كشفت أنظمة المنتدى أنك غير مسجل لدينا فأهلا وسهلا بك معنا و تفضل بتصفح المنتدى و إن شاء الله ينال إعجابك و لا تحرمنا حينها من تسجيلك معنا و مشاركاتك و إفادتنا بخبرتك .
كشفت أنظمة المنتدى أنك غير مسجل لدينا فأهلا وسهلا بك معنا و تفضل بتصفح المنتدى و إن شاء الله ينال إعجابك و لا تحرمنا حينها من تسجيلك معنا و مشاركاتك و إفادتنا بخبرتك .
In Case Of Any Discrepancy, The Arabic Version Of This Law Shall Prevail
THE CIVIL CODE
PRELIMINARY CHAPTER
Section I Laws and their Applications
1. Laws and Rights
Article 1
Provisions of laws govern all matters to which these provisions apply in letter or spirit.
In the absence of a provision of a law that is applicable, the Judge will decide according to custom and in the absence of custom in accordance with the principles of Moslem Law. In the absence of such principles, the Judge will apply the principles of natural justice and the rules of equity.
Article 2
A provision of a law can only be repealed by a subsequent law expressly providing for such repeal, or containing a provision inconsistent with a provision of the former law or regulating anew a matter previously regulated by a former law.
Article 3
Periods of limitation will be calculated according to the Gregorian calendar, unless expressly provided otherwise by a law.
Article 4
A person legitimately exercising his rights is not responsible for prejudice resulting thereby.
Article 5
The exercise of a right is considered unlawful in the following cases:
a) if the sole aim thereof is to harm another person;
b) if the benefit it is desired to realize is out of proportion to the harm caused thereby to another person;
c) if the benefit it is desired to realize is unlawful.
2. The Application of Laws
Conflicts of Law as to Time
Article 6
Legislative provisions as regards the legal capacity of a person are applicable to all persons who fulfill the conditions embodied in such provisions.
When a person, who was deemed to possess legal capacity in accordance with the provisions of a former law, becomes legally incapable in accordance with the provisions of a new law, such legal incapacity does not affect the validity of acts previously done by him.
Article 7
New legislative provisions as regards prescription apply from such time as they come into force in all cases in which the period of prescription has not been completed.
Former legislative provisions however, apply as regards the date of commencement of prescription, its suspension and its interruption in respect of the period prior to the application of the provisions of the new law.
Article 8
When the new law provides for a period of prescription shorter than the period provided for in the former law, the new period will apply from the date the new law came into force, even if the old period of prescription has already commenced to run.
If, however, the remaining period still to run under the former law is shorter than that fixed by the new law, the prescription shall be completed upon the expiry of such remaining period.
Article 9
Proof established in advance is governed by provisions of the law in force at the time when the proof was established or at the time when such proof should have been established.
Conflicts of Law as to Place
Article 10
Egyptian law will rule to determine the nature of a legal relationship in order to ascertain the law applicable in the event of a conflict between various laws in any particular suit.
Article 11
The status and the legal capacity of persons are governed by the law of the country to which they belong by reason of their nationality. If, however, in a transaction of a pecuniary nature, concluded and having effect in Egypt, one of the parties is a foreigner without legal capacity and such lack of capacity is due to a reason that is not apparent and which cannot be easily detected by the other party, this reason has no effect on his legal capacity. The legal status of foreign juristic persons such as companies, associations, foundations, or others, is subject to the law of the State in whose territory such juristic persons have established their actual principal seat of management. If, however, a juristic person carries on its principal activities in Egypt, Egyptian law will be applied.
Article 12
The fundamental conditions relating to the validity of marriage are governed by the (national) law of each of the two spouses.
Article 13
The effects of marriage, including its effects upon the property of the spouses, are regulated by the law of the country to which the husband belongs at the time of conclusion of the marriage.
Repudiation of marriage is governed by the law of the country to which the husband belongs at the time of repudiation, whereas divorce and separation are governed by the law of the country to which the husband belongs at the time of the commencement of the legal proceedings.
Article 14
If, in the cases provided for in the two preceding articles one of the two spouses is an Egyptian at the time of the conclusion of the marriage, Egyptian law alone shall apply except as regards the legal capacity to marry.
Article 15
Obligations as regards payment of alimony to relatives are governed by the (national) law of the person liable for such payment.
Article 16
The (national) law of a person who should be protected shall apply in respect of all fundamental matters relating to natural and legal guardianship, receivership, and other forms of protection of persons without legal capacity and of absent persons.
Article 17
Inheritances, wills and other dispositions taking effect after death are governed by the (national) law of the de cujus, the testator or the person disposing of property at death.
The form of a will, however, is governed by the (national) law of testator at the time the will is made, or by the law of the country in which the will is made. The same principles apply to the form of other dispositions taking effect after death.
Article 18
Possession, ownership and other real rights are regulated, as regards immovable, by the law of the place in which the immovable is situate, and as regards movables, by the law of the place where the movable was situate at the time when the event occurred which resulted in the acquisition or loss of possession, ownership or other real rights.
Article 19
Contractual Obligations are governed by the law of the domicile when such domicile is common to the contracting parties, and in the absence of a common domicile by the law of the place where the contract was concluded. These provisions are applicable unless the parties agree, or the circumstances indicate that it is intended to apply another law.
Contracts relating to immovable, however, are governed by the law of the place in which the immovable is situated.
Article 20
Contracts between living persons are governed as regards their form by the law of the country in which the contracts are concluded. They may also be governed by the law regulating the basic provisions of a contract, by the law of the domicile of the parties or by their common national law.
Article 21
Non-contractual obligations are governed by the law of the State in whose territory the act that gave rise to the obligation took place.
When, however, the obligation arises from a tort, the provisions of the preceding paragraph shall not apply to an act which occurred abroad and which, although considered unlawful in accordance with the law of the country in which the act occurred, is considered lawful in Egypt.
Article 22
Principles of competence of courts and all questions of procedure are governed by the law of the country in which the action is brought, or in which the proceedings are taken.
Article 23
The provisions of the preceding articles only apply when no provisions to the contrary are included in a special law or in an International Convention in force in Egypt.
Article 24
The principles of private international law apply in the case of a conflict of laws for which no provision is made in the preceding articles.
Article 25
In the case of a person of unknown nationality or of a person of plural nationality the law to be applied will be decided by the Judge.
Egyptian law shall apply, however, if a person is deemed in Egypt to be of an Egyptian nationality and is at the same time deemed by one or more foreign states to be a national of that or those states.
Article 26
When, in accordance with the preceding provisions, it appears that the law to be applied is the law of a state in which several legal systems exist, the law applicable shall be determined by the internal law of that state.
Article 27
In the cases where a foreign law is applicable only the internal provisions of such foreign law shall apply to the exclusion of provisions relating to private international law.
Article 28
The provisions of a foreign law applicable by virtue of the preceding articles shall not be applied if these provisions are contrary to public policy or to morality in Egypt
Legal personality commences from the time a child is born alive and ends at death.
The law, however, determines the rights of a child en ventre de sa mere.
Article 30
Birth and death are established by means of official registers specially kept for this purpose.
In the absence of such proof, or if the inaccuracy of the entries in these registers is established, proof may be established by any other means.
Article 31
Registers of and declarations connected with births and deaths are regulated by a special law.
Article 32
Missing person and absent persons are subject to provisions contained in special laws; in the absence of such special laws, Moslem law will be applied.
Article 33
Egyptian nationality is governed by a special law.
Article 34
The family of a person is composed of his relatives. Persons having a common ascendant are deemed to be relatives.
Article 35
Direct lineal relationship is the relationship existing between ascendants and descendants.
Collateral relationship is the relationship existing between persons who have a common ascendant without one of them being a descendant of the other.
Article 36
The degree of relationship will be calculated, as regards direct lineal relationship, by ascending to the common ancestor and counting each relative excluding the common ancestor. The degree of relationship will be calculated, as regards collateral relationship by ascending from the descendant to the common ancestor, then descending to the other descendant. Each relative, excluding the common ancestor counts for one degree.
Article 37
The relatives of either of the two spouses are deemed to be relatives of the other spouse, in the same line and of the same degree.
Article 38
Every person must have a first name and a family name. The family name of a person is bestowed upon his children.
Article 39
Acquisition and change of family name will be governed by special legislation.
Article 40
A domicile is the place where a person habitually resides.
A person may have more than one domicile at the same time, as he may have none.
Article 41
The place where a person exercises a trade or profession is considered as his domicile as regards matters carried on in connection with such trade or profession.
Article 42
The domicile of a minor, a person under legal disability, a missing person or an absent person will be the domicile of his legal representative.
A minor who has attained eighteen years and a person in a similar legal position shall nevertheless have his special domicile in respect of acts he is capable of performing in accordance with the law.
Article 43
A special domicile may be elected for the performance of a specific legal act.
The election of domicile must be evidenced by writing.
A domicile elected for the performance of a legal act shall be deemed to be the domicile in so far as all matters relating to such act are concerned, including the procedure for enforcement by legal means unless the election of domicile is expressly limited to certain special acts, excluding others.
Article 44
All persons attaining majority in possession of their mental faculties and not under legal disability, have full legal capacity to exercise their civil rights.
The majority of a person is fixed at twenty one years completed in accordance with the Gregorian calendar.
Article 45
A person devoid of discretion, owing to youth, feeble mindedness or insanity is incapable of exercising his civil rights.
A person who has not attained the age of seven is considered devoid of discretion.
Article 46
A person who has reached the age of discretion but has not attained majority and a person who has attained his majority but is a prodigal or an imbecile, has a limited legal capacity according to the provisions of the law.
Article 47
Persons deprived of full or partial legal capacity are governed, as the case may be, by the rules of natural or legal guardianship or curatorship subject to the conditions and in accordance with the rules laid down by law.
Article 48
No person can renounce his legal capacity or modify the rules relating thereto.
Article 49
No person can renounce his personal liberty.
Article 50
A person whose rights inherent in his personality have been unlawfully infringed, shall have the right to demand the cessation of the infringement and compensation for any damage sustained thereby.
Article 51
A person whose right to the use of his name is unlawfully disputed by another, or a person whose name is unlawfully used by another shall have the right to demand cessation of the infringement and compensation for any damage sustained thereby.
2. Juristic persons
Article 52
Juristic persons are:
1. The state, the provinces (mudirias), towns and villages in accordance with the provisions fixed by law; administrations, departments and other public institutions to which the law has granted the status of juristic persons.
2. Religious groups and communities which the state has recognized as juristic persons.
3. Wakfs.
4. Commercial and civil corporations.
5. Associations and foundations created in accordance with the subsequent provisions hereof.
6. Any group of persons or properties recognized as juristic persons by virtue of a provision of the law.
Article 53
A juristic person enjoys, within the limits established by law, all rights, with the exception of those rights, which are inherent in the nature of an individual.
A juristic person has:
a) its own patrimonium;
b) legal capacity, within the limits fixed by its constitution or established by law;
c) the right to sue;
d) its own domicile. This domicile is the place where its seat of management is situated. A corporation whose seat of management is situated abroad but operates in Egypt, is deemed, in accordance with internal law, to have its seat of management at the place where its local seat of management is situated.
A juristic person has a representative to express its will.
Associations
Article 54
* Articles 54-80 have been repealed by Presidential Decree
Section III The Classification of Things and Property
Article 81
Anything that is not outside the ambit of trade by its nature of by virtue of the law, may be the object of proprietary rights.
Things outside the ambit of trade by their very nature are things that cannot be objects of exclusive possession. Things outside the ambit of trade by law are things which, in accordance with the law, cannot be objects of proprietary rights.
Article 82
Things which are fixed and which cannot be removed without damage are immovable. All other things are movables.
A movable placed by its owner in an immovable owned by him with the intention of serving or exploiting such immovable is considered an immovable by reason of its destined use.
Article 83
All real rights over immovable property including the right of ownership and all suits relating to a real right over an immovable are deemed to be immovable property.
All other proprietary rights are deemed to be movable property.
Article 84
Consumable things are those things whose utility, by reason of their destined use, consists in their consumption or disposal.
All things destined for sale in commercial establishments are deemed to be consumable.
Article 85
Fungibles are those things which can be replaced one by another in a payment and which it is customary in trade to estimate by number, measure, volume or weight.
Article 86
Rights in respect of a non-material object are regulated by special laws.
Article 87
Immovable and movable property owned by the State or other public juristic persons and allocated either in fact or by virtue of a law or a decree for purposes of public utility, forms part of the public domain.
Such immovable and movable property is not alienable, is not liable to seizure nor to acquisition by prescription.
Article 88
Properties forming part of the public domain lose this status with the cessation of their allocation for public utility purposes.
This cessation takes place by virtue of a law, or a decree, or in fact, or if the object of public utility for which they were allocated comes to an end.
A contract is created, subject to any special formalities that may be required by law for its conclusion, from the moment that two persons have exchanged two concordant intentions.
Article 90
An intention may be declared verbally, in writing, by signs in general use, and also by such conduct as, in the circumstances of the case, leaves no doubt as to its true meaning.
A declaration of intention may be implied when neither the law nor the parties require it to be expressed.
Article 91
A declaration of intention becomes effective from the time that it comes to the knowledge of the person for whom it was intended, who, subject to proof to the contrary, shall be deemed to have knowledge of the declaration of intention from the time that it reaches him.
Article 92
If the person who declared the intention dies or becomes legally incapable before the declaration of intention takes effect, the declaration of intention shall not be less effective at the time it comes to the knowledge of the person for whom it was intended, unless the contrary is shown by the declaration of intention or by the nature of the transaction.
Article 93
When a time limit is fixed for acceptance, the person who makes the offer is bound to maintain his offer until the expiration of the time limit.
The time limit may result from the circumstances or from the nature of the transaction.
Article 94
If at the time a contract is being framed, an offer is made without a time limit being fixed for acceptance, the offeror is released from his offer if it is not accepted forthwith. This also applies, if the offer is made by one person to another person by telephone or by any other similar means.
A contract is concluded, however, even if acceptance is not immediate, when, during the interval between offer and acceptance, there is nothing to indicate that the offeror has withdrawn his offer and the declaration of acceptance is made before the end of the meeting at which the contract was being framed.
Article 95
When the parties have agreed on all the essential points of a contract and have left certain details to be agreed at a later date without stipulating that failing agreement on these details, the contract shall not be concluded, the contract is deemed to have been concluded, and the points of detail will, in the event of dispute, be decided by the court according to the nature of the transaction, to the provisions of the law and to custom and equity.
Article 96
An acceptance that goes beyond the offer, or that is accompanied by a restriction or modification, is deemed to be a rejection comprising a new offer.
Article 97
In the absence of agreement or a provision of the law to the contrary, a contract between persons who are not present at the time is deemed to have been concluded at the place where and at the time when the offeror became aware of the acceptance.
The offeror is deemed to have had knowledge of the acceptance at the place and at the time the acceptance reached him.
Article 98
In the case in which an offeror could not, by reason of the nature of the transaction, in accordance with commercial usage, or on account of other circumstances, have anticipated a formal acceptance, the contract is deemed to have been concluded, if the offer is not refused within a reasonable time.
Failure to reply is equivalent to acceptance when the offer relates to dealings already existing between the parties, or when the offer is solely in the interests of the offeree.
Article 99
A contract of sale by public auction is only concluded when the final bid is accepted. A bid is nullified from the moment a higher bid is made, even if the higher bid is void.
Article 100
Acceptance in the case of a contract of adhesion is confined to adhesion to standard conditions which are drawn up by the offeror and which are not subject to discussion.
Article 101
An agreement by which the two parties, or one of them, promise to enter into a particular contract in the future, is only binding if all the essential points of the contract envisaged and the time when the contract should be concluded are stated.
When the law provides that a contract shall not be valid unless a certain form is observed, this form must also be observed in any agreement embodying a promise to enter into such a contract.
Article 102
If a party, who has promised to enter into a contract, refuses to do so, and the other party takes legal proceedings against him to enforce the promise, and the conditions required for the conclusion of the contract, especially those as to the form, exist, the judgment will, upon becoming final, replace the contract.
Article 103
In the absence of a clause to the contrary in the contract, the payment of earnest money at the time the contract is concluded indicates that either party may withdraw from the contract.
The person who has paid the earnest money and withdrawn from the contract forfeits the earnest money, and the person who has received earnest money and withdraws from the contract shall repay double the amount of the earnest money, even if the withdrawal does not cause any prejudice.
Article 104
When a contract is entered into by a representative, such representative and not the principal will be the person who will be looked to in examining the question of vices of consent, or the effects attached to the fact that the contracting party knew or should necessarily have been aware of certain special circumstances.
When, however, the representative is a mandatory who acted in accordance with the principal's precise instructions, the principal cannot plead the ignorance of his representative of circumstances which the principal knew or should have necessarily known.
Article 105
When a contract is concluded by a representative within the limits of his authority in the name of his principal, the rights and obligations resulting therefrom will be in favor of and binding upon the principal.
Article 106
When a contracting party did not disclose at the time of the conclusion of a contract that he is acting as a representative, the contract only operates in favor of or binds the principal, if the third party with whom the representative contracted should necessarily have known that the contracting party was the representative of the principal, or if it was of no importance to the third party whether he entered into the transaction with the principal or with the representative.
Article 107
If a representative and a third party with whom the representative concluded a contract were both unaware at the time the contract was concluded of the extinction of the representation, the effects of the contract concluded by the representative, whether they involve rights or obligations, revert to the principal or his successor in title.
Article 108
Except where otherwise provided by law or by commercial rules, no one may contract with himself in the name of the person he represents, either for his own benefit or for that of a third party, without the authority of his principal, who, nevertheless, in such a case, may ratify the contract.
Article 109
Every person, who has not been declared to be under total or partial legal incapacity, has the legal capacity to conclude a contract.
Article 110
A minor lacking discretion has not the legal capacity to dispose of his property. All his acts in law are deemed to be void.
Article 111
Contracts and other dispositions of property entered into by a minor possessing discretion are valid when wholly to his advantage and void when wholly to his disadvantage.
Dispositions of property which may be, at the same time, profitable and detrimental, may be annulled, if this is in the interest of the minor.
Annulment cannot be claimed if the act is ratified by the minor upon attaining his majority or by his guardian or by the court, as the case may be, in accordance with the law.
Article 112
A minor possessing discretion, who has attained the age of eighteen years and has been authorized to take possession of his property in order to manage it, or has taken possession of his property by virtue of law, may validly perform acts of management within the limits of the law.
Article 113
The courts shall pronounce or raise interdictions on all persons suffering from insanity, mental derangement or imbecility, and prodigals, in accordance with the rules and the procedure prescribed by law.
Article 114
An act entered into by a person suffering from insanity or mental derangement after the registration of the sentence of interdiction is null.
An act done before the registration of the sentence of interdiction is null only if the state of insanity or derangement was a matter of common notoriety at the time the contract was entered into or if the other party had knowledge thereof.
Article 115
An act entered into by a person placed under interdiction for imbecility or prodigality after the registration of the sentence of interdiction, will be governed by the provisions regulating acts performed by minors possessing discretion.
An act entered into before the registration of the sentence of interdiction shall only be void or voidable if unfair advantage has been taken of the condition of the person under interdiction or if there has been fraudulent collision.
Article 116
The constitution of a wakf, or the execution of a will by a person placed under interdiction for prodigality or for imbecility is valid, if the interdicted person has been duly authorized by the court.
Acts of management carried out by a person placed under interdiction for prodigality, who has been authorized to take possession of his property, are valid within the limits provided by the law.
Article 117
If a person is deaf and dumb, deaf and blind or blind and dumb, and cannot, by reason of his infirmity, express his will, the court may appoint a judicial adviser to assist him in connection with such acts as may be necessary in his interests.
An act for which the assistance of a judicial adviser has been ordered is voidable, if the act is performed by the person provided with a judicial adviser without the assistance of such adviser, after the registration of the decision providing for such assistance.
Article 118
An act by a natural guardian, a legal guardian or a curator is valid within the limits provided by law.
Article 119
A person under legal incapacity, may demand the avoidance of the contract, subject, however, to his liability to payment of damages if he has employed fraudulent methods to conceal his legal incapacity.
Article 120
A party to a contract may demand the avoidance of the contract if he committed an essential mistake, if the other party committed the same mistake or had knowledge thereof, or could have easily detected the mistake.
Article 121
A mistake is an essential mistake when its gravity is of such a degree that, if it had not been committed, the party who was mistaken, would not have concluded the contract.
The mistake is deemed to be essential more particularly:
a) when it has a bearing on the quality of the thing, which the parties have considered essential or which must be deemed essential, taking into consideration the circumstances surrounding the contract and the good faith that should prevail in business relationships.
b) when it has a bearing on the identity or on one of the qualities of the person with whom the contract is entered into, if this identity or this quality was the principal factor in the conclusion of the contract.
Article 122
In the absence of a provision of the law to the contrary, a mistake in law entails the voidability of the contract, if the mistake fulfills the elements of a mistake of fact in accordance with the two preceding articles.
Article 123
Mere mistakes of calculation or clerical mistakes do not affect the validity of a contract; these errors must, however, be corrected.
Article 124
A party who has committed a mistake cannot take advantage of the mistake in a manner contrary to the principles of good faith.
Such a party, moreover, remains bound by the contract, which he intended to conclude, if the other party shows that he is prepared to perform the contract.
Article 125
A contract may be declared void on the grounds of fraudulent misrepresentation, when the artifices practiced by one of the parties, or by his representative are of such gravity that, but for them, the other party would not have concluded the contract.
Intentional silence on the part of one of the parties as to a fact or as to the accompanying circumstances constitutes fraudulent misrepresentation if it can be shown that the contract would not have been concluded by the other party had he had knowledge thereof.
Article 126
A party who is the victim of fraudulent misrepresentation by a third party can only demand the avoidance of the contract, if it is established that the other contracting party was aware of, or should necessarily have been aware of the fraudulent misrepresentation.
Article 127
A contract is voidable as a result of duress, if one of the parties has contracted under the stress of justifiable fear unlawfully instilled in him by the other party.
Fear is deemed to be justified when the party who invokes it has been led to believe, in view of the circumstances, that a serious and imminent danger to life, limb, honor or property threatened him or others.
In appreciating the extent of duress, the ***, age, social position and the condition of health of the victim should be taken into consideration, as well as any other circumstance that might have aggravated the duress.
Article 128
When the duress is practiced by a person other than one of the contracting parties, the victim cannot demand the avoidance of the contract, unless it is established that the other contracting party had, or should necessarily have had, knowledge thereof.
Article 129
If the obligations of one of the contracting parties are out of all proportion to the advantages that he obtains from the contract or to the obligations of the other contracting party, and it is established that the party who has suffered the prejudice entered into the contract only as a result of the other party exploiting his obvious levity of character or his unbridled passion, the judge may, at the request of the party so prejudiced, annul the contract or reduce the obligations of such party.
Proceedings instituted on such grounds shall be barred unless commenced within one year from the date of the contract.
In a contract entered into for valuable consideration, the other party may avoid annulment proceedings by making such an offer as the judge may consider adequate compensation to cover the lesion.
Article 130
The preceding article shall apply subject to special provisions of the law relating to lesion in certain contracts, and to the provisions of the law as regards rates of interest.
Object
Article 131
Things that may happen in the future may be the object of an obligation.
An agreement with regard to the succession of a living person is void, even if he consents to such an agreement, except in cases provided for by law.
Article 132
If the object of an obligation is something impossible in itself, the contract is void.
Article 133
When the object of an obligation is not certain as to its nature, it must at least be determinate as to its kind and quantity, as otherwise the contract is void.
