Private Law

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Amending Condition of Contractual Responsibility in the Egyptian Civil Law
(2006) Ahmed Saleem Fariz Al-Nasrah; Dr. Gassan Khaled
This 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.
Authentic of local arbitrators' decisions Comparative Study
(2012) Laith Abd- Allah “Mohammad Sa’eed” Zaid Al-Kilani; Dr. Ghassan Khaled
This study discusses the authentic of local arbitrators' decisions at the Palestinian Arbitration Act No(3/2000). It is a comparative study with the Egyptian Arbitration Act No.(27/1994), and Jordanian Arbitration Act No.(31/2001), and the Judicial Judgments Magazine. The researcher preferred; before discussing the issue of the authentic of local arbitrators’ decisions, to discuss the legal nature of the local arbitrators’ decisions, as it’s of great significance in this study, considering the impact of the legal nature of the local arbitrators’ decisions, because there are very important results depending on it from the legal point of view, particularly; on discussing its extent of authentic of the discussed issue. The researcher, dealt in the study with the legal nature of the local arbitrators’ decisions, and the extent of proven authentic of these decisions, through studying the multiple views of jurisprudence for this nature, where the first side of jurisprudence gave the legal nature to the local arbitrators’ decisions, the second side gave the contractual nature for the local arbitrators’ decisions, and the third side gave them the mixed nature. As a result of the proven authentic of the local arbitrators’ decisions as an impact of the legal nature of the decision, the researcher discussed the nature of authentic which these decisions enjoy, and the terms of holding on this authentic. After defining the meaning of the authentic and the terms of holding on it, the researcher; stepped to define the extent of proven authentic of the local arbitrators’ decisions, where he discussed the start of the local arbitrators’ decisions gaining of authentic, and he concluded that these decisions become authentic once they are issued; as stated by the Egyptian legislator in the article (55) of the arbitration act, and the Jordanian arbitration act; article (42), while the Palestinian legislator stated that the authentic of the arbitration decision starts after its ratification by the competent courts, and not once it is issued, in accordance with the Palestinian arbitration act; article (47). Then the researcher discussed the authentic content which stands for the arbitrators; normal decisions, and concluded that the bases of the authentic is that it is a substantive rule not a legal presumption, as the substantive rule is rebuttable and the legal presumption is refutable. Then the researcher talked about the proven authentic of the arbitrators’ temporary and summary decisions, and concluded that the jury can; depending on the request of one side to issue an order for taking temporary or summary procedures, but those decisions don not own the authentic, because the authentic can not be proved without the bases of examination and not on the bases of the case of probability in the urgent justice. The researcher talked about the authentic extent for the local arbitrators’ decisions and the exemptions that occur and the extent of the relation introducing this authentic for the public system.
Brokerage 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 Dawood
This 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.
Civil Accountability for Doctors: Comparative Study
(2008) Wael Tayseer Moh.Asaf; Dr. Hussein Mashaqi
Medicine 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.
The Civil Liability of the Causer "Comparative Study"
(2010) Rana Najeh Taha Dawass; Dr. Ali Sartawi
In this study, I discussed the Civil Liability of the Causing, Subject causing themes of Islamic law strictly, which did not have sufficient research compared to actually initiation, So the researcher in this study clarified the legal standards and jurisprudence that need to know in order to redress the damage caused by the wrongful act caused, each all in two chapter, the first chapter is dedicated to what is causing the comparative law and Islamic jurisprudence, in which the two sections, the first definition of damage cause and the statement of its forms, also the discrimination causing about initiation and assess the distinction between them, while the second section, I discussed the conditions causing by examining the reflection of the law to abuse and discrimination about the causing in terms of the concept of infringement cases Legality of infringement in causing, and I discussed the liability for causing non-discerning person. The second chapter is dedicated to the provisions of the civil liability of causing in a causal relationship within the natural law philosophy and all that in two sections, as explained in the first section the standard of causation by talking about theories of causation in Western jurisprudence and civil law, also to highlight the objective of causation through the access to the special provisions of the causing and stop at these provisions in civil law, while in the second section dealt with the impact of the researcher to prove causal relationship and denied for the reason of the foreign, including force majeure and act harmed, and act others, about the liability of the causing. Finally, I put a conclusion to recorded my various deductions, and observations about applications jurisprudence, also the statutory laws regarding the civil liability of the Causing.
Civil Protection For Patents And Trade Secrets (Comparative Study)
(2012) Imad Hamad Mahmoud Al-Ibrahim; Dr. Amjad Hassan
The study addressed the issue of civil protection of patents and commercials secrets through a comparative approach in which comparison was made between the Jordanian and Egyptian legislations and the Palestinian Industrial Property Law project. The study came in light of the Palestinian National Authority’s efforts to join the World Trade Organization, and its approach toward the enforcement of new laws that go in accordance with TRIPS Agreement. The study was divided into three chapters. In the first chapter, the researcher talked about the aspects of the legal system of patents and commercial secrets in addition to the protections means that were provided by the legislations for both types of intellectual property. The researcher also explained the scale of close connection between the two types and their relationship with the international contract for technology transfer. In the second chapter, the researcher addressed the elements of civil protection with respect to the necessity of having a patent or a commercial secret that meet the legal conditions for protection, the scope of right for the owners of patents and commercial secrets and the exceptions in this case, in addition to the types of offence that require protection. The researcher has found that the Egyptian legislator has provided a better protection for invention secrets during the temporary protection period than the Jordanian one. At the same time, it also stated a number of exceptions for the owners of patents and commercial secrets for the purpose of reducing exclusive, monopoly kind of protection for the patent owner and the actual protection for the owner of the commercial secret. In the third chapter, the researcher talked about the means of civil protection that have been provided by the general rules and the special protection which is represented in the illegal competition case. The researcher has found that this case can replenish the shortage that occurred in the protection system for patents and commercial secrets. At the end of his study, the researcher stated that it is important for the Palestinian legislator to focus on developing the legislations that are related to intellectual property in general, to pay attention to the registration offices related to it, as well as to be concerned with the importance of having these laws committed to with the Palestinian legislative system without being literally limited to the TRIPS Agreement which was affected by the Anglo-Saxony system in general, and the American system in particular.
