Thursday, April 4, 2019

Transfer of Obligations

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The obligation being regarded as a bond between determinate persons could not be transferred so as to be available for or against others. This is still true of certain classes of rights in personam which are of so personal a nature as to be obviously available only as between the original contracting parties, e.g., many contracts of service.

Within certain limits, however, transfers of rights and liabilities were early admitted as taking place upon death, the heirs being liable for the debts of the deceased and entitled to sue for credits due to him.
The transmissibility of obligations inter vivos is, however, of greater interest for Egyptian students of European law, and it may at once he remarked that it is only slowly that such transferability has developed. The right to sue must always be carefully distinguished from liability to be sued The latter, as a general rule, cannot be transferred inter vivos, a provision easily comprehensible is generally indifferent, the personality of the debtor cons frequently the motive for the creditor's willingness to enter into the obligations.

Although the right of a creditor to assign his claim is generally admitted in modern law, such assignment is usually regarded as binding only between the assignor and assignee until notice of the assignor and assignee has been given to the debtor. The Egyptian law, following upon this point the Islamic law, is even more strict, since it does not recognize an assignment as good unless the debtor has consented.

The highest degree of transferability of rights in personam is reached in the case of negotiable instruments drawn up as evidence of a debt, and the right to receive payment of the debt is held to pass by the handing over (delivery) of the instrument with or without endorsement. The debt is identified with the document itself, so that the delivery of the instrument operates as a delivery of the debt and a consequent change of ownership. Moreover, the person who is for the time being the holder in good faith of the instrument has a right to be paid the amount due irrespective of defects in T his title to hold it. Thus, he may obtain by his possession a better title than the person from i whom he received it, just as a possessor of movables in good faith will have a good title to the nownership although the person from whom he received the thing was not really the owner. The A negotiable instrument is the product of commercial needs and the discussion of its trade uses belongs to political economy. The best-known instruments of this kind are bills of exchange. These take the form of orders drawn upon a debtor directing him to pay money to a person named or to such other person as this person may direct.

Discharge of obligations
The Egyptian code mentions seven methods by which obligations may be extinguished, namely, (2001 performance; (2) Dissolution; (3) Release; (4) Novation; (5) compensation; (6) Confusion merger; (7) Prescription A brief explanation of the meaning of these terms will suffice here.

1. Performance :

Performance consists in doing the observing the forbearances required on the person bound. In the commonest case it consists of payment of money, and it is a wellrecognized rule of Roman, French, and Egyptian law that payment may be made by some person other than the debtor and even against his wish. A third party who pays the debt may, however, obtain the right to recover the amount paid from the real debtor, so that the effect of such payment is merely. to change the person of the creditor. This right of reconrse is said to be due to subrogation. Subrogation thus causes a transfer of the creditor's rights to the person who has paid. The latter stands hence-forth in the original creditor's shoes for the purpose of obtaining payment.

2. Dissolution :

By this is meant the occurrence of some event which excuses performance and consequently dissolves the legal bond between the parties. Impossibility of performance arising subsequent to the contract will thus annual the obligation to his  perform

3. Release :

The release by the creditor of the debtor from his obligation will naturally free him from liability. The mere agreement of the parties to a discharge of the obligation has not, however, always been regarded as sufficient, since, in the case of formal contracts, it was requisite that the release to be effective should follow the same as were essential to
the creation of the obligation.

4. Novation :

Novation consists of the extinction of an obligation by the creation of a new one in its place. The creditor and debtor may, for example, annul the previous obligation by mutually agreeing to substitute a new one for it, or the creditor may agree with a third person that he shall become debtor in the place of the original debtor so that the obligation of the new debtor shall be substituted for that of the old one. ow It must be noted that the operation known as  novation differs radically from transfer of an obligation, though in some of its forms it appears to produce similar results. Novation involves a new obligation which is substituted for the old one; transfer, on the other hand, keeps the old . obligation on foot, merely altering the persons who
are bound by it.

5. Compensation.

The English word "compensation is here used as equivalent to the French compensation.
Compensation extinguishes debts by the mutual setting off of the liabilities of each party against one another. In French and Egyptian law it - operates by effect of law (de plein driot) even without the knowledge of the parties, the two debts canceling each other rateably from the moment at which they co-exist.

