementioned, the researcher investigated the legal consequences between the original lender and the new lender. The transfer consequences were crystal clear between them since they are the basis for its conclusion. The consequences focused on transfer of right, subject of the transfer and guarantees falling on the original lender before the new lender in accordance with the law or agreement. The consequences of the relationship between the original borrower and the lender was found to be more comparable between the two laws. The Jordanian legislator was found to be more concerned with the protection of the lender's rights. He rendered the borrower's clearance before the lender's hinging upon the safety of the lender's right while the borrower's guarantee to the lender was restricted, according to the Egyptian lawmaker, to the time/date of the approval of the transfer unless agreed upon otherwise. The relationship between the original lender and the borrower was found to be of limited consequences due to the lack of implementation of the transfer for the latter's right. The criterion for the arrangement of its consequences is its implementation. These consequences were crystal clear in the relationship between the original borrower and the new one because the acknowledgement of the transfer to the new borrower does not affect the nature of consequences between them. Only the effect of his acknowledgement is a reason for effectiveness of the transfer to his right. The Jordanian lawmaker organized the consequences of this relationship depending primarily on differentiation in it between the absolute transfer and the controlled one. In his organization of this relationship, he was influenced directly by Al-Majalah and Murshed al-Hairan. In the examination of the consequences of relationship between the new lender and the borrower, the consequences focused on the lender's taking over from the borrower the right of the transfer, and secure of the guarantees to the borrower before securing the guarantees to the lender. On the consequences of this & relationship between the lender and the new borrower, the emphasis was on the clearance of the transferor and proof of the claim by the borrower while taking into consideration the difference between the two laws on the extent/ scope of the transferor's clearance of the transfer's debt. In the examination of the consequences of the last relationship arising between the borrower and others, it was found that the Egyptian law maker had organized this relationship in the transfer right only considering it as arising from a place to the other. However, in the debt transfer, nothing arises in it for dispute among the others. Therefore, the Egyptian law maker did not organize the consequences of this relationship in the debt transfer. His Jordanian counterpart has organized this relationship in Articles 1015 and 1016 (civil) and was directly influenced by the Egyptian law. It worth noting that the Islamic figh did not organize this relationship. In the light of the study findings, the researcher believes that there is a necessity to reformulate the texts of the civil transfer in the Jordanian civil Law to make them more agreeable with the judicial for which, it seems, several judiciary rulings have been devoted although they have not been frankly stipulated in the civil law. Pertaining to the Palestinian lawmaker, it was found that he had organized the civil transfer almost an exact copy of the Egyptian version. The Palestinian law maker should have organized the debt transfer according to the texts of Al-Majalah and Murshed al-Hairan for they have meticulously organized provisions of this transfer. The right transfer should have remained as it is, from its Egyptian source. Pertaining to the bank transfer and its measurement along the lines of the right transfer according to Article 122 of commercial Law # 12 of 1966, it was found that it was not an accurate adaptation and cannot be described given the nature of the bank transfer which indicates that it's of business nature Concerning the Debt Transfer Law # 47 of 1928, it was found that this law, despite its organization of commercial business transfer, has failed to be adapted to the bank transfer due to differences in the investigation.
- ItemThe Judicial Help in Expressing Volition "Comparison Study"(2008) Mu'ayed Issa Mohammed Daghash; Dr. Hussein MashaqiIn this thesis, I have studied the Judicial help that can given to the double physical handicaps (such as deaf and dumb, blind and dumb, blind and deaf, etc ...) and those who suffer from severe their wishes alone and safely. The necessity of this subject became quiet clear in many fields such as helping those who suffer from double handicaps or those who suffer from severe physical double handicap and they cannot express themselves clearly alone. The importance of this study if we take into consideration the increasing numbers of handicapped as a result of the increasing number of accidents and war. I have started my study with the willing and how express it because of its contact relation with this study, then I moved on to the Judicial help It has become quite clear that there are two co-related cases; suffering from double handicap and severe physical handicap. After that I pointed out the behavior that needs judicial help the includes all the conducts that a handicapped person can not do alone as a result the court it should be done armed by the face of law. After that, I showed out the judicial nature of all judicial help and Judicial helper that can be given to affected. The injury of double handicap or physical handicap cannot be considers an incidental because its such a person can behave correctly his behavior is consider it practiced by a person of complete ability. It has been clear to me a person who suffers from a double handicap or severe physical handicap and he cannot express himself because of them is considered as a handicapped although the mind and wise Judgment have not been affected. This is clearly explained in the Egyptian, Jordanian and Palestine legislation and the court has been given the right to decide what help can be given to such person. I have studied the legislation nature for the lawful helper through . his comparison of what he thinks and it has become clear to me the Judicial helper is no more than a Judicial interpreter appointed by the court in order to help the helper in expressing himself. At the end of my thesis, I explained the Judicial help pointing out that the helper how he should be have as well as the Judicial help and how the Judicial help ends.
