Enrichment without reason in Kuwaiti law
A beneficial act or enrichment without cause at the expense of others:
Articles (262-278):
Kuwaiti trade law took from Egyptian law the system of enrichment without reason, as a public source establishing commitment, and the project, in turn, also takes that system as a public source establishing commitment at the same level with the contract and the harmful act, starting with its report as a general theory that applies, and then deals with two special images of it, They are the receipt of the undue and the residue.
Article (262) introduces the system of enrichment without cause, or the system of illicit enrichment, as it is sometimes called, so it recognizes its idea and focuses its conditions and effect. On the one hand, it establishes a general principle according to which everyone who is enriched at the expense of others, without a legitimate reason, is obligated to pay for him, within the limits of what he was enriched with, what raises the loss on his behalf. On the other hand, it is the focus of the conditions for implementing the enrichment system without cause and effect, as it requires for its implementation the enrichment of a certain person who becomes, due to this enrichment, indebted to the commitment that arises, and the lack of another person, who becomes a creditor of the obligation, in a way that this lack is lifted, even partially, and the availability of a relationship or correspondence Between enrichment and lack, in a way that can be said that had it not been for this, that would not have been, and the absence of the legitimate reason that justifies enrichment and impoverishment.
The eligibility of someone who is rich or who is poor is not required. Each of them becomes a debtor or a creditor as a result of a mere fact that has occurred, that is, an incident of enrichment or a poverty. Competence is not bound by facts, but only in actions. It does not preclude the emergence of commitment, that the enrichment disappear after its occurrence as long as its disappearance is not attributable to the poor. So long as the enrichment has already occurred, the commitment is required from the time it takes place and its extent is estimated within its limits, even if all or some of this enrichment is removed, at a later date, and the draft in this is in line with the Kuwaiti Trade Law and before it the Egyptian law and other Arab laws that inspired it.
Enrichment at the expense of others without a legitimate cause results in the emergence of the obligation in the possession of the enricher in favor of the poor, in a way that raises the latter's lack of his lack, within the limits of the benefit he returns to his opponent. Thus, the case for enrichment is determined to the extent of the benefit to the rich, and the loss suffered by the poor, i.e. the two values are less. Article (263) exposes the time when the enrichment lawsuit is filed, deciding that it will be forfeited by the lapse of three years from the day the person lacking knowledge of his right to compensation, or by the lapse of fifteen years from the time this right was established, i.e. the two periods are closer. The knowledge of the needy person of his right to compensation naturally includes his knowledge of whom it is justified to take back.
The system of receiving the non-receivable from the project has received a lot of attention, as is the case with many laws in different countries, including the current Kuwaiti Trade Law, and if the project has given the system the name (Receipt of the non-receivable) then it has not overlooked that it is often launched In legal thought, it is called (payment of what is not due) or (payment of what is not due). He proposes this last name as it looks at matters from the angle of the impulse that falls victim to poverty. And this while that which generates the obligation to respond is the receipt of something by the gripper, considering that it rises to enrich it. Hence, the preference was given to the term (receiving the non-due) or (taking the non-due). This is more consistent and more complete than that which gives the system the principle: (enrichment without reason). The project was encouraged by what it observed in the beginning of the spread of the name it chooses in contemporary legal thought. Article (264) lays down the general principle of the non-deserving delivery system, stipulating that whoever receives something who is not entitled to it is obligated to return it.
What is meant by entitlement here is not the entitlement of the thing itself to the recipient, but rather the entitlement to receive it. The thing may be owed in itself to the one who received it, and yet this is bound to return it, if it did not take place in the proper legal manner, as if the payment was void due to the lack of competence of the deceased, or this payment was not enforceable in the face of the recipient’s creditors, due to the realization of the lawsuit Failure to enforce the dispositions or due to the occurrence of payment after the judgment declaring bankruptcy.
The lesson with regard to non-entitlement is by looking at it from the angle of the sender, not from the angle of the payer, so if the thing is due to be taken by the recipient, then he is not obligated to return it, even if his payment is not originally obligatory for the payer, as if the latter pays a debt to someone else. Evidence of his order, i.e. the case that he knows that he is paying the clerk a debt owed to him by others. And if the thing is not due to be received, then it does not matter if this non-entitlement is due to the same de facto situation, as if the recipient collects a debt that does not have an origin or takes more than it is worth, or the non-maturity results from legal consideration, as is the case when A person receives something on the basis of a void contract or it is decided to nullify, annul or annul.
