Document Details
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Document Type |
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Thesis |
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Document Title |
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PROTECTION OF THE GOOD FAITH THIRD PARTY FOR REVOCATION-ABLE CONTRACTS AND THEIR JUDICIAL APPLICATION (ANALYTICAL COMPETITIVE STUDY) حماية الغير حسن النية في العقود القابلة للإبطال وتطبيقاتها القضائية (دراسة تحليلية مقارنة ) |
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Subject |
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Faculty of Arts and Humanities |
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Document Language |
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Arabic |
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Abstract |
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The contract nullity shall result in \expiration of its effects, deeming it as null and void and reinstating the parties to the condition they were prior to contracting. The contract nullity effects are not limited to the contracting parties only, rather; they shall prejudice the third party, thereby whoever obtained a right in rem from the parties to the contract shall be prejudiced by such nullity, as the third party right in the property is based on the title owned by the assignee and its establishment is related thereto, so that whatsoever arises to the assignee shall have an effect on the third party, and if the reason conveying the title or any other right such as dissolution or annulment ceases to exist, it would negatively prejudice the actions resulted from the contract's subject, before the removal of the reason, by deeming them as null and void. Therefore, the assignor of the right is considered to have disposed of a property it doesn't not own, and the disposition of the third party property, as a general rule, shall not result in any effect against the rightful owner. Also, the assignor ownership over the subject of disposition has been expired and it no longer has any right over it; nor can it convey to the third party more than what it owns. Therefore, the rational of the nullity retroactive effect requires the expiry of the contract and its effects not only between the contracting parties; but also the third party. Whereas one of the important characteristics of nullity is to be an argument against all parties. In terms of principle, the third party may not adhere to any right arranged therefor under the contract made with a former contracting party (predecessor) regarding the subject of the void contract, as there is no reason to originally convey the ownership, so that third party can adhere to a right arranged therefor based on invalid reasons.
Due to the various types of nullity, they are not on the same degree, as there are null and void contracts, wherein one of the conclusion or validity conditions wasn't fulfilled, and there are valid concluded contracts; but they are prone to nullity due to the existence of a defect vitiating its conditions, validity or requirements, thus they did not amount to the effective and binding contract, which is the highest level of contract validity. Besides, these contracts create a type of status dependent on the will of one of the parties, either shall such party authorize thereof, hence its existence is established, or shall it request nullity thereof, then its effects shall be removed based on the date of concluding the contract.
However, some exceptions may be made to this rule, as the contract may be strengthened against the nullity and produce effects, despite the fulfillment of the nullity requirements, due to other considerations more than the right of the party adhering to the request for nullity, such as observing the established apparent status and the third party goodwill who obtained the right on behalf of one of the parties to the contract, and in its acquisition thereof, there wasn't any defect or violation, thus enhancing the stability of dealing in society and mutual trust between individuals. However, if this is an explicit deviation from the general rules, but the considerations that were taken into account therefor are prioritized.
The absolute recognition of the nullity effect in the void contract and removal of what the parties arranged from one hand, and for the third party on the other hand, leads to an adverse economic and social impacts that are inconsistent with justice and the stability of dealing.
The rule as to the void contract's non production of any effect, is faced by obstacles, whenever it is applied, as the void contract has actually been implemented and sustained its existence, thus it resulted in status and interests worthy of protection, and protection thereof may be more mandatory than the interests to which the nullity itself aims to protect, which finally relates to the stability of transactions and mutual trust principal.
Further, the established apparent status to which the individuals accepted in their dealings is worthy of protection, even if it is contrary to the fact, and such protection is based on the vitiated contract concept as for the Hanafis and the loss concept as for the Maalikis, as they stated that" the disposition of the property makes it free from the defects vitiating the assignor ownership".
The protection of the bona fide third party, in all its cases and forms, is based on the idea of dispute, as the protection of the bona fide third party is not invoked, except when the right of the third party conflicts with another right equivalent or stronger than it.
This study shows that this dispute is between the holder of a right based on a legal status and the bona fide third party's right based on an actual status. At other times, it is a dispute between the status of the legal right holder and the status of bona fide third party, as this is a conflict and dispute between the conflicting interests holders, namely, the right holder and the third party that is a victim to an apparent status represented in both their attempts to exclusively possess the right.
Whereas the right based on a legal status cannot handle – as per the rule- standing up against the right based on a status protected by law, thus preference of the bona fide third party right, despite its dependence on an actual status, must be grounded on a legal basis. Therefore, the study addressed the apparent status theory as a legal basis for protection.
Whereas the protection of bona fide third party is an exception to the general rules and principles, and the well-known juristic term is established contrary to the analogy, since the Sharia has acknowledged some principles in general and considered them as a rule, followed by the validity of its effects in all legal provisions, and simultaneously it excluded some matters and forms from the general principle as an exception, since the protection of third party is provided as an exception to the will dominance principle, the relative effect of the contract principle, and the nullity retroactive effect principal, whereas the protection of bona fide third party leads to non-consideration of the genuine will of the right holder, as well as obligating the latter with the effects of a contract to which it wasn't a party.
The significance of this study is reflected through reaching the controls and restrictions aiming to protect the bona fide third party who obtained its right from either of the parties to the voidable contract, and not prejudicing the interests of the right holder. It also aims to indicate the considerations upon which this protection is grounded and its effect on the parties to the contract, as well as the jurisprudential and legal basis upon which this protection is grounded.
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Supervisor |
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Dr. Alsyd Ahmad Ail Badawi |
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Thesis Type |
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Doctorate Thesis |
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Publishing Year |
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1442 AH
2020 AD |
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Added Date |
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Friday, January 29, 2021 |
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Researchers
| محمد إبراهيم القاسم | AL Qasem, Mohammed Ibrahim | Researcher | Doctorate | |
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