The Civil Responsibility of the Lawyer for breach of Professional Duties. Subject and procedural in Palestinian Legislative system
(2015) Sai'da Jamal Hossein Wild Ali; Dr. Ali Sartawi
This study aims at investigating in Civil Liability of the Lawyer towards his client's according to the Palestinian law lawyers systems , and compared it with Jordanians Bar Association Law, and Lawyers Law Egyptians, it compared between the rules of the law of civil responsibility in three laws. They are considered the relationship between the lawyer and his client Contractual relationship. And almost similar in some exceptional cases does not consider the relationship contractual between them. e.g. delegacy from the court. And Commissioned by the Bar Association. The three legislation express the relationship between the lawyer and the client as the agency. from a special type. And known in Islamic jurisprudence as the agency litigation. Notice the obligations of the lawyer towards his client regulate according to the contract, other times by law, traditions, custom , and literature of the legal profession, so the lawyer requested towards his client in same obligations imposed by the these laws although it did not organize by the contract between them. The Important problem of this study incurs in having no special provisions related to the civil responsibility of the lawyer regarding his breach of professional duties according the three laws. and the most important research point had mentioned by this study is condition of get licence fram Bar Association to legalization the establishment of a lawsuit against lawyer from other lawyers, or pleading in it, and haw this condition constitutes a breach of human rights, Right to litigate. So this study divided into preliminary chapter, and pair folds. explain in preliminary chapter definition of legal profession, and the historical development of it, and clarified duties of lawyer, which delineated to representation in courts,and other jurisdictions .Legal consultations .Organization of legal . In this chapter explain definition of Agency Antagonism. and explain definition civil responsibility. In first fold, clarified definition the civil responsibility of the Lawyer, by pair chapter, in the first one refined the lawyer legal nature commitment is it achieve the purpose or follow the way?, And then I've cleared the nature of the civil responsibility of the lawyer towards his client, is it contractual liability, or Imprecision? then And restriction scope civil responsibility of the lawyer in terms the conditions of his responsibility for His personal, and in terms the conditions of his responsibility for another personnel of, such as his an employee, a partner in the law firm. And discussed in the last chapter of first fold the components civil responsibility of the lawyer ,which divided to Injury, mistake and causal relationship between them At the last fold elucidate the civil responsibility lawyer suit, by light at the conditions of acceptance it, and Is the condition of geting permission to lawyer from the Bar Association to establishment a lawsuit against his colleague considered condition acceptance of the suit, or is it makes a lawyer exposure to punitive responsibility only. and also discussed the means of proving liability suit, and directed defenses to this lawsuit, search in the possibility of donations judgment implementation in this lawsuit, or the Judicial most be compensation material, and what the basis estimating compensation. Concluded in the finale, to determine conclusions, on this topic and recommendations, the most recommendation is wished the Palestinian Legislator to be adopted by lay down special provisions determining the civil responsibility of the lawyer , and I wished the Palestinian Legislator eliminates the requirement of Permission from to lawyer from the Bar Association to establishment a lawsuit against his colleague.
The Compensation for Delay in the Execution of Debtor's Obligation (Comparative study)
(2011) Hazem Thaher Aersan Saleh; Dr. Ali Sartawi
This study aims at investigating the Compensation for Delay in the Execution of Debtor's Obligation represents one of the compensation kinds in the contracting responsibilities. The study of the compensation has two folds , the former is according to the comparative civil law; the later is according the recent Islamic jurisprudence (Feqeh). In the first fold, the compensation according to comparative civil law is divided into two parts ; the first one is the compensation for delay in the execution of debtor's obligation in general despite of the kind of the obligation which could be not doing or providing something ; the second part is the compensation presented by paying amount of money which is the legal or delay interest which has some kind of relation with the recent Islamic Feqeh entitled procrastinator debtor judgments. So, the study concentrates on the second one which is about the compensation presented by paying amount of money when the debtor deletes his contracting appointment of the payment. The study including two sections , sub-sections and conclusion ; the first one deals with the conception of the compensation connotatively and denotatively , the conditions for its validity according to the contracting responsibility like harmness, fault, reasonable relationship and excuses. Also it deals with agreement, legal and judgment compensation as kinds of the term. Playability cases of compensation represented by execution of debtor's obligation , false execution or delay along with the legal position of the condition of the compensation are discussed in the first sub-section of the first section . The vision of the Islamic Feqeh about this kind of compensation, supporter or opposer to this subject and the disagreement of the civil Arabic comparative laws were discussed in the second sub-section of the study. Also, the three trends of law discussed the subject which are laws that denied taking compensation and the resulted interest , laws that takes the two kinds compensation and interest together and those that take the compensation but denies the interest. These mentioned trends included in Jordanian, Egyptian, Lebanese , Yamane, Kuwaiti, Emirates and Palestinian civil law are discussed in the second sub-section. The second section investigates the conditions ,laws and the amount of the compensation as a result of delay which are contracting, legal and judgmental .These concepts are included in the first sub-section . However, the distinguishing of the compensation from the other similar legal systems which are threating fine , loan interest and contracting compensation are discussed in the second sub-section of section two. The conclusion contains the researcher's results and recommendations of the study.