The receipt of the non-receivable is sufficient as a general principle to incur the recipient of the obligation to return, considering that the latter is illegally enriched at the expense of others with what he receives. And the project when deciding that, minimizing Article (264) on it does not overlook the idea that existed from the past and which requires for the commitment to respond to be made, that the motive has paid with a mistake, believing, contrary to the truth, that he is paying a debt that he owes considering that if he had paid for Evidence of the matter, i.e. knowing that he is not bound by what he pays, it is justified to interpret this from him as having intended either to donate what he paid, or to perform a natural obligation on him, or to pay a debt owed to others. In these cases, recovery is legally prohibited. Because the recipient has a right to what he takes. It is an idea influenced by the Egyptian law (Article 181/2) and later on by other Arab laws that inspired it, among them the Kuwaiti Trade Law (Article 181/2).
However, stipulating the error in the motive has become misleading now, after the system of (receiving the non-receivable) has expanded, and now includes, in addition to receiving something materially unworthy, that is, in terms of reality, the receipt of something that is not due out of legal consideration, such as the nullity of the action under which the surrender took place or To nullify it, spell it out, or revoke it, so asking for the error of the motive is not relevant in this regard. Rather, stipulating the fault of the motive does not really have any benefit even in the field of receiving the thing that is not financially due, that is, in terms of reality, because what comes into consideration in the field of (receiving the unworthy) is not the intention or belief of the motive, but it is a right The recipient of what he takes or not, and if it is possible to bear the knowledge of the motive that he is not bound by what he paid as he intended to do so, and in a sound legal manner, to donate what he has paid or to fulfill a natural obligation, or to pay a debt on others, then the restitution lawsuit refuses to do so, not on the basis that it is He did not pay for a mistake, but rather based on establishing the right of the Muslim in what he took.
Article (265) discusses the situation in which the debtor actually pays a debt that he owes, but pays it before its due date comes due to his ignorance. And the performer of the system of receiving the non-receivable, if it is taken at launch, is that the creditor is obligated to return to the debtor what he has collected from it, then to return after that and take it back at the time of the deadline. What he has benefited from as a result of his taking the debt prematurely, and that is within the limits of the harm caused to the debtor as a result of his early performance of his debt. And the wisdom that the project envisaged in that is its desire to smooth the deal and keep it away from complication, and this ruling is derived from Article (183) of the Kuwaiti Trade Law and its legislative sources.
Article (266) faces another form, which is the case of a creditor who takes the value of his debt from a non-debtor, in the case of the latter believing that he is paying a debt on himself, so the creditor, motivated by the correct fulfillment of his debt, strikes himself of the debt bond, or what was guaranteeing the debt From insurance, or by leaving his claim before the real debtor for a period that is not heard after its expiration. The effect of the general rules, in such a case, is that the fulfillment is null, because it is not based on a reason, which would allow the payer to recover from the clerk what he paid to him, so that the latter would not be enriched at his expense without a legitimate reason, given that his debt is owed by his debtor. The real for him expires in loyalty. However, Article (266) prohibits the motive here from recourse to the creditor, considering that the latter's right over the true debtor is at risk of being lost, as if its enrichment is uncertain.
However, it is stipulated here that the creditor has performed the work that threatens to lose his right to his debtor in good faith, that is, believing that the payment is correct. As in this case alone, the creditor has a clear excuse for what he did, and the motive after that is his own with the one who has paid his debt on his behalf, where he has the right to recourse to him on the grounds of enrichment. Article (266) is consistent in its ruling with Article (184) of the current Kuwaiti Trade Law and Article (184) of the Egyptian Civil Law, even if it includes an amendment in the wording required by the convenience. The draft presents, in Article (267) the content of the obligation to respond to which the responsibility of He takes over the non-receivable, and in that it takes the approach of the current Kuwaiti Commercial Law (Article 185) and the Egyptian Law that it inspired (Article 185), thus distinguishing a fundamental distinction between whether the clutch is good or bad faith.