The object of an obligation may, however, only be determinate as to kind, if the contract provides a method of ascertaining the quantity. If there is no agreement as to the degree of quality and the quality cannot be ascertained by usage or by any other circumstances, the debtor must supply an article of average quality.
Article 134
When the object of an obligation is a sum of money, the debtor is bound only to the extent of the actual figure of the sum of money stated in the contract, whatever be the increase or decrease in the value of such money at the date of payment.
Article 135
A contract is void if its object is contrary to public policy or morality.
Consideration
Article 136
A contract is void when an obligation is assumed without consideration or for a consideration contrary to public policy or morality.
Article 137
An obligation is deemed to have lawful consideration, even if such consideration is not expressed in the contract, unless the contrary is proved.
The consideration expressed in the contract is deemed to be the true consideration until evidence to the contrary is produced. Upon evidence being produced that the consideration is feigned, the onus falls on the person who maintains that the obligation has another lawful consideration of proving his contention.
Nullity
Article 138
When the law recognizes the right of one of the contracting parties to procure the avoidance of the contract, the other party cannot avail himself of this right.
Article 139
The right to procure avoidance of the contract is extinguished by an express or implied ratification of the contract.
Ratification is retroactive to the date of the contract, without prejudice to the rights of third parties.
Article 140
The right to procure the avoidance of a contract is prescribed, if not invoked within three years.
This period runs, in case of legal incapacity, from the date of the cessation of such incapacity; in the case of mistake or fraudulent misrepresentation, from the date the mistake or misrepresentation is discovered; in the case of duress, from the date it has ceased. In no case can avoidance be claimed as a result of mistake, fraudulent representation or duress, when fifteen years have elapsed from the date of the conclusion of the contract.
Article 141
When a contract is void, its nullity may be invoked by every person having an interest in the contract and such nullity may also be ordered by the court on its own initiative. Nullity cannot disappear by ratification of the contract.
Nullity proceedings are prescribed after fifteen years from the date of the conclusion of the contract.
Article 142
When a contract is void or annulled, the parties are reinstated in their position prior to the contract. If such reinstatement is impossible, damages equivalent to the loss may be awarded.
When, however, a contract concluded by a person without legal capacity is annulled by reason of his lack of capacity, he shall only be liable to refund such profits as he derived from the performance of the contract.
Article 143
When part of a contract is void or voidable, that part alone will be annulled, unless it is established that the contract would not have been entered into without such a part, in which case the contract will be void as a whole.
Article 144
When a void or voidable contract contains the elements of another contract, the contract will be deemed to be valid to the extent of the other contract, if it appears that the parties intended to conclude such another contract.
2. The Effects of a Contract
Article 145
Subject to the rules relating to successions, the effects of a contract apply to the parties and to their universal successors in title, unless it follows from the contract, from the nature of the transaction or from a provision of the law, that the effects of the contract do not pass to the universal successors in title of a party.
Article 146
Obligations and personal rights created by contracts relating to property that has subsequently been transferred to particular successors in title are transferred to such particular successors in title together with the property, when such obligations and rights constitute essential elements of the property and the particular successors in title had knowledge at the time of the transfer of the property to them.
Article 147
The contract makes the law of the parties. It can be revoked or altered only by mutual consent of the parties or for reasons provided for by law.
When, however, as a result of exceptional and unpredictable events of a general character, the performance of the contractual obligation, without becoming impossible, becomes excessively onerous in such way as to threaten the debtor with exorbitant loss, the judge may according to the circumstances, and after taking into consideration the interests of both parties, reduce to reasonable limits, the obligation that has become excessive. Any agreement to the contrary is void.
Article 148
A contract must be performed in accordance with its contents and in compliance with the requirements of good faith.
A contract binds the contracting party not only as regards its expressed conditions, but also as regards everything which, according to law, usage and equity, is deemed, in view of the nature of the obligation, to be a necessary sequel to the contract.
Article 149
When a contract of adhesion contains leonine conditions, the judge may modify these conditions or relieve the adhering party of the obligation to perform these conditions in accordance with the principles of equity. Any agreement to the contrary is void.
Article 150
When the wording of a contract is clear, it cannot be deviated from in order to ascertain by means of interpretation the intention of the parties.
When a contract has to be construed, it is necessary to ascertain the common intention of the parties and to go beyond the literal meaning of the words, taking into account the nature of the transaction as well as that loyalty and confidence which should exist between the parties in accordance with commercial usage.
Article 151
In cases of doubt the construction shall be in favor of the debtor.
The construction, however, of obscure clauses in a contract of adhesion must not be detrimental to the adhering party.
Article 152
A contract does not create obligations binding upon third parties, but may create rights in their favor.
Article 153
A person who binds himself to procure the performance of an obligation by a third party, does not in so doing bind the third party. If the third party refuses to perform the obligation, the person who bound himself to obtain such performance will be liable to indemnify the other contracting party by himself performing the obligation, the performance of which he undertook to procure.
In the event of the third party consenting to perform the obligation, his consent is effective only from the time that it is given, unless it is indicated expressly or by implication that the consent is retroactive as from the date of agreement between the contracting parties.
Article 154
A person may by a contract in his own name stipulate that an obligation shall be performed for the benefit of a third party, when he has a personal interest, material or moral, in the performance of such an obligation.
As a result of such a stipulation and in the absence of an agreement to the contrary, the third party beneficiary acquires a direct right against the person who undertook to perform the obligation, and may call upon him to do so. The person who gave the undertaking may set up against the beneficiary the defenses arising out of the contract.
The stipulation may also demand the performance of the obligation in favor of the beneficiary, unless it appears from the contract that performance may only be demanded by the beneficiary.
Article 155
The stipulator himself, but not his creditors or heirs, may revoke the stipulation for a third party, provided that the revocation is made before the beneficiary advises the debtor or the stipulator of his wish to have the benefit of the stipulation, and that the revocation is not contrary to the spirit of the contract.
In the absence of any express or implied agreement to the contrary, the revocation does not liberate the debtor vis-a-vis the stipulator. The stipulator may substitute a new beneficiary in the place of the former beneficiary, or may retain for himself the benefit of the stipulation.
Article 156
A stipulation in favor of a third party may be made in favor of future persons or institutions, and also in favor of persons or institutions who are not identified at the date of the contract, provided that these persons or institutions can be identified at the date when the effects of the contract come into operation in accordance with the stipulation.
3. Dissolution of Contract
Article 157
In bilateral contracts (contrats synallagmatiques) if one of the parties does not perform his obligation, the other party may, after serving a formal summons on the debtor, demand the performance of the contract or its rescission, with damages, if due, in either case.
The judge may grant additional time to the debtor, if it is necessary as a result of the circumstances. The judge may also reject an application for rescission when the part of the contract which the debtor has failed to perform is of little importance in comparison with the obligation in its entirety.
Article 158
The parties may agree that in case of non-performance of the obligations flowing from the contract, the contract will be deemed to have been rescinded ipso facto without a court order. Such an agreement does not release the parties from the obligation of serving a formal summons, unless the parties expressly agree that such a summons will be dispensed with.
Article 159
When an obligation arising out of a bilateral contract is extinguished by reason of impossibility of performance, correlative obligations are also extinguished and the contract is rescinded ipso facto.
Article 160
When a contract is rescinded, the parties are reinstated in their former position. If reinstatement is impossible, the court may award damages.
Article 161
When, in the case of bilateral contract, correlative obligations are due for performance, either of the contracting parties may abstain from the performance of his obligation, if the other party does not perform his obligation.
A person who makes a promise to the public of a reward in exchange for a specified service is bound to pay the reward to the person who performs the service, even if he acted without thought of the promise of reward, or without knowledge thereof.
When the person who made the promise does not fix a period of time for the performance of the service, he may withdraw his promise by means of a notice to the public, but such withdrawal will not affect the rights of a person who has already performed the service. The right of action for the reward will be forfeited, if such action is not lodged within six months from the date of publication of the notice of withdrawal.
Section III Unlawful Acts
1. Liability Arising from Personal Acts Article 163
Every fault, which causes injury to another, imposes an obligation to make reparation upon the person by whom it is committed.
Article 164
Every person in possession of discretion is responsible for his unlawful acts.
When an injury is caused by a person not in possession of discretion, the judge may, if no one is responsible for him, or if the victim of the injury cannot obtain reparation from the person responsible, condemn the person causing the injury to pay equitable damages, taking into account the position of the parties.
Article 165
In the absence of a provision of the law or an agreement to the contrary, a person is not liable to make reparation, if he proves that the injury resulted from a cause beyond his control, such as unforeseen circumstances, force majeure, the fault of the victim or of a third party.
Article 166
A person who causes an injury to another in the legitimate defense of his person or property, or of the person or property of a third party, is not responsible, provided that he does not exceed the measures necessary for his defense, as otherwise he will be liable to damages assessed in accordance with the principles of equity.
Article 167
A public official is not responsible for an act by which he causes injury to another person, if he acted in pursuance of an order received from a superior, which order he had to obey or thought he had to obey, and if he shows that he believed that the act he performed was lawful, that he had reasonable grounds for such belief and that he acted with care.
Article 168
A person who causes injury to another person, in order to avoid greater injury that threatens him or a third party, is only responsible for such damages as the judge deems equitable.
Article 169
When several persons are responsible for an injury, they are jointly and severally responsible to make reparation for the injury. The liability will be shared equally between them, unless the judge fixes their individual share in the damage due.
Article 170
The judge shall decide, in accordance with the provisions of Articles 221 and 222 and in the light of circumstances, the extent of the damages for the loss suffered by the victim. If the judge is not in a position at the time of the judgment to fix definitely the extent of the injury, he may allow the victim a delay within which he may claim reassessment of the damages.
Article 171
The judge shall decide the method of payment of damages in accordance with the circumstances. The damages may be paid by installments, or in the form of a regular periodical payment, in either of which cases the debtor may be ordered to provide security.
Damages will consist of a money payment. Upon the demand of the victim, however, the judge may, in accordance with the circumstances, order that the damage be made good by restoration of the original position, or by the performance of a prestation that has a connection with the unlawful act.
Article 172
An action for damages arising from an unlawful act is prescribed after three years from the date upon which the victim knew of the injury and the identity of the person who was responsible. An action for damages is prescribed in any case after fifteen years from the date on which the unlawful act was committed.
When a claim arises out of a penal offence and the penal action is not prescribed after the delays set out in the preceding paragraph, the action for damages is only prescribed when the penal action itself is prescribed.
2. Liability Arising from the Acts of Another
Article 173
A person who is, by law or by agreement, entrusted with the supervision of a person who, on account of his minority or his mental or physical condition, requires supervision, is liable for damages for injuries caused to a third party by unlawful acts of the person under his supervision. The responsibility exists even when the person causing the injury, is a person who is deprived of discretion.
A minor is deemed to require supervision until he has attained fifteen years or if, having attained that age, he is under the care of a person in charge of his upbringing. The supervision of a minor is the responsibility of his schoolmaster or of the person under whose supervision he works during the time he is under the care of such master or of such person under whom he works. The supervision of a wife who is a minor is the responsibility of her husband or of the person who is responsible for the supervision of the husband.
A person who is entrusted with the supervision of another person may escape liability by proving that he performed his duty of supervision or that the injury could not have been prevented, even if he had exercised the necessary care.
Article 174
A master is liable for the damage caused by an unlawful act of his servant, when the act was performed by the servant in the course, or as a result, of his employment.
The relationship between master and servant exists even when the master has not been free to choose his servant, provided he has actual powers of supervision and control over his servant.
Article 175
A person responsible for an act of another person has a claim for redress against that other person to the extent that the other person is responsible for the reparation of the injury.
3. Liability Arising from Things
Article 176
A person in charge of an animal, even if he is not its owner, is liable for any harm done by the animal, even if the animal strays or escapes, unless such person shows that the accident was due to a cause beyond his control.
Article 177
A person in charge of a building, even if he is not its owner, is liable for damage caused by the collapse of the building, even if such collapse is only partial, unless he shows that the accident did not occur as a result of negligent maintenance or the age of, or a defect in the building.
A person who is in danger of damage from a building is entitled to call on the owner to take the necessary precautions to prevent the danger, and if the owner fails to take such precautions, to obtain an order from the court authorizing him to take the necessary precautions himself at the cost of the owner.
Article 178
Whoever is in charge of a thing whose supervision requires special care, or of a machine, is liable for damage caused by it, unless he shows that the damage was due to a cause beyond his control, subject always to any special provisions of the law in this respect
A person, even one lacking discretion, who without just cause enriches himself to the detriment of another person, is liable, to the extent of his profit, to compensate such other person for the loss sustained by him. This obligation remains, even if the profit has disappeared at a later date.
Article 180
A claim for compensation for enrichment without just cause is prescribed after three years from the date on which the injured party knew of his right to be compensated and in any case after fifteen years from the date that the right first arose.
1. Payment not Due
Article 181
Whoever receives, by way of payment, that which is not owing to him, is bound to return it.
There is, however, no obligation to restitute when the payor knew that he was not under an obligation to pay, unless he was legally incapable or unless he paid under duress.
Article 182
A payment which was not due may be recovered, if it was made in the performance of an obligation whose cause had not materialized or had ceased to exist.
Article 183
Restitution may also be made of a payment effected in the performance of an obligation which had not at the time fallen due, if the payor was not aware that payment was not then due.
A creditor may, however, limit the restitution to the profit he has gained as a result of the premature payment to the extent of the loss suffered by the debtor. When the obligation which has not fallen due is for a sum of money, the creditor must restitute to the debtor interest thereon at the legal or at an agreed rate for the time to run until the due date of payment.
Article 184
Restitution is not due of a payment effected by a person other than the debtor, if the creditor, acting in good faith, has in consequence of such payment given up his document of title, or his security or allowed his claim against the real debtor to be prescribed. The real debtor must in such a case indemnify the third party who made the payment.
Article 185
When a person has received, in good faith, that which is not due to him, he is bound only to restitute that which he has received.
If he has received in bad faith, he is bound to restitute in addition the interest and profit that he has gained or that he has failed to gain by neglect on the thing unduly received, from the date of payment or from the date he became of bad faith.
In any case, a person who has received that which is not due to him, is bound to restitute the interest and profit thereon from the date of a claim in the courts.
Article 186
When a person who has received that which was not due to him has not the legal capacity to enter into a contract, he is bound only to the extent of his profit.
Article 187
A claim for restitution of a payment unduly received is prescribed after three years from the day on which the payor knew of his right to claim restitution and in any case after fifteen years from the date upon which the right arose.
2. Voluntary Agency
Article 188
There is a voluntary agency when one person of his own accord knowingly assumes the management of an urgent business of another person and on that person's behalf without being bound to do so.
Article 189
Voluntary agency also exists even when a voluntary agent manages the affairs of another person whilst at the same time looking after his own business, because of a connection between the two businesses of such a kind that one of them cannot be managed separately from the other.
Article 190
The rules of mandate apply, if the person for whom the voluntary agent acts ratifies his act.
Article 191
A voluntary agent must continue work he has commenced until the person for whom he acts is in a position to do so himself. He must also, as soon as he is able to do so, inform the person for whom he acts of his intervention.
Article 192
A voluntary agent must use in the management of the work he has undertaken all the care that one would expect from a reasonable person and shall be responsible for his mistakes. The judge may, however, reduce the amount of damages due as a result of such mistakes, if circumstances justify such a reduction.
When a voluntary agent delegates to a third party the whole or part of the work of which he has assumed the management, he shall be responsible for the acts of his delegate, without prejudice to the right of the person for whom he acts to his direct remedy against the delegate.
When there are several voluntary agents doing the same work, they are all jointly and severally responsible.
Article 193
A voluntary agent is bound by the same obligations as a mandatory as regards the restitution of that which he received as a result of his management and as regards rendering accounts thereof.
Article 194
In the event of the death of a voluntary agent, his heirs are bound by the same obligations as those of a mandatory in accordance with the provisions of paragraph 2 of Article 717.
In the event of the death of the person for whom he acts, the voluntary agent is bound by the same obligations to the heirs as he was to the person of whom they were the successors in title.
Article 195
A voluntary agent is deemed to be the representative of the person for whom he has acted, if he has devoted to the management of the work the care of a reasonable person, even if the object in view has not been achieved. The person for whom the voluntary agent has acted will be bound to carry out the obligations entered into on his behalf by the voluntary agent, to indemnify him against all undertakings assumed by him, to reimburse him monies usefully or necessarily expended by him which are justified by the circumstances together with interest thereon from the date of expenditure, and to indemnify him in respect of any loss he has suffered as a result of his management. The voluntary agent is not entitled to any remuneration for his work, unless the work comes within the scope of his professional business.
Article 196
If a voluntary agent is not legally capable of entering into contracts, he will only be responsible for his management to the extent of his profit therefrom, provided that his liability does not result from an unlawful act.
The person for whom the voluntary agent acts remains, however, fully responsible, even if he himself is legally incapable of entering into a contract.
Article 197
A claim arising from voluntary agency is prescribed after three years from the day that each party had knowledge of his right and in any case after fifteen years from the day on which the right arose
Section V The Law
Article 198
Obligations which arise directly and solely in consequence of the law are governed by the provisions of the law giving rise to such obligations
The performance of a natural obligation, however, cannot be enforced.
Article 200
The judge shall decide, in the absence of any provision of the law, whether a natural obligation exists. There cannot ever be a natural obligation that is contrary to public policy.
Article 201
A debtor cannot claim restitution of that which he has voluntarily given to another with the object of discharging a natural obligation.
Article 202
A natural obligation may constitute a valid cause for a civil obligation
Section I Specific Performance
Article 203
A debtor shall be compelled, upon being summoned to do so in accordance with Articles 219 and 220, specifically to perform his obligation, if such performance is possible.
When, however, specific performance is too onerous for the debtor, he may limit performance to payment of a sum of money as indemnity, provided that this method of performance does not seriously prejudice the creditor.
Article 204
Subject to the rules with regard to transcription, an obligation to transfer ownership or any other real right transfers ipso facto that right, if the object of obligation is specifically identified and is owned by the debtor.
Article 205
When an obligation to transfer a real right has for its object a thing which is described only as regards its species, the right is not transferred, unless the object is identified as regards its individuality.
If, however, the debtor does not perform his obligation, the creditor may, upon an order of the judge, or in case of urgency even without such an order, acquire, at the expense of the debtor, an article of the same kind: he may also claim the value of the articles without prejudice to his rights to damages, in either case.
Article 206
An obligation to transfer a real right includes that of the delivery of the article and of the preservation thereof up to the time of delivery.
Article 207
When a debtor is under an obligation to transfer a real right or to do something which comprises an obligation to deliver a thing, he will be responsible, should he fail to deliver the thing after having been formally summoned to do so, for the loss thereof, even if the risk of loss prior to the issue of the summons, was the liability of the creditor.
The risk of loss, however, does not pass to the debtor, even upon the issue of a formal summons, if he establishes that the thing would also have perished in the keeping of the creditor if it had been delivered to him unless the debtor has accepted to take accidental loss at his own risk.
The risk of loss of a stolen thing, no matter how the thing perishes is lost, is the responsibility of the thief.
Article 208
When the contract or the nature of the obligation demands that the obligation to do something shall be performed by the debtor personally, the creditor may refuse the performance of the obligation by any person other than the debtor.
Article 209
In the case of non-performance by the debtor of an obligation to do something, the creditor may apply to the court for an order to carry out the obligation at the cost of the debtor, if this is possible.
In a case of urgency, the creditor may carry out the obligation at the cost of the debtor without an order from the court.
Article 210
When the nature of the obligation so permits, a judge may, in case of an obligation to do something, take the place of the performance of the contract.
Article 211
Subject always to any provision of the law or agreement to the contrary in the case of an obligation to do something, a debtor who is required to preserve a thing, to manage it or to act with prudence in the performance of his obligation, satisfies his obligation, if he brings to the performance thereof the care of a reasonable person, even if the object in view is not achieved.
The debtor always remains liable for fraud or gross negligence.
Article 212
When a debtor infringes an obligation to refrain from doing something the creditor may demand the suppression of that which he has done in contravention of his obligation. The creditor may apply to the court for an order authorizing him to proceed himself with such suppression at the cost of the debtor.
Article 213
When the specific performance of an obligation is impossible or not practicable, unless performed by the debtor himself, the creditor may obtain a judgment ordering the debtor to perform the obligation, and to pay a penalty if he abstains from performing his obligation.
If the judge finds that the amount of the penalty is insufficient to make the debtor perform his obligation, he may increase the penalty each time that he considers that is desirable to do so.
Article 214
After specific performance has been carried out or when a debtor has persisted in his refusal to perform the obligation, the judge shall fix the amount of damages that the debtor shall pay, taking into account the prejudice suffered by the creditor and the unjustifiable attitude of the debtor.
When specific performance by the debtor is impossible, he will be ordered to pay damages for non-performance of his obligation, unless he establishes that the impossibility of performance arose from a cause beyond his control. The same principle will apply, if the debtor is late in the performance of his obligation.
Article 216
The judge may reduce the amount of damages or may even refuse to allow damages if the creditor, by his own fault, has contributed to the cause of, or increased, the loss.
Article 217
The debtor may by agreement accept liability for unforeseen events and for cases of force majeure.
The debtor may by agreement be discharged from all liability for his failure to perform the contractual obligation, with the exception of liability arising from his fraud or gross negligence. The debtor may, nevertheless, stipulate that he shall not be liable for fraud or gross negligence committed by persons whom he employs for the performance of his obligation.
Any clause discharging a person from responsibility for unlawful acts, is void.
Article 218
Damages, subject to an agreement to the contrary, are not due unless the debtor has been formally summoned.
Article 219
A debtor is formally summoned by a summons served through the court or by an equivalent act. The summons may be by post in the manner provided for in the Code de Procedure or may result from an agreement stipulating that the debtor shall be considered to be in default by the mere fact of the expiration of the time period without any other formality being required.
Article 220
A formal summons to the debtor will not be necessary in the following cases:
a) if the performance of the obligation becomes impossible or without interest by an act of the debtor;
b) if the object of the obligation is the payment of damages in respect of an unlawful act;
c) if the object of the obligation is the restitution of a thing that the debtor knew to have been stolen or of a thing that he received knowing that it was not due to him;
d) if the debtor declares in writing that he does not intend to perform his obligation.
Article 221
The judge will fix the amount of damages, if it has not been fixed in the contract or by law. The amount of damages includes losses suffered by the creditor and profits of which he has been deprived, provided that they are the normal result of the failure to perform the obligation or of delay in such performance.
These losses shall be considered to be a normal result, if the creditor is not able to avoid them by making a reasonable effort.
When, however, the obligation arises from a contract, a debtor who has not been guilty of fraud or gross negligence will not be held liable for damages greater than those which could have normally been foreseen at the time of entering into the contract.
Article 222
Damages also include compensation for moral prejudice. The right to compensation for moral prejudice cannot, however, be transmitted to a third party, unless it has been fixed by agreement or unless it has been the subject of legal proceedings.
The judge may award compensation for moral prejudice only to spouses and to relatives up to the second degree, by reason of grief caused to them by the death of the victim.
Article 223
The parties may fix in advance the amount of damages either in the contract or in a subsequent agreement, subject to provisions of Articles 215 to 220.
Article 224
Damages fixed by agreement are not due, if the debtor establishes that the creditor has not suffered any loss.
The judge may reduce the amount of these damages, if the debtor establishes that the amount fixed was grossly exaggerated or that the principal obligation has been partially performed.