Consequences of Civil Transfer Contract : A Comparative Study
(2008) Ameer Ahmad Fatooh Hajjeh; Dr. Ali Asrtawy
This 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.
Consumer Protection in Electronic Contracting Comparative Study
(2009) Abdullah Deeb Abdullah Mahmoud; D. Khalid Altlahma
Focused on the modern consumer protection legislation in electronic contracting, Consumers is the weaker party in the contractual process, and that the general rules in the civil legislation did not provide adequate protection to the consumer, the approved legislation, much of the modern means to protect the consumer, both in the pre-contract phase, or stage of a contract, or the implementation phase of the website. Have been dealing with the concepts of consumer and professional in the introductory chapter, also spoke about the importance of providing innovative ways to protect the consumer, as the need for consumer protection in the electronic market is what led me to search for ways to protect the consumer in electronic contracting, security and trust in the electronic market is one of the most needed consumer in order to meet their personal and, therefore, subject to the terms of an unusual and unfair sentence. Also been addressed in the first quarter of consumer protection in the pre-electronic contracting, where she spoke about the images of consumer protection and rights at this stage, including: the clarity of commercial advertising mail, which leads to a positive impact on the consumer, so be aware of the order at the contract, it is the consumer's claim or create the impression that the product has the quality, as well as the right to information and consumer insights through the identification of personal professional, describing the product or service in the place of contracting, and the statement of the fundamental characteristics of a good or service. Chapter II has been the discussion of consumer protection at the stage of conclusion of the contract, by reference to the safeguards added by the recent legislation in the area of consumer protection, Kaltusa in the concept of adhesion contracts to include a lot of contracts, e-contract is bonded if there is no negotiation, no it depends on the possibility of negotiating on the terms of the contract, the contract was allowed electronic negotiation, and allows the consumer to review and amend the terms of the contract, sometimes it is not bonded, but in the absence of a negotiation or bargaining, and the terms of the contract strictly, the audit does not accept the amendment or is bonded. Has been talk in the second quarter of the penal protection of the consumer, where the most modern legislation punished for various offenses that fall on the consumer in general, and punish the crimes that happen at the consumer's right to contract electronically through the criminalization of access to consumer data, and the prohibition of dealing in personal data , nominal or without the permission of the consumer, as a result of different legislation on the existence of the hidden defect Sales in the private action is "action to ensure the hidden flaws," The expansion of the professional responsibility of the defective products and services is in the interest of the consumer. Finally, addressing the protection of consumers in the implementation phase of the contract in the third quarter, recent legislation has added some new rights for consumers, much the media subsequent to the conclusion of electronic contract, and the obligation of the seller to hand over the corresponding Sales, and the right of consumers to go back, and provided the majority of modern legislation for the establishment of government bodies, or private credit is the task of protecting consumers. Conclusion and then ended the letter, which included the main findings and recommendations, where they managed to enrich the hope that the outcome of the legal library, as suggested by some of the proposals on the relevant jurisdiction at both the Palestinian or Arab or international level.
The 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 Khalid
This 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.
Contractual Relations Between Parties to the Contract of Letter of Credit
(2007) Samah Yousef Ismail Al-Said; Dr. Hussen Mashaqe
Our 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.