6- Confusion :

Where a person unites in himself the two capacities of creditor and debtor the obligation is said to be extinguished by merger. The French term is confusion, and in the English translation the Egyptian code the English word "confusion" is used in this sense.

7. Prescription :

The nature of prescription has already been explained, and a distinction was then drawn between acquistive prescription, which is a title to rights, and extinctive prescription, which merely extinguishes the preexisting right; the right extinguished by prescription in the case of obligations is not the obligation itself, but merely the right of action upon it; it is the remedial not the antecedent right which ceases to exist. A right which has become unenforceable because action upon it is barred by lapse of time furnishes an 90 example of an imperfect right or natural obligation.

Another classification of obligations

Another classification of obligations

Classification of obligations distinguishes those which are civil from those which are natural, the natural obligation being one which is not enforceable by action. It consists, therefore, of an imperfect right and duty. Another classification of greater importance is based upon the nature of the acts and forbearances forming the content of the right and duty of which the obligation cinsists.

from this point of view From this point distinguished as either binding a person to something, to do something, or not to do something
The classification adopted by the Egyptian Codes divided them according to their sources. Three classes are there distinguished, namely, obligations arising from agreement, obligations arising from an act or event, and obligations arising from a rule of law.
In a strict sense all obligations are, of course, crcated by the law, but there is a distinction between those which the law enforces as recognizing the will of the parties directs to their creation and those which owe their existence to the law alone. That is to say, some come into existence without breach of any pre-existing right, and others are only created by the law to sanction a breack of right. Those arising from contract are clearly due to the recognition by the law of the will of the parties directed to their formation, while those arising from delict (or quasidelict) as clearly belong to the class of obligations imposed by the law irrespective of the parties will
There remains a mass of obligations as ords the proper classification of some of which considerable doubt exists. This class includes
quasi-contractual obligations, obligations arising from a trust or waqf, the obligation to pay alimony,and so on.
It will be well in the first place to discuss distinction between contractual and delictual obligations.
Contractual and delictual obligations : write what do you know about
A contract was there defined as an agreement giving rise to rights in personam. The obligations arising from contract itself. Certain special contracts in general use call, indeed, for separate treatment in all systems of law. Of these the most important are sale, lease, hire, loan, and agency.
The obligation which arises on a contract is antecedent in character. If Mohamed agrees to build a house for Houssam he is performing his legal duty and fulfilling Houssams legal right in
for carrying out the operations necessary constructing the house. Should he fail to perform his duty he will commit a breach of right which may be termed a wrong, The wrong is in that case breach of a pre-existing contractual right. The commission of the wrong gives rise to a remedial right on the part of the person wrong
It often happens, that a person commits a legal wrong by failing to perform a duty which did not arise from contract. Such duties are imposed by the law and may be in personum as owing to determinate persons or in rem as owing to the community at large. The class of duties in personum created by the law failing within the category of obligations will be considered later. The case we are now considering is that of the breach of an antecedent duty in rem. Such a breach is a wrong, but it is a wrong independent of contract. No personal relation existed between the parties previous to the breach of right.
A wrong independent of contract is termed a delict or quasi-delict, and the obligation to which it gives rise is delictual or quasidelictual. The distinction between contractual obligation therefore clear, the former being antecedent in character and arising from agreement, while the latter is remedial and springs from a breach of a pre-existing non-contractual right.
The attention is now directed to both contractual and delictual wrongs. Differences exist between their effects because the rights broken in each case are different in character, not, as is sometimes suggested, because delict does not presuppose an antecedent right.
There is a certain moral implication in the terms used in this part of our subject.
"Fault" and "wrong imply moral condemnation. They suggest that the breach of right might have been and ought to have been avoided. This might
that liability both lead to supposition
the contractual and delictual is founded on personal delinquency, but at the present day it is certainly not true as regards contractual liability and only partially true in the case of delicts.
It is not necessary for the plaintiff to show any delinquency on the part of the defendant. In the case of delicts, however, the opposite rule is laid own; delict fault is not presumed, but must be proved. This is supposed to indicate a radical  difference between contractual and delictual liability. It is remebered that a delict is always the breach of some pre-existing right, it must be clear that proof of a breach is necessary in order to establish delictual liability. In most cases the right in question is not a right to absolute immunity from damage, but only to immunity from damage wilfully inflicted or arising from negligence.
Art 1385 of the French Civil Code makes the owner of an animal liable for damage done by the such cases fault is said to be animal, and in presumed. What is implied by this presumption is a matter of controversy, according to many writers the owner is liable whatever care may have been taken to avoid the damage. He can, however, admittedly escape liability by proving that the damage resulted from force majeure, but this would not prevent it being true to say that his liability was independent of any moral falut on his part.
However this may be, it is at least clear that the legislature has expressly made certain persons liable in damages as insures against certain kinds of accident, independent of fault. Thus both France and in England employers are liable.
comparisation for injury suffered by their workman in the
course of their employment even though the acciuch was not the result of any negligence on the part of the employer. And some contend that t principle of insurance ought to be extended so as to cover all cases of damage done by the acts of others independent of the existence or non-existence of "fault".
It is not, indeed, possible to discover any absolute principle which will enable us to mark off acts which constitute deliects from those which although causing damage will yet not give rise to liability. The public interest demands that, within certain vaguely defined limits, men should be left free to employ their power as they please and to make such use of their property as seems good to them.' The rights to protection against the acts of others accorded by the law are not infringed by acts which fall within these limits, ever though such acts may be done with the intention of causing damage. If Ahmed builds a factory upon his land which entirely spoils the amenity of the neighbourhood and depreciates the value of Hausam's adjoining property, this gives Housam no right to claim compensation for the damage done, even though Ahmed may have well known the injury the factory would do and may even have desired to do the injury out of hatred to Houssam. Workmen who strike work , tradesmen who start rival shops, and so on, all do damage to others, and do it intentionally, yet their action is no cause of liability. Each system of law will draw the delicate houndary line between lawful and unlawful damage at the slightly different point, but at some point a line must necessarily be drawn. naung di
It remains to point out that the rule that he who does an act through another is himself liable, is expressly applied by French and Egyptian law to the commission of delicts, a master being responsible for the acts of his servant when done in the course of his employment. This liability is, in fact, no more than an application of the ordinary rules of agency.
Contractual and delictual obligations compte the bulk of the obligations met with in everyday The classes of antecedent obligations which remain are of a more exceptional character. These obligations will be here discussed under four heads,
it wit :
1. Obligations arising from a trust or wagf,
2. Quasi-contractual obligation,
 3. Obligations annexed by the law to domestic
4. Public obligations imposed by the law.