If it is the first obligation, then the clerk is not obligated to return except what he has already received, without what he intends to have taken from its fruits. The fruits here are for the holder based on his possession of the thing in good faith, which is a rule stipulated by the general rules regarding possession.
But if the clutch is of bad faith, such as if he knows that he is taking something that is not due to him, then he is obligated to return in addition to the thing that he received the fruits that he reaped from him or which he did not reap, and that is from the day he received the thing if it was bad intention, or from The date on which he becomes ill-intentioned if that is an emergency matter, and he is obligated in any case to return the fruits that he reaped or those that he failed to reap from the day the lawsuit was brought against him to return the thing, if it was decided for him, considering that he is considered bad faith from this date, according to For general rules.
Article (268) presents a special case of receiving the non-entitled, which are those in which the recipient is incomplete eligibility, whether he is lacking or lacking thereof, to dictate that the recipient is not obligated to return except within the limits of what he has received from a legally significant benefit. The draft took into account in the determination of this ruling that the recipient in the concerned case does not originally, or does not properly estimate, the consequences of his receipt of what he has no right to, and this ruling is nothing more than in line with the general principle that the act is null and void. A person who does not have the capacity to respond is not responsible for the obligation to respond except within the limits of the legally significant benefit he has received, a principle that was previously codified by the project in Article (188).
As for the period for which the lawsuit to recover what was unlawfully paid is dropped, it is three years from the day on which the plaintiff learns of his right to recovery or by the lapse of fifteen years from the day in which this right arises, i.e. the two periods are closer, which is the ruling that the project had previously decided. Concerning the enrichment lawsuit in general (Article 263).
Second: Virtue:
The bill includes provisions for virtue of articles (269 to 278), which generally do not deviate from those stipulated in the current Kuwaiti Trade Law (Articles 187 to 195) and the Egyptian law that inspired it (Articles 188 to 197). Article (269) begins with stating the components of virtue that are not without its availability, and requires in its first paragraph that the inquisitive person perform an urgent and then necessary matter for the account of someone else, intentionally for his benefit, without being legally bound to do so, that is, without being obligated to perform What he did in compliance with an order binding him to a stipulation in the law, a condition in the contract, or a court ruling.
If the previous matters represent the true constituents of residue, but the draft, following the example of the current Kuwaiti Trade Law (Article 187/2) and the Egyptian law (Article 189/2), was considered in the second paragraph of Article (271) in the ruling on surplus A person is like others while assuming his own affairs, because the interconnectedness between the two matters cannot be done without the other. Article (270) presents the case in which the employer acknowledges what Al-Fuzuli did, ruling that the agency rules apply in relation to what he did. This judgment is merely an application of the principle that post approval is the same as the previous agency. However, the applicability of the agency rules here is naturally in the relationship between the curious and the employer, as for others whom the curious person has contracted with in his personal capacity, they are authorized to consider that their dealings have taken place with the curious as his person or with the employer, considering that the curious was an agent From it according to the circumstances.
Article (271) imposes on the inquisitive an obligation to carry on with the work that he started until the employer is able to take over it himself, unless he had finished it before that, and also imposes on him the obligation to initiate notify the employer of his interference with him, when it becomes possible for him. Conduct this notification. Article (272) imposes an obligation on the inquisitive to exert an obligation in carrying out the work that he wishes for himself to take over the care of the ordinary person, even if he fails to undertake that care, he shall be deemed wrong, and he shall be liable for compensation for the damage resulting from his mistake.
If the project had taken the curious person with the care of the ordinary person, and held him responsible if he did not exert it, except that, given the factor of haste in taking over the matter, and in consideration of the benevolence of the inquisitive and noble his intention to address a matter that aims to benefit others without being obligated to him, then the judge was justified in the second paragraph of Article (272) To reduce the amount of compensation resulting from the mistake of al-Fuzuli, or to exempt him from it if he believes that the circumstances justify it.
Article (273) establishes the responsibility of the curious, vis-à-vis the employer, for the actions of others whom the curious person has been entrusted with carrying out the affairs of the employer, without prejudice to the right of the employer himself to refer directly to these third parties in accordance with the requirements of the rules of law.