Debtor Imprisonment According to Palestinian Executive Procedural Law Acomparativ Contrastive Study
(2008) Shadi Osama Ali Mohammad; Dr. Ghassan khaled
The debtor is committed to the creditor by an association of commitment to give something or do or to abstain from work, and it is natural that the debtor meets his commitment and implement it voluntarily which leads to the expiration of the obligation to fulfill the commitment, organized by the existing legal provisions magazine serves as the law governing civil transactions in Palestine, as well as the Jordanian civil law in Hashemite Kingdom of Jordan. And this was called a fulfillment of a moratorium, even if done by the debtor fear. The legislator organized the Palestinian implementation law, as well as the Jordanian implementation law forcing the debtor to implement his commitment if he refrained in order not to waste rights and spread corruption. The study found that the system of incarceration the debtor is a purely Islamic, therefore, it was my humble opinion, not to deny it as some provides in some laws in some surrounding countries state. The study was opposed by some people because scholars identified that the relationship between the creditor and the debtor is a financial relationship not between two people but that also found criticism from others in that "the imprisonment is merely a means out of the content of the commitment as a means of implementation and not components of the commitment aim to carry the debtor to meet and fulfill his commitment ". Although this is not an effective means of keeping and delivering the rights as stipulated in the surrounding laws about the existence of the state Penal Code of Civil base as some of the housing legislation and unions legislation and insurances is for practical necessities despite the fact that the prison of the debtor is not a criminal penalty but a means to put pressure on the debtor to compel him to implement his commitment by the power of law, as that force which has no legal legislators will effect eligibility and defect satisfactory. The system of debtor imprisonment was imposed, from my point of view it also reduces the bickering between people where someone is afraid of imprisonment, which makes him meets his commitment voluntarily without the need to resort to public authority which leads to economic development. And systems that take a debtor solitary confinement based on the fact that the imprisonment is on the rich debtor what protects human rights, or dignity, he can fill his needs, including he is a playboy that the law must imprison him, because the person who does not respect the law, law will not respect him. The research was divided into three chapters, in chapter one I discussed the implementing authority represented by the chamber of the Court of First Assembly's mandate and Magistrate Court in places where there is no beginning court and by implementation judge, who is the considered the president of the Chamber and by the superintendent of implementation, clerks and reporters who help the judge in addition to the sentenced and the convicted person who are the basis of the lawsuit execution, that we cant imagine an implementation lawsuit a fixed debt by an executive bail and a creditor who has a sentence in his debt and an amount of money and a debtor convicted, without any objection from imprisonment objections. The incarceration of the debtor must be limited to conditions put by the legislator according to his own social, environmental and political circumstances which have relevance and impact on the legal reality. The only condition of Islam is the specified deserved debt and the rich debtor, on which most of the laws stipulated, those laws who took the principle of imprisonment with some changes and other conditions, as well as the Palestinian legislator took these conditions although he set conditions to the availability whether or not the law considers the debtor's ability to meet the rule of law and custody procedures of application and communication in accordance with legal origins followed until the executing officer verifies through a special meeting of the debtor and documents submitted in accordance with regulations and until the issuing of his decision and that is after the expiration of the period of notification to the debtor who does not apply a settlement either payment or installment by creditor acceptance. The Jordanian legislator has a special philosophy of settlement that this is a minimum amount of a quarter of the deserved amount, and the law identified the cases of imprisoning the debtor and it divided them into two cases, the first cases in which the ability of the debtor must be verified and it divided them to several situations: 1)The case in which the debtor does not offer settlement. 2)The case in which the convicted owns enough money to pay the dept. 3)The debt behavior that indicates the purpose of evading the payment. 4)Proving the convicted intent to defect. In the other part of the imprisonment cases, the legislator assumed that the debtor is able to fulfill. These cases are: 1)The persons that the notary certified their ability to pay their debt and those who sponsored the debtor in the execution chamber. 2)Those who are sentenced for personal rights arising from the offense. 3)Those who are sentenced for alimony to the wife, assets or branches or relatives if refrained from alimony. 4)The debtor debt stems from employment. In addition Jordanian law: states: 1)Dowry awarded to the wife. 2)Refrain from extradition of the child he was entrusted with conservation, as well as lack of commitment to implementing the rule of view and automatically renews detention pending submission. To prove the debt there are conditions must be determined in accordance with the terms of the law of evidence but there are conditions must be available that prove the financial ability or inability of the debtor, since it is the main reason for the imprisonment, that the creditor is not obliged to investigate about the debtor's money, but the judge is responsible for clarification of the from the submitted data or he should explore the investigations about the debtor to show his money for fear of imprisonment or to release him. Debt has objections where the resolution of imprisonment is not taken against: 1)The person who is not liable for the debt. 2)The debtor who has not attained eighteen years of age and feebleminded and mad. 3)The debtor sentenced for a debt between husband and wife or for debt for the branches on their assets. The Jordanian legislator added these cases to objections of imprisonment: 1)State employees. 2)The bankrupt debtor during the transactions or bankruptcy or the debtor who called protective defense. And finally the incarceration of the debtor does not affect in any way the right of the creditor to receive his debt. 1)The pregnant until the commitment expires, or by the creditor satisfaction by the release of his debtor. 2)There are periods of imprisonment not to reach 91 days a year if the debt a mount was 500 Dinars of less, and not to exceed 91 days a year if the debt a m mount was more that 500 Dinars.
Delegation 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 Sartawi
The 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.
Denial of Debts Bonds Pertinent To Money In Palestinian Execution Law No. (23) For The Year (2005)
(2014) Mohammad Sameer Khader; Dr. Amjad Hassan
The Palestinian Law of Execution No. (23) of 2005 set forth several types of money-related debt bonds. It stipulates certain provisions to each of them according to the type of bond, the drawer, and the party that organized it. For instance, in the event the debt, which is under objection, is established by a writ that has been certified by the notary public or by a commercial paper that is subject to endorsement, the objection by the debtor shall not affect the execution. Where as, in a case where the debtor denies the debt established by a customary writ, ‪the burden of proof relies heavily on‬ the creditor to demonstrate what has been denied. This study is aimed to differentiate between the three types of executive bonds; the Official and Customary Writs, and Commercial Papers. The study defines money-related bonds in general as part of the executive bonds addressed by the Palestinian Law of Execution. Then, it identifies its legal nature. In addition it provides a detailed elaborated explanation of the requirements needed for these bonds to become subject to execution according to the law. Respectively, the study exposes identification for the money related debt bonds under Law of Execution No. (23) of 2005. It also reviews the special provisions for each bond, its origins, strength executive, and everything related to it. In addition, the study reviews the procedures of denial of the debt in each of these bonds. It also reviews the legal positions generated for each type of bond, since the obligations and actions to be taken to deny the debt vary from one bond to another. This study also provides a comparison between the Palestinian executive law No. (23) for the year (2005) and the Schedule to the Execution Law (No.25), 1965 (a law that was in force in Palestine before the issuance of the current law), the Jordanian Execution law No. (25) for the year (2007), and Egyptian Procedures Act.
