Digital Commons Network^™

Silence: Its Legal Effect On Concluding Contracts A Comparative Study

UAEU Law Journal

Is based on mutual & verbal

Concluding a contract agreement/acceptance; however a contract can be concluded with several other ways. Silence does not necessarily express a specific view unless it is surrounded by certain conditions that may indicate that it expresses agreement/acceptance. There are some exceptions to the issue of silence when concluding a contract that silence would not necessarily mean agreement/acceptance. The essence of any legal behavior is free will which should be expressed clearly. All these exceptions are common and occur due to certain conditions which lead to silence.

The present study exemplifies some of the legislations; for …

Option Of Blemish In Jordanian Civil Law-, Yassin Mohammed Aljubouri

UAEU Law Journal

Concluding a contract of sale needs availability of many elements and conditions. The contract may be regarded as a valid and legal contract.

Nevertheless the sale contract may be existed but it existence may mixed with many defects in the object of the contract (the sold thing) which reflects injury and damage on the purchaser,s interest.Therefore the purchaser is granted a choice of defect (khiyar al-ayb) and the contract is considered to him as ghayr lazim (not-binding) which gives him the right to rescind the contract. Morever, this option, (the khiyar) may coincide with the concept of liability for concealed …

Conditional Incident A Study Of The Condition Concept In Jordanian Civil Law- الواقعة الشرطية – دراسة في مفهوم الشرط في القانون المدني الأردني, Yassin Mohammed Aljubouri

UAEU Law Journal

The conditions is a future obligation on the existence of which the legal effect of the obligation subsists or terminates. The validity of a conditional disposition shall be subject to the purport of the effect of the ondition being not valid and is neither fulfilled nor impossible. It has been pointed out that the Jordanian civil code has not signaled the tow sorts of the conditions however its provisions implied the rules of the kinds of the condition which are suspensive and the resolutory

A Critical Study Of The Two Standard References Of Obligations (Personal Rights (And Contracts In United Arab Emirates Law Of Civil Transactions, Dr.Adnan Sarhan

UAEU Law Journal

The Emirates Law of Civil Transactions is based on the rules set by Islamic Law. However; it suffers from faults or short comings in the legal texts and even, sometimes, a contradiction in the merits or judgement. These faults are consequences of the presence of statements extracted from defective or imperfect laws such as the Jordanian law, or a contradiction due to differences between Malek’s or Hanbal’s and Al-Numan’s shools.

In this research, the author deals with the text of the United Arab Emirates Law of Civil Transactions that are related to commitments and contracts. As he believes in the …

A Sale Of Salam Sale Of Future Goods: A Comparative Study In The Jordanian Civil Coode And The English Law Of The Goods Sale, Nisreen Mahasneh

UAEU Law Journal

This research examines Salam Sale, which is a type of sale known under the Islamic jurisprudence, and provided for by the Civil Code of Jordan. The most important feature of this kind of sale is the non-existence of the subject matter of the contract, which is the Goods or the Mahal. For this particular reason, I chose to compare Salam Sale with the Sale of Future Goods under English law. Therefore, the research aimed first to define the concept of both Salam Sale and Future Goods Sale. Besides explaining the purposes of, as well as the merits …

Must The Idea Of A Vitiated Contract Be Retained In The Jordanian Civil Code And The Emirati Civil Transactions Act?

UAEU Law Journal

“Jordanian Civil Law” and the “law of Financial Dealings” of theUnited Arab Emirates, have chosen to follow the Hanifite Doctrine and to adopt the concept of the “Vitiated contract” - “Al-Aqd Al- Fasid”. This concept has been highly commended by some modern legal writers: they underlined the dynamism of the theory of the “Vitiated Contract” and its ability to avoid the demolition of the contract for some defects which are note worthy of destroying the whole convention.

Through our research, we can affirm that the adoption of this theory has disrupted the legal ordering of the contract especially that part …

Contemporary Legal Issues Of Contract Formation Through Online System, Ayman Khaled Masadeh, Mohammad Bashayreh

UAEU Law Journal

Electronic commerce has put forth new challenges to the efforts endeavoring to unify international trade law. Most international trade conventions are designed to apply to traditional means of communication as they were drafted before the recent informational revolution. Because, in some countries, conventions supersede domestic laws, adopting the United Nations Model Law on Electronic Commerce might not completely harmonize national laws. Hence, the United Nations General Assembly adopted a new Convention on the Use of Electronic Communications in International Contracts (hereinafter the Convention) prepared by the United Nations Commission on International Trade Law (UNCITRAL). Adopted on 23 November 2005, the …

The Legal System Of Apostleship: A Comparative Study In Regulating The Relationship Between Sender Of The Expression Of The Will And The Courier, Adil Mohammed Ali

UAEU Law Journal

The apostleship is a legal action between the sender of the expression of will and the courier, and includes a delegation from the sender to the courier. And it is a contract by which the sender puts the courier in himself place in order to communicate his will to the addressee.

In general, the problem of the study represents in the almost complete disregard of civil laws in general to regulate the subject of the apostleship, since the latter is a legal framework for the relationship between the sender of an expression of will and a courier to communicate that …

The Concept Of “Return” In Contracts

UAEU Law Journal

In the common law ofEnglandandUnited States, agreement is enforceable if it is shown that it is made for valuable “return”: that is a profit provided by a party seeking enforcement of the agreement. Thus, the presence of a profit is a precondition for the validity of all contracts unless they are under seal. Profits can be looked at as a price paid by the other party. It takes the form of some rights, profits or benefits accruing to the one party or some detriment or loss suffered by the other.

In Civil law system, a lawful cause is a precondition …

The Professional Liability Of The Legal Advisor: A Jordanian And English Law Perspective: A Critical Study, Nisreen Mahasneh, Ayman Khaled Masadeh

UAEU Law Journal

This study deals with the professional liability of the legal advisor. To attain this purpose it starts by distinguishing between a lawyer who represents his client before courts and a mere legal advisor who undertakes the paper work and consultations. This study tries to follow the position of the Jordanian Bar Law as to whether it recognizes this distinction between an agent lawyer and a mere lawyer who submits a legal advice. Moreover, there are particular duties which lie on a lawyer, the question being here whether the wordings of the provisions of the Jordanian Bar Law