- ItemThe Legal Nature of Arbitration award, Its Effects and Appeal Mechanisms Comparative Study(2008) Ashjan Faisal Shukri Daoud; Dr.Ghassan KhaledThe legal nature of the arbitration award has always been the cause of jurisprudential controversy. Four different theories were put foreword in this field. The first is the theory of contract which argues that this award is necessarily contractual based on the will of the conflicting parties which is the source of authority of the tribunal. This will determines which procedures to be followed by this body in conflict resolution. The award which will end this dispute is binding for them since it is one of the effects of the arbitration agreement. When the parties finalize this agreement, they are committed to conducting it with all its implications, including the implementation of the arbitration award. The agreement is the basis for determining the legal nature of the system of arbitration and awards it will pronounce. Second is the judicial theory: it argues that an arbitration award is based on the same judicial function of the judge. The award that this body pronounces is of judicial nature. It is similar to it in many ways, both in terms of procedures under which it is declared or conditions that should be taken into account when declaring it or its effects. However, the difference between the arbitrator and judge is that the first is a private judge achieving private justice and the second is a general judge achieving general justice. This entails that the private judge does not enjoy the full powers of the general Judge. The third is a combination that brings together the two previous theories and argues that the arbitration is a compromise between the contract and the judiciary. It is a mixed system that starts with a contract and ends in an arbitration award. The nature of this system requires the implementation of both the norms of the contract and the rules of the judicial system. The fourth is the private or independent theory, which believes that the arbitration provision is of special nature that requires consideration of a mechanism independent of the contract and the judiciary. Hence. It is not possible to determine its legal nature by either or both. This controversy has had its impact on the position of Palestinian, Jordanian and Egyptian law, given the absence of a legal text that defines this nature. Effects The award of arbitration has legal effects on the tribunal who pronounced it as their obligation to deliver this award to the opponents so that they can exercise the rights conferred upon them by law. It also results in the exhaustion of its mandate, which prevents them from reconsidering the award which was definitely finalized. Pronouncing the arbitration award ends the judicial role of the arbitration. However, this rule has its exceptions which allow the tribunal authority to interpret the award, correct any mistakes, omit or add additional requests to the award. Other implications for the parties to the conflict, is the finalization of the case, which prevents them from resorting to legal action or arbitration in order to reconsider the conflict, in addition to their voluntary commitment to implement the provisions of the award. In case they fail to implement them, they can resort to the competent court to order the execution. Appeal As for appeal against the award , the Palestinian Arbitration law proposes that an appeal could be made by providing a request to annul the award on causes which are specifically identified. Some of these, have to do with the arbitration agreement and its parties. Others are related to the procedures of passing an award of arbitration. So, the appeal should be submitted to the competent court within thirty days following the date of the award if the award was pronounced in the presence of all parties or the day after the date of notification if was pronounced in absentia. If the court decides to reject that request, it acknowledges the truth of award and its validity to be implemented. On the other hand, if it finds grounds for the appeal, it would annul the award.