Direct Law Suit in Private Terrestrial Insurance
(2010) Reem Ihsan Mahmoud Al-Mousa; Dr.Akram Daoud
The right of the aggrieved to resort to direct action took place around the axis that all the topics that were discussed and analyzed in the message. At the outset, had to be a historical overview shows the theories that try to direct their supporters to dismiss a lawsuit it, they might succeed in reaching a satisfactory basis of this right, however, that failure could immensely, resulting in legislation (the Palestinian and Jordanian, and Egyptian) to find the legal text to confer legislative protection to this right. However, the dispute erupted and the disparity between such legislation for the optional insurance from civil liability while settled on the report of this right of the victim in the compulsory insurance of vehicle accidents. Then navigate between the characteristics of the right direct the case where the victim has the legal nature of this right is derived from the validity of the contract which cast a shadow to protect the victim as an exception to the relative impact of the Decade, as it is the right time and a related security, which has a significant impact on the access just to the right of subsequent legal defenses to the accident the insured it. And access to independence and monopolization of the amount of compensation and not be moved from the insured only for the affected. This is what will be discussed in Chapter I of this study. The second chapter will be devoted for the exercise of direct action. The existence of the right and his report on the ground requires the exercise and to take necessary actions in this, whether friendly or claim of the lawsuit. Which requires knowledge of who the parties to this case as a court procedure, not simply because the relationship is governed by the rules of tort, contractual or, otherwise we are in front of three parts. We are facing a plaintiff and defendant each of them described by the legal capacity to qualify for the bicker in court. And direct action not an absolute right of the victim without conditions or restrictions, but ruled there must be a third party outside the framework of the contractual relationship, the requirement to prove the responsibility of the insured, but that this condition around the main points of disagreement with regard to insurance compulsory vehicle accidents to the legislation under consideration. Where the report merely claim the right of the injured insured without the need for a ruling against the insurer against him or entered in the case direct to the insured, not previously required as well as for the victim to compensation for the damage to his right, was organized in the case of multiple insurance contracts, and the existence of social security. And the need to stay positive and injury compensation. The damage will be discussed within the scope of insurance coverage as well as those who gave them such protection legislator and others who give them cover to compensate the damage caused to them. And requires the existence of the right of the victim to be at practice and has maintained its presence and keep proof of this right by proof of insurance contract and content and to prove that damage or proof of the error (in the case of voluntary insurance of responsibility) and it is assumed the driver's error and absolute insurance that is compulsory and can not be denied However, the existence of force majeure or cause an alien. There must be a causal link between the act and the outcome. At the end of this chapter we will explain the provisions of limitation the right of the injured and for the duration of effect and the provisions for suspension and interruption. And the search result in the case of direct right of the injured showed confusion evident in the perceptions of the Palestinian legislature in particular, after that the development of general rules of civil liability and re-criticized with respect to such as the requirement of compulsory insurance claim, and had to be a breakdown of what is uncertain of the provisions of the laws, even if that comparison taking by the Palestinian legislator such as the organization of legal defenses. And the return of the injured on both the insurer and the insured and the driver as well as the relationship of solidarity among these with each other. So to be a new legal legislation governing compulsory insurance of the responsibility for road accidents. In addition to the civil legislation regulates - in addition to the provisions and general rules - the insurance contract and the provisions and rules that govern each type of in an orderly and clear beyond any doubt or interpretation.
Discontinuation of the Civil Lawsuit under the Palestinian Law: A Comparative Study
(2009) Saed Wahid Kamel Hamdullah; Dr. Akram Daoud
The Civil Lawsuit is considered the legal way of protecting rights and demanding them. Some jurisprudents define the lawsuit as "the authority of resorting to law to acquire a right ratification or for protecting it" or "the authority of resorting to law for the purpose of its application". The lawsuit is practiced by any person who thinks that s/he has a right protected by the law, or has a right she wants to reveal by using his/her right in suiting. This judicial demanding starts as the right owner follows certain procedures demanded by the Palestinian Civil and Commercial Trials Assets Law No. 2/2001, and the first one is to submit the list of the lawsuit, to get a final arbitration in the lawsuit and executing it. The argument is defined as" a group of procedures that starts from the time of announcing the lawsuit, till a judgment is made with regard to its subject or its expiration without a judgment. Other jurisprudents define " the civil argument as a moving phenomenon, and from its features the sequence through following procedural work, that time chronically in sequence, and technically bonding for the purpose of reaching to acquiring the subjective or timely judicial protection of the rights that are disputed on" However, a number of hindrances that eliminate it sometimes and pause it other times may emerge during the lawsuit. These hindrances are represented by: First: the discontinuation of the lawsuit that follows the procession of argument procedures, as it hinders it from movement and advancing. It makes them stagnant procedures, that can't be trespassed unless the reasons behind it are trespassed. Second: stopping the procession of the lawsuit based on the arguers agreement. Article (127/1) of the Palestinian Civil and Commercial Trials Assets Law stipulates the following: "the court has the right to postpone the lawsuit based on the agreement of the arguers, in a period no more than 6 months from the date of its ratification by the court". The court is also allowed, on its own, to decide to stop the lawsuit according to Article 126 of the same law. "1- The court is allowed, on its own, or based on the arguer request, to stop the lawsuit procession, if it sees that the judgment in its subject depends on the decision made in another issue, 2- any of the arguers is allowed to ask for speeding the lawsuit procession as soon as the reason for stooping is ends". From this we find that the discontinuation is above the will of the lawsuit parties and the court, while stopping it is the decision of the arguers or the court itself. Third: dropping the lawsuit, by the claimer, through two ways: exonerated dropping, or non exonerated dropping, and on the second type, the claimer can hold a new lawsuit. Fourth: the End of argument, as the defendant has the right to demand the judgment by the end of the argument after six months period starting of the last procedure taken at the lawsuit, and then it was not proceeded by the claimer. The argument legally ends two years after the date of conducting the last procedure. The discontinuation of the argument in the civil lawsuit is considered as one of the most important hindrances that follows the procession of the argument's procedures, hinders its movement, and stops its development which makes it stagnant that it can't be stirred or trespassed unless the reason behind them is. From