Article (274) establishes an obligation for al-Fuzuli to return to the employer everything that he takes because of the residue, and to provide him with an account of the work he has done, in the manner that the agent is obligated to do before the principal. Article (275) deals with the death of the fugi and the death of the employer, so it states in its first paragraph that, in the event of the death of the inquisitive, his heirs are bound towards the employer, with what the agent’s heirs are bound by towards the client, but in the case of the death of the employer, the position of the curious does not change. Therefore, the second paragraph decides that the curious remains committed to the heirs of the employer with what he was committed to towards him.
Article (276) introduces the capacity that the law breaks down on the curious in performing the work that he performs, judging that the capacity of the representative for him on behalf of the employer is proven.
Thus, al-Fuzuli is considered a representative of the employer, whether this approves his actions or not. If the employer approves the actions of the inquisitive person, then it is proven to the inquisitive prosecution the agreement, meaning the agency, which is the ruling that Article 270 of the draft law has preceded that his legalization. The employer is an acknowledgment for the actions of the inquisitive, the latter had a description of acting on him, but his representation here is legal, provided that the description of the legal prosecution is not proven of course for the inquisitive except within the limits of the ordinary person’s management, because if someone who is in charge of others goes beyond the limits of the ordinary person’s management, then The description of the inquisitive rises above him in the scope of what he departed from it, but rather exposes himself to the responsibility as a mistake, according to the provisions of Article (272) of the draft. The description of the deputy is not removed from al-Fawuli, as long as it remains within the limits of the ordinary person’s management that the desired result of his work is not achieved.
If the inquisitive person’s capacity is proven, the effects of the contracts concluded by him shall be terminated to the employer, so the latter is the creditor or debtor, according to the circumstances, without the inquisitive, provided that the inquisitive, upon disposing, showed the person who contracted with him his capacity in the prosecution, and contracted with him on this basis. He did not contract with him in this capacity, but in his personal capacity, whoever contracted with him, as a general rule, ignored the employer. Here, the employer is obligated to compensate the inquisitive for the undertakings that he is responsible for. In all cases, the employer is obligated to pay to the inquisitive all the necessary and beneficial expenses that he has made, and he is obligated to compensate him for the damage he suffered as a result of performing the work without deviating from it from the concern of the ordinary person, and all this if the expenses or damage exceed the extent of what he returned to the employer from Benefit, and in this regard is the significant difference between the effect of residual enrichment and that of non-cause enrichment in general.
If virtue is required for the inquisitive to prove the right to return to the employer for all the necessary or beneficial expenditures and to compensate him for the harm he bears, but the draft has set a special provision for the remuneration of the curious about his work, deciding that no right has been established for him, except that The work that he performed is part of the work of his profession, and the project has taken into account in determining this ruling that the inquisitive person donates his effort, so he does not deserve a reward for that, unless the work he performed is within his profession, so he deserves the appropriate remuneration, considering that his performance may have missed him. The opportunity to perform another paid job.
The text of Article (276) is taken from the text of Article (193) of the Kuwaiti Trade Law, which in turn is taken from the text of Article (195) an Egyptian civilian, with a slight modification in the wording made by the draft that required the convenience, and with the exclusion of Al-Fuzuli in the benefits of the expenses that he spent, in keeping with With the approach that the project adhered to from excluding benefits in their various forms of existence. Article (277) presents the situation in which the inquisitive person is incomplete the capacity to contract, judging that he is not responsible for the employer except within the limits of what he has been enriched with, unless his work has decreased to an extent that brings him to tort.
The draft was inspired by the provision of Article (277) of Article (194) of the current Kuwaiti Trade Law, which in turn is transcribed from Article (196) Egyptian civilians. However, the project excluded the ruling that was presented in advance that the responsibility of the employer remains complete, even if it does not have the competence of the contract, as from it that this ruling has shown that it can be codified, as the obligations of the employer towards the inquisitive are proven by the result of the fact of virtue itself, and the competence of the contract If necessary in the actions, then there is no room in the facts. Article (278) states the period during which the lawsuit arising from virtue is filed, whether it is filed from the curious about the employer or the employer on the curious. In this regard, it rules that this lawsuit shall be dropped by the lapse of three years from the day on which the plaintiff learns of his right or by the lapse of fifteen years from the day on which this right arises, i.e. the two periods are closer.
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