Any agreement contrary to the provisions of the two preceding paragraphs is void.
Article 225
When the loss exceeds the amount fixed by the contract, the creditor cannot claim an increased sum, unless he is able to prove that the debtor has been guilty of fraud or gross negligence.
Article 226
When the object of an obligation is the payment of a sum of money of which the amount is known at the time when the claim is made, the debtor shall be bound, in case of delay in payment, to pay to the creditor, as damages for the delay, interest at the rate of four percent in civil matters and five percent in commercial matters. Such interest shall run from the date of the claim in court, unless the contract or commercial usage fixes another date. This Article shall apply, unless otherwise provided in law.
Article 227
The parties may agree upon another rate of interest either in the event of delay in effecting payment or in any other case in which interest has been stipulated, provided that it does not exceed seven percent. If the parties agree to a rate exceeding seven percent, the rate will be reduced to seven percent and any surplus that has been paid shall be refunded.
Any commission or other consideration of whatsoever nature stipulated by the creditor which, together with the agreed interest, exceeds the maximum limits of interest set out above, will be considered as disguised interest and will be subject to reduction, if it is not established that this commission or this consideration is in respect of a service actually rendered by the creditor or of a lawful consideration.
Article 228
Moratory interest, whether fixed by law or by agreement, is due without the creditor being obliged to prove loss as a result of delay.
Article 229
If a creditor, whilst claiming his rights, has in bad faith prolonged the duration of the litigation, the judge may reduce the legal or contractual interest or may refuse to allow interest for the whole of the period during which the litigation has been unjustifiably prolonged.
Article 230
In a distribution of the price of expropriated property, creditors admitted to the distribution will only be entitled, as from the date of sale by auction, to moratory interest on amounts allocated to them in the distribution, if the purchaser is bound to pay interest on the price, or if the Caisse du Tribunal is bound to pay interest as a result of the deposit of the price at the Caisse, and only to the extent of interest due by the purchaser or by the Caisse, which interest will be distributed amongst all the creditors pro rata.
Article 231
A creditor may demand damages in addition to interest if he establishes that a loss, in excess of the interest, was due to bad faith on the part of the debtor.
Article 232
Subject to any commercial rules or practice to the contrary, interest does not run on outstanding interest and in no case shall the total interest that the creditor may collect exceed the amount of the capital.
Article 233
The legal rate of commercial interest on current accounts varies according to the local market rate applicable, and capitalization is effected on current accounts according to commercial usage.
Section III Means of Realizing and Securing the Rights of Creditors Article 234
The debts of a debtor are secured by all his property. Subject to any right of preference acquired in accordance with law, all creditors are treated as regards this security on a footing of equality.
1. Means of Realizing the Rights of Creditors
Article 235
Every creditor, even if his claim has not fallen due, may exercise in the name of his debtor all his debtor's rights of action save only those that are purely personal or cannot be attached.
The exercise by a creditor of the rights of his debtor is not admissible, unless the creditor proves that the debtor himself has not exercised such rights and that the debtor's failure to do so is such as to result in or increase his insolvency. The creditor need not necessarily formally summon the debtor to exercise his rights but he must always join the debtor in the proceedings.
Article 236
A creditor, in the exercise of his debtor's right, is deemed to be the debtor's representative. The proceeds resulting from the exercise of such rights fall into the patrimonium of the debtor and serve as security to all his creditors.
Article 237
Any creditor whose claim has fallen due and whose debtor has entered into an act of alienation prejudicial to him may demand that such an act be declared void so far as he is concerned, if such act has either diminished his (the debtor's) rights or increased his obligations, and has in consequence resulted in. or increased, his insolvency, when the conditions provided for in the following Article are all present.
Article 238
If the act by the debtor is for valuable consideration it can only be held invalid as against the creditor, if made by the debtor with the intent to defraud and if the other party to the contract was aware of the fraud. It suffices for the act to be considered fraudulent, if the debtor knew, at the time that it was effected, that he was insolvent: the other party is deemed to have had knowledge of the fraud of the debtor, if he was aware of the debtor's state of insolvency.
If, however, the act entered into by the debtor was gratuitous, it is not valid as against the creditor, even if the transferee acted in good faith and it is established that the debtor did not commit fraud.
If a transferee disposes of property transmitted to him by a debtor for valuable consideration, a creditor can only claim avoidance of the act by the debtor if it was made for valuable consideration and if the second as well as the first transferee both knew of the debtor's fraud, and when the act by the debtor was gratuitous and the second transferee knew of the insolvency of the debtor at the time the debtor entered into the act in favor of the first transferee.
Article 239
A creditor who alleges the insolvency of his debtor has only to establish the amount of his debts. It is for the debtor to prove that his assets are equal to or exceed his liabilities.
Article 240
Once an act has been declared void the benefits that result from the cancellation of the act shall benefit all the creditors to whose prejudice the act was made.
Article 241
When a person acquires a right from an insolvent debtor but has not paid the price, he may escape the consequence of an action by a creditor, provided that the price corresponds to the normal price and he deposits this price in the Caisse du Tribunal.
Article 242
Fraud which consists solely of giving a creditor an unjustified preference over another creditor only entails the loss of that advantage by the creditor who was given the unjustified preference.
If an insolvent debtor pays off one of his creditors before the date originally fixed for payment, the payment is not valid as against the other creditors, neither is a payment, made after the date fixed for payment, valid as against the other creditors if made as a result of a fraudulent arrangement between the debtor and the creditor so paid off.
Article 243
An action to set aside an act of alienation is prescribed after three years from the date on which the creditor has knowledge of the grounds for such an action.
It is prescribed in any case after fifteen years from the date on which the contested alienation was effected.
Article 244
If a simulated contract has been drawn up, creditors of the contracting parties and particular successors in title, may, if they are in good faith, avail themselves of the hidden contract and establish, by any means, the simulation of the contract by which they were prejudiced.
In the case of a conflict of interest between interested parties, some of whom rely upon the ostensible contract and others on the hidden contract, the former shall have preference.
Article 245
When the contracting parties hide a genuine contract behind an ostensible contract, the genuine contract will bind the contracting parties and their universal successors in title.
2. One of the Means of Security: the Right of Retention
Article 246
A person who is under an obligation to supply something, may refrain from performing his obligation so long as his creditor does not offer to perform an obligation incumbent on him arising out of the obligation of the debtor and connected therewith, or as long as the creditor does not supply adequate security to guarantee the performance of his obligation.
This right belongs especially to the possessor or holder of a thing, if he has incurred expenditure of a necessary or useful kind on the thing. The possessor or holder may, in such a case, refuse to return the thing until he has been repaid the amount due to him, unless the obligation of restitution results from an unlawful act.
Article 247
A mere right of retention does not imply a privilege upon the thing.
A person who retains the thing must preserve the thing in accordance with the rules as to pledge and must render an account of the fruits.
If the thing retained is of a perishable nature or susceptible of deterioration, the person who retains the thing may obtain from the court authority for its sale in accordance with the provisions of Article 1119. The right of retention will then be transferred to the price thereof.
Article 248
The right of retention is extinguished by the fact of the thing ceasing to be in the hands of the possessor or the holder.
A person retaining the thing, who has lost possession thereof without his knowledge or in spite of his opposition, may claim restitution of the thing, if he makes his claim within a period of thirty days from the time he became aware of the loss of possession, provided that one year has not elapsed since the date of loss.
3. Insolvency
Article 249
A debtor may be declared insolvent, if his assets are insufficient to pay his due debts.
Article 250
Insolvency is declared by judgment delivered by the Court of First Instance of the district in which the domicile of the debtor is situated, upon the petition of the debtor himself or of one of his creditors. The case will be heard as one of urgency.
Article 251
The court shall, in every case, before declaring the debtor insolvent, take into consideration all the circumstances surrounding the debtor, whether such circumstances are of a general or of a special nature. The court will thus take into account the debtor's future resources, his personal ability and his responsibility for the causes that have given rise to his insolvency, the legitimate interests of his creditors and any other circumstances likely to influence his financial situation.
Article 252
The delay for entering opposition to judgments rendered in cases of insolvency is eight days and for lodging appeal fifteen days from the date of the notification of judgment.
Article 253
The registrar (greffier) of the court shall, on the day on which the suit for the declaration of insolvency is filed for registration, register the writ introducing the action, in a special register of the names of persons who are insolvent. The greffier shall also record in the margin of such registration the judgment delivered in the case and any judgment confirming or setting aside such judgment; this registration and these entries must be made on the date the judgment is delivered.
The greffier shall in addition send to the greffier of the court in Cairo a copy of such registrations and marginal entries for the purpose of their being recorded in a general register; the regulations as to this general register shall be laid down by an “Arrêté” of the Minister of Justice.
Article 254
The debtor shall, if he changes his domicile, notify the greffier of the court of the district in which he formerly resided of the change. The greffier shall, as soon as he has knowledge of such change of domicile, either by notification by the debtor or in any other way, send at the cost of the debtor a copy of the judgment declaring the insolvency, and of the marginal entries, to the court in the district in which the new domicile of the debtor is situated, for the purpose of registration in the registers of such court.
Article 255
A judgment declaring insolvency renders all debts not yet due by the debtor payable immediately. The agreed or legal interest in respect of the period still to run will be deducted from the debts.
The judge may, however, on the petition of the debtor, and in the presence of the interested creditors, maintain or prolong the time fixed for payment of debts not yet due, he may also allow the debtor a delay in respect of debts that have fallen due, if he considers that the circumstances justify such measure and that such a measure is the best way to protect the joint interests of the debtor and the creditors.
Article 256
A declaration of insolvency is no bar to individual proceedings by creditors against the debtor.
Any charge registered on the real property of the debtor after registration of the declaration of insolvency shall nevertheless be invalid as against creditors who had rights prior to the registration of the petition instituting the insolvency proceedings.
Article 257
The registration of the writ for the declaration of insolvency will render void as against the creditors any act entered into by the debtor after the date of such registration involving the diminution of his assets or the increase of his liabilities, just as the registration renders void as against his creditors any payment of debt made by the debtor after the date of the registration of the writ.
Article 258
A debtor may dispose of his property, even without the consent of his creditors, provided that he does so at its normal price and that this price is deposited by the purchaser at the Caisse du Tribunal for division in accordance with the procedure for distribution.
If the price is less than the normal price, the alienation will be void as against creditors, unless the purchaser deposits, in addition to the purchase price, a sum representing the difference between the purchase price and the normal price.
Article 259
If creditors attach the revenues of a debtor, the President of the Court competent to render the declaration of insolvency may, upon application by the debtor, make him an alimentary allowance to be taken out of the revenues attached. An order issued on such application will be subject to opposition within three days from the date on which it is rendered, in the case of opposition by the debtor, and from the date of its notification to the creditors in the case of an opposition by the creditors.
Article 260
A debtor shall be liable to the penalties for misappropriation in the following two cases:
a) if, when proceedings for payment of a debt have been taken against him, he willfully renders himself insolvent in fraud of the rights of his creditors and a judgment is delivered condemning him to pay the debt and declaring him to be in a state of insolvency.
b) if, after the judgment declaring his insolvency, the debtor has, in fraud of the rights of his creditors, kept back from his creditors part of his property to avoid execution thereon or has falsely represented debts, which debts are fictitious or exaggerated.
Article 261
A state of insolvency ceases by virtue of a judgment of the Court of First Instance in the district in which the domicile of the debtor is situated, delivered upon application of any interested party in the two following cases:
a) if it is established that the liabilities of the debtor are no longer in excess of his assets;
b) if the debtor effects payment of the debts that were due by him as apart from those that became due as a result of the declaration of insolvency. In such a case, debts that became due as a result of the insolvency become, in accordance with Article 263, once again payable on the dates upon which they were due before the declaration of insolvency.
It is the duty of the greffier of the court to record the judgment that puts an end to the state of insolvency in the margin of the registration provided for in Article 253. This entry shall be made on the day that the judgment is delivered and the greffier shall send a copy of this judgment to the registrar of the Cairo Court for the purpose of making a similar entry.
Article 262
A state of insolvency automatically ceases upon the expiration of five years from the date on which the registration of the judgment declaring the insolvency was issued.
Article 263
A debtor may, after the cessation of the insolvency, claim that debts that became due as a result of the insolvency, and which have not been paid, shall once again become payable on the dates on which they were due for payment before the insolvency upon condition that he has paid all debts that have fallen due except those falling due as a result of the insolvency.
Article 264
The cessation of a state of insolvency by judgment or by virtue of the law does not prevent creditors from attacking acts of their debtor or exercising the rights of the debtor in accordance with Articles 235 to 243.
Chapter III Kinds of Conditions Modifying the Effects of Obligations
Section I Conditional Obligations and Time Clauses
1. Conditional Obligations
Article 265
An obligation is conditional when its existence or its extinction depends on a future and uncertain event.
Article 266
An obligation is void when the condition upon which it depends is impossible, contrary to morality or to public order, and the condition is suspensive. If the condition is resolutory, the condition itself is deemed to be inexistent.
An obligation depending upon a resolutory condition contrary to morality or public order is, however, void if the condition was the determining factor for undertaking the obligation.
Article 267
An obligation is void when it is subject to a suspensive condition by which the existence of the obligation depends solely on the will of the person who undertook the obligation.
Article 268
When an obligation depends on a suspensive condition, it does not become executory until the condition is realized. Before realization of the condition, such obligation is not subject to compulsory or to voluntary performance. A creditor may, however, take protective measures to safeguard his rights.
Article 269
An obligation is extinguished when the resolutory condition is realized. The creditor must restitute that which he has received: if restitution is impossible by reason of a cause for which he is responsible, he will be liable in damages.
Acts of management carried out by a creditor shall retain their validity notwithstanding the realization of the condition.
Article 270
The fulfillment of a condition is effective retroactively to the day on which the obligation was contracted unless it appears from the will of the parties or by reason of the nature of the contract that the existence of the obligation or its extinction should take effect from the moment of the fulfillment of the condition.
In any case, the condition will not have retroactive effect if the execution of the obligation becomes impossible before the fulfillment of the condition, on account of a cause independent of the debtor and for which he is not responsible.
2. Time Clauses
Article 271
An obligation is for a term if its performance or extinction depends on a future certain event.
An event is considered to be certain if it must happen of necessity even if the time at which it should happen is unknown.
Article 272
When it results from the obligation that the debtor shall only perform the obligation when he is able to do so or when he has the means to do so, the judge will fix a reasonable time for the term, taking into account the actual and future resources of the debtor and allowing for the diligence of a man anxious to perform his obligations.
Article 273
A debtor will forfeit the benefit of the term:
a) if he is declared bankrupt or insolvent in accordance with the provisions of law;
b) if he has, by his own act, appreciably diminished the special security given to the creditor, even if this security was given by a subsequent act or by virtue of the law, unless the creditor prefers to demand additional security. If the reduction of the security is due to a cause for which the debtor is not responsible, he will forfeit his rights to the term unless he provides adequate security;
c) if he does not supply the creditor with the security promised in the contract.
Article 274
An obligation with a suspensive term only becomes due on the date of the expiration of the term. The creditor may, however, even before the end of the term, take measures to protect his rights and may, in particular, ask for security if he fears that the debtor may become bankrupt or insolvent, and has reasonable grounds for his fears.
At the end of a resolutory term, the obligation is extinguished without such extinction having any retroactive effect.
An obligation is alternative when its object includes numerous prestations and the debtor is entirely freed by the performance of one of them. The option, in the absence of any special provision in the law or of an agreement by the parties to the contrary, belongs to the debtor.
Article 276
If the option belongs to the debtor and he fails to elect, or if there are a number of debtors who do not agree amongst themselves, the creditor may apply to the judge to fix a term for the debtor to elect or for the several debtors to agree amongst themselves, failing which the judge will himself fix the object of the obligation.
If the option belongs to the creditor and he fails to elect, or if there are a number of creditors who do not agree amongst themselves, the judge, if required by the debtor, will fix a term at the expiration of which the option will pass to the debtor.
Article 277
If the option belongs to the debtor and not one of the several prestations included in the object of the obligation can be performed, he shall be bound to pay the value of the last of the prestations that became impossible to perform if he is responsible for the impossibility of performance even as regards one only of the prestations.
2. Facultative Obligations
Article 278
An obligation is facultative when its object consists of one prestation only but the debtor may free himself of the obligation by the performance of another prestation in its place.
The object of the obligation is the prestation promised and not that prestation the performance of which frees the debtor. It is this object which determines the nature of the obligation.
Section III Plurality of Parties to an Obligation
1. Joint and Several Obligations
Article 279
Solidarity between creditors or between debtors is not presumed. It is created by agreement or by law.
Article 280
When there is solidarity between creditors, the debtor may pay the debt to anyone of them unless one of them objects to such payment.
Solidarity does not prevent the debt being divided between the heirs of one of the joint and several creditors unless the debt itself is indivisible.
Article 281
Joint and several creditors may take proceedings jointly or severally against the debtor for the performance of the obligation. In so doing, the conditions modifying the effect of the obligation as between each creditor and the debtor should be taken into account.
A debtor cannot, if he is sued for payment by one of his joint and several creditors, set up as a defence against that creditor, defenses that are personal as regards the other creditors, but he may set up defenses which are personal to the creditor suing him and those which are common to all the creditors.
Article 282
If a debtor is released of his debt to one of his joint and several creditors for a reason other than performance, he shall be released as regards the other creditors only up to the amount of the share of the creditor to whom he is no longer liable.
No one of the joint and several creditors may act in such a way as to prejudice the rights of the other creditors.
Article 283
That which a joint and several creditor receives on account of the debt reverts to all the creditors and will be divided between them proportionally.
The division shall be made in equal parts if there is no agreement or provision of the law to the contrary.
Article 284
When there is solidarity between the debtors, payment effected by one of them liberates all the others.
Article 285
A creditor may take action against all his joint and several debtors jointly or severally. In so doing, the conditions modifying the effect of the obligations as between the creditor and each of the co-debtors should be taken into account.
A co-debtor who is sued by a creditor for performance cannot set up against that creditor defenses that are personal to other co-debtors, but he may set up defenses that are personal to himself as well as those common to all the co-debtors.
Article 286
Novation of a debt between the creditor and one of the joint and several debtors releases other co-debtors unless the creditor has reserved his rights against them.
Article 287
A joint and several debtor cannot set up compensation with regard to that which a creditor owes to one of the other co-debtors, except in respect of the share of such co-debtor.
Article 288
Merger that occurs in the person of a creditor and of one of the joint and several debtors does not extinguish the debt as regards the other co-debtors except to the extent of the merged share of the co-debtor.
Article 289
A release of debt granted by the creditor to one of the joint and several debtors does not release the other co-debtors unless the creditor expressly declares such to be the case.
In the absence of such a declaration, the creditor may only claim from the other co-debtors the balance of the debt after deduction of the share of the co-debtor whom he has released, unless he has reserved his rights against them for the whole of the debt. In such a case, the joint and several debtors have a claim against the co-debtor who has been released for his share in the debt.
Article 290
If a creditor releases one of the joint and several debtors from the joint and several liability, his right to claim the whole of the debt from the other co-debtors remains unless otherwise agreed.
Article 291
In all cases of the release of one of the joint and several debtors either from the debt or from the joint and several liability, the other co-debtors may in accordance with Article 298 claim from the co-debtor who has been released his contribution in the share of those co-debtors who are insolvent.
If, however, the creditor has discharged the co-debtor to whom he has given a release from all liability in respect of the debt, the creditor will bear himself the contribution of such a co-debtor in the share of the insolvent co-debtors.
Article 292
If the debt is extinguished by prescription as regards one of the joint and several debtors the other co-debtors will only benefit from this prescription to the extent of the contribution of that co-debtor.
If the prescription is interrupted or suspended as regards one of the joint and several debtors, the creditor cannot claim interruption or suspension as regards the other co-debtors.
Article 293
In the performance of an obligation a joint and several debtor is only responsible for his own acts.
A formal demand to one of the joint and several debtors or proceedings taken against one of them by the creditor will have no effect against the other co-debtors, but if one of the joint and several debtors issues a formal demand against the creditor, this demand will benefit the other co-debtors.
Article 294
A transaction entered into between a creditor and one of the joint and several debtors will benefit the other co-debtors if it involves remission of the debt or the release of the liability in respect thereof in any other way. If such a transaction creates an obligation or increases the existing obligation, it will only be binding upon the other co-debtors if they consent thereto.
Article 295
An acknowledgement of debt by one of the joint and several debtors does not bind the other co-debtors.
If one of the joint and several debtors refuses to take an oath or if he tenders the oath to the creditor and the creditor takes the oath, the oath refused or tendered will not prejudice the other co-debtors.
If the creditor tenders the oath to one of the joint and several debtors and this co-debtor takes the oath, the oath will profit the other co-debtors.
Article 296
A judgment given against one of the joint and several debtors will have no effect against the other co-debtors.
If the judgment is given in favor of one of them, it will benefit the others, unless the judgment is based on a ground relating only to the co-debtor in favor of whom the judgment is rendered.
Article 297
If one of the joint and several debtor pays the debt in full, he will only have a claim against each of the other co-debtors for each of such co-debtors’ own share respectively, even if he exercises the right to action of the creditor by way of subrogation.
The amount paid is divisible between the co-debtors in equal parts in the absence of an agreement or a provision of the law to the contrary.
Article 298
If one of the joint and several debtors becomes insolvent, his share shall be borne by the co-debtor who has effected payment and by all the other solvent co-debtors pro rata.
Article 299
When the debt concerns one only of the joint and several debtors, he will be liable for the whole debt to the other co-debtors.
2. Indivisibility
Article 300
An obligation cannot be divided:
a) when it has for its object something which by its nature is not susceptible of division;
b) if it is the intention of the parties or it follows from the purpose pursued by the parties that the performance of the obligation should not be divided.
Article 301
When there are several debtors in respect of an indivisible obligation, each debtor is liable for the debt in full.
A debtor who has effected payment will have a remedy against each of the other co-debtors for his part, unless the contrary follows from the circumstances.
Article 302
When there are several creditors in respect of an indivisible obligation or several heirs of a creditor in respect of such an obligation each of the creditors or heirs may demand the performance in its entirety of the indivisible obligation. If one of the creditors or the heirs contests such a demand, the debtor shall effect payment to all the creditors together or deposit the object of the obligation in court.
Co-creditors will have remedies against a creditor who has received payment, each one for his share.
Solidarity between creditors or between debtors is not presumed. It is created by agreement or by law.
Article 280
When there is solidarity between creditors, the debtor may pay the debt to anyone of them unless one of them objects to such payment.
Solidarity does not prevent the debt being divided between the heirs of one of the joint and several creditors unless the debt itself is indivisible.
Article 281
Joint and several creditors may take proceedings jointly or severally against the debtor for the performance of the obligation. In so doing, the conditions modifying the effect of the obligation as between each creditor and the debtor should be taken into account.
A debtor cannot, if he is sued for payment by one of his joint and several creditors, set up as a defence against that creditor, defenses that are personal as regards the other creditors, but he may set up defenses which are personal to the creditor suing him and those which are common to all the creditors.
Article 282
If a debtor is released of his debt to one of his joint and several creditors for a reason other than performance, he shall be released as regards the other creditors only up to the amount of the share of the creditor to whom he is no longer liable.
No one of the joint and several creditors may act in such a way as to prejudice the rights of the other creditors.
Article 283
That which a joint and several creditor receives on account of the debt reverts to all the creditors and will be divided between them proportionally.
The division shall be made in equal parts if there is no agreement or provision of the law to the contrary.
Article 284
When there is solidarity between the debtors, payment effected by one of them liberates all the others.