1. Obligations arising from trust or waqf:

The essential characteristic of the trust and of the waqf is that the trustee or nazir is bound by law to administer the property subjected to the trust for the benefit not of the persons for whom it was instituted. There is an obligation existing between the trustee and the beneficiary which consists in a duty laid upon the trustee towards the beneficiary and a corresponding right against the trustee on the part of the beneficiary. enero bem
In the case of a private trust or waqf the beneficiary who holds the right is a private person, while when the trust is of a public character, we ay regard the class of persons for whose benefit it was instituted as the persons entitled, or possibly in some cases the state as representing the common interests of the community.
Now the special peculiarity of trust obligations is that they exist independent of an contract made between the trustee and the beneficiary. When, for example, a person creates a waqf or trust for the benefit of his descendants, the descendants as they come into existence become holders of rights enforceable against the trustee or nazir which entitle them to have the property administered for their benefit. Yet these rights do not arise from a contract between them and the trustee. Sed
It is sometimes said that such trust obligations arise from the law, and they are thus differentiated from contractual obligations which arise from the will of the panties. Their creation does not indeed demand any consensus of will on the part of the person bound and the person entitled; the trustee owes a duty to the beneficiary though he has never agreed with the beneficiary that he will owe such a duty, and the beneficiary is entitled to a right against the trustee though he has never agreed

with the trustee to that effect. Nevertheless, the law does not create such obligations except as recognizing the will of private individuals directed to their formation. The obligation be ween the trustee and the beneficiary does not exist in virtue of a general rule of law, but is the efect of the specific recognition by the law of the will of the founder seeking to benefit third parties, coupled perhaps with that of the trustee, who by acceptance of the trust, expresses his willingness to undertake the duties thereof. It is a generally acknowledged rule that the legal effects of a contract are confined to the contracting parties. warteoainee 

