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Court of Cassation - Civil & Trade Division - Number: 190 /2010

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 190 Year: 2010 Session Date: 12/28/2010

The Court Panel :

Sitting of 28/12/2010
Contestation No. 190 of 2010 - Civil cassation

1.     Ruling "ruling data"; invalidity of the ruling: what does lead to “invalidity" is invalid. Deficiency or error in the names of the litigants and their attributes that will not lead to the questioning of the genuineness of the litigant and his connection with the subject .The basis for this is Article 126 of the Prosecution Code.

2.     Responsibility of the bank for the mistakes made by it during the exercise of its activities should either be contractual responsibility if the act, the subject of accountability, is governed by an obligation explicitly or implicitly provided for in the contract or by normal banking practice, or default responsibility due to a mistake committed while dealing with the client, which results in an infringement of the bank’s general commitment to exercise due diligence required generally from the bank towards its clients.

3.     Articles 199, 201, 202 and 216 of the Civil Law provide that the basis of civil accountability requires compensation of any person who has sustained either material or moral damages. Nothing in the law shall prevent any person who has sustained material damages by a harmful act from claiming compensation for moral damages caused by such harmful act.

4.     Reflective damage – reflective damage creates a personal right for a third party to be compensated independent of the right of the person who has actually been damaged by the harmful act. The original damage caused by a harmful act to a particular person may result in other damage that may be caused to his relatives directly, thus creating a personal right to be compensated independent of and distinct from the right of the person who has actually been damaged by the harmful act, and it is based on the reflective damage and not on the original damage even if the source of the right is a single harmful act.

5, 6.   Compensation for moral damage does not mean erasing or removing it from existence because such damage is indelible and cannot be removed by financial compensation. Such compensation is intended to assist the affected person in creating a substitute for the moral damage caused to him. The loss will not disappear but it can be compensated by a gain that offsets it. Also, there is no measure for the right of the moral compensation conditions. However, damage to a person’s honour, capacity, passion or feelings is worthy of being compensated, but this does not mean that it is permissible for each person affected by reflective damage, regardless of the degree of his relation to the person who has originally been affected by the harmful act, to claim such compensation because the assessment of such compensation is left to the trial court on a case by case basis.

7.       Moral compensation is measured against the reflecting damage and not the original damage and should not be applied to parties other than spouses and relatives up to the second degree pursuant to Article 202 ) 2 ( of the Civil Law.
8.       It is established that assessment of the act on which the compensation request is based as being right or wrong is an issue that its judgment falls under the jurisdiction of the Court of Cassation and such jurisdiction extends to the assessment of the facts as required for verifying the correctness of deciding the mistake in those facts and circumstances, which have had an impact on the assessment of the said mistake and its deduction.

          Whereas it is clear from the documents that there is no dispute between the litigants that the appellee has violated the instructions of Qatar Central Bank when on 13/5/2008 he gave two cheque books to……………. …, the son of the contestant who is banned from travelling, which act drove the bank to take a decision on 27/7/2008 to impose on him a fine of 34,000 Riyals. The banned person used some cheques and issued them to third parties, who laid complaints against him with the Police and rulings were issued to imprison him and prevent him from travelling, which caused the contestant great harm and sorrow for the sufferings of his son and for the harm to the rights of others due to the issuance of these cheques; whereas the act of the appellee as such is wrong and for which he is held responsible, he has the right to claim compensation for the moral damage caused to him due to this. Whereas, the contested judgment has disagreed with this opinion and ruled in favour of the cancellation of the contested judgment and rejection of the claim due to non-existence of a direct mistake on the part of the appellee, and the judgment covered this by reviewing the subject of the bank’s appeal related to the compensation and its amount; therefore it shall be defective and shall require contestation.

Qatar Central Bank was ordered to pay a fine of 34,000 ) Thirty Four Thousand ( Riyals to the Appellant for such error, which resulted in the interdicted son issuing several checks to third parties, who filed claims against him. The court ordered his imprisonment which resulted in his being prevented from traveling, which caused the Appellant material and moral damages. He was prompted to pay his son’s indebtedness in order to avoid the effects of the court’s judgment against his son. Considering that the Respondent’s act is deemed an error that affords the Appellant the right to claim compensation for the moral damage inflicted on him. If the contested judgment disagreed with this consideration and adjudged the cancellation of the appealed judgment and dismissal of the Suit for absence of direct error, in the support of, the Respondent and such obstructed him from looking into the bank appeal subject matter, with respect to this compensation and amount thereof, it shall be procedurally flawed and necessitates the cassation thereof in this respect.