Article 285
A creditor may take action against all his joint and several debtors jointly or severally. In so doing, the conditions modifying the effect of the obligations as between the creditor and each of the co-debtors should be taken into account.
A co-debtor who is sued by a creditor for performance cannot set up against that creditor defenses that are personal to other co-debtors, but he may set up defenses that are personal to himself as well as those common to all the co-debtors.
Article 286
Novation of a debt between the creditor and one of the joint and several debtors releases other co-debtors unless the creditor has reserved his rights against them.
Article 287
A joint and several debtor cannot set up compensation with regard to that which a creditor owes to one of the other co-debtors, except in respect of the share of such co-debtor.
Article 288
Merger that occurs in the person of a creditor and of one of the joint and several debtors does not extinguish the debt as regards the other co-debtors except to the extent of the merged share of the co-debtor.
Article 289
A release of debt granted by the creditor to one of the joint and several debtors does not release the other co-debtors unless the creditor expressly declares such to be the case.
In the absence of such a declaration, the creditor may only claim from the other co-debtors the balance of the debt after deduction of the share of the co-debtor whom he has released, unless he has reserved his rights against them for the whole of the debt. In such a case, the joint and several debtors have a claim against the co-debtor who has been released for his share in the debt.
Article 290
If a creditor releases one of the joint and several debtors from the joint and several liability, his right to claim the whole of the debt from the other co-debtors remains unless otherwise agreed.
Article 291
In all cases of the release of one of the joint and several debtors either from the debt or from the joint and several liability, the other co-debtors may in accordance with Article 298 claim from the co-debtor who has been released his contribution in the share of those co-debtors who are insolvent.
If, however, the creditor has discharged the co-debtor to whom he has given a release from all liability in respect of the debt, the creditor will bear himself the contribution of such a co-debtor in the share of the insolvent co-debtors.
Article 292
If the debt is extinguished by prescription as regards one of the joint and several debtors the other co-debtors will only benefit from this prescription to the extent of the contribution of that co-debtor.
If the prescription is interrupted or suspended as regards one of the joint and several debtors, the creditor cannot claim interruption or suspension as regards the other co-debtors.
Article 293
In the performance of an obligation a joint and several debtor is only responsible for his own acts.
A formal demand to one of the joint and several debtors or proceedings taken against one of them by the creditor will have no effect against the other co-debtors, but if one of the joint and several debtors issues a formal demand against the creditor, this demand will benefit the other co-debtors.
Article 294
A transaction entered into between a creditor and one of the joint and several debtors will benefit the other co-debtors if it involves remission of the debt or the release of the liability in respect thereof in any other way. If such a transaction creates an obligation or increases the existing obligation, it will only be binding upon the other co-debtors if they consent thereto.
Article 295
An acknowledgement of debt by one of the joint and several debtors does not bind the other co-debtors.
If one of the joint and several debtors refuses to take an oath or if he tenders the oath to the creditor and the creditor takes the oath, the oath refused or tendered will not prejudice the other co-debtors.
If the creditor tenders the oath to one of the joint and several debtors and this co-debtor takes the oath, the oath will profit the other co-debtors.
Article 296
A judgment given against one of the joint and several debtors will have no effect against the other co-debtors.
If the judgment is given in favor of one of them, it will benefit the others, unless the judgment is based on a ground relating only to the co-debtor in favor of whom the judgment is rendered.
Article 297
If one of the joint and several debtor pays the debt in full, he will only have a claim against each of the other co-debtors for each of such co-debtors’ own share respectively, even if he exercises the right to action of the creditor by way of subrogation.
The amount paid is divisible between the co-debtors in equal parts in the absence of an agreement or a provision of the law to the contrary.
Article 298
If one of the joint and several debtors becomes insolvent, his share shall be borne by the co-debtor who has effected payment and by all the other solvent co-debtors pro rata.
Article 299
When the debt concerns one only of the joint and several debtors, he will be liable for the whole debt to the other co-debtors.
2. Indivisibility
Article 300
An obligation cannot be divided:
a) when it has for its object something which by its nature is not susceptible of division;
b) if it is the intention of the parties or it follows from the purpose pursued by the parties that the performance of the obligation should not be divided.
Article 301
When there are several debtors in respect of an indivisible obligation, each debtor is liable for the debt in full.
A debtor who has effected payment will have a remedy against each of the other co-debtors for his part, unless the contrary follows from the circumstances.
Article 302
When there are several creditors in respect of an indivisible obligation or several heirs of a creditor in respect of such an obligation each of the creditors or heirs may demand the performance in its entirety of the indivisible obligation. If one of the creditors or the heirs contests such a demand, the debtor shall effect payment to all the creditors together or deposit the object of the obligation in court.
Co-creditors will have remedies against a creditor who has received payment, each one for his share.
A creditor may assign his right to a third party, provided that his claim is not impossible of assignment by reason of a provision of the law, of an agreement between the parties or on account of its nature. The assignment is valid without the consent of the debtor.
Article 304
A right can only be assigned to the extent to which it can be attached.
Article 305
An assignment is not effective as against a debtor or a third party unless it has been accepted by the debtor or notified to him. The acceptance by the debtor does not render the assignment valid as against third parties unless it has an established date.
Article 306
The creditor to whom the assignment is made may, prior to notification of the assignment or to its acceptance, take all precautionary measures to safeguard the right that has been transferred to him.
Article 307
The assignment of a right comprises its warranties such as securities, privileges and mortgages, as well as interest and installments that have fallen due.
Article 308
In the case of an assignment for valuable consideration, the assignor, in the absence of an agreement to the contrary, only warrants the existence of the right assigned at the moment of the assignment.
When, however, the assignment is not for valuable consideration, the assignor does not even warrant the existence of the right.
Article 309
An assignor does not warrant the solvency of the debtor unless such warranty is specifically stipulated.
If an assignor has warranted the solvency of the debtor, this warranty only applies, in the absence of agreement to the contrary, to the solvency of the debtor at the time of the assignment.
Article 310
When an assignee exercises his right of recourse in warranty against the assignor, in accordance with the two preceding articles, the assignor is only liable to restitute that which he has received together with interest and expenses notwithstanding any agreement to the contrary.
Article 311
An assignor is responsible for his personal acts, even if the assignment is not for valuable consideration or even if it has been stipulated to be without warranty.
Article 312
A debtor of the right assigned may raise, as against the assignee, the defenses that he was entitled to raise against the assignor at the moment that the assignment became effective against him. He may also raise defenses arising from the contract of assignment.
Article 313
In the event of several assignments relating to the same right, preference is given to the assignment that is first effective as regards third parties.
Article 314
When an attachment is served upon the debtor of the debt assigned, before the assignment has become effective as against third parties, the assignment is equivalent to an attachment vis-a-vis the distrainer.
In this case, if another attachment is made after the assignment becomes effective as against third parties, the debt will be divided pro rata between the first distrainer, the assignee and the second distrainer, but the amount necessary to make up the amount of the sum assigned will be deducted from the share of the second distrainer and paid to the assignee.
Section II Assignment of Debt Article 315
An assignment of debt is effected by an agreement between the debtor and a third party who undertakes to assume the debt in the place of the debtor.
Article 316
An assignment of debt is not effective as against the creditor unless ratified by the creditor.
When the person assuming the debt or the original debtor notifies the assignment to the creditor, and gives him a reasonable period of time to ratify the assignment, the assignment will be deemed to have been refused if the creditor does not give his consent before the expiration of such period.
Article 317
Until the creditor has signified his ratification or refusal of the assignment, the person assuming the debt will, in the absence of an agreement to the contrary, be responsible to the original debtor, to effect payment on due date to the creditor. This rule applies even when the creditor has refused the assignment.
The original debtor cannot, however, call upon the person assuming the debt to make payment to the creditor so long as he has not himself discharged his obligation to the person assuming the debt in accordance with the contract of assignment.
Article 318
The debt assigned is transmitted with all its warranties. The surety, whether real or personal, does not remain bound to the creditor unless he has agreed to the assignment.
Article 319
In the absence of an agreement to the contrary, the original debtor warrants the solvency of the person assuming the debt at the moment the creditor ratifies the assignment.
Article 320
A person assuming the debt may raise against the creditor the defenses which the original debtor was entitled to raise. He may also raise the defenses arising out of the contract of assignment.
Article 321
An assignment of debt may also take place between the creditor and the person assuming the debt by an agreement that provides that such person replaces the original debtor in his obligation.
In such a case, the provisions of Articles 318 and 320 will be applicable.
Article 322
The sale of a mortgaged immovable property does not imply the transfer of the mortgage debt to the purchaser unless the agreement provides for such a transfer.
If the vendor and purchaser agree to assign the debt and if the deed of sale is transcribed, the creditor should, after notification to him by legal process of the assignment, ratify or refuse the assignment, within a period not exceeding six months. If he maintains silence up to the end of this period, such silence is equivalent to ratification.
Payment may be made by the debtor, by his representative or by any other interested party, subject to the provisions of Article 208.
Payment may also, subject to the provisions of Article 208, be made by a third party who is not interested in such payment, even without the knowledge or against the wish of the debtor, but the creditor may refuse payment tendered by a third party if it is opposed by the debtor and the debtor has informed the creditor of his opposition.
Article 324
If a third party pays off the debt, such third party shall have a remedy against the debtor up to the amount that he has paid.
The debtor, against whose wish payment has been made, may contest the claim made against him by the person who has made the payment on his behalf as regards all or part of the payment made, if he shows that he had any interest whatsoever in opposing the payment.
Article 325
Payment is only valid if the person who made the payment is the owner of that with which he has paid the obligation and has the capacity of disposing of it.
When payment of that which is due is made by a person without the necessary legal capacity to dispose of the thing with which payment is effected, it extinguishes the obligation provided that it does not prejudice the person who has paid.
Article 326
When payment is made by a third party, such third party is subrogated in the rights of the creditor who is paid off in the following cases:
a) when such third party was liable for the debt jointly with the debtor or was under an obligation to pay the debt on his behalf;
b) when such third party, being himself a creditor, even an unsecured creditor, had paid another creditor ranking before him by reason of a real security;
c) when, having acquired an immovable, he has paid the price to creditors having a real security upon the immovable in question;
d) when the law expressly gives him the right of subrogation.
Article 327
A creditor who receives what is due to him from a third party may, by agreement with the third party, subrogate such third party into his rights even if the debtor does not agree to the subrogation. The agreement must not be concluded after the time of payment.
Article 328
A debtor may also, when he has borrowed a sum with which he has paid the debt, subrogate the lender into the rights of the creditor who received the payment, even without the consent of the creditor, provided that in the contract of loan, it is stated that the sum in question was borrowed for the purpose of effecting the payment, and that in the receipt in discharge, it is stated that the payment was made with the money lent by the new creditor.
Article 329
A third party subrogated in law or by agreement in the rights of the creditor, is substituted for the creditor as regards the debt to the amount of the sums that he has himself paid with all the attributes of the debt and all accessories, securities, and defences attached to the debt.
Article 330
In the absence of an agreement to the contrary, when a third party pays part of a debt to a creditor and is subrogated into the rights of the creditor as regards such part, the creditor shall not be prejudiced by such partial payment and may exercise his rights for that which remains due, in preference to the third party.
When a further third party is subrogated in the rights of the creditor, as regards that which remains due to this creditor, this further third party so subrogated, together with the third party subrogated before him, will have a right to claim what is due to each of them pro rata.
Article 331
A third party holder of a mortgaged property who has paid all the mortgage debt and has been subrogated into the rights of the creditors, shall only have the right, by reason of such subrogation, to claim from the holder of another property mortgaged for the same debt the share of that holder in the debt proportional to the value of the immovable held by him.
Article 332
Payment shall be made to the creditor or to his representative. A person who produces to the debtor a receipt in discharge issued by the creditor is deemed to be qualified to receive payment unless it has been agreed that payment shall be made to the creditor in person.
Article 333
Payment to someone other than the creditor or his representative does not free the debtor or his obligation unless the payment is ratified by the creditor, or profits the creditor and then only to the extent of such profit, or unless the payment was made in good faith to a person holding the title to the debt.
Article 334
When a creditor refuses, without good reason, to accept payment that is regularly offered to him, or to do such things without which payment cannot be made, or declares that he will not accept payment, he will be deemed to have been duly summoned to accept payment from the time that such refusal is recorded by a summons notified to him by legal process.
Article 335
From the time that a summons has been served on a creditor he shall be responsible for the loss or the deterioration of the thing and interest on the debt ceases to run; the debtor shall then have the right to place the thing in safe keeping at the cost of the creditor and claim compensation for any damage he may have suffered.
Article 336
When the subject matter of the payment is a definite and specific thing which must be delivered at the place where it is situated, the debtor may, after having summoned the creditor to take delivery, obtain an order of the court to place it in safe keeping. If the thing in question is an immovable or a thing intended to remain in place, the debtor may ask for it to be placed under judicial custody.
Article 337
The debtor may, by permission of the judge, sell, by public auction, things of a rapidly perishing nature or movables that necessitate an exorbitant expenditure for safekeeping or custody, and deposit the price in the “Caisse du Tribunal”.
When the thing has a known price on the market or is quoted on the stock exchange, it may only be sold by public auction if it is impossible to sell it by agreement at the market or quoted price.
Article 338
Deposit or any other equivalent measure is also permissible if the debtor does not know the person or the domicile of the creditor, or if the creditor, being totally or partially incapable, has not a representative to accept payment on his behalf, or the debt is the object of a dispute between several persons, or if there are other serious reasons which justify this measure.
Article 339
The actual tender of the thing due is equivalent to payment, in so far as the debtor is concerned, when it is followed by a deposit made in the manner prescribed in the Code of Procedure, or by any other equivalent measure, provided that it is accepted by the creditor or recognized as valid by a final judgment.
Article 340
A debtor who has made a tender of the debt followed by a deposit, or by an equivalent measure, may retract his tender so long as it has not been accepted by the creditor, or so long as it has not been recognized as valid by a final judgment, in which case the co-debtor and sureties will not be freed.
If a debtor retracts his tender after its acceptance by the creditor or after it has been declared valid by a judgment, and his withdrawal is accepted by the creditor, the creditor shall no longer have the right, to avail himself of the securities guaranteeing his right, and the co-debtors and the sureties shall in such case be released.
2. Means of Payment
Article 341
Payment must be made with the very thing due. The creditor cannot be forced to accept anything else, even if the value of such other thing is equal or greater.
Article 342
In the absence of an agreement or a legal provision to the contrary, the debtor cannot force his creditor to accept a partial payment of his debt.
If, in a case where part of the debt is contested, a creditor agrees to receive payment of that part of his claim which is admitted, the debtor cannot refuse to pay the part that is admitted.
Article 343
When a debtor is under an obligation to pay expenses and interest in addition to the principal of the debt, and makes a payment which does not cover the principal and these accessories, the payment shall, unless otherwise agreed, be imputed, in the first instance, to expenses, then to interest and lastly to principal.
Article 344
If a debtor owes the same creditor several debts of the same kind and if the payment made by him does not suffice to cover all the debts, he has the right to indicate, when effecting payment, the debt which he intends to discharge, provided that he is not prevented from so doing by law or by agreement.
Article 345
Failing any indication by the debtor as provided for in the preceding article, the payment shall be imputed to the debt that has fallen due: in a case where several debts have fallen due, to the most onerous debt, in a case where the debts are all equally onerous, to the debt indicated by the creditor.
Article 346
In the absence of an agreement or of a provision of the law to the contrary, payment must be made as soon as the obligation has been definitely created as a liability of the debtor.
The judge may in exceptional cases and in the absence of a provision of the law to the contrary, grant to the debtor, when his position so requires, one or more reasonable delays for the performance of his obligation, provided that no serious prejudice is thereby caused to the creditor.
Article 347
In the absence of an agreement or of a provision of the law to the contrary, when the subject matter of the obligation is a definite and ascertained thing, it should be delivered at the place it was situated at the time the obligation was created.
In the case of other obligations, payment is due at the debtor's domicile at the time of payment or at his place of business if the obligation is connected with such business.
Article 348
In the absence of an agreement or a provision of the law to the contrary, expenses in connection with payment are at the charge of the debtor.
Article 349
A person who pays part of a debt has the right to demand a receipt for the amount he has paid and a note showing the payment on the document of title of the debt. He has also the right, at the time the debt is paid in full, to demand the restitution or cancellation of the document of title. If this document has been lost, the debtor may demand a written declaration from the creditor that the document of title has been lost.
If the creditor refuses to comply with the conditions laid down in the preceding paragraph, the debtor may place the object due in judicial custody.
Section II Methods of Extinction of the Obligation Equivalent to Performance 1. Giving in Payment
Article 350
When a creditor accepts in settlement of his right another prestation in place of that which is due, this giving in payment takes the place of payment.
Article 351
The provisions of the law relating to sale, especially those which relate to the legal capacity of the parties, warranty against eviction and hidden defects, apply to “giving in payment” in cases where it transfers the ownership of the thing given in place of the prestation due. The provisions of the law relating to payment, especially those which relate to the imputation of sums paid and to the extinction of warranties, are also applicable in so far as the “giving in payment” extinguishes the debt.
2. Novation and Delegation
Article 352
There is novation of an obligation:
i) by a change of the debt, when the two parties agree to substitute a new obligation for the original obligation, which new obligation differs from the original obligation as regards its object or as regards its source;
ii) by a change of the debtor, when a creditor and a third party agree that such third party shall take the place of the original debtor and that the original debtor shall be released of the debt without his consent being necessary, or when the debtor has procured the consent of the creditor to substitute the debtor by a third party who consents to be the new debtor;
iii) by a change of the creditor, when the creditor, the debtor and a third party agree that this third party shall be the new creditor.
Article 353
Novation can be effected only if the two obligations, the original and the new obligation, are free from any grounds of nullity.
If the original obligation results from a voidable contract, the novation is only valid if the new obligation has been assumed both with a view to confirming the contract and to replacing the original obligation.
Article 354
Novation is not presumed; it must be expressly agreed or result clearly from the circumstances.
In particular, novation does not result, in the absence of an agreement to the contrary, from the subscription of a promissory note in respect of a pre-existing debt, from changes that relate only to the date, place or mode of performance of the prestation, or from modifications made to the obligation only as regards securities or as to the rate of interest.
Article 355
The mere entry of the debt in current account does not effect novation.
There is, however, novation when the balance of a current account has been fixed and agreed; if, however, the debt was guaranteed by means of a special security, that security is maintained unless otherwise agreed.
Article 356
Novation has the effect of extinguishing the original obligation with its accessories and of substituting for it a new obligation.
Securities which guaranteed the performance of the original obligation, are not transferred to the new obligation, unless the law provides otherwise, or unless it appears from the agreement or the circumstances of the case that such is the intention of the parties.
Article 357
If the debtor has given real securities in guarantee of the original obligation, the following conditions will be observed in the agreement providing for the transfer of these securities to the new obligation:
a) when the novation results from a change of the debt, the creditor and the debtor may agree that the securities shall be transferred to the new obligation, to the extent that such a transfer does not cause prejudice to third parties;
b) when the novation results from a change of the debtor, the creditor and the new debtor may agree, without the consent of the original debtor, that the real securities shall be maintained;
c) when the novation results from a change of the creditor, the three contracting parties may agree that the securities shall be maintained.
The agreement providing for the transfer of the real securities cannot be set up against third parties, unless it is made at the same time as the novation, and the provisions as to registration of real rights are complied with.
Article 358
Real and personal as well as joint and several suretyship is only transferred to the new obligation with the consent of the sureties and of the joint and several co-debtors.
Article 359
There is delegation when a debtor procures the acceptance by his creditor of a third party who undertakes to pay in his stead.
Delegation does not necessarily infer the existence of a previous debt between the debtor and such third party.
Article 360
When, in a case of delegation, the contracting parties agree to substitute a new obligation for the original obligation, such a delegation constitutes a novation by the change of the debtor. It results in the liberation of the original debtor from the obligation to his creditor, provided that the new obligation assumed by the new debtor is valid and that such new debtor is not insolvent at the time of the delegation.
Novation is not assumed in a case of delegation; in the absence of an agreement providing for novation, the original obligation continues concurrently with the new obligation.
Article 361
In the absence of an agreement to the contrary, the obligation of the new debtor towards the creditor is valid even if his obligation towards the original debtor is void or liable to be contested, subject to the new debtor's right of recourse against the original debtor.
3. Compensation (set off)
Article 362
A debtor has a right to compensation of that which he owes to his creditor against that which such creditor owes him, even when the causes giving rise to the two debts are different, provided that they are both for a sum of money or fungibles of a like nature and quality, that they are not in dispute and that they are due and may be sued for.
Postponement of payment by reason of a delay granted by the Judge or by the creditor does not prevent compensation.
Article 363
A debtor may avail himself of compensation even when the places of payment of the two debts are different, but he must, in such a case, make good any loss caused to the creditor by reason of the fact that the creditor was not able, as a result of the compensation, to obtain or to perform the prestation at the place fixed for this purpose.
Article 364
Compensation takes place, whatever may be the sources of debts, except in the following cases:
a) where one of the two debts consists of a thing of which the owner has been unjustly deprived, and is the object of a claim for restitution;
b) where one of the two debts consists of a thing that has been deposited or lent for use and is the object of a claim for restitution;
c) where one of the two debts is a right which is not liable to attachment.
Article 365
Compensation only takes place when set up by the interested party. Compensation cannot be renounced before the right thereto has come into existence.
Compensation extinguishes the two debts to the extent of the amount of the smaller debt, from the moment they become subject to compensation. Imputation of the amount discharged in compensation takes place in the same way as in ordinary payment.
Article 366
If the delay for prescription of a debt has expired when compensation is set up, compensation will nevertheless still take place if the delay for prescription has not expired when compensation became possible.
Article 367
Compensation cannot take place to the detriment of rights acquired by third parties.
If, after the seizure by a third party of the property held by the debtor for his creditor, such debtor becomes the creditor of his creditor, he cannot set up compensation to the prejudice of the attaching creditor.
Article 368
When a creditor has assigned his debt to a third party, the debtor who has consented to the assignment without reserve, cannot set up compensation against the assignee, which he had the right to set up before he consented to the assignment; he can only enforce his claim against the assignor.
But a debtor who has not accepted an assignment which has been notified to him, may, notwithstanding the assignment, set up compensation.
Article 369
A debtor who had the right to set up compensation but who nevertheless paid his debt, cannot avail himself, to the prejudice of third parties, of the securities guaranteeing his right unless he did not know of the existence of his right.
4. Merger
Article 370
When the qualities of creditor and debtor in the same debt are united in the same person, the debt is extinguished to the extent of the merger.
When the cause which gave rise to the merger disappears and its disappearance is retroactive, the debt revives with its accessories as regards all interested parties, and the merger is deemed never to have existed.
Section III The Extinction of Obligations without Payment
1. Release of the Obligation
Article 371
Obligations are extinguished by a voluntary release of a debtor by his creditor. The release is completed as soon as it comes to the knowledge of the debtor, but becomes void if refused by him.
Article 372
The release of an obligation is subject to the basic rules that govern gifts.
No special for is required for release even if it is the release of an obligation whose existence was conditional upon a special form required by law or by the agreement entered into by the parties.
2. Impossibility of Performance
Article 373
An obligation is extinguished if the debtor establishes that its performance has become impossible by reason of causes beyond his control.
3. Extinctive Prescription
Article 374
The term of prescription for obligations is fifteen years with the exception of those cases for which a special provision is contained in the law and with the exception also of the following cases.