2. Quasi-contractual obligations :

Quasi-contractual obligations, arise whenever the law implies an obligation, not in recognition of an agreement, but as the result of an act which normally would be done in compliance with an agreement.
Quasi-contractual obligations are classified by the Egyptian codes with dilictual obligations as arising from an act of event”.
The commonest instances of this class of

obligations are two in number :

property 1. when a perons voluntarily renders some necessary service to property or business in the absence of the owner, an act which may give rise to a duty of indemnification on the part of the owner and to one of completing his service on the part of the person who has undertaken it.

 2. When a person pays money not really due the resulting obligation here being one of repayment by the payee.
Regarded as a statement of legal principle this maxim shares the defects of other similar maxims. It lacks precision, but it serves to express a broad rule of legal justice of which many examples are to be found in all systems. It is because they result in the enrichment of one person at the expense of another such situations is held to give rise to legal liability, and the language in which the Civil code establishes the claim to indemnity on the part of the person who has acted for the benefit of another itself shows that this is the basis of his claim the act of one person intentionally procuring a benefit for another binds that other person to account for any expenses, ... etc.".
But apart from these cases in which express vi provision is made by the law for restitution based
son enrichissment. The modern French & Egyptian vir jurisprudence seem inclined to admit that in all o cases in which the facts warrant it the person
unjustifiably enriched at another's expense is liable to an action at the suit of the person at whose expense he was enriched for the purpose of making
good the latter's loss up to the amount of the gain which the former has secured.

3. Obligations arising from domestic status :

in the Civil Code, a chapter is added which purports to treat obligations "created by the law".
The only obligation mentioned under this latter head is that of making alimentary provision for relatives imposed upon members of the same family. The occurrence of rules upon this subject in the Civil Code is curious, since the subject belongs properly to the Personal Statuts. Nor do the articles in question correctly state the Islamic law upon the subject. It is difficult to see why the Egyptian legislator has gone out of his way to create a special class to cover a particular species of obligation which does not fall within the purview of the Civil
us alimony
Code. In the French Civil Code the rules alimony are placed under the law of persons (family law). This is, no doubt, the more convenient place for its treatment. The obligation to pay alimony is rightly regarded as imposed by a rule of law rather than as created in deference to the specific will of the parties.n
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4. Public obligations :

Of obligations imposed by the law upon citizens as a whole and consisting of duties owed to the state, we may cite as example the duty to pay taxes (P) and to serve in the army. silon
Joint and several obligations :
Each system of law has its own methods of working out the sequences of such joint holding in the various forms which it may take.
Obligations solidaires occur when two or more persons are jointly bound or jointly entitled to the same thing but by separate obligations. Though each debtor is bound to the creditor for the whole sum, yet as between the debtors themselves each is. only liable for his share. Consequently, if one pays the whole he has a right of recourse against the others to obtain repayment to him of the shares of the debt due from them.
The solidary character of the obligation may result from agreement or from special provision of the law. Thus the civil code provides that delictual obligations shall be joint and several. The Egyptian code have here innovated and specially provide that, in the absence of a stipulation for joint and several liability or circumstances which make such a stipulation implicit, the creditor has no right of action against the sureties except for their respective shares tha
When, as in the case just mentioned, a creditor cannot sue any one of the debtors for the whole of 'the debt, there is not really a joint obligation at all.
In French law; when several persons are together bound for payment of a debt, but each is liable only for his share, the obligation is said to be "conjoints".
When in the code we find that an obligation is expressly stated not to be joint and implication is that it is "Conjointe".
Although the examples above given debtors jointly and severally liable, it is of course,
and possible to conceive of creditors jointly severally entitled, in which case any one of the creditors is competent to sue separately and to give a receipt for the whole debt. This situation is often termed Active Solidarity to distinguish it from joint and several liability to which the "epithet” Passive Solidarity is applied.
Egyptian law regards joint and several debtors and creditors as reciprocal agents for each other in all dealings in connection with the debt and applies the rules of agency to govem their mutual relations. The detailed explanation of the operation of this principle cannot be entered into here. It suffices to say that, as between creditors solidarily entitled, it places the creditor who sues, or who receives payment, in the position of the representative of the others, to whom he is consequently liable to account for what he receiven. The Egyptian code lays down that " when the performance of an obligation cannot, whether in the nature of things
in view of the purpose of the obligation, be divided, each of the debtors is liable for the whole, subject to his right of recourse against his codebtors"