- ItemBrokerage Contract between Reality and Law: A Comparative Study of the Egyptian Commercial Law and the Jordanian Trade Law(2008) Ghada Ghaleb Yosif Sarsor; Dr. Akram DawoodThis study sought to shed light on the concept of brokerage contract, its parties and obligations. As an old practice, brokerage was widespread in almost all deals between individuals and particularly in the field of business or trade. However, it has not received sufficient interest to cover all its sides. Against the dearth of studies in this area, the researcher set out this detailed integrated study to fill in the shortage in legal research. Brokerage as a practice is important from both practical and theoretical perspectives. It's true that there are lots of legal writings on the brokerage contract, but they are only narrative, descriptive and brief. That is, these writing have failed to cover all elements of the brokerage contract in detail. This study falls into two chapters. Chapter one dwells on the nature of the brokerage contract, and its definition from legal, juristic and linguistic perspectives. The researcher found disagreement on definition of the brokerage contract. Some defined it as "a contract according to which a person, called broker, is asked by another person to plan and organize sales or negotiate contracts or find a contractor to conclude a certain deal in return for brokerage". Others defined as" a contract in which a broker is employed to effect or transact bargains or contracts between other persons by concluding a contract and meddling between them in return for a compensation, commonly called brokerage". The study then moves to the conditions necessary in the brokerage contract. These conditions are namely characteristics, place and reason. In addition, the study dwelt on brokerage contract in terms of traits. A brokerage contract is classified as a satisfactory contract which is binding for both.It is also considered "compensatory contract as well as a business contract". This chapter also focuses on brokerage contract proof. In this context, the Egyptian and the Jordanian lawmakers agreed on the principle of freedom of proof in commercial materials. The chapter also dwelt on the broker in terms of definition, and conditions he has to meet.He is defined as an agent who is employed or hired by one of two contractors (parties) to effect or transact or meddle between them to conclude a transaction between them. In an implicit or explicit agreement, this broker deserves compensation upon successful conclusion of the brokerage and ratification of the transaction or deal. The conditions a broker has to meet are nationality, age, enjoyment of performance competency, good conduct and record, education and experience, entry in record prepared for the purpose, and non-conviction of committing crime. The chapter, furthermore, shed light on types of brokers: simple, double, individual, company, professional, non-professional, guarantor, non- guarantor. The chapter explained the study and nature of work of each type. It also tackled the brokerage given to the broker. The Egyptian and Jordanian law makers have agreed that the broker may collect compensation in return for efforts devoted and information given to conclude the contract. This is commonly called commission or brokerage. The chapter ends with the conditions which make the broker deserve or not deserve the brokerage. Chapter two researched into contract and the manner of its termination. The obligations of the first party are rights for the second party and vice versa. The work of the broker is limited to bringing the two parties closer together and make them conclude a contract without being a party in it. The contract, therefore, is concluded directly between the seller and the buyer. The broker provides no commitment with respect to the contract. The chapter also discussed impacts of the brokerage contract on the two parties and the possible reasons for its termination. In section one, chapter two, the researcher tackled the impacts of the brokerage contract pertaining to the broker in terms of the obligations imposed on him-by the business law-as a trade. This is in addition to the obligations the brokerage contract imposes on the broker for the implementation of the obligations. The contract obliges the broker to keep the samples and carry out the work assigned to him unless he is allowed to do so. The contract also obliges the broker not to be a second party in it. The chapter also dwelt on the broker's rights given the fact that the brokerage contract is reciprocal. The broker has rights in return for obligations imposed on him. These rights are obligations upon the shoulders of the agent. These rights include the right of the broker to get compensation and the right to use the brokerage expenses, in addition to the agent's commitment to compensate the broker. This chapter also sheds light on the termination of the brokerage contract after its conclusion between the agent and the broker and meeting of its terms and pillars in accordance with the general rules in the civil law as well as the private rules in the trade law. This includes termination of brokerage contract in normal ways through the termination of the contract to carry out the assignment he is charged with or due to expiry of the contract term or termination of brokerage contract before the broker's execution of the work assigned to him due to the impossibility of the implementation of the brokerage contract or bankruptcy of the agent or broker, or task entrusted to the broker or because of the abrogation of the contract. The chapter also discussed the termination of the brokerage contract in non-traditional ways through the termination of the brokerage contract due to personal consideration on which the contract is based. One reason is the death of broker or loss of competency. The chapter finally ends with a look at the expiry of the brokerage contract for considerations due to the fact that the brokerage contract is an unnecessary contract. This includes dismissal of the broker or his resignation. The study also includes the findings, some recommendations and appendixes.
- ItemSubordinated Responsibility for his Subordinate's Act in the Palestinian Civil Bill A comparative study(2008) Rabee Najeh Rajeh Abu Hasan; Dr. Akram DaoudThe 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.