Article 375
The term of prescription for sums payable periodically at recurring intervals such as the rent of buildings and of agricultural land, the rent of hekr, interest, periodical payments, salaries, wages and pensions, is five years, even if the debt is admitted by the debtor.
The term of prescription for revenue due by a holder in bad faith and for revenue due by a nazir of a wakf to the beneficiaries is fifteen years.
Article 376
The term of prescription for sums due to physicians, chemists, lawyers, engineers, experts, receivers in bankruptcy, brokers, professors or teachers is five years, provided that the debts are due as remuneration for work coming within the scope of their professions or in payment of expenses incurred by them.
Article 377
The term of prescription for taxes and dues owing to the State is three years. The term of prescription for taxes and annual dues commences to run from the end of the year for which they were due: that for fees for legal documents from the date of termination of the hearing of the case in respect of which such documents were prepared, or, if no hearing takes place, from the drawing up of such documents.
The term of prescription of the right to claim repayment of taxes and dues unduly paid is also three years. This prescription runs from the date of payment.
The preceding provisions apply subject to provisions contained in special laws.
Article 378
The term of prescription is one year for the following rights of action:
a) the rights of action of merchants and manufacturers in respect of things supplied to persons who do not trade in these articles, as well as the rights of action of hotel and restaurant proprietors for the cost of accommodation and food and for expenses incurred by them on behalf of their clients.
b) the rights of action of workmen, servants, wage earners, in respect of their pay, daily or otherwise, and for the cost of supplies provided by them.
When a person claims this prescription of one year, he must take oath that he has actually paid the debt. The judge will of his own accord pass the oath. If the debtor is dead, such oath will be passed to the heirs of the debtor, or, if they are minor, to their guardians, so that they may declare either that they do not know the existence of the debt or that they know that the debt has been paid.
Article 379
The term of prescription in respect of rights referred to in Articles 376 and 378 runs from the time that the prestations were made by the creditors, even when the creditors continue to make further prestations.
Once anyone of these rights has been established by a written document, it is only prescribed after fifteen years.
Article 380
Periods of prescription are calculated in days, not in hours; the first day does not count and prescription is completed when the last day is at an end.
Article 381
Prescription runs, subject to a special provision of the law to the contrary, only from the day on which the debt becomes due.
Prescription in particular only runs, in the case of a debt that is subject to a suspensive condition, from the day on which the condition is realized; in the case of an action on a warranty against eviction, only from the date eviction takes place; in the case of a debt payable in the future, only from the date of the expiration of the term.
When the date upon which the obligation becomes due depends upon the will of the creditor, prescription runs from the date on which he is in a position to express his will.
Article 382
Prescription does not run whenever there is a bar, even a moral one, which prevents the creditor from claiming his right. It does not run between a principal and his representative.
Prescription of which the period is more than five years, does not run as regards persons who are legally incapable, absent or convicted criminals, if they are not legally represented.
Article 383
Prescription is interrupted by legal proceedings even if instituted in a court without jurisdiction, by a summons or by an attachment, by the application of a creditor for the admission of his claim in a bankruptcy or in a distribution, or by any act of a creditor to claim his right in the course of legal proceedings.
Article 384
Prescription is interrupted by an express or tacit admission of the right of the creditor by the debtor.
A debtor who leaves a pledge in the hands of his creditor as security for his debt is deemed to have tacitly acknowledged the debt.
Article 385
When prescription is interrupted, a new prescription commences to run from the time that the effect of the act that gave rise to the interruption has ceased. The term of the new prescription will be of the same duration as that of the former one.
When the debt has been confirmed by a final judgment or when, in the case of a debt prescribed after one year, the prescription has been interrupted by the admission of the debtor, the term of the new prescription will be fifteen years unless the debt confirmed by the judgment involves periodical recurring obligations which will not become due until after the judgment.
Article 386
Prescription extinguishes the obligation, but leaves a natural obligation upon the debtor.
When a right is extinguished by prescription, interest and other accessories to the debt are also extinguished even if the term of the particular prescription applying to these accessories has not expired.
Article 387
The judge at his own initiative cannot invoke prescription. Prescription must be invoked by the debtor, or his creditors, or by any interested party, even if the debtor has failed to do so.
Prescription may be invoked at any stage of the proceedings, even before the Court of Appeal.
Article 388
A debtor cannot renounce the benefit of prescription before he has acquired the right to invoke it, nor can he agree to a term of prescription other than that fixed by law.
A person, however, who is legally capable of disposing of his rights, may renounce even tacitly, a right to prescription which he is in a position to invoke; but a renunciation made to the detriment of his creditors will have no effect against them.
BOOK II SPECIFIC CONTRACTS - Chapter I Contracts as Regards Ownership
Section I Sale
1. Sale in General
Elements of Sale
Article 418
Sale is a contract whereby the vendor binds himself to transfer to the purchaser the ownership of a thing or any other propriety right in consideration of a price in money.
Article 419
The purchaser must have a sufficient acquaintance with the thing sold. This acquaintance will be deemed sufficient if the contract contains the description of the thing sold and its essential qualities, so that it may be identified.
The statement in a deed of sale that the purchaser is acquainted with the thing, deprives him of the right to claim annulment of the sale on the ground of want of acquaintance with the thing, unless he proves fraud on the part of the vendor.
Article 420
When the sale is made according to sample, the thing sold should conform to the sample.
If the sample deteriorates or perishes while in custody of one of the contracting parties, even if it was not his fault, it is incumbent upon that party, whether he is vendor or buyer, to establish that the thing is or is not in conformity with the sample.
Article 421
In a sale upon trial, the purchaser has the option either to accept or to refuse the thing sold, but the vendor is bound to allow the purchaser to make the trial. If the purchaser refuses the thing sold, he must give notice of his refusal within the time agreed or, in the absence of agreement, within a reasonable time to be fixed by the vendor. When this time has elapsed the silence of the purchaser who had the opportunity to try the thing sold, is equivalent to acceptance.
A sale upon trial is deemed to have been made subject to a suspensive condition of acceptance of the thing sold, unless it appears from the agreement or from the circumstances that the sale was made subject to a resolutory condition.
Article 422
In a sale made subject to tasting, the purchaser may accept the thing sold if he sees fit, but he must declare his acceptance within the time fixed by the agreement or by custom. The sale will be considered complete only from the date of such declaration.
Article 423
The method of establishing the price may be confined to the indication of the basis on which the price will be ultimately fixed.
When it is agreed that the price will be the market price, the market price will, in case of doubt, be that at the place where and at the time when the thing sold should be delivered to the purchaser; if there is no market at the place of delivery, reference should be made to the market price at the place at which the prices are customarily deemed applicable.
Article 424
When the contracting parties have not fixed a price for the thing sold the sale shall not be void if the circumstances show that the parties intended to adopt the current trade price or the price which they have usually applied in their dealings one with another.
Article 425
When an immovable belonging to a person who is legally incapable, has been sold with a lesion of more than one fifth of its value, the vendor will have a right of action with a view to making up the price to four fifths of the normal price.
In order to ascertain whether the lesion was of more than one fifth, the value of the immovable at the time of the sale should be ascertained.
Article 426
The right to bring an action for a supplement of price on the ground of lesion is prescribed within three years from the time the legal incapacity ceases, or from the date of the death of the owner of the immovable sold.
Such proceedings do not operate to the prejudice of third parties in good faith who have acquired a real right on the immovable sold.
Article 427
This action for supplement of price on the grounds of lesion does not lie in respect of sales by public auction conducted in accordance with the provisions of the law.
Obligations of the Vendor
Article 428
The vendor is bound to perform everything necessary to transfer the right to the thing sold to the purchaser, and to abstain from all acts that might render this transfer impossible or difficult.
Article 429
When goods are sold in bulk, ownership is transferred to the purchaser in the same way as ownership of a definite and ascertained thing. There is sale of goods in bulk even when the amount of the price depends on the extent, weight or measure of the goods sold being ascertained.
Article 430
In a credit sale the vendor may stipulate that the transfer of ownership to the purchaser is subject to integral payment of the price, even if the thing sold has been delivered.
If the price is payable by installments, the contracting parties may agree that the vendor may retain a part of the price by way of damages should the sale be cancelled for non-payment of all the installments. The judge may, however, according to circumstances, reduce the amount of damages agreed, by applying the provisions of paragraph 2 of Article 224.
When all the installments have been paid, the transfer of the ownership of the thing sold shall be deemed to have taken place as from the date of sale.
The provisions of the three preceding paragraphs are applicable even if the contracting parties have described the contract of sale as a contract of lease.
Article 431
The vendor is bound to deliver the thing sold to the purchaser in the state in which it was at the time of the sale.
Article 432
Delivery includes delivery of the accessories of the thing sold and of everything which, according to the nature of things, local custom and the intention of the parties, was appropriated permanently for the use of the thing.
Article 433
When the quantity of the thing sold is fixed in the contract, the vendor, subject to any agreement to the contrary, is liable for any deficiency in such quantity in accordance with custom. The purchaser has not, however, the right to demand cancellation of the contract by reason of such deficiency, unless he establishes that the deficiency is so great that if he had known of it he would not have entered into the contract.
If, on the contrary, the quantity exceeds that indicated in the contract, and if the price has been fixed by unit, the purchaser must, when the object of the purchase cannot be divided, make up the price, unless the excess is very great, in which case he may demand cancellation of the contract, all subject to an agreement to the contrary.
Article 434
In a case of deficiency or excess in the thing sold, the right of the purchaser to apply for a reduction of the price or for cancellation of the contract, and the right of the vendor to claim that the price be made up, are both prescribed within one year from the date of the actual delivery of the thing sold.
Article 435
Delivery consists in placing the thing sold at the disposal of the purchaser in such a way that he can take possession of and enjoy it without hindrance, even if he does not take effective delivery thereof, provided the vendor informs him that the thing is at his disposal. Delivery is effected in accordance with the nature of the thing sold.
Delivery may be completed by the mere fact of agreement between the parties when the thing sold was in possession of the purchaser prior to the sale or if the vendor retains the thing sold in his possession after the sale by virtue of some reason other than that of ownership.
Article 436
When the thing sold must be sent to the purchaser, delivery will not be effective, subject to an agreement to the contrary, until the thing reaches him.
Article 437
If the thing sold perishes before delivery as a result of a cause beyond the control of the vendor, the sale shall be dissolved and the price refunded to the purchaser, unless he was summoned to take delivery before the loss.
Article 438
If the value of the thing sold is diminished by deterioration before delivery, the purchaser shall have the option either of applying for the cancellation of the sale, if the diminution is so great that the sale would not have taken place if the diminution had happened before the contract was concluded, or of upholding the sale at a reduced price.
Article 439
The vendor warrants the purchaser against disturbance in his enjoyment of the thing sold both totally and partially, whether such disturbance is caused by his act or that of a third party having a right over the thing sold at the time of the sale enforceable against the purchaser. The vendor is bound by his warranty, even if the right of the third party has been established after the sale, provided that it was derived from the vendor himself.
Article 440
When an action for revendication in respect of the thing sold is brought against the purchaser, the vendor, upon receipt of notice of the action, shall, according to the circumstances and in conformity with the provisions of the Code of Procedure, join as a co-defendant with the purchaser, or take his place as defendant in the action.
If notice is given in due time, the vendor who has not joined in the action, is liable under his warranty, unless he proves that the judgment given in the action is the result of fraud or of gross negligence on the part of the purchaser.
If the purchaser does not notify the vendor of the action brought against him in due time and is dispossessed by a judgment that has become final, he shall be deprived of his right of recourse under the warranty, if the vendor establishes that, had he joined in the action, he would have succeeded in obtaining the dismissal of the action for revendication.
Article 441
The right of a purchaser to warranty exists even if he has acknowledged, in good faith, the third party's claim or has entered into a compromise with him without awaiting a decision of the court, if he has, in due time, given notice of the action to the vendor and has, without result, called upon him to take his place in the action, subject always, to proof by the vendor that the third party's claim is unfounded.
Article 442
When the purchaser has avoided total or partial dispossession of the thing sold by paying a sum of money or by performing some other prestation, the vendor may free himself from the consequences of warranty by refunding to the purchaser the sum paid, or the value of the prestation performed, together with legal interest and all expenses.
Article 443
In case of total dispossession, the purchaser may claim from the vendor:
i) the value of the thing sold at the time of dispossession, together with legal interest from that time;
ii) the value of the profits derived from the thing sold that the purchaser has been obliged to restore to the person entitled to the thing;
iii) all sums usefully spent which he cannot claim from the person entitled to the thing, together with expenditure of a superfluous character if the vendor acted in bad faith;
iv) all costs incurred in the action upon the warranty and the action of revendication, with the exception of those costs that the purchaser could have avoided by notifying the vendor of the action of revendication, in accordance with Article 440; and
v) generally, compensation for the losses sustained and profits missed as a result of dispossession of the thing sold.
Unless in all these cases the purchaser's action against the vendor is based on a demand for dissolution or for annulment of the sale.
Article 444
In case of partial dispossession, or if the thing sold is encumbered with a charge, the purchaser, if the loss is of such a nature that, had he been cognizant thereof, he would not have entered into the contract, may claim from the vendor the sums provided for in the preceding article, provided that he returns to the vendor the things sold and the profits derived therefrom.
When the purchaser prefers to retain the thing sold or when the loss sustained by him does not attain the degree of gravity defined in the preceding paragraph, he has only the right to apply for compensation in respect of the loss he has sustained as a result of the dispossession.
Article 445
The contracting parties may, by special agreement, increase the warranty against dispossession, restrict it or stipulate that the sale is without warranty.
The vendor is presumed to have stipulated that he does not warrant a purchaser against a servitude if it was apparent or disclosed by him to the purchaser.
A clause that the sale is without warranty or restricting the warranty against dispossession is null and void if the vendor intentionally conceals the rights of a third party.
Article 446
Notwithstanding a clause excluding warranty, a vendor remains liable for any dispossession resulting from his acts. Any agreement to the contrary is null and void.
He is also bound, in case of dispossession as a result of the act of a third party, to refund to the purchaser the value of the thing sold at the time of dispossession, unless he can prove that the purchaser knew at the time of the sale of the grounds of dispossession, or that he purchased the thing at his own risk and peril.
Article 447
The vendor is liable under his warranty, when, at the time of delivery, the thing sold does not possess the qualities the existence of which he guaranteed to the purchaser, or when the thing sold has defects diminishing its value or usefulness for the purpose for which it was intended, as shown by the contract or resulting from the nature or the destined use of the thing. The vendor is answerable for these defects, even if he was ignorant of their existence.
The vendor, however, is not answerable for the defects of which the purchaser was aware at the time of the sale or which he could have discovered himself had he examined the thing with the care of a reasonable person, unless the purchaser proves that the vendor has affirmed to him the absence of these defects or fraudulently concealed them from him.
Article 448
The vendor is not liable for defects which are customarily tolerated.
Article 449
When the purchaser has taken delivery of the thing sold, he must ascertain its condition as soon as he is able to do so in accordance with common usage. If he discovers a defect for which the vendor is answerable, he must give notice thereof to the vendor within a reasonable time, failing which he will be deemed to have accepted the thing sold.
In the case, however, of defects that cannot be discovered by means of normal inspection, the purchaser shall, upon the discovery of the defect, at once give notice thereof to the vendor, failing which he will be deemed to have accepted the thing sold with its defects.
Article 450
When the purchaser has given notice to the vendor of the defect in the thing in due time, he will be entitled to bring an action on the warranty in accordance with Article 444.
Article 451
An action on a warranty exists even if the thing sold has perished, whatever may be the cause.
Article 452
An action on a warranty is prescribed in one year from the time of delivery of the thing sold, even if the purchaser discovers the defect after the expiration of this delay, unless the vendor agrees to be bound by the warranty for a longer period.
The vendor, however, cannot avail himself of the prescription of one year if it is proved that he has fraudulently concealed the defect from the purchaser.
Article 453
The contracting parties may, by specific agreement, increase, restrict or abolish the warranty. Nevertheless, any clause abolishing or restricting the warranty is void if the vendor intentionally and fraudulently conceals the defects of the thing sold.
Article 454
No warranty exists against defects in the case of a judicial sale or administrative sale by auction.
Article 455
When a vendor has warranted the proper working of the thing sold for an agreed period of time, the purchaser, in the case of a defect subsequently appearing in the thing sold, must, under pain of forfeiture of his right to the warranty and subject to any agreement to the contrary, give notice to the vendor within one month from the date of the appearance of the defect and commence an action within six months from the date of notification.
Obligation of the Purchaser
Article 456
Subject to a clause or custom to the contrary, the price is payable at the place where the delivery of the thing sold is made.
If the price is not payable at the time of delivery of the thing sold, payment must be made at the domicile of the purchaser on due date.
Article 457
Subject to a clause or custom to the contrary, the price is payable at the time delivery of the thing sold is made.
When the purchaser is disturbed in his enjoyment by a third party invoking a right existing prior to the sale or derived from the vendor, or if he is in danger of being dispossessed of the thing sold, he may, subject to an agreement to the contrary, retain the price until the disturbance in his enjoyment or the danger of dispossession has ceased. The vendor may, however, in such a case, demand payment of the price upon his supplying security.
The provisions of the preceding paragraph will also apply if the purchaser has discovered a defect in the thing sold.
Article 458
Subject to an agreement or custom to the contrary, the vendor is not entitled to legal interest on the price, unless he has placed the purchaser in default by a formal summons, or unless the thing sold is productive of fruits or other profits and he has delivered the thing sold to the purchaser.
Subject to an agreement or usage to the contrary, the purchaser acquires the revenues and increases in value of, and is liable for all charges in connection with the thing sold from the time the sale is concluded.
Article 459
When the whole or part of the price is payable immediately, the vendor, unless he grants the purchaser a delay for payment after the date of the sale, may retain the thing sold until he obtains payment of the amount due, even if the purchaser has offered a mortgage or security.
The vendor may also retain the thing sold, even if the agreed date of payment has not fallen due, if the purchaser loses the benefit of the term in accordance with the provisions of Article 273.
Article 460
If the thing sold perishes while in possession of the vendor while exercising his right of retention, the purchaser is liable for the loss unless the thing sold perishes as a result of an act of the vendor.
Article 461
In the case of a sale of commodities or other movable effects, when a term is agreed for payment of the price and for taking delivery, the sale will, subject to an agreement to the contrary, and at the option of the vendor, be ipso facto dissolved without any summons being necessary if the price is not paid upon due date.
Article 462
In the absence of an agreement or usage to the contrary, the costs of the deed of sale, stamp duties, transcription fees and all other expenses are borne by the purchaser.
Article 463
In the absence of agreement or usage indicating the place and time of delivery, the purchaser is bound to take delivery of the thing sold at the place where it was at the time of the sale and to remove it without delay, subject to the time necessary for such removal.
Article 464
Subject to usage or to an agreement to the contrary, the costs of taking delivery of the thing sold are borne by the purchaser.
2. Different Forms of Sale
Sale with a Right of Redemption
Article 465
When a vendor reserves to himself at the time of the sale the right to take back the thing sold, within a fixed time, the sale will be void.
Sale of a Thing Belonging to Another
Article 466
When a person sells a definite and ascertained thing of which he is not the owner, the purchaser may demand the annulment of the sale. This rule also applies when the thing sold is an immovable, whether the deed has been transcribed or not.
Such a sale cannot, in any case, have any effect as against the owner of the thing sold, even if the purchaser has ratified the contract.
Article 467
If the owner ratifies the sale, the contract will become binding on him and valid as regards the purchaser.
The sale will also become valid as regards the purchaser if the ownership of the thing sold devolves upon the vendor subsequently to the conclusion of the contract.
Article 468
When the annulment of the sale has been pronounced in court in favor of a purchaser who was unaware that the thing sold did not belong to the vendor, he shall be entitled to claim damages even if the vendor acted in good faith.
Sale of Litigious Rights
Article 469
When the owner of a litigious right has assigned it to a third party for valuable consideration, the debtor, against whom the right has been assigned, may extinguish the right assigned by paying to the assignee the actual price paid by him, together with expenses and interest accrued on the price from the date of payment of the price.
The right is deemed to be litigious if there is an action in court or serious controversy in respect thereof.
Article 470
The provisions of the preceding Article do not apply in the following cases:
a) when the litigious right forms part of a group of properties sold in bulk for a single price;
b) when the litigious right is indivisible amongst several heirs or co-owners and one sells his share to another;
c) when a debtor has assigned to his creditor the litigious right in payment of his debt;
d) when the litigious right is a right burdening an immovable and such right is sold to a third party in possession of the immovable.
Article 471
No member of the magistracy or of the Parquet, no lawyer, Greffier, or bailiff of a court may, under pain of nullity of the sale, purchase, either in his own name, or in the name of intermediary, in whole or in part, any litigious rights coming within the jurisdiction of the court in the district of which he exercises his functions.
Article 472
No lawyer may, under pain of nullity, either in his name or in the name of an intermediary, enter into an agreement with his client with regard to a litigious right, when he has undertaken to defend this right.
Sale of an Inheritance
Article 473
A person who sells an inheritance without giving particulars thereof, only warrants that he is an heir, unless otherwise agreed.
Article 474
In the sale of an inheritance, the transfer of rights comprised therein will have no effect as regards third parties, unless the necessary formalities for the transfer of each of these rights have been fulfilled. If the law provides for specific formalities for the transfer of these rights between the parties, such formalities should also be fulfilled.
Article 475
The vendor, if he has encashed debts or sold any of the property forming part of the inheritance, must reimburse the purchaser up to the amount he has received, unless he has inserted in the contract of sale an express clause of non-reimbursement.
Article 476
The purchaser must reimburse the vendor whatever he may have paid in respect of the debts of the inheritance and pay him anything that is due to him by the estate, subject to any agreement to the contrary.
Sale Made During a Person's Last Illness
Article 477
A sale made by a person during his last illness, to an heir or to a person who is not an heir, at a price inferior to the value of the thing sold at the time of his death, is valid against the heirs if the difference between the value of the thing sold and the price paid does not exceed one third of the value of the inheritance, including the thing sold.
If this difference exceeds one third of the value of the inheritance, the sale is only valid against the heirs with regard to the excess over one third of the value, if the heirs ratify the sale or if the purchaser pays to the estate the amount necessary to make up the two thirds.
The provisions of Article 916 apply to a sale made a during a person's last illness.
Article 478
The provisions of the preceding articles do not apply to the prejudice of a third party in good faith who has acquired for valuable consideration a real right over the property sold.
Sale by a Representative to Himself
Article 479
Subject to the provisions of any other laws, no person who represents another person by virtue of an agreement, a provision in the law or an order of a competent authority may purchase, either in his own name or in the name of an intermediary, even at a public auction, property entrusted to him for sale in his representative capacity, unless he had been authorized to do so by an order of the court.
Article 480
No brokers or experts may purchase in their name or in the name of an intermediary, goods which they have been entrusted to sell or to appraise.
Article 481
A sale in the cases referred to in the two preceding articles becomes valid if it is confirmed by the person on behalf of whom the sale was carried out.
Exchange is a contract by which the contracting parties mutually bind themselves to transfer to the other by way of exchange the ownership of a thing other than money.
Article 483
If the things exchanged have different values in the estimation of the contracting parties, the difference may be compensated by the payment of an equivalent sum of money.
Article 484
In the absence of an agreement to the contrary, the principal and incidental expenses of a contract of exchange shall be borne by the parties in equal shares.
Article 485
The provisions governing sale apply to exchange as far as the nature of exchange allows. Each one of the exchanging parties is deemed to be the vendor of the thing given by him in exchange and the purchaser of the thing received in exchange.