1.     Despite of the fact that Article 126 of the Law of Procedure necessitates that a statement shall include the names of the litigants and the capacities thereof. It intended from that, the introduction of their characters and capacities amongst whom the dispute in the Suit passes, of which the judgment is pronounced, a duly diligence introduction and contrary to any ambiguity, so that the vagueness shall not encompass the character of the prevailing party or the losing party. If this Article based the invalidity the lack of or error in the names of the litigants and their capacities, but it meant the lack or error from which incumbent upon them the ignorance of the litigant or ambiguity in introducing his character, a matter that leads to non-recognition or identification of the essence of his character or changing the character of the litigant with another who has no concerns with the litigation in the Suit. Therefore, whenever the lack or error in the names of the litigants and the capacities thereof do not entertain doubt on the essence of the litigant or its relation to the dispute repeated in the Suit, it shall not be considered material error or shortage, from which the invalidity provided for in the Article referred to is originated. Whereas, it is established that the suit was brought from the beginning by the Appellant on behalf of himself and in his capacity as guardian and caretaker of his son …….., by applying to pronounce a judgment in his favour of the amounts and the compensation he had paid. The first judgment adjudged with his applications, by appealing against the Respondent bank and litigating in the very same referred to capacity. The lacking of the judgment in the preamble thereof from referring or stating his capacity shall not lead to entertain doubt on the essence of the litigant or his relation to the dispute repeated in the Suit, specifically that the judgment records, revealed the essence of the litigants, as refuting the ignorance from them, in a matter not to be effected by the material error by having omitted specification of the Respondent capacity, a matter not to originate there-from the invalidity and the contestation thereof by this reason shall become inappropriate.

2.     It is determined that the bank’s responsibility for errors committed by it while practicing its activities shall be either contractual responsibility, if the act is an obligation explicitly or implicitly stipulated in the contract or is a common banking practice, or default responsibility as a result of an error towards the client for being in breach of its general obligation to adhere to the law.

3.     The meaning of Articles 199, 201, 202 and 216 of the Civil Code is that the origin of civil accountability is the requirement to compensate any person who suffers material or moral damage, as there is nothing in the law that prevents others who have suffered no material damage from claiming compensation for any moral damage as a consequence of any act. Since the original damage caused by the act on a certain person may also cause damage to his direct relatives, it gives to them a personal right for compensation, independent of and distinct from the original right, even though, the source of both rights is a single act.

The original damage caused by a harmful act to a particular person may result in other damage that may be caused to his relatives directly, thus creating a personal right of being compensated independent of the right of the person who has actually been damaged by the harmful act and distinct from it, and it is based on the reflective damage and not on the original damage even if the source of the damage is a single harmful act.

5, 6. Compensation for moral damage does not mean erasing or removing it from existence. Compensation for moral damage is not intended to be erased or removed from existence because such damage is indelible and cannot be removed by financial compensation.

The Court of Cassation

Whereas the facts, as shown from the appealed judgment and from all the documents, can be summarized as follows:

The Appellant filed the suit No. 115 of 2009 against the Respondent bank to oblige it to pay to him an amount of 1,116,240 ) One Million and One Hundred Sixteen Thousand and Two Hundred Forty ( Riyals in compensation, stating that a judgment was pronounced in Case No. 15 of 2007 interdicting his son ………. of his legal capacity and appointing the Appellant as guardian and caretaker. Qatar Central Bank had been notified of such judgment and issued Circular No. 70 of 2007 on 12/04/2007 to all banks operating in the State, advising them not to deal with the Appellant’s interdicted son. Despite having received this circular, the Respondent gave the Appellant’s son two cheque books starting from Number …….. to Number …….., from which he issued several checks without funds. The Appellant complained to the Central Bank against the act of the Respondent and the latter was ordered to pay a fine of 34,000 ) Thirty Four Thousand ( Riyals due to such error.

Because of the accumulation of his son’s debts and fearing possible imprisonment in the execution of the judgments pronounced against him, by imprisonment, he had paid his son’s indebtedness and in so doing sustained material and moral damages. He then brought his suit and the Court appointed an expert to prepare a report. The Court thereafter rendered a judgment obliging the Respondent to pay to the Appellant an amount of 1,216,240 ) One Million and Two Hundred Sixteen Thousand and Two Hundred Forty ( Riyals and dismissed the remaining petitions. The Respondent appealed this Judgment by the Appeal No. 420 of 2010 and on 21/06/2010 the Court cancelled the appealed judgment and dismissed the suit. The Appellant appealed this judgment through the Court of Cassation, such appeal has been brought before this Court in the deliberation room and a hearing date was fixed.

