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Court of Cassation - Civil & Trade Division - Number: 4 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 4Year: 2008Session Date: 3/11/2008

The Court Panel :Ahmed Mohamed Farahat - Ahmed Mahmoud Kamel - Ahmed Saied Khalil - د./ ثقيل بن ساير الشمري - نبيل أحمد صادق. -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Suit "Crucial Defence in suit: Crucial Defence". Court of First Instance "Its power to consider defences of litigant parties" "Its power to determine Meeting of Offer and Acceptance". Contract "Main Conditions of: Consent: Offer and Acceptance".
Session: March 11, 2008
Appeal No. 4, 2008 Civil Cassation
(1,3) Suit "Crucial Defence in suit: Crucial Defence". Court of First Instance "Its power to consider defences of litigant parties" "Its power to determine Meeting of Offer and Acceptance".
(1) Crucial defence binding Court of First Instance to consider it. Nature of. Loose defence. Court not bound to consider it.
(2) Contract "Main Conditions of: Consent: Offer and Acceptance".
Offer. Nature of. Offer by person expressing his will to conclude certain contract. Offeror not fixing date for acceptance. Effect of. Offer not lapsing unless retracted or abandoned. Subsistence of offer until met by coinciding acceptance from offeree. Its sufficiency to conclude the contract by meeting of the two minds.
Meeting of offer and acceptance. Factual situation. Autonomous power of Court of First Instance to infer without review by the Court of Cassation. Condition for. Must be agreeable or tolerable.
1- Held - that the defence which binds the court to consider must be crucial which - if true - would change opinion in the suit and must be supported by evidence adduced before the court or requested to be proved in accordance with the conditions prescribed by law; other types of defence not satisfying this are considered loose deposition not binding the court to consider.
2- Held - that offer is the utterance by a person expressing his will to conclude a certain contract , and that an offer not fixing time for acceptance does not lapse unless the offeror retracted or abandoned it; if offeror kept his offer until a coinciding acceptance made by the offeree, a contract is concluded on meeting of the minds or wills.
3- Held - that the meeting of offer and acceptance is a factual situation inference of which is within sole purview of the Court of First Instance without review by the Court of Cassation if such inference is agreeable or tolerable.
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Court
After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.
Whereas the appeal has satisfied its formal conditions.
The facts, as stated in the appealed judgment and all the papers, are - as suffices for determining the appeal - that Respondent filed Suit No. (-) Civil against Appellant requesting judgment to bind him to it the sum of two hundred thousand riyals. In explanation it said that it made an agreement with Appellant to search for a tenant to lease a residential complex owned by it in consideration for commission equal to one month rental, and that it mediated between Appellant and the Ministry of Municipal Affairs and Agriculture in concluding a contract for leasing the complex for a monthly rental of two hundred thousand riyals and since it got nothing from Appellant it filed the suit. The first step court passed judgment against Appellant to pay to it two hundred thousand riyals. Appellant filed Appeal No. 402/2007. And on 27/11/2007 the court passed judgment confirming the appealed judgment. Appellant made this appeal for cassation of this judgment, which was put before this court – in the consultation room – which fixed a date for hearing.
Whereas Appellant argues against the appealed judgment for being contrary to law, unsound reasoning and breach of the right of defence, explaining that by saying that the broker would not be entitled to commission except upon success of his mission by concluding the contract under his hand and that he averred before the Court of First Instance that Respondent was not entitled to commission though he signed the lease contract and sent it to the Ministry of Municipal Affairs and Agriculture on 15/11/2005 to sign on their part, but he, the Appellant, abandoned his offer before signature by the Ministry's representative on the contract on 15/12/2005 so that acceptance by the Ministry came on a lapsed offer, hence no contract was concluded. And that although he presented to the Court of First Instance a document proving that he communicated his retraction of offer to the Ministry on the mentioned date and that he requested appointment of an expert to investigate this issue, but the appealed judgment reached the conclusion that a contract was concluded and thereupon obligated him to pay the brokerage commission neglecting his aforementioned defence and his request for deputizing an expert, which makes the judgment erroneous and liable to cassation.
Whereas this argument is not correct, for, the defence which binds the court to consider it must be crucial which - if true - would change opinion in the suit and must be supported by evidence adduced before the court or requested to be proved in accordance with the conditions prescribed by law; other types of defence not satisfying this are considered loose deposition not binding the court to consider it, and as Appellant - contrary to his argument - did not present to the Court of First Instance with its two steps any papers proving his notice to the Ministry of Municipal Affairs and Agriculture of his offer retraction, and also he did not request an expert to investigate this matter, but to state the date of signature by the Ministry on the lease contract, which was an irrelevant issue since the offer made by Appellant did not stipulate a specific period, hence there is no blame on the Court of Appeal for ignoring such defence which was not supported by any documents, and sufficed that it based its judgment on the documents and evidence adduced before it. As that being so, and that the offer is the utterance by a person expressing his will to conclude a certain contract , and that an offer not fixing time for acceptance does not lapse unless the offeror retracted or abandoned it, and if offeror kept his offer until a coinciding acceptance was made by the offeree, a contract is concluded on meeting of the minds or wills, which is a factual situation, inference of which is within sole purview of the Court of First Instance without review by the Court of Cassation if such inference is agreeable or tolerable. And since Appellant did not argue before the Court of First Instance that he offered to the Ministry of Municipal Affairs and Agriculture to lease to it the residential complex owned by them and that he actually signed the contract he sent them and that his offer was limited by any specified period and that the Ministry accepted to contract with him and its representative signed the contract to the knowledge of Appellant, therefore, there will be no argument against the appealed judgment if it inferred failure of Appellant to prove his retraction of offer until conclusion of the lease contract between Appellant and the Ministry of Municipal Affairs and Agriculture and based its decree on such inference against Appellant to pay Respondent their commission in accordance with the agreement between them, and the whole argument becomes baseless.

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