Section III Gifts
1. Elements of a Gift
Article 486
A gift is a contract by which the donor disposes, without consideration, of property belonging to him.
A donor may, without being divested of the intention of making a gift, impose upon the donee the performance of a specific obligation.
Article 487
A gift is not complete until it is accepted by the donee or by his representative.
If the donor is the natural or legal guardian of the donee, he may accept the gift on his behalf and take delivery thereof.
Article 488
The gift must be made by an authentic document under pain of nullity, unless it is made in the form of some other contract.
A gift of movables, however, may be completed by delivery to the donee, without an official instrument being necessary.
Article 489
The donor, or his heirs, who voluntarily give effect to a gift which is null by reason of a defect in form, cannot demand the restitution of what they have delivered.
Article 490
A promise to make is not binding unless it is made by an authentic document.
Article 491
If the gift is of a definite and specific thing which does not belong to the donor, it is governed by the provisions of Articles 466 and 467.
Article 492
A gift of future property is void.
2. The Effects of a Gift
Article 493
When the donee has not taken possession of the thing given, the donor is under an obligation to deliver it to him. The provisions as to the delivery of a thing sold shall, in such a case, apply.
Article 494
Unless otherwise agreed, a donor is under no obligation of warranty against dispossession unless he has intentionally hidden the cause of dispossession or unless the gift has been made for valuable consideration. In the first case, the judge will award the donee equitable compensation for the prejudice that he has suffered. In the second case, the donor is only bound up to the value of the consideration paid by the donee.
In a case of dispossession, the donee is subrogated into the rights and actions of the donor.
Article 495
A donor does not warrant that the thing given is free of defects.
If, however, the donor has intentionally hidden a defect or if he has warranted that the thing donated is free of defects, he will be liable to compensate the donee for loss caused by this defect. He will also be bound to pay compensation if the gift is made for valuable consideration, provided that the amount of compensation does not exceed the value of the consideration given by the donee.
Article 496
A donor is only liable for his intentional acts or for his gross negligence.
Article 497
A donee is bound to perform the consideration imposed upon him, whether such consideration is in favor of the donor, a third party or in the public interest.
Article 498
If it appears that the value of the gift is less than that of the consideration imposed, the donee shall only be liable to perform the consideration to the extent of the value of the thing donated.
Article 499
If the donor stipulates that the donee shall, in consideration of the gift, discharge his debts, the donee shall only be liable, unless otherwise agreed, to discharge debts existing at the time of the gift.
If the thing donated is burdened with a real right securing a debt due by the donor or by a third party, the donee shall be liable, unless otherwise agreed, to pay this debt.
3. Revocation of Gifts
Article 500
A donor may revoke a gift if the donee consents to his so doing.
If the donee does not consent to the revocation, the donor may apply to the court for authority to revoke the gift whenever he has reasonable grounds in support and when there is no obstacle to the revocation.
Article 501
There are, in particular, reasonable grounds for the revocation of a gift:
a) if the donee has failed in his duties towards the donor or one of his relatives, and such failure constitutes serious ingratitude on his part;
b) if the donor has become unable to maintain himself in accordance with his social position or to meet an obligation to pay alimony which he is legally bound to pay to another person;
c) in the event of a child being born to the donor after the donation, and still being alive at the time of revocation, or if the donor had a child which he believed dead at the time of the donation, which child is discovered to be still alive.
Article 502
An application for the revocation of a gift shall be rejected if one of the following obstacles exists:
a) if there is an inherent increase of the thing given, involving an increase in value thereof; but if this obstacle disappears, the right of revocation is renewed;
b) if one of the parties to the gift dies;
c) if the donee has definitely alienated the thing given; if, however, such alienation is only partial, the donor may revoke the gift as to the part remaining;
d) if the gift is made by one spouse to another, even if the donor wishes to revoke the gift after the dissolution of the marriage;
e) if the gift is made for the benefit of a relative with whom marriage is prohibited;
f) if the thing given has perished while in possession of the donee, whether by the act of the donee, by a cause beyond his control not attributable to him, or by use; if, however, the loss is partial, the revocation may be for the part remaining;
g) if the donee has supplied valuable consideration for the gift;
h) if the gift constitutes alms or an act of charity.
Article 503
A gift revoked by mutual consent or by a judgment is deemed to be null and void.
The donee is only liable for the restitution of the fruits as from the date of agreement of revocation or from the date of commencement of legal proceedings. He has the right to claim repayment of all necessary expenses that he has incurred and also of sums usefully spent by him but only up to the amount of any increase in value of the thing donated.
Article 504
If, without consent of the donee or without a decision of the court, the donor takes back the thing given, he is responsible to the donee for the loss of the thing donated whether such loss occurs from his act, from a cause beyond his control which is not attributable to him or as a result of the use of the thing.
If the revocation of the gift is pronounced by a judgment and the thing donated perishes while in the possession of the donee, after he has been formally summoned to hand back the thing, the donee is responsible for loss even if it resulted from a cause beyond his control.
Partnership is a contract by which two or more persons undertake to contribute jointly in an undertaking of a pecuniary nature by the provision of contributions of property or services, with the object of sharing in the profits or the losses of the undertaking.
Article 506
A partnership is deemed, by the fact of its constitution, to be a juristic person; such juristic personality is however acquired, as regards third parties, only upon completion of the formalities of publication required by law.
Third parties may, however, if the partnership has not completed the prescribed formalities of publication, avail themselves of the juristic personality of the partnership.
Elements of the Contract of Partnership
Article 507
A partnership deed must be in writing under pain of nullity. All modifications to the partnership deed are also void if they are not executed in the same form as the deed.
Such nullity cannot, however, be pleaded by the partners against third parties and has no effect on the relationship of the partners between themselves until a demand for such nullity has been made in court by one of the partners.
Article 508
In the absence of agreement or custom to the contrary, the contributions of the partners are presumed to be equal and to consist of the ownership of the property brought in and not merely of its enjoyment.
Article 509
The influence or the credit of a partner cannot alone constitute his contribution.
Article 510
A partner who has undertaken to contribute a sum of money and who does not pay this sum into the partnership is liable, without recourse to legal proceedings or to any formal demand, to payment of interest from the date that his contribution fell due, apart from payment, in addition, of compensation for any loss, if such compensation is due.
Article 511
If the contribution of a partner consists of a right of ownership, of an usufruct, or of any other real right, the provisions as to sale shall apply as regards warranties against loss, dispossession, hidden defects or deficiencies.
If, however, the contribution consists merely of the use of the property, the provisions as to lease apply as regards the above warranties.
Article 512
If the contribution of a partner consists of his services, he shall carry out the services he has undertaken to perform and render an account of the profits realized from the date of the formation of the partnership as a result of the services he has undertaken as his contribution.
In the absence of an agreement to the contrary, he is not bound, however, to contribute to the partnership patents which he has obtained.
Article 513
If the contribution of a partner consists of debts due by third parties, his obligation to the partnership is only extinguished by the recovery of these debts. He is also liable for damages if the debts are not paid when they fall due.
Article 514
If the share of each of the partners in the profits and the losses of the partnership is not fixed in the deed of partnership, their respective shares shall be proportional to their respective contributions in the capital of the partnership.
If the deed of partnership only fixes the share of each partner in the profits, the same proportion shall apply as regards the losses, and reciprocally if only the share in the losses is fixed in the partnership deed.
If the contribution of one of the partners consists only of his services, his share in the profits and the losses is estimated in accordance with the profits that the partnership realizes as a result of his services. If, in addition to his services, a partner has made a contribution in money or in kind, he will be entitled to a share in respect of his services and another share in respect of the contribution he has made in addition to his services.
Article 515
If it is agreed that one of the partners shall not participate in the profits or losses of the partnership, the partnership deed is void.
A partner who only contributes his services may be relieved by agreement from participation in the losses of the partnership, provided that no remuneration is allowed to him in respect of his services.
2. The Management of Partnership
Article 516
A partner entrusted with the management of the partnership by a special clause in the partnership deed is entitled, notwithstanding objections by the other partners, to perform acts of management and acts of disposition coming within the objects of the partnership, provided that these administrative acts and acts of disposition are not tainted with fraud. Such partner cannot, without legitimate reason, be discharged from his post as managing partner so long as the partnership exists.
If the appointment of a managing partner is made subsequent to the partnership deed, such an appointment may be revoked in the same manner as an ordinary mandate.
Managers who are not partners may be discharged at any time.
Article 517
When several partners are entrusted with the management of the partnership without their respective attributions being defined and it is not provided that anyone of them cannot act alone, each partner may separately perform any act of management, subject to the right which each of the other managing partners has to object to such an act before it has been completed, and to the right of the majority of the managing partners to override such an objection; in the case of equal voting by the managing partners, the rights to override the objection belongs to the majority of all the partners.
If it is provided that decisions of managing partners shall be taken unanimously or by a majority, such a provision cannot be departed from, except in the case of an urgent matter in which failure to take action would involve the partnership in serious and irreparable loss.
Article 518
When a decision must be taken by the majority, it will, in the absence of an agreement to the contrary, be decided by the numerical majority.
Article 519
Partners who are not managing partners are excluded from the management. They are entitled, however, personally to examine the books and documents of the partnership. Any agreement to the contrary is void.
Article 520
In the absence of any special provisions as to the form of management, each partner is deemed to have been authorized by the other partners to manage the partnership, and may carry out the management without consulting the other partners, subject to the right of such other partners or of anyone of them to object to any act of management before it has been finally completed and to the right of the majority of the partners to override such objection.
3. The Effects of Partnership
Article 521
Each partner shall abstain from any activity prejudicial to the interests of the partnership or contrary to the object for which the partnership was formed.
He shall watch over the interests of the partnership as if they were his own, unless he has been appointed a manager on remuneration, in which case he shall not exercise less care than would a prudent man.
Article 522
A partner who takes or retains a sum of money belonging to the partnership will, without any legal summons or formal demand, be liable for interest on the sum from the day he took it or retained it, and will also be liable for the payment of damages should loss arise thereby.
A partner who advances money to the partnership from his private funds or incurs in good faith without imprudence trifling expenses for the benefit and on behalf of the partnership, is entitled to interest thereon from the partnership from the date of payment thereof.
Article 523
If the assets of the partnership does not cover its debts, the partners shall, in the absence of an agreement providing for another division, be liable for these debts from their own property, each in proportion to his share in the losses of the partnership. Any agreement relieving a partner from liability in respect of the partnership's debts is void.
The creditors of the partnership have in all cases a claim against each of the partners to the extent of his share in the profits of the partnership.
Article 524
In the absence of an agreement to the contrary, the partners are not jointly and severally liable as regards their respective shares in the debts of the partnership.
If, however, one of the partners becomes insolvent, his share in the debts of the partnership is apportioned among all the others in proportion to their respective shares in the losses.
Article 525
Personal creditors of a partner cannot, during the continuance of a partnership, obtain payment of their claims out of such partner's share in the capital but only out of his share in the profits. Such creditors may, upon liquidation of the partnership, enforce their rights on their debtor's share in the partnership assets after payment of the partnership debts, and may, before the liquidation of the partnership, make a protective attachment (saisic conservatoire) on his share.
4. Ways in Which a Partnership Comes to an End
Article 526
A partnership comes to an end upon the expiration of its term or by the achievement of the object for which it was formed.
If, notwithstanding the expiration of the term or the achievement of the object for which the partnership was formed, the partners continue to carry on work of the same nature as that for which the partnership was formed, the partnership deed is extended from year to year on the same conditions.
A creditor of a partner may oppose this extension. His opposition will suspend the effect of the extension of the partnership so far as such creditor is concerned.
Article 527
A partnership comes to an end upon the total loss of its capital or upon its partial loss to such an extent as to render the continuation of the partnership useless.
If one of the partners has undertaken to contribute by way of a definite and specific thing which perishes before it is brought into the partnership, the partnership is dissolved as regards all partners.
Article 528
A partnership is terminated by the death, interdiction, insolvency or bankruptcy of one of the partners.
It may be agreed, however, that in the event of the death of one partner, the partnership will continue with his heirs, even if they are minors.
It may also be agreed that, in case of death, interdiction, insolvency, bankruptcy or retirement of one of the partners in accordance with the provisions of the following article, the partnership will continue between the other partners.
In such a case, such partner or his heirs will only be entitled to his share in the assets of the partnership. This share will be estimated in accordance with its value at the date of the event, which resulted in the partner ceasing to be a partner, and must be paid in money. Such partner will share in subsequent rights only to the extent that such rights arise from operations prior to the event which resulted in his ceasing to be a partner.
Article 529
A partnership comes to an end by the retirement of one of the partners when its duration has not been fixed, provided that such partner gives previous notice to his other co-partners of his intention to retire and that his retirement is free of fraudulent intent and not at an unsuitable time.
It comes to an end also by the unanimous agreement of the partners.
Article 530
The court may, on the demand of any one of the partners, order the dissolution of a partnership for non-performance by a partner of his obligations, or for any other reason not attributable to the partners; the judge will decide whether such reason is sufficiently serious to justify dissolution.
Any agreement to the contrary is void.
Article 531
A partner may apply to the court for the exclusion of any one for the partners whose presence in the partnership has given rise to objections to the extension of the duration of the partnership, or whose actions might be held to provide good grounds for the dissolution of the partnership, while the partnership continues between the other partners.
A partner may also, if the duration of the partnership is fixed, apply to the court to authorize his retirement from the partnership if he gives adequate reasons for his application. In such case, unless the other partners agree to continue the partnership, it will be dissolved.
5. Liquidation and Partition of the Partnership Property
Article 532
The liquidation and the partition of the partnership property is carried out in the manner laid down by the partnership deed. When the partnership deed is silent, the following provisions will be applied.
Article 533
The powers of the managers shall cease upon the dissolution of the partnership, but the juristic personality of the partnership shall continue, in so far as is necessary, for and up to the end of the liquidation.
Article 534
The liquidation will be carried out either by all the partners or by one or more liquidators appointed by the majority of the partners, as the case may be.
If the partners do not agree on the appointment of a liquidator, such liquidator will, upon the application of one of the partners, be appointed by the judge.
In case of nullity of partnership, the court will appoint a liquidator and will decide upon the method of liquidation upon the application of any interested party.
Until a liquidator is appointed, the managing partners shall be deemed, as far as third parties are concerned, to be the liquidators.
Article 535
A liquidator may not undertake new business on behalf of the partnership, unless it is necessary for the purpose of terminating the old business.
He may sell movables and immovables belonging to the partnership by auction or by private treaty, unless his powers in this respect have been restricted by the instrument by which he was appointed.
Article 536
The partnership assets are divided between all the partners after payment of the creditors, deduction of amounts required to cover debts that have not fallen due or are subject to litigation and repayment of disbursements or loans that may have been made by one of the partners for the benefit of the partnership.
Each partner shall take a sum equal to the value of his contribution to the capital of the partnership, as recorded in the partnership deed, or, if not recorded in the partnership deed, at its value at the time the contribution was brought to the partnership, unless he has only contributed his services, the usufruct or the mere use of the thing that he has brought to the partnership.
The balance, if any, will be distributed between the partners proportionally to each partner's share in the profits.
If the partnership assets are not sufficient to cover the repayment of the partners' contributions, the loss is shared between the partners proportionately to each partner's share in the losses.
Article 537
The rules laid down with reference to the partition of property held in common, apply to partitions between partners
A loan for consumption is a contract by which the lender undertakes to transfer to the borrower the ownership of a sum of money or other fungible upon condition that the borrower returns, at the end of the loan, a thing equal in amount, kind and quality.
Article 539
The lender must deliver to the borrower the thing which is the object of the contract and cannot claim the return of its equivalent until the end of the loan.
If the thing perishes before its delivery to the borrower, the loss falls on the lender.
Article 540
In the event of dispossession, the provisions relating to sale will apply if the loan is made for valuable consideration; otherwise the provisions relating to loan for use will apply.
Article 541
When the loan is made without valuable consideration, and hidden defects appear in the thing, the borrower, if he prefers to retain the thing, will only be liable to refund the value of the defective thing.
When the loan is made for valuable consideration, or when it is made without valuable consideration but the lender has deliberately hidden the defects, the borrower may demand either that the defect be made good or that the defective thing be replaced by a thing without defects.
Article 542
The borrower is under liability to pay the agreed interest as it falls due; in the absence of an agreement as regards interest, the loan is deemed to be without consideration.
Article 543
A loan comes to an end upon the expiration of the term agreed upon.
Article 544
If interest is agreed, the debtor may, after six months from the date of the loan, give notice of his intention to terminate the contract and to restitute the thing taken on loan, provided that the restitution takes place within a term not exceeding six months of the date of the notice. In such a case the debtor shall be liable to pay the interest due for the six months following the notice. He will not, in any case, be bound to pay interest or to perform a prestation of any kind by reason of the fact that payment is made before due date. The right of the borrower to effect restitution cannot be forfeited or limited by agreement.
2. Annuities
Article 545
An undertaking may be given to supply in perpetuity a person and after him his successors with a periodical prestation consisting of a sum of money or a fixed quantity of other fungibles. This obligation may be assumed by contract for or without valuable consideration, or by will.
When the prestation is made by contract for valuable consideration, it is subject, as regards the rate of interest, to the rules governing loans on interest.
Article 546
An annuity is essentially redeemable at any time at the will of the debtor. Any agreement to the contrary is void.
It may be agreed, however, that the redemption shall not take place during the lifetime of the annuitant or before a certain length of time which shall never exceed fifteen years.
The right of redemption cannot in any case be exercised until notice thereof has been given and then after one year from the date of the notice.
Article 547
The debtor may be forced to redeem in the following events:
a) if, in spite of a formal summons, he does not pay the annuity for two consecutive years;
b) if he fails to supply the creditor with the securities that he has promised or if such securities disappear and he does not provide other securities in their place;
c) if he becomes bankrupt or insolvent.
Article 548
If the annuity is purchased by payment of a sum of money, the redemption is made by the repayment of the amount in full or such lesser amount as may be agreed upon.
In other cases, redemption is exercised by the payment of a sum of money, on which the interest calculated at the legal rate corresponds to the amount of the annuity.
Section VI Compromise
1. The Elements of Compromise
Article 549
Compromise is a contract by which two parties put an end to a dispute that has arisen, or prevent a dispute that is expected to arise, by the mutual surrender of part of their respective claims.
Article 550
In order to effect a compromise, the parties must have legal capacity to dispose for valuable consideration of the rights which are the objects of the compromise.
Article 551
A compromise cannot be made on any question touching the status of individuals or public policy, but a compromise may be made with regard to proprietary interests arising out of the status of individuals or out of a penal offence.
Article 552
A compromise can only be established by a written document or by an official procès-verbal.
2. The Effects of Compromise
Article 553
Compromise terminates the disputes in respect of which the compromise is made.
It extinguishes the rights and claims which either of the parties have finally renounced.
Article 554
Compromise has a declaratory effect as regards the rights in respect of which the compromise is made. This declaratory effect is limited specifically to litigious rights.
Article 555
The wording of the renunciation contained in the compromise must be strictly interpreted. The renunciation, no matter how worded, applies to those rights only which form the precise object of the dispute settled by the compromise.
3. Nullity of Compromise
Article 556
A compromise cannot be impugned on the ground of a mistake in law.
Article 557
A compromise is indivisible. The nullity of one part of a compromise involves the nullity of the whole contract.
This rule does not apply, however, when it follows, from the wording of the contract or from the circumstances, that the parties agreed that the various parts of the compromise are independent the one of the other
Book II Chapter II Contracts Relating to the Use of a Thing
Section I Leases
1. Leases Generally
Elements of a Lease
Article 558
A lease is a contract by which the lessor undertakes to enable the lessee to enjoy a specific thing for a certain time in return for a fixed rent.
Article 559
In the absence of a provision of the law to the contrary, a person who has only a right of management cannot, without the consent of the competent authority, enter into a lease for a term exceeding three years. If the lease is granted for a longer term, it will be reduced to three years.
Article 560
A lease granted by a usufructuary, unless ratified by the bare owner, ends when the usufruct is extinguished, subject to the delay provided for giving notice of evacuation and the time required to gather in the annual crop.
Article 561
Rent may consist either of money or of any other prestation.
Article 562
If the parties have not agreed the amount of the rent or the manner in which the rent shall be fixed, or if the amount of the rent cannot be established, it must be based on the current rent for other similar properties.
Article 563
If a lease is concluded without any agreement as to term, or for an undetermined period, or if the term cannot be established, it is deemed to have been made for the term fixed for payment of the rent. It expires at the end of the term in question, at the request of one of the parties, subject to notice being given by him to the other party as follows:
a) in the case of agricultural and uncultivated land, if rent is payable six monthly or if the term for payment is more than six months, notice must be given three months before the end of the term; if the term is less than six months notice must be given before the last half term, subject always to the right of the lessee to the crops in accordance with custom;
b) in the case of houses, shops, offices, and business premises, industrial establishments, warehouses and other similar premises, if the rent is payable every four months or at longer intervals, notice must be given two months before the end of the term; if the term is less, notice must be given before the last half term;
c) in the case of apartments, furnished rooms and all kinds of premises not mentioned above, if the rent is payable every two months, or at longer intervals, the notice must be given one month before the end of the term; if the term is less than two months the notice must be given before the last half term.
Effects of a Lease
Article 564
The lessor is bound to deliver to the lessee the leased property and its accessories in a condition suitable for the purpose for which it is intended, in accordance with the agreement between parties or with the nature of the property.
Article 565
If the leased property is delivered to the lessee in such a condition that it is unfit for the use for which it is leased, or if its usefulness is appreciably diminished, the lessee may demand either the resiliation of the lease or a reduction of the rent equivalent to the loss of use; in both cases he is entitled to claim compensation, if compensation is due.
If the leased property is in such a condition that it constitutes a serious danger to the health of the lessee, or those who live with him, or his employees or workmen, the lessee may demand resiliation of the lease, even if he has renounced the right to do so beforehand.
Article 566
The rules laid down as regards the obligation of delivery of the thing sold, especially as to time and place of delivery, as to extent, weight or measure, and as to determining its accessories, are applicable to the obligation of delivery of the leased property.
Article 567
The lessor is bound to maintain the leased property in the state in which it was at the time of delivery. He must make, during the continuance of the lease, all repairs which may become necessary, except lessee's repairs.
The lessor is also bound to do such plastering and white-washing of the roofs as may be necessary, and to clear wells, cesspools and drains.
The lessor is responsible for charges and taxes due on the leased property. The lessor is also responsible for the cost of water, if it is supplied for a lump sum, but the lessee is responsible if it is supplied by meter. The costs of electricity, gas and of other requirements for personal use are payable by the lessee.
The above rules only apply in the absence of agreement to the contrary.
Article 568
If a lessor having been summoned, delays the performance of the obligations mentioned in the preceding article, the lessee may, without prejudice to his right to claim resiliation of the lease or a reduction of rent, obtain authority of the court to perform them himself and deduct the cost from the rent.
In the case of immediate repairs or minor repairs for which the lessor is responsible, whether resulting from a defect existing at the time the premises were taken over by the lessee or happening subsequently, the lessee may, without the authority of the court, carry them out and deduct the cost thereof from the rent, if the lessor, having been summoned to do so, does not carry them out in a reasonable time.
Article 569
If, during the course of the lease, the leased property is totally destroyed, the lease is, ipso facto, determined.