Whereas the appeal was based on four reasons, the Appellant contested the invalidity of the appealed judgment in the first reason, stating that he said, he had brought the suit before the Court of First Instance, on his own behalf and in his capacity as guardian and caretaker of his interdicted son, and the judgment was pronounced in his favour.

Then the appeal was cancelled from the Bank. So, he was litigated therein on his behalf and in his capacity. Nevertheless, the appealed judgment omitted in its preamble to state such capacity or the matter that disfigures such judgment and necessitates the cassation thereof.

Whereas such contestation argues that Article No. 126 of the Law of Procedure necessitates that the statement shall include the names of the litigants and the capacities thereof so that there is no ambiguity or vagueness. If this Article based the invalidity of the lack or the error in the names of the litigants and the capacities thereof, but it meant the lack or error from which incumbent upon them the ignorance of the litigant or ambiguity in introducing his character, a matter that leads to non-recognition or identification of the essence of his character or changing the character of the litigant with another who has no concerns with the litigation in the Suit. Therefore, whenever the lack or error in the names of the litigants and the capacities thereof do not entertain doubt on the essence of the litigant or its relation to the dispute repeated in the Suit, it shall not be considered material error or shortage, from which the invalidity provided for in the Article referred to is originated. Whereas, it is established that the Suit was brought from the beginning by the Appellant on behalf of himself and in his capacity as a guardian and caretaker of his son …….., by applying to pronounce a judgment in his favor with the amounts and the compensation he had paid. The first judgment adjudged with his applications, by appealing against the Respondent bank and litigating in the very same referred to capacity. The lacking of the judgment in the preamble thereof from referring or stating his capacity shall not lead to entertain doubt on the essence of the litigant or his relation to the dispute repeated in the Suit, specifically that the judgment records, revealed the essence of the litigants, as refuting the ignorance from them, in a matter not to be effected by the material error by having omitted specification of the Respondent capacity, a matter not to originate there-from the invalidity and the contestation thereof by this reason shall become inappropriate.

Whereas the Appellant contested the second and third reasons of the judgment for its error in applying the law and for violating the documents. He stated that the Central Qatar Bank had issued Circular No. 70 of 2007, warning the banks operating in Qatar, including the Respondent bank, not to deal with his interdicted son and not to give him cheque books, except through the circulation of the same, but the Respondent violated such instructions and gave the interdicted son two cheque books. Qatar Central Bank was ordered to pay 34,000 ) Thirty Four Thousand ( Riyals to the Appellant for such error, which resulted in the interdicted son issuing several checks to third parties, who filed claims against him. The court ordered his imprisonment which resulted in preventing him from traveling, which caused the Appellant material and moral damages. He was prompted to pay his son indebtedness in order to avoid the effects of the court’s judgment against his son. If the Respondent judgment adjudged the dismissal of the Appellant Suit, due to the absence of direct error pillar, in the support of the Respondent. Despite of the evidence of the error in his support as aforementioned, the matter that rendered such appealed Judgment is defective and necessitates the cassation thereof.

Whereas such contestation is true, as it is proved that the bank’s responsibility for the errors committed by it while practicing its activities shall be either contractual responsibility if the act of the accountability subject matter is an obligation explicitly or implicitly stipulated in the Contract or is a common banking practice, or default responsibility as a result of an error towards the Customer for being in breach of the general obligation to adhere to the law.
The meaning of Articles 199, 201, 202 and 216 of the Civil Code is that: the origin of civil accountability is the requirement to compensate any person who suffers material or moral damage. There is nothing in the law that prevents others who have suffered no material damage from claiming compensation for any moral damage, as a consequence of any act. Since the original damage caused by the act on a certain person may also cause damage to his direct relatives, it gives to them a personal right for compensation, independent of, and distinct from the original right, even though, the source of both right is a single act.