this, we conclude that the discontinuation of the lawsuit's procession makes the procedures stop, under the occurrence of something that hinders its advancement above the will of lawsuit parties and the court, as the court become unable to ignore it whenever its reasons occur. The Palestinian legislator has approached the subject of the discontinuation of the civil lawsuit in the 8th chapter, section 2, of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 No. 2/2001, under the title "argument hindrances". The subject of discontinuation in the lawsuit procession is referred to one of the reasons defined by the legislator, exclusively, in the Article 128/1 of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 which leads to paralyze the effectiveness of the rights of defense. The subject of discontinuation of the lawsuit procession has a considerable importance in the Palestinian Civil and Commercial Trials Assets Law, for the purpose it protects. It is ratified to protect the civil lawsuit parties, which give them the right to practice all the civil lawsuit procedures in a way that guarantees to the suitors their judicial rights, and in a way that the sacred right of defense is not violated, and that justice is being in progress. The proceeding of a civil suit is discontinued before a first degree court as a subject court and an appeal court to review appeals before the court of appeal according to articles of law 128/1 which mentioned earlier and also according to the articles of law 224 of the same above mentioned law. This law indicates that " rules of appeals applies to a first degree law which are related to the presence of liabilities or their absence or the regulations and rules which do not contradict the articles of law. The matter of discontinuation which is related to a civil suit does not apply to procedures before the Court of Cassation because of the special procedures. This does not rely on the confrontation between liabilities but they have the opportunity to be at court according to the instructions of their attorneys unless if they request that in writing. The court has it evaluative authority in this regard. Moreover, reasons for appeal are indicated by legislators in article 226 of the principles of civil and commercial Palestinian courts (No 2 for 2001) which are made to guarantee a respect for the court of appeal to implement the law. It is worth noting that discontinuation is not mentioned in executive law suit before an executive judge which the article 12 of Executive Palestinian Law number 23 for 2005 ;: 1. those who break a law or an agreement in the place of creditor, they have the right to be replaced by it in executive procedures. 2. those who implement the verdict according to article 1 in all cases which there is an impediment which is created between creditor and the following up of procedures as absence, demise of potential, and demise who represent them according to article 14 of the same law. If creditor loose the potential or dies, his or her inheritors or who represent him or after, can after 10 days after receiving necessary papers of execution, start the execution process. It is possible to notify the inheritors of creditor that that of his or her last residence without the clarification of their names and personal details which are matched with the amount of money left by the creditor.
"The effects of the adoption of the civil constructionsContract (FIDIC) 1999 , as a source of legal regulation of the relationship of the parties in Palestine
(2015) Nader Khair Hasan Bani Fadel; Dr. Gasan Khaled
Because the construction industry has become one of the most industries widespread in the world , and needs time , effort , manpower and costs ; it must have a legal organization that keeps up with this change and take into a count the practical considerations of this business that are complex and the need for outstanding administration .As a result , FIDIC Organization of Consulting Engineers has put rules in the form of ideal contracts organizing parties with each other professionally and legally to form self-sufficiency in ordering the verdicts and is working to achieve a balance between parties (contractor , the employer and the engineer) among their rights and obligations . The engineer is considered a part of the contracts which have given him a pivotal role in all aspects. The construction contract FIDIC 1999 ( Red Book ) is considered the most important of these contracts that came in the FIDIC Organization , and has been taken by many countries , as approved by the Palestinian government in 2006 due to the urgent need for it , as the project of Palestinian civil law has not approved yet . The provisions and judicial journal deals with the construction contracts in a manner different from that stated in the modern legal systems , and this in the form of the engagement of workmanship and employee , and the civil law which stipulates that the provision of a contract and what is a new variable in the construction industry they had to fill the gap through taking the FIDIC contract that private of construction works , where approved by many countries and said it fit with it's special legislative conditions and legal situation, The Palestinian Government had done it and said the so-called Palestinian own models and conditions , as these conditions must be read in conjunction with the general conditions , and in the event of conflict offering special condition .The researcher has explained the effect of the adoption of contracting construction contract FIDIC 1999 on it's own public and private terms by the parties in Palestine in order to regulate the contractual relationship , where he was preparing the ground for this study through a number of related concepts , specifically the concept of organization and FIDIC contract in Palestine and engineering contracts , because of their importance in understanding the contract research topic. The researcher also has explained the obligations of the parties and that starts from the preparatory phase to the implementation phase to the delivery of works , where it was the obligations of each part to the contract must be brought by him to do it . The researcher spelled out all the details with the researcher compared sometimes with what came in the civil laws on construction contracts (FIDIC) contract was organized with it's general and special terms the issue change orders that are considered some of the scholars of innovative legal rules , where the researcher has made a statement all problems that came within it's provisions . This and the theory of physical and the unexpected difficulties , consider one of modern theories in the field of law , which came out the contract , the where the researcher explaine rulings and it's impact on parties obligations. The contract organing to the force majeure provisions also considers from the things that has characterized as adressed in a manner different from what is the case of civil laws on force majeure , which illustrated the researcer with the comparison In conclusion , the researcher explained the most important results that have been reached and pointed to a set of recommendations which could have been acceptable to those in charge of the legislation in Palestine , specially the Palestinian Civil Law Project has yet to acknowledge . There are also other cases , the employer has the right to end the work under them, and the other is entitled to the contractor because of termination before the end of the work , where the researcher explained these situations and conditions achieved . The disputes and ways of solving them have addressed the twentieth and last chapter of the contract , when he referred to dispute resolution board and amicable settlement and arbitration as ways to settle this dispute , which was discussed by the researcher to clarify the privacy of this disputes and the solution privacy ways .Based on this , the researcher has explained all the general provisions of the contract on it's own general and special terms , so that a comprehensive study constitute a ground for other specialized studies tightly unified contracting FIDIC 1999 contract.