If, as a result of a cause not imputable to the lessee, the leased property is only partially destroyed or deteriorates to such an extent that it becomes unfit for the use for which it was leased, or if such a use is appreciably diminished, the lessee may, if the lessor does not restore the leased property to its original condition within a reasonable time, i.e., a delay which does not affect the business or activity of the lessee, claim, according to the circumstances, either a reduction of the rent or the resiliation of the lease, without prejudice to his right to perform himself the obligations of the lessor in accordance with the provisions of the preceding article.
In the two preceding cases, the lessee cannot claim compensation if the loss or deterioration arises from a cause not imputable to the lessor.
Article 570
The lessee must not prevent the lessor from making immediate repairs required for the preservation of the leased property, but if such repairs cause a complete or partial loss of enjoyment, the lessee may claim, according to the circumstances, resiliation of the lease or a reduction of the rent.
If, however, the lessee continues to occupy the premises until the repairs are completed, he will forfeit his rights to claim resiliation of the lease.
Article 571
The lessor shall abstain from doing anything which may disturb the lessee in his enjoyment of the leased property, and shall not make any alterations to the property or to its accessories that diminish such enjoyment.
The lessor not only warrants the lessee against his own acts and against those of his servants, but also against any disturbance or damage based on a lawful claim by any other lessee or by any successor in title of the lessor.
Article 572
If a third party claims to have rights incompatible with those derived by the lessee from the agreement of lease, the lessee shall forthwith give notice to the lessor of such a claim and shall be entitled to demand that he be dismissed from the case. In which event proceedings will be taken solely against the lessor.
If, as a result of such a claim, the lessee is effectively deprived of the enjoyment to which he is entitled in accordance with the agreement of lease, he may, in accordance with the circumstances, claim resiliation of the lease or a reduction of rent together with payment of damages, if damages are due.
Article 573
When there are several lessees of the same property, the lessee who, without fraud, first entered into possession will have preference. If a lessee of an immovable property has, in good faith, effected transcription of his lease, before another lessee has entered into possession or before the renewal of his lease, such lessee will have preference.
In the absence of reasons giving preference to one lessee, the only recourse of a lessee in respect of any right not enjoyed by him is a claim for damages.
Article 574
If, as a result of an act lawfully done by a Government authority, the enjoyment of the property leased is appreciably diminished, the lessee may, in accordance with the circumstances, and unless otherwise agreed between the parties, claim resiliation of the lease or a reduction of rent. If the grounds for the act of such Government authority are the result of an act imputable to the lessor, the lessee may claim payment of damages.
Article 575
A lessor does not warrant the lessee against trespass by a third party who does not claim a right over the leased property; this shall not, however, affect the right of the lessee to take action in his name against such third party for damages and to take all other possessory actions.
If, however, the trespass is not in any way imputable to the lessee and is sufficiently serious to deprive him of the enjoyment of the leased property, the lessee may, in accordance with the circumstances, claim resiliation of the lease or a reduction of rent.
Article 576
Subject to any agreement to the contrary, the lessor warrants the lessee against all defects which prevent or appreciably diminish the enjoyment of the property, but not against those defects that are customarily tolerated, and is responsible for the lack of qualities which he specifically warranted to exist or which are essential to the intended use of the property.
The lessor, however, does not warrant the lessee against defects of which the lessee was informed or of which he was aware at the time of the conclusion of the contract.
Article 577
If the leased property is found to have a defect against which the lessee has been warranted by the lessor, the lessee may, in accordance with the circumstances, claim resiliation of the lease or reduction of the rent. The lessee may also call upon the lessor to make good the defect or do so himself at the cost of the lessor, if the cost thereof is not an excessive burden on the lessor.
If the defect causes any damage to the lessee, the lessor shall be liable to pay compensation, unless the lessor can establish that he was not aware of the defect.
Article 578
Any agreement excluding or limiting the warranty against disturbance or defects is void if the lessor has fraudulently hidden the cause of such warranty.
Article 579
The lessee must use the leased property in the manner agreed. In the absence of any agreement, he must use the property in accordance with the purpose for which it is destined.
Article 580
The lessee may not, without the permission of the lessor, make any alteration to the leased property unless no damage is thereby occasioned to the lessor.
If the lessee makes alterations to the leased property in excess of the limits prescribed in the preceding paragraph, he may be compelled to reinstate the property in its original condition and to pay compensation if compensation is due.
Article 581
The lessee may install in the leased property, unless the lessor can show that the installations endanger the safety of the building, water, electric light, gas, telephone, wireless and other like installations, provided that the manner in which such installations are made is not contrary to general practice.
If the intervention of the lessor is necessary for the completion of any of these installations, the lessee may call upon the lessor to intervene, on condition that he undertakes to pay the expenses incurred by the lessor in this connection.
Article 582
In the absence of an agreement to the contrary, the lessee is bound to carry out lessee's repairs in accordance with general usage.
Article 583
The lessee shall use and preserve the leased property with the care of a reasonable person.
The lessee is responsible for any deterioration of or loss to the leased property during his enjoyment thereof which are not the result of normal use.
Article 584
The lessee is responsible for damage to the leased property by fire, unless he can establish that the cause thereof was not imputable to him.
When the building is occupied by several lessees, all such lessees, including the landlord if he lives on the premises, are responsible for the fire, each in proportion to the part he occupies, unless it is proved that the fire started in the part occupied by one of them, in which case that one alone will be responsible.
Article 585
The lessee must forthwith notify the lessor of all matters that require his intervention, such as urgent repairs, the discovery of defects, encroachments and disturbances or damage by third parties to the leased property.
Article 586
The lessee must pay the rent at the agreed times and, in the absence of agreement, at times established by the custom of the place where the property is situated.
In the absence of agreement or local custom to the contrary, the rent will be paid at the domicile of the lessee.
Article 587
The payment of a term's rent establishes in favor of the payee a presumption, subject to proof to the contrary, that former terms have been paid.
Article 588
Unless the rent is paid in advance or unless the lessee provides other guarantees, the lessee of a house, warehouse, shop or similar establishment or of agricultural land, is bound, in the absence of an agreement to the contrary, to stock the leased property with furniture, goods, crops, cattle, or implements of sufficient value to secure the rent for two years or for the period of the lease if less than two years.
Article 589
The lessor has, as warranty for all amounts due to him under the agreement of lease; a lien on all the attachable movables stocking the leased property, while they are subject to the lessor's right of privilege, even when they do not belong to the lessee. The lessor has the right to object to their removal and if, they are removed notwithstanding his objections or without his knowledge, to claim their recovery from their possessor even in good faith, subject always to the rights of such possessor thereon. The lessor cannot exercise his rights of retention or of recovery when the movables have been removed to meet the professional requirements of the lessee or in accordance with customary requirements of daily life, or if the movables remaining on the leased property or already recovered are fully sufficient to cover the rent.
Article 590
The lessee is bound, upon the expiration of the lease, to restitute the leased property. If he retains it unlawfully, he must pay compensation to the lessor on the basis of the rental value of the property and of the loss suffered by the lessor.
Article 591
The lessee is bound to restitute the leased property in the condition in which it was at the time he took delivery thereof, subject to loss or deterioration due to a cause not imputable to him. If no procès-verbal or inventory setting out particulars of the property was drawn up at the time of delivery, the lessee is presumed, subject to proof to the contrary, to have received the property in good condition.
Article 592
If the lessee has erected buildings, planted trees or made other improvements which have increased the value of the property, the lessor is, subject to an agreement to the contrary, bound at the end of the lease to repay him the expenses incurred by him or the increase in value of the property.
If such improvements were made without the knowledge of the lessor or notwithstanding his objections, the lessor may claim their removal and may in addition call on the lessee to pay compensation, if compensation is due, for any damage to property resulting from such removal.
If the lessor prefers to keep these improvements and pay one of the two amounts indicated above, the court may give him time for settlement.
Assignment of Lease and Sub-lease
Article 593
The lessee may, in the absence of an agreement to the contrary, assign his lease or sublet the whole or any part of the leased property.
Article 594
A prohibition of sub-letting implies a prohibition of assignment and vice versa.
When, in the case of a lease of an immovable property in which an industrial or commercial establishment has been created, circumstances have compelled the lessee to sell such industrial or commercial establishment, the court may, notwithstanding the condition prohibiting sub-letting, decide to maintain the lease in force if the purchaser furnishes adequate security and the lessor suffers no real prejudice thereby.
Article 595
When a lease is assigned, the principal lessee remains guarantor for the performance of the assignee's obligations.
Article 596
A sub-lessee is answerable directly to the lessor for the amounts that he, the sub-lessee, owes to the lessee as from the time a summons is served on him by the lessor.
A sub-lease cannot set up against the lessor payments made by him in advance to the principal lessee, unless they were made before the summons, in accordance with custom or a formal agreement concluded at the time of the sub-lease.
Article 597
A lessee ceases to be answerable to the lessor, either as guarantor of the assignee in case of the assignment of the contract of lease, or as regards his obligations arising from the principal contract of lease in the case of a sub-lease:
i) if the lessor has formally agreed to the assignment of lease or to the sub-lease;
ii) if the lessor has received, without reserving his rights as against the lessee, the rent directly from such assignee or sub-lessee.
The End of a Contract of Lease
Article 598
A lease ends at the expiration of the agreed term without it being necessary to give notice of evacuation.
Article 599
If, after the lease has expired, the lessee continues to enjoy the leased property to the knowledge of and without objection on the part of the lessor, the lease is deemed to be renewed upon the same conditions but for an indefinite duration. The lease so renewed is governed by the provisions of Article 563.
This tacit renewal is deemed to be a new lease and not a mere prolongation of the original lease. Nevertheless, subject to the rules of publication applicable to real property, the real securities supplied by the lessee in guarantee of the old lease are transferred to the new lease. The suretyship, whether personal or real, is not transferred to the new lease unless the surety consents thereto.
Article 600
When notice of evacuation has been given by one party to the other and the lessee, notwithstanding the notice, continues to enjoy the property after the expiration of the lease, the lease will not, subject to proof to the contrary, be deemed to have been renewed.
Death or Insolvency of the Lessee
Article 601
A contract of lease is not terminated either by the death of the lessor or of the lessee.
In the event of the death of the lessee, however, his heirs may claim the termination of the lease if they establish that, as a result of the death of the person whose estate they inherited, the burden of the lease has become too heavy for their resources or that the lease exceeds their needs. In such an event, the periods of notice of termination laid down in Article 563 shall be observed and the claim for termination of the lease made within six months at the most from the date of the death of the lessee.
Article 602
If the lease has been granted to the lessee solely on account of his calling or of other considerations relating to his person, his heirs or the lessor may, on his death, claim termination of the lease.
Article 603
The insolvency of the lessee does not render immediately payable rents that have not become due.
The lessor, however, may claim resiliation of the lease, unless he is provided within a reasonable time with securities guaranteeing the payment of rent not due. The lessee may also, if he is not given authority to assign the lease or to sub-let the property, claim the resiliation of the lease on payment of equitable compensation.
Article 604
In the case of a voluntary or forced transfer of the ownership of the leased property to a third party, the new owner is only bound by the lease if it has been given an established date prior to the act entailing the transfer of ownership.
The new owner may, however, avail himself of the contract of lease, even if he is not bound by such contract.
Article 605
A person acquiring the leased property, who is not bound by the lease, can only evict the lessee by giving him notice as provided for in Article 563.
In the absence of a provision to the contrary, the lessor must, if notice of eviction is given before the end of the lease, compensate the lessee. The lessee cannot be evicted before he receives compensation either from the lessor or from the new owner paying on behalf of the lessor, or until he has obtained an adequate security for the payment of such compensation.
Article 606
The lessee cannot set up rent paid in advance against a new owner, if the new owner proves that at the time of payment the lessee knew or should necessarily have known of the transfer of ownership. Failing proof thereof, the new owner has only a remedy against the lessor.
Article 607
When it has been agreed that the lessor may terminate the contract if he becomes personally in need of the property, he shall, if he exercises his right, be bound, unless otherwise agreed, to give the lessee notice of termination in accordance with the delays provided for in Article 563.
Article 608
When a lease is made for a fixed period, either of the contracting parties may, if serious and unforeseen circumstances arise of such a nature as to render, from the commencement of or during the lease, the performance too burdensome, demand the termination of the lease before its expiration, provided he gives notice in accordance with the delays provided for in Article 563 and pays equitable compensation to the other party.
If it is the lessor who demands termination of the lease, the lessee will not be compelled to hand back the leased property before he has been compensated or obtained adequate guarantee.
Article 609
An official or an employee whose duties oblige him to change his place of residence may claim termination of the lease of his dwelling house, when his lease is made for a fixed period, provided that he gives notice of such termination in accordance with the delays provided for in Article 563. Any agreement to the contrary is void.
2. Certain Kinds of Leases
Leases of Agricultural Land
Article 610
If the leased property is agricultural land, the lessor is not bound to hand over to the lessee cattle and agricultural implements existing on the land unless they are included in the lease.
Article 611
When cattle and agricultural implements belonging to the lessor are handed over to the lessee, the lessee is under the obligation to take proper care of them and to maintain them in the manner required for their customary use.
Article 612
When a lease of agricultural land provides that the lease is made for one or several years, it is deemed to be for one or several completed annual rotation of crops.
Article 613
A lease of agricultural land must work the land in accordance with the requirements of normal agricultural use. He must, more particularly, maintain the land in a good state of production.
He must not, without the consent of the lessor, make any substantial change in the established method of cultivating the land, the effects of which might extend beyond the period of the lease.
Article 614
Subject to an agreement or custom to the contrary, the lessee is bound to carry out repairs necessary for the normal enjoyment of the leased land. He is in particular responsible for the clearing and maintenance of canals, trenches, channels and drains. He is also responsible for the normal maintenance of roads, dikes, bridges, fencing, wells, dwelling houses and farm buildings.
The erection of buildings and major repairs to existing buildings and dependencies on the land are, subject to any agreement or custom to the contrary, the responsibility of the lessor. The same rule applies as regards repairs to wells, canals, water channels and reservoirs.
Article 615
If the lessee has, as a result of force majeure, been prevented from preparing or sowing the land, or if the whole or the greater part of the seed has been destroyed thereby, he is, subject to any agreement to the contrary and as the case may be, relieved from payment of the whole or part of the rent.
Article 616
If, after having sown, a lessee loses all his crop by force majeure before harvest time, he can demand remission of the rent.
If the crop is only partially destroyed, but a considerable decrease in yield results therefrom, the lessee may demand a reduction of the rent.
The lessee cannot demand a remission or a reduction of rent if he is compensated against his loss either by the profits he has derived during the whole period of the lease, by an amount received under an insurance policy or by any other means.
Article 617
If, at the end of a lease, the harvest has not ripened for reasons not imputable to the lessee, he may, upon payment of a proportional rent, remain on the leased land until the harvest ripens.
Article 618
An outgoing lessee shall do nothing of a nature to diminish or retard the enjoyment of the land by an incoming lessee. He is bound, in particular, just before vacating the land, to allow the incoming lessee to prepare the land and to sow, if he does not sustain any injury thereby.
Amodiation
Article 619
Agricultural land and land planted with trees may be granted in amodiation to a lessee in consideration of the lessor taking a fixed share in the crop.
Article 620
In the absence of agreement or custom to the contrary, the conditions governing leases apply to amodiation, subject to the following provisions.
Article 621
The amodiation is, when no term is fixed, deemed to have been granted for one yearly rotation of crops.
Article 622
The lease in case of amodiation includes agricultural implements and cattle belonging to the lessor which are on the land at the time of the agreement.
Article 623
The lessee must give to the cultivation and to the preservation of the crop the same care that he gives to his own affairs.
The lessee is responsible for deterioration to the land during his enjoyment, unless he proves that he looked after the preservation and maintenance of the land with the care of a reasonable person.
The lessee is not bound to replace cattle that die or agricultural implements worn out through no fault of his own.
Article 624
The produce is divided between the two parties in the proportion agreed upon or established by custom; in default of agreement or custom the produce is divided equally.
Loss by reason of force majeure of all or part of the produce is borne equally by the two parties and gives rise to no claim by either party against the other.
Article 625
In amodiation, the lessee cannot assign the lease or sub-let the land amodiated without the consent of the lessor.
Article 626
The amodiation does not determine on the death of the lessor, but determines on the death of the lessee.
Article 627
When the amodiation ceases before the end of its term, the lessor must reimburse the lessee or his heirs for any expenditure made in respect of crops which have not ripened, and pay equitable compensation for work that the lessee has done on the land.
If, however, the amodiation is dissolved by the death of the lessee, his heirs may, instead of claiming reimbursement of the expenses herein before referred to, take the place of their principal until the crops have ripened, provided they are in a position to continue the proper cultivation of the land.
Lease of Wakf Property
Article 628
A Nazir has the right to let wakf property.
A beneficiary, even if he is the sole beneficiary, cannot grant a lease unless the right to do so has been given to him by the constituent of the wakf or unless he is authorized to do so by a person who has power to grant a lease, whether he be the Nazir or the judge.
Article 629
The Nazir is the person entitled to receive the rent, and payment must not be made to the beneficiary without the consent of the Nazir.
Article 630
The Nazir is not entitled to take the wakf property or lease even at the current rent for similar properties.
The Nazir may lease wakf property to his ascendants and descendants, provided that the rent is the current rent for similar properties.
Article 631
A lease of wakf property is not valid if the rent is grossly inadequate, unless the lessor is the sole beneficiary with power to administer the wakf. In such a case, the lease notwithstanding the gross inadequacy of the rent, will bind the lessor, but will not bind beneficiaries who succeed him.
Article 632
In cases of lease of wakf property, the estimation of the current rent for similar properties will be made at the time of the conclusion of the contract of lease; any changes taking place after that date shall not be taken into account.
When a Nazir grants a lease of wakf property for a grossly inadequate rent, the lessee is bound, under penalty of resiliation of the contract, to make up the rent to the rent for similar properties.
Article 633
The Nazir cannot, without authority of the judge, lease wakf property for a period exceeding three years, even by successive contracts. Any lease entered into for a longer period shall be reduced to three years.
If, however, the Nazir is also either the founder or the sole beneficiary, he may, without it being necessary to obtain the authority of the judge, lease the wakf property for more than three years, subject to the right of the Nazir succeeding him to claim the reduction of the period to three years.
Article 634
The provisions relating to lease apply to the lease of wakf property, insofar as they are not incompatible with the preceding provisions.
A loan for use is a contract by which the lender undertakes to hand over to the borrower without valuable consideration, a non-consumable thing for his use during a specific time or for a specific purpose, which thing the borrower undertakes to restitute after having used it.
1. Obligations of the Lender
Article 636
The lender is bound to hand over to the borrower the thing lent in the condition in which it was at the time of the conclusion of the contract of loan for use, and to leave him in possession of the thing lent during the period of the contract.
Article 637
If, during the period of loan, the borrower is obliged to incur expenses necessary for the preservation of the thing, the lender must reimburse him his expenses.
In the case of moneys usefully spent, the provisions with regard to expenses incurred by a possessor in bad faith will be applicable.
Article 638
The lender does not warrant against the dispossession of the thing loaned unless there has been an agreement for such warranty or the lender has deliberately concealed the cause of dispossession.
Similarly, the lender does not warrant against hidden defects. If, however, he has deliberately concealed such defects, or has warranted that the thing is free from defects, he is bound to compensate the borrower for any loss the borrower has suffered as a result thereof.
2. Obligations of the Borrower
Article 639
The borrower may only use the thing lent in the manner and to the extent provided for in the contract, according to the nature of the thing, or in accordance with custom. He must not assign the use to a third party, even gratuitously, without the authority of the lender.
The borrower is not responsible for changes to or deterioration of the thing lent resulting from its use in accordance with the contract.
Article 640
When the use of the thing lent entails expenses by the borrower, he will not have the right to claim the refund thereof. He is bound to pay the necessary expenses for the normal maintenance of the thing.
The borrower may remove any additions that he has made to the thing lent, provided that he reinstates the thing in its original condition.
Article 641
The borrower is bound to take such care for the preservation of the thing as he would take for the preservation of his own property; provided that the care he takes is not less than that which a reasonable person would take.
The borrower is, in any event, responsible for the loss of the thing lent arising from a fortuitous event or force majeure if it was possible for him to avoid such loss by using his own property, or if he could only preserve his own property or the thing lent and he preferred to preserve his own property.
Article 642
The borrower must, at the end of the loan, restitute the thing received in its state at that time, without prejudice to his responsibility for loss or deterioration.
In the absence of an agreement to the contrary, the borrower must restitute the thing at the place that he received it.
3. Termination of the Loan for Use
Article 643
The loan for use comes to an end upon the expiration of the term agreed and, in default of such term being fixed, when the thing has served the purpose for which it was lent.
If there is no way by which the term of the loan for use can be fixed, the lender may demand its termination at any time.
The borrower may, in all cases, restitute the thing lent before the end of the loan. If, however, such restitution is prejudicial to the lender, he cannot be compelled to accept the thing.
Article 644
The lender may put an end to a loan for use at any time in the following cases:
a) if the lender has suddenly an urgent and unforeseen need of the thing;
b) if the borrower uses the thing improperly or neglects to take the necessary precautions for its preservation; and
c) if the borrower becomes insolvent after the conclusion of the loan or if his insolvency before the conclusion of the loan was not known to the lender.
Article 645
In the absence of an agreement to the contrary, a loan for use ends with the death of the borrower.
Book II Chapter III Contracts for the Hire of Services
Section I Contracts for Work and Concessions for Public Utility Services 1. Contracts for Work
Article 646
By a contract for work one of the contracting parties undertakes to do a piece of work or to perform a service in consideration of remuneration which the other contracting party undertakes to pay.
Obligations of the Contractor
Article 647
The contractor may undertake to supply his work only, the master of the work being responsible for the supply of materials which the contractor uses in or for the performance of his work.
The contractor may also undertake to supply the materials as well as his work.
Article 648
When the contractor undertakes to supply the whole or part of the materials to be used in the work, he is responsible for and warrants their good quality to the master.
Article 649
When the materials are supplied by the master, the contractor is bound to care for their preservation, to use them with technical skill, to account to the master for their use in the work and return to him any such materials that remain. If part of the materials becomes unfit for use owing to the contractor's neglect or lack of professional skill, the contractor is bound to refund to the master the value thereof.
In the absence of an agreement or trade custom to the contrary, the contractor shall provide, at his own expense, the tools and accessory appliances necessary for the performance of the work.
Article 650
If, in the course of execution, it is established that the contractor is performing the work in a manner that is defective or contrary to the agreement, the master may formally summon him to alter, within a reasonable period fixed by him, the manner in which he is performing the work. If after the expiration of such a period the contractor fails to adopt the proper manner of working, the master may either demand resiliation of the contract or the handing over of the works to another contractor at the cost of the first contractor, in accordance with the provisions of Article 209.
Immediate resiliation of the contract may, however, be demanded without it being necessary to grant any delay, when rectification of the defective manner of performance is impossible.
Article 651
The architect and contractor are jointly and severally responsible for a period of ten years for the total or partial demolition of constructions or other permanent works erected by them, even if such destruction is due to a defect in the ground itself, and even if the master authorized the erection of the defective construction, unless, in this case, the constructions were intended by the parties to last for less than ten years.
The warranty imposed by the preceding paragraph extends to defects in constructions and erections which endanger the solidity and security of the works.
The period of ten years runs from the date of delivery of the works.
This Article does not apply to the rights of action which a contractor may have against his sub-contractors.
Article 652
An architect who only undertakes to prepare the plans without being entrusted with the supervision of their execution, is responsible only for defects resulting from his plans.
Article 653
Any clause tending to exclude or restrict the warranty of the architect and the contractor is void.