The compensation for the moral damage shall not mean its elimination since it is a type of damage that cannot be eliminated or removed by material compensation. Rather, it means that the injured party can avail himself of an alternative claim for moral damage inflicted on him. As the loss shall not be removed, but emerges in support thereof a gain that compensates it and there is no criterion for the right of the circumstances of the moral damage, since any damage that hurts the human being in his honour, importance, sentiment, sensations and feelings shall be virtuous to be subject for compensation, is good to be a compensation matter. However, such does not mean that whoever subjected to moral damage apostate, irrespective of the degree of his relationship with the one who had been inflicted with the damage act originally shall not claim such compensation, since the estimation thereof is left for the subject matter Court, to be estimated by it in each case separately. Such compensation shall be measured to the extent of the damage apostate and not the original damage, in such a manner that, shall not be adjudged thereof for others. Except the spouses and the relatives up to the second class, pursuant to the Second Paragraph of the Article ) 202 ( of the Civil Code or seeking guidance thereof, such being the case, and whereas it is stipulated under Article in the judiciary of this Court – that the conformation of the act on which the compensation request was established is wrong or negating such description from it, such are cases in which the subject matter Judiciary shall be subjected to the Court of Cassation Control and such Control shall extend to the estimation of the facts, as required to verify the deduction of the error in such facts and circumstances, which had had effect in the estimation of the error and the deduction thereof.
The documents show that the litigants do not dispute that the Respondent violated the instructions of Qatar Central Bank and gave the Appellant’s interdicted son ….. Two Cheque Books on 13/05/2008. Qatar Central Bank was ordered to pay 34,000 ) Thirty Four Thousand ( Riyals to the Appellant for such error, which resulted in the interdicted son issuing several checks to third parties, who filed claims against him. The court ordered his imprisonment which resulted in preventing him from traveling, the matter that caused the Appellant material and moral damages. He was prompted to pay his son indebtedness in order to avoid the effects of the court’s judgment against his son. Considering that the Respondent’s act is deemed an error that affords the Appellant the right to claim compensation for the moral damage inflicted on him. If the contested judgment disagreed with this consideration and adjudged the cancellation of the appealed judgment and dismissal of the Suit for absence of direct error, in the support of the Respondent and such obstructed him from looking into the bank appeal subject matter, with respect to this compensation and the amount thereof, it shall be procedurally flawed and necessitates the cassation thereof in this respect.

Whereas the Appellant argued in his fourth reason that the judgment failed to rule in his favour for reimbursement of the amounts he had paid for his interdicted son, under the pretense that the ban on his son would relieve him of criminal responsibility, and that the Appellant should, for this reason, have abstained from paying for his son’s indebtedness. while the infliction of interdiction, due to the mentally retardation and negligence, shall not lead to relieve the interdicted son of criminal responsibility. If the appealed judgment refused to rule in the Appellant’s favour for the reimbursement of such amounts, despite his eligibility for such reimbursement, such judgment is procedurally flawed and necessitates the cassation thereof.

Whereas Article 35 of Law No. 40 of 2004 regarding guardianship over the money provided that the guardian shall rule with the soundness or the invalidity of the interdicted son financial acts as follows…..
) 3 ( the acts of a mentally retarded person before lodging the request for his interdiction shall be true, unless such acts are a result of utilization or collusion.
) 4 ( the acts of a mentally retarded person after lodging the request for his interdiction shall be subject to the application of the judgments related to the acts of the minor judicious, provided for in Article 2 of this Law, which stipulates that the financial acts of a mentally retarded person shall be true whenever such acts are inherently beneficial to him and untrue whenever inherently harmful to him an entrenched harmfulness and capable of invalidation of his interest whenever they go between the usefulness and harmfulness. They shall abate to adhere to invalidation if the guardian of the minor so permits or the body or the minor after having reached the legal age, by virtue of law, shall suggest that the act of the person endowed with mentally retardation and negligence, which had been emanated from him before lodging the request for his interdiction shall all be true, unless they shall be, as a result of, utilization or collusion, as for the acts subsequent to the request for interdiction, they shall be either useful for him entrenched usefulness and then they shall be true and untrue whenever they are harmful and capable of invalidation of his interest, whenever they go between the usefulness and harmfulness, whereof it requires the Appellant to have recourse, in his capacity, as regard thereof, to the adjudication, to be acquainted with the extent of trueness of such acts or non-trueness thereof and in the latter case he shall have recourse to those contracted with the interdicted one to recover such monies there-from. Therefore, whatever had been carried out by the interdicted one from payment of such monies prior to have recourse, as regard thereof, to the adjudication, shall not prevent proceeding through the right path for the recovery thereof or have recourse to the predicted one to collect them from his own money, in pursuance of, ………………………………., in the provision of Article No. ) 220 ( of the Law. Therefore, the Appellant request to obligate the Respondent to recover the amounts he had paid to the predicted one, from his own money, shall be groundless and the contestation of the appealed judgment, in this respect, shall become untrue.

Consequently, the Court brought the appeal for cassation against the judgment partially, since the pronounced judgment for compensation requests dismissal of the claim for moral damage, and referred the case to the Court of Appeal which decided that the Respondent is obliged to pay the costs.