- ItemLegal Protection of Computer Programs : A Comparative Study(2008) Abdul-Rahman Jamil Mahmoud Hussein; Dr.Ghassan KhaledThe subject of this research, the issue of legal protection for computer programs, a comparative study between the position of Egyptian legislature and the Jordanian, and the position of jurisprudence and judicial protection of computer programs in accordance with the law Patents and the provisions of the Copyright Act. Examined by this research, there are several trends, to protect these programs, the first is to provide direction Protection under the law of copyright, and has two aspects: First, to place software To the laws of copyright. Second aspect, the judicial and legislative opinion. There is only direction and conventional texts, for such protection have adopted some relevant government departments The implementation of copyright laws in this direction. However, the vast majority of States, are moving to amend the existing legislation, the rights of copyright to include Software. As for the position of the Jordanian legislature has been empty for a long period of the law of copyright protection, to That the great voices calling for the enactment of a law to protect copyright, that Law No. (22) For the year 1992, which put the protection of literary works, and that the law included from the outset Software Automatic protection accorded to literary works, as expressly provided in Article him in the third item Eighth paragraph (b). The Egyptian legislature, puts a legal protection of computer programs through the integrated system Include a concept for such protection, and nature, and the rights of innovative programs, whether moral or financial nature Of these programs and foundations have organized and did not differentiate between the protection of computer programs and other. It works best to develop the Egyptian legislature effective legal protection for computer programs And separated from the rest of protected works. And also examined the legislative position, to protect computer programs according to the law of patents. The position of jurisprudence and judicial protection of these programs, in accordance with the provisions of the Copyright Act. This research included the first chapter, which examined the computers and programs and subjects of protection. In chapter II, examined the rights of a computer program, in terms of the definition of copyright and nature Legal him, and examined the rules established for the protection of computer programs, and is competent Move the right action, and the stage of preliminary investigation and the competent court. In the third quarter, discussed the issue of protection of computer programs under the national laws studied: 1 - procedural protection software. 2 - pictures of such protection. 3 - preventive measures of protection. 4 - Means of substantive protection for computer programs, both civil and criminal cases. Then examined the protection of computer programs under international law, has been studying the protection of these programs. Through international organizations, in particular the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). Then, examined after the international conventions on the protection of copyright, such as the Convention (Berne) for the protection of Literary and art, and the Convention on Trade-Related Aspects of Property (TRIPS), and the Convention Universal Copyright Convention and finally the Arab copyright protection.
- ItemIdentifying the Literary Harmful (A comparative Study between the Jordanian Civilian Law and the Egyptian One)(2008) Basel Mohamed Yousef Qabha; Dr. Ali Al - SartawiThis study aims at identifying the compensation for the literary harmful in the Jordanian and Egyptian laws as comparative study. Also, it identifies the compensation for the literary harmful according to the Islamic - French jurisprudence related to the subject. The study has been divided into three chapters: The first chapter identifies the literary harm and the principle of the full compensation. The chapter contains three sections. The first one deals the conception of the compensation and its identification in three subs -­sections; the first one tracks the meaning of compensation in the language, in the second connotative meaning. The second sub-section deals with the literary harm according to the law, legislative and judicature. This sub- suction has three branches titled as the following: the compensation for literary harm in law, legislative and judicature. The third sub-suction deals with the compensation for literary harm in Islamic jurisprudence and law. This sub - section has been divided into three branches, the first one identifying the meaning of the compensation; the second one identifying the compensation as guarantee according to the scholars; the third one identifying the compensation in the civilian law. The second section deals with the literary harms and its conditions. Also, it is divided into to branches, the first one deals with the conditions of the literary harms in five parts, the first one contains the necessity of the occurred literary harm; the second should be directly, the third should be personally, the fourth should have damages with the literary interest and the fifth contains that the compensation for the harm should not occurred before. The final section deals with the complete compensation under three branches; the first one contains the harmony between the harm elements; the second one contains the judge authority when establishing the compensation; the third one deals with the literary and financial compensation. The second chapter deals with the role of compensation. This chapter is divided into three sections; the first one contains the compensation as punishment. This subject has been discussed in two ways; the punishment in ancient laws and the punishment according to ancient Roman and French laws. The second section contains the reformative role of the compensation according to the judge role and the scholars' attitude about this subject. The third section discusses the differences of the compensation according to the harm kinds in two ways; the compensation of financial harms and non-financial harms. The third chapter deals with the legal foundation of the compensation for harm in three sections; the first section deals with the legal foundation of the compensation for harm according to the Islamic jurisprudence in two ways; not guarantee of the literary harm and the guarantee of the literary harm according to the Islamic jurisprudence. The second section deals with the literary harm in the Jordanian law in two ways; the first way discuses the compensation under the contraction responsibility which has two branches; according the Jordanian law and according the Jordanian judicature. The second way deals with the compensation for literal harm according to thy negligent responsibility. The third section deals with the compensation for literary harm in the Egyptian law in two ways; according to the French law and according to the Egyptian civilian law. Also, it deals with the compensation under the contraction responsibility and the negligent responsibility. The study concludes that the main deference about non compensation for the literary harm is the financial compensation .Also, it concludes that the literary harm has two sides; concrete and abstract side. Furthermore, the literary harm should be compensated if its conditions have been achieved under the civilian responsibility.