Electronic Contract Council
(2008) Lama Abdalah Sadeq Salhab; Dr. Akram Daoud
Internet is considered one of the most important innovations developed by the human being, in the field of informatics since the end of the past decade, as it removed all the geographical borders between countries, converting the world into a small village. In accord with this context, the electronic commerce appeared and developed, and the Internet became one of the important intermediaries, through which electronic contracts are made. The electronic contract can be defined as an agreement, in which the acceptance encounter the offer, at an international open communication net, over distance through audiovisual manners, creating reaction between the offerer and the offeree,and these manners are not limited only to the Internet, but it comprises other electronic communication devices, such as Fax, Telex, Facsmail, and Telephone, as these devices through which the electronic contract is made, is one of the most important features of the electronic contract, that distinguishes it from the conventional one. Considering that the internet and its divers services, is one of the most important sidesthat give the electroniccontract its specialty,differentiating it from the conventional contract. The electronic contract belongs to a group of contract made through distance, using electronic devices without physical presence of the contractors. Because of that, its proving and fulfillment is done in special ways, different from those of the conventional contract. The validity of the electronic contract is materialized as a result of the materialization of the validity of its bases, which is the object, the cause, the satisfaction (approval) and the eligibility, which are regulated with the same frame of general principles, that regulate the conventional contract, with the particularity of these bases, as the general principles do not have the ability to expand, in order to comprise the eligibility of the contractor, as a result of the difficulty of the assurance of the identity of the contractors and their eligibility, and because of that the electronic signature and the electronic certifying bodies were created. The negotiation stage usually proceed the concluding of the contract, during this stage the suggestions and the bargaining are exchanged, and it is known as the duration before contracting, although the contract could be made without going through this stage, disagreement arisen about the nature of the responsibility as a consequence of the interruption of the negotiation, and whether it is considered as delinquency or contractual responsibility, also disagreement has been roused about the legal nature of the contract, and whether it is considered as contentment or submissiveness contract, which is determined according to the method used to conclude the contract on the Internet, as the contract made through the Internet is in general a contentment one, but those made through Email or Chatting is considered as submissiveness contract. The electronic contract is concluded by the submissiveness of its parties, the presence of the submissiveness depends on the concordant of the concurrence of wills, expressing the offer and the acceptance, using one of the expression methods considered according to the general principles,as expressing orally, by writing, signs will known traditionally and the attitude of the parties of which the situation and all the circumstances do not leave any suspicion regarding its significance, also there are special ways for expressing the will in the electronic contract concluded through Internet, from which according to the general principles we can consider, the expression using Email, websites and chatting, in which an electronic data letters could be used to express the will through the mentioned ways, in addition to other ways regulated by the general principles. The essence of the electronic offer does not differ from that of the conventional one, except in the manner used to express it. The importance of distinguishing between the offer and the invitation to treat, is the possibility of regression of the offer, as the engagement of the acceptance with the offer lead to the conclusion of the contract, so the offerer will not be able to regress his offer, while in the case of the invitation to treat, the offerer has the right to regress his offer despite the engagement of the acceptance with the offer. There are several requirements of the electronic contract, among these: it should be clear and directed to a concrete person or persons, decisive and exactly defined. In the same manner that the general principles applied on the electronic offer, it is also applied on the electronic acceptance, there are special ways of the electronic acceptance, in accordance with the nature of the electronic contract concluded through Internet. The expression of the acceptance could be explicit or implicit, but the silence is not considered as an acceptance, except in exceptional cases, although this assumption is difficult to be applied on the contract made through Internet. The Egyptian and the Jordanian legislator of the civil law, adopted the same approach as Islamic jurisprudence regarding the contract council, as it gave the offeree a rational period of time in order to express his acceptation, without slackness that lead to harm the offerer, the importance of the contract council exists in the determination of place and time of conclusion, in addition to the type of law that should be applied, and the court that has the jurisdiction in the case of disagreement regarding the contract. There are two types of contract council, a true one and a propositional one, in the case of the true one, the contractors are meeting in the same place contacting and hearing each other directly, and they should not be diverted by something else other than the contractual matter, the council begins with an offer and end with acceptance or rejection, or dissolved with out response, while the council is considered a propositional council, if one of contactors is absent, and it is usually the case of electronic council. The time parameter is considered the appropriate and the most flexible, in order to distinguish between these two types of contracting, because this parameter is able to follow the real development of the modern communication media, according to this parameter, the contract council when using the telephone and the similar devices, is considered in general as contracting between absents with respect to the place, andattendant with respect to