Article 654
Actions on the warranties above referred to are prescribed after three years from the date of the destruction of the works or the discovery of the defect.
Obligations of the Master
Article 655
When the contractor completes the works and places them at the master's disposal, the master shall, as soon as possible, take delivery in accordance with prevailing custom. When the master, in spite of being formally summoned, fails, without reasonable cause, to take delivery of the works, the works will be deemed to have been delivered to him.
Article 656
In the absence of a custom or an agreement to the contrary the price is payable upon delivery of the works.
Article 657
When a contract is concluded in accordance with an estimate drawn up on a unit price basis and it becomes apparent, during the course of the work, that it will be necessary, in order to complete the works according to the agreed plan, considerably to exceed the estimated price, the contractor is bound to notify the master thereof forthwith and to inform him of the anticipated increase in price; if he fails to do so he forfeits his right to recover the expenses incurred in excess of the estimate.
When the estimated excess in the price for the execution of the plans is considerable, the master may rescind the contract and stop the work, provided that he does so without delay and pays the contractor for the cost of the work done by him, estimated in accordance with the terms of the contract, without being liable to compensate the contractor for the profit he would have realized if he had completed the works.
Article 658
When a contract is concluded on a lump sum basis according to a plan agreed with the master, the contractor has no claim to an increase of price, even if modifications and additions are made to the plan, unless such modifications or additions are due to the fault of the master, or have been authorized by the master and the price thereof agreed with the contractor.
Such agreement should be made in writing unless the principal contract was concluded verbally.
The contractor has no claim to an increase of price on the grounds of an increase in the price of raw materials, labor or any other item of expenditure, even if such increase is so great as to render the performance of the contract onerous.
When, however, as a result of exceptional events of a general character which could not be foreseen at the time the contract was concluded, the economic equilibrium between the respective obligations of the master and of the contractor breaks down, and the basis on which the financial estimates for the contract were computed has consequently disappeared, the judge may grant an increase of the price or order the resiliation of the contract.
Article 659
When the price has not been fixed in advance, it must be calculated according to the value of the work and the expenses of the contractor.
Article 660
An architect is entitled to a separate fee for the preparation of the plans and specifications and another for the supervision of the work.
If these fees are not specified in the contract, they shall be fixed according to prevailing custom.
If, however, the work is not completed in conformity with the plans prepared by the architect, the fee shall be assessed on the basis of the time taken in their preparation, taking into consideration the nature of the work.
Sub-contracts
Article 661
A contractor may entrust the execution of the whole or part of the work to a sub-contractor, unless he is precluded from so doing by a clause in the contract, or unless the nature of the work presupposes reliance on his personal skill.
In such a case the contractor remains responsible to the master for his sub-contractor.
Article 662
Sub-contractors and workmen working for a contractor in the execution of a contract have a direct right of action against the master but only to the extent of such sums as are due by the master to the main contractor on the date that action is commenced. Workmen of sub-contractors likewise have the same right of action against the main contractor and the master.
In the case of an attachment served by one of them upon the master or the main contractor, workmen have a right of privilege on the sums due to the main contractor or to the sub-contractor at the time of the attachment, in proportion to the amount due to each of them. These sums may be paid to them directly.
The rights of sub-contractors and workmen provided for in this Article have priority over those of a person to whom the contractor has assigned sums due to him by the master.
The End of a Contract for Work
Article 663
A master may terminate the contract and stop the work at any time before the completion of the works, provided that he compensates the contractor for all expenses he has incurred, for the work that he has done and the profit that he would have made if he had completed the work.
The court may, however, reduce the compensation due to the contractor for loss of profit if the circumstances justify such reduction. In particular, the court shall deduct from such compensation any saving realized by the contractor as a result of the rescission of the contract by the master and any profit which the contractor could have made by employing his time otherwise.
Article 664
A contract for work comes to an end if the performance of the work for which the contract was concluded becomes impossible.
Article 665
When works are destroyed by a fortuitous event, before delivery to the master, the contractor has no claim either for the price of his work, or for reimbursement of his expenses. The loss of materials falls on the party who supplied them.
When, however, the contractor fails to comply with a formal summons to deliver the works or when the works are destroyed or deteriorate before delivery by the fault of the contractor, he is under a liability to indemnify the master for the materials supplied to carry out the works.
When the master is formally summoned to take delivery of the works or when the works are destroyed or deteriorate by the fault of the master or by reason of a defect in the materials supplied by him, the master shall bear the loss resulting from the destruction of the materials and is liable to the contractor for his remuneration in addition to such compensation as may be due.
Article 666
A contract for work is dissolved by the death of the contractor if his personal skill was taken into account when the contract was concluded. If such personal skill was not taken into account, the contractor is not ipso facto dissolved and the master may not, except in cases in which Article 663 applies, resiliate the contract, unless the contractor's heirs do not offer sufficient guarantees for the due performance of the work.
Article 667
When the contract is dissolved by the death of the contractor, the master is bound to pay to the contractor's estate the value of the work already done and expenses incurred for the execution of the work which has not been completed, to the extent of the benefit that he derives from such work and expenses.
The master may, on the other hand, demand delivery, against payment of a fair price, of the materials prepared and plans whose execution has been commenced.
These provisions also apply when the contractor who has commenced the work becomes unable to complete it owing to a cause beyond his control.
2. Concessions of Public Utility Services
Article 668
A concession of a public utility service is a contract whose object is the management of a public utility service of an economic nature. Such a contract is concluded between the administrative authority in charge of the organization of such a service and a private person or company to whom the exploitation of the service is entrusted for a fixed period.
Article 669
The concessionaire of a public utility service undertakes, by the contract concluded between him and the consumer, to provide the latter in a normal manner with the services corresponding to the rates which he collects, in accordance with the conditions stipulated in the contract of concession and its annexes and also with the conditions which the nature of the work and the laws applicable thereto demand.
Article 670
When the concessionaire of the public utility service enjoys a de jure or de facto monopoly service, he is bound to observe strict equality between consumers both as regards the services rendered and the rates charged.
The principle of equality does not exclude special treatment involving the reduction or remittance of rates, provided such treatment is granted to all persons who apply therefor and who fulfill the general conditions laid down by the concessionaire. The principle of equality entails, however, the prohibition of the concessionaire from granting to some consumers advantages which he refuses to grant to others.
Any discrimination granted contrary to the provisions of the preceding paragraph renders the concessionaire liable to compensation for the loss which may be caused, as a result of such discrimination to third parties, by the disturbance of the natural balance of fair competition.
Article 671
The rates laid down by a public authority will have force of law with regard to contracts entered into between the concessionaire and consumers; the parties shall not have the right to depart therefrom by agreement.
The rates may be revised or modified. If the rates are modified and such modification is ratified, the new rate becomes applicable, but without retroactive effect, from the date fixed for its coming into force by the act of ratification. Any contracts running (abonnements) at the time of modification of the rates will be subject to the increase or reduction of charges for the period of the contract unexpired at the date of coming into force of the new rates.
Article 672
Any irregularity or mistake in the application of the rates to individual contracts is subject to rectification.
If the irregularity or mistake operates to the detriment of the consumer, he shall be entitled to recover the amount paid in excess of the authorized charge. If such an irregularity or mistake operates to the detriment of the concessionaire of the public utility service, he shall be entitled to collect an amount to make up the authorized charge. Any agreement to the contrary is void. The right of recovery in either case is barred by prescription after one year from the date when the collection of the incorrect charge took place.
Article 673
Consumers, in the case of concessions for the distribution of water, gas, electricity, power or other similar commodities, must support interruptions or irregularities for a short time to which installations of such services are normally subject, such as those necessary for the upkeep of the installation with which the service is maintained.
The concessionaire of these services may repudiate responsibility in respect of interruptions or irregularities of abnormal length or gravity, by proving that they are caused by “force majeure” not imputable to the operation of the service, or by a fortuitous event which could not have been foreseen or whose consequences could not have been avoided by any vigilant management acting without undue regard to economy. A strike constitutes a fortuitous event if the concessionaire establishes that it took place without any fault on his part and that it was not possible for him to replace strikers by other workmen or to avoid the consequences of their strike by any other means.
A contract of service is one whereby one of the contracting parties undertakes to work in the service and under the supervision or control of the other contracting party in consideration of a remuneration which such other party undertakes to pay.
Article 675
The provisions contained in this Section apply only insofar as they are not expressly or impliedly inconsistent with special laws relating to service.
Such special laws define the categories of workers to which the provisions of this Section do not apply.
Article 676
The provisions of this Section as to contracts of service apply to the relationship between masters and canvassers, commercial representatives, commercial travelers, assurance agents and other intermediaries, even if they are remunerated on a commission basis or if they work for the account of several employers at the same time, so long as these persons work under the orders and supervision of such masters.
When the services of a commercial representative or a commercial traveler come to an end, even by reason of the expiration of the term of employment specified in the contract, he shall be entitled to receive, by way of remuneration, the commission or discount, agreed upon or established by custom, on orders which do not reach the master until after the commercial representative or the traveler has left his service, if such orders are the direct result of the employee's representations (demarches) to customers while he was in the master's service. Such employees, however, can only claim this right during the usual period for such claims established by custom in respect of each business.
1. Elements of a Contract
Article 677
In the absence of provisions to the contrary in law or in administrative regulations, a contract of service is not required to be in any special form.
Article 678
A contract of service may be concluded either for a specific service or for a fixed period; it may also be entered into for an indefinite duration.
If a contract of service is entered into for the lifetime of the worker or the master or for a period longer than five years, the worker, after the expiration of five years, may resiliate the contract without being liable to pay compensation, provided that he gives six months prior notice to the master.
Article 679
When a contract of service is entered into for a fixed period, it, ipso facto, comes to an end at the expiration of the term.
If the parties continue to carry out the contract after the expiration of the term, the contract will be deemed to have been renewed for an indefinite duration.
Article 680
When a contract is entered into for the performance of a specific work, it comes to an end when the agreed work has been completed.
When the work is, by its nature, capable of being renewed and the contract is continued after the completion of the work agreed, the contract will be deemed to have been impliedly renewed for the period necessary for the execution of the same work a second time.
Article 681
The performance of services is presumed to be made for remuneration, if it is not customary for such services to be performed gratuitously or if such services come within the scope of the profession of the person who performs them.
Article 682
When a contract of service for an individual or a group of individuals or factory regulations do not specify the salary payable by the master, the salary will be fixed in accordance with the rates, if any, applicable to work of a similar nature. If no rates exist, the salary will be fixed in accordance with the custom of the trade and the custom of the place where the work is performed. If there is no such custom, the judge will fix the salary in accordance with equity.
The same rules will apply to determine the nature and the extent of the work to be performed by the employee.
Article 683
The following sums form an integral part of an employee's salary and are taken into account in computing the attachable portion thereof:
i) commissions payable to canvassers, commercial travelers and commercial representatives;
ii) percentages payable to employees of commercial establishments on the price of sales effected by them and high cost of living allowances paid to them;
iii) any gratuity paid to a worker in addition to his salary, as well as fidelity bonuses, family allowances and other similar allowances, if payment of such sums is provided for in the individual contract of service or in the workshop regulations, or if these sums are customarily payable so that the worker regards such sums as forming part of his salary and not constituting a bounty, and provided that the amount of such payments is known before the attachment is made.
Article 684
Tips are deemed to be salary only in industries or trades where it is customary to pay tips and where tips are subject to regulations by which they can be controlled.
Tips are deemed to form part of the employee's salary when the amounts given as tips by customers of a particular commercial establishment to the employees are collected in a common fund for distribution to the workers by or under the supervision of the employer.
In some industries, such as hotels, restaurants, cafes, and bars, a worker's salary may consist solely of the tips he receives and the food he consumes.
2. Effects of a Contract
The Obligations of the Worker
Article 685
The worker must:
a) himself perform the work and in so doing use the care of a reasonable person;
b) obey the orders of the master relating to the performance of the agreed work and coming within the duties of the worker, if such orders are not contrary to the contract, to law or to morality, and if obedience thereto does not entail danger;
c) preserve with care things entrusted to him for the performance of his work; and
d) safeguard the industrial or commercial secrets of the work, even after the end of the contract.
Article 686
When the work entrusted to the worker enables him to know the clients of the master or to learn the secrets of his business, the parties may agree that the worker will not be entitled, after the termination of the contract, to compete with the master or participate in a competitive undertaking.
In order, however, that any such agreement be valid, it is necessary:
a) that the worker has attained his majority at the time the contract is entered into; and
b) that the restriction be limited as to time, place and kind of work, to the extent necessary for the protection of the legitimate interests of the master.
The master cannot avail himself of such an agreement if he resiliates the contract or refuses to renew it, without the worker giving him adequate grounds for such action; nor can the master avail himself of such agreement if he himself has given the worker adequate grounds to resiliate the contract.
Article 687
When the contract contains a penalty clause applicable in the event of the breach of a condition in restrain of competition, and such a clause is so onerous as to be tantamount to pressure on the worker to compel him to remain in the service of the master for a longer time than that agreed, both the penalty clause and the condition in restraint of competition will be void.
Article 688
When the worker discovers a new invention while in the service of the master, the master will have no rights in respect of the invention, even if the worker has discovered the invention by reason of the work performed in the service of the master.
An invention discovered by a worker in the course of his work belongs, however, to the master, if the nature of the work that the worker has undertaken to carry out requires him to give his time to invention or if the master has expressly stipulated in the contract that he will have the right to inventions discovered by the worker.
If the invention is of serious economic importance, the worker may, in cases falling within the preceding paragraph, demand a special remuneration to be fixed in accordance with the principles of equity, taking into account in the assessment of such remuneration the extent of help supplied by the master and the use the worker has made of the master's installations for the purpose of the invention.
Article 689
In addition to the obligations laid down in the preceding articles, an employee must carry out obligations imposed upon him by special laws.
The Obligations of the Master
Article 690
The master must pay the worker his salary at the time and place agreed upon in the contract or established by custom, subject to the provisions in this connection contained in special laws.
Article 691
When a contract provides that the worker will be entitled, in addition to or in lieu of the agreed salary, to a share of the master's profits or to a percentage of the gross receipts or of the amount of the production or of the value of the savings effected, or to other remuneration of a like nature, the master is bound to render to the worker, after each balance sheet, an account of the amount payable to him in this respect.
The master must, in addition, supply the worker, or a trustworthy person designated by the parties or by the judge, with the information necessary to verify the accuracy of such account and allow him to consult his books for this purpose.
Article 692
When a workman or an employee comes to perform a day's work as stipulated in his contract of service, or declares his readiness to perform a day's work and is only prevented from so doing by a cause imputable to the master, he is entitled to his salary for the day.
Article 693
In addition to the obligations laid down in the preceding articles, the master is bound to carry out the obligations imposed on him by special laws.
The End of Contracts of Service
Article 694
Subject to the provisions of Articles 678 and 679, a contract of service ends at the expiration of the term fixed or upon the completion of the work in respect of which the contract was entered into.
When the duration of the contract is not fixed either by the agreement or by the nature of the work or by its object, each of the contracting parties may terminate his relationship with the other party; the exercise of this right must be preceded by notice, the manner and period of which are defined by special laws.
Article 695
When a contract entered into for an indefinite period is terminated by one of the parties without observing the delay required for notice or before the end of this delay, he is bound to compensate the other party for the whole period of the notice or for the portion thereof still to run. Subject to the provisions of special laws on the subject, such compensation will include, in addition to the fixed salary due for this period, all additional remuneration, provided the amount of such remuneration is fixed and defined.
When the contract is terminated vexatiously by one of the contracting parties, the other party may, in addition to the compensation due owing to failure to observe the delay required for notice, claim damages for the prejudice resulting from the unjustified termination of the contract. Discharge is deemed to be unjustified if it takes place as a result of the service of an attachment on the master or on account of debts contracted by the worker to third parties.
Article 696
Compensation on dismissal may be granted, even though the master has not himself dismissed the worker, if the master, by his own actions and especially vexatious treatment or by a breach of the conditions of contract, has obliged the worker to appear to have terminated the contract himself.
The transfer of a worker, without fault on his part, to a less profitable or less suitable post than that which he is occupying, is not deemed to be an indirect vexatious act if such transfer is necessary in the interests of the work. The transfer will, however, be deemed a vexatious act if it is made with the object of injuring the worker.
Article 697
A contract of service is not dissolved by the death of the master, unless the personality of the master was a factor taken into consideration in concluding the contract. The contract, however, is dissolved by the death of the worker.
The rules laid down in special laws on the subject will be observed for the dissolution of the contract on account of death or prolonged illness of the worker or of any other cause constituting force majeure which prevents the worker from continuing his work.
Article 698
Actions arising out of a contract of service are prescribed after one year from the time of the termination of the contract; but in the case of actions arising out of commission and profit sharing and percentage of gross receipts, the period of prescription only begins from the time when the master hands to the worker a statement of what is due to him according to the last balance sheet.
Actions in connection with the disclosure of trade secrets or the enforcement of conditions of contract as to the protection of such secrets, are not subject to this special limitation.
Mandate is a contract whereby a mandatary binds himself to perform a judicial act on behalf of a mandator.
Article 700
In the absence of any provision of the law to the contrary, a mandate must be executed in the same form as that required for the execution of the juridical act in respect of which the mandate is given.
Article 701
A mandate given in general terms, which does not specify the nature of the juridical act in respect of which it is given, only confers on the mandatary the power to perform acts of management.
Granting of leases of not more than three years duration, acts of preservation and of maintenance, the recovery of rights and discharge of debts, are deemed to be acts of management. All acts of disposition necessary for management, as the sale of perishable crops, goods or movables, and the purchase of things necessary for the preservation and exploitation of the thing constituting the object of the mandate are deemed to be acts of management.
Article 702
A special mandate, in respect of any act which is not an act of management, is required, and in particular for a sale, a mortgage, a gift, a compromise, an admission, an arbitration, the tendering of an oath and representation before the courts.
A special mandate to carry out a certain category of juridical acts is valid, save as regards gratuitous acts, even though the object of such acts is not specified.
A special mandate only confers on the mandatary a power to act in matters specified therein and in matters necessarily incidental thereto in accordance with the nature of each matter and prevailing custom.
2. The Effects of a Mandate
Article 703
The mandatary is bound to perform the mandate without exceeding the limits fixed therein.
He may, however, exceed these limits if he finds himself unable to notify the mandator thereof beforehand and if the circumstances are such that it can be assumed that the mandator could not have failed to approve the act. In such a case, the mandatary is bound to inform the mandator immediately that he has exceeded the limits of mandate.
Article 704
If the mandate is gratuitous, the mandatary must exercise in its performance the degree of care that he gives to his own affairs, without, however, being bound to exercise more diligence than a reasonable man.
When the mandate is given for remuneration, the mandatary must always exercise in its performance the diligence of a reasonable man.
Article 705
A mandatary is bound to give to his mandator all necessary information in connection with the execution of his mandate and render him an account thereof.
Article 706
The mandatary may not use the property of the mandator for his own benefit.
He is liable for interest on sums used by him for his own benefit from the moment when he commences to use them. He is also liable for interest on sums that he owes the mandator from the time when he is served with a formal summons.
Article 707
When several mandataries are appointed, they are jointly and severally liable if the mandate is indivisible or if the damage sustained by the mandator is the result of their common fault. Mandataries, however, even if joint and several, are not responsible for the acts done by their co-mandataries in excess of the limits of the mandate or by a wrongful use of the mandate.
When several mandataries are appointed by the same document without being authorized to act severally, they must act jointly except in cases where an exchange of views is not essential, such as receiving a payment or paying a debt.
Article 708
A mandatary who nominates a substitute to perform his mandate without being authorized to do so, is responsible for the acts of the substitute as if they were his own acts: in such a case, the mandatary and his substitute are jointly and severally responsible.
When a mandatary is authorized to appoint a substitute without specifying the person, he is only liable for a faulty choice of the substitute or for faulty instructions that he gives to him.
In the two preceding cases, the mandator and the substitute of the mandatary have a direct right of action against each other.
Article 709
A mandate is deemed to be gratuitous in the absence of agreement which may be express or result by implication from the position of the mandatary.
When the remuneration is agreed, it is still subject to the assessment of the judge, unless it has been voluntarily paid after the performance of the mandate.
Article 710
Whatever result the mandatary may have achieved in the performance of the mandate, the mandator must repay to the mandatary any expenses incurred by him for the normal performance of the mandate with interest from the date when such expenses were incurred. When the performance of the mandate requires the mandator to supply to the mandatary sums of money for expenditure in respect of the mandate, the mandator must advance such amounts, if requested by the mandatary so to do.
Article 711
The mandator is responsible for injury sustained by the mandatary, without fault on his part, in the normal performance of the mandate.
Article 712
When several persons appoint a sole mandatary for a common purpose, they are, in the absence of agreement to the contrary, jointly and severally liable to the mandatary as regards the consequences of the performance of the mandate.
Article 713
Articles 104 to 107, with regard to representation, apply to the relationship of a mandator and of a mandatary with third parties dealing with the mandatary.
The End of a Mandate
Article 714
The mandate comes to an end by the completion of the work or by the expiration of the period for which it was given and by the death of the mandator or of the mandatary.
Article 715
The mandator may, at any time and notwithstanding any agreement to the contrary, revoke or restrict the mandate. When, however, the mandate is remunerated, the mandator must indemnify the mandatary for loss sustained by him as a result of an intempestive or unjustified revocation.
When, however, the mandate has been given in the interests of a mandatary or of a third party, the mandator is not entitled to revoke or restrict the mandate without the consent of the person in whose interest the mandate was granted.
Article 716
The mandatary may, at any time and notwithstanding an agreement to the contrary, renounce his mandate. Renunciation is effected by notification to the mandator. When the mandate is remunerated, the mandatary must indemnify the mandator for loss sustained by him as a result of his renunciation, if it is intempestive or unjustified.
The mandatary, however, has not the right to renounce a mandate given in the interests of a third party, unless there are serious reasons justifying such renunciation and unless he notifies the third party and gives him time to take such action as may be necessary to safeguard his interests.
Article 717
The mandatary is bound, irrespective of the manner in which the mandate is terminated, to carry through any work he has commenced to such a condition that it is not exposed to deterioration.
When the mandate is extinguished by the death of the mandatary, his heirs, if they have the necessary legal capacity and knowledge of the mandate, are bound to inform the mandator immediately of the death of the mandatary and to take such steps as circumstances demand in the mandator's interests.
هام جداً: قوانين المساهمة في المواضيع. انقر هنا للمعاينة
احترم مواضيع الآخرين ليحترم الآخرون مواضيعك لا تحتكر الموضوع لنفسك بإرسال عدة مساهمات متتالية عند طرح موضوع يجب أن تتأكد أن عنوان الموضوع مناسب او لا. تحل بحسن الخلق و بأدب الحوار و النقاش لا تنس أن اختلاف الرأي لا يفسد للود قضية, فلا تتهجم على عضو بدعوى أنه لا يشاطرك الرأي ان قطعت عهدآ مع عضو فأوفي بوعدك لأنه دين عليك إن حصل خلاف بينك و بين عضو حول مسألة ما فلا تناقشا المشكله على العام بل على الخاص ان احترمت هذه الشروط البسيطة, ضمنت حقوقك و عرفت واجباتك. و هذه افضل طريقة تضمن بها لنفسك ثم لمساهماتك و مواضيعك البقاء و لمنتداك الإزدهار في موقعنا إدارة منتدى عالم القانون
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15/8/2022, 10:11
18/8/2010, 18:41
هام جداً: قوانين المساهمة في المواضيع. انقر هنا للمعاينة 
