Consequences of Civil Transfer Contract A Comparative Study

Consequences of Civil Transfer Contract A Comparative Study PDF

Ameer Ahmad Fatooh Hajjeh

Supervisor(s)

Dr. Ali Asrtawy -

Discussion Commity

179 صفحة

Abstract :

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.

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