the time, also the contract council using the fax and similar devices, is considered as contracting between absents regarding both place and time, however with respect to contracting using Internet, the state differs according to the way of the contract conclusion, as the contracting using Email, usually considered as contracting between absents regarding both place and time, except in the case of direct connection using Email with out time gap between the issuance of the acceptance, and the awareness of the offere, in the case of contracting using the web page, the contracting is considered as contracting between absents regarding both place and time, although in the case of contracting using direct chatting with vision through camera, the contracting considered as contracting between attendant regarding both place and time, and if only writing is used in chatting, without time gap between sending the letter and the awareness of the other part, in order to respond with immediate letter or oral communication, then the contracting is considered as contracting between attendant regarding time and absent regarding place, although in the case of the presence of time gap between the issuance and awareness of the letter in order to respond to it, then the contracting is considered as contracting between absents regarding both time and place, this ultimate case is the one that could be applied on sending SMS using mobile. As a result of the challenged appeared regarding the determination of the time and place of contract council, legal and jurisprudence solutions appeared in order to resolve this issue, as it is the most important problem facing contracting between absents. These solutions were represented in the unilateral and bilateral theory, the unilateral theory does not separate between time and place of the contract council, from which we can mention the announcement of acceptance theory, theexpedition of acceptance theory, receiving the acceptance theory, and theawareness of acceptance theory, while the bilateral theories does not bind between time and place of contract council, these theories are represented by the Malory and Chevalier theories.
The Franchise Contract and Its Consequences
(2009) Du'a Tareq Baker Al-Bishtawi; Dr. Gahssan Sharif Khalid
The franchise contract, as an instrument that helps in economic and business development, is of great importance for it contributes to the creation of new jobs and development of the local workforce. Further, this contract is of great importance for its parties. It helps the franchisor, proprietor of the business, to expand his business activity without reducing his capital or borrowing money. In fact, he gets additional capital from an outside source –the franchisee who is given the right to sell the product or service in a certain area and uses the know-how and trade name of the franchisor. In this arrangement, the franchisor overcomes the complexity of running new outlets whose management requires a significant capital. At the same time, he will protect the quality of products or services to be produced or provided by the franchisee through a supervising system imposed by him, thus preserving reputation of his product or service. Another advantage is that the franchisor will get annual payments- known as royalties- from the franchisee. The franchisee gains from the arrangement as well. He uses the trade name of the franchisor and gets advice about running the business and takes advantage of the franchisor's specialized knowledge and ability to buy in bulk, thus saving a lot of his time, effort and securing success of his business. Given the importance of this subject, on the legal and practical levels, the researcher investigated the significant role which this type of business plays in the Palestinian nascent economy. This study is a serious endeavor to give a clear picture about the franchise agreement in the light of the dearth of sources which have tackled this type of business. This legal study falls into two chapters. Chapter one, divided into two sections, provided a definition of the franchise contract from a legal and juristic perspective. The researcher also traced the historical development of this type of business contract and the laws governing it. The chapter then moved to give more definitions pertinent to the franchise contract. In addition to providing simple examples to illustrate this contract, the researcher detailed types of this contract and the different forms of its management. She also specified the characteristics of this contract, its importance and advantages for both sides: the franchisor and the franchisee. However, she also highlighted the disadvantages of its implementation and tackled its legal nature. And also held a comparison between this contract and another four contracts: trade concession contract, license contract (using the trade name) the sales representative contract and the trade agency contracts. In addition, the researcher discussed the opinion which maintains that the franchise contract is itself a trade concession. In this respect, the researcher explained the areas of differences between them and highlighted the jurists' opinions which upholds or supports independence of each of them. The researcher herself tilts towards this opinion. The researcher concluded that this contract is an independent system and is different from other similar contracts and acts. It combines characteristics of numerous contracts and acts but remains independent of all of them. It enjoys certain characteristics which necessitate that it has its own rules, prescriptions and terms. The researcher also dwelt on the nature of the franchise contract by illustrating the particularism of the subject in the contract. After briefly giving an explanation of the elements of the contract, the chapter ended with a look at its ratification. Chapter two was devoted to the consequences of the franchise contract. In one section, the researcher dwelt on the obligations of the franchisor and the franchisee. In another section, she focused on the reasons for the termination of the contract and consequences of its termination. In the light of the study findings, the researcher suggests that the Palestinian lawmaker enacts a new legislation for the franchise contract that suits it, helps in its development and promotes dealing in it. In this regard, the researcher has suggested a number of legal texts to govern it. The researcher also recommends renaming the franchise contract as the Trade Name Utilization Contract.

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