Tuesday, March 19, 2019

Qualities of object in obligations to transfer 1

a. Existence of the thing to be transferred :

Although in the Egyptian law the delivery and not the thing to be delivered is the object, yet seeing that there can be no delivery without a thing to be delivered, the existence of the thing is essential in the Egyptian law as in the French law. When there is an obligation to deliver a specific thing . The thing must be in existence at the date of the contract or the obligation is void for want of an object. But this will not be so when the parties intended to transfer a future thing. If on the other hand, they deal with one another on the footing that the thing existed and it turns out that it did not exist, there is no contract but only the appearance of a contract.

b. Future successions :

The sale of rights under a succession to the estate of a living person is void, even if he consents to the sale while still living.

c. Object must be determinate as to his and quality :

In addition to being an object of commer the object of an obligation must be determinate at least as its kind, and its quality according to the circumstances.
Under the Egyptian code, the property does not pass to the buyer until the things sold have been separated from the bulk by weighing, counting as the case may be, and have actually been delivered to him.

d. Possibility of transfer:

It must be possible to transfer the thing from one of the parties to the other. There can be no valid obligation by A to transfer a thing to B if this is an impossible thing to do it, for example, A sells to B a thing unknown to both of them and have not belonged to B, the sale is void for want of an object:

1. The object must be possible :

In saying as the code do, that object must be possible it is me
possible it is meant that there can be no Jawful obligation to perform a thing which is absolutely impossible for anyone to perform and relative impossibility is not enough. If a man binds himself to do something which is a possible thing to do, although he is not able to do it, there is no reason why he should not pay damages for entering into so foolish a contract.

2. The object must be lawful :

A promise to do anything which is forbiden by law cannot be enforced and we may say that both the cause and the object are here unlawful. Or another way of reaching the same result is to say that an unlawful act cannot be an object of commerce. It is necessary that the act should be expressly forbidden; if the promise is to do something unlawful or immoral it will not be enforced.

3. The object must be personal to the debtor:

By this is meant that it is only a person who has given his consent to be bound by a contract who is bound by it. If A undertakes that Ba do something, then unless he had B's au to act for him, B is not bound. Nor is Ab either, because he did not undertake to do anything. But there is nothing to prevent an agreement that if B does not do what A has undertaken that he shall, or at any rate that if B does not take over the obligation and agree to be bound, he A, will pay the damages.

4.The creditor must have an interest n enforcing the contract : obo

It is a fundamental rule of procedure that the plaintiff must have interest in the result of the suit, otherwise, the performance demand will be rejected. walau ser

Scope of the law of obligation :

It may be said that obligations fall under the head of rights and duties in personam and that it is only. proprietary rights and duties of this class which are generally covered by obligation exists between two persons when
the term or its equivalent is cwing from one to the sons when money to the other,
rights and duties in personam which do not ose or diminish the holder's estate do not fall within the sphere of obligations. Thus the duty of respect and obedience which a son owes to his father is outside the sphere of obligations, but the son's duty to provide the father which alimony is within it. It is true that the term is sometimes broadly used to cover all rights and duties in personam, but such a usage is to be avoided.
Strictly speaking, it is the abstract idea of the legal tie or bond uniting the person of inherence with the person incidence which is designated by the term obligation. The word is, however, sometimes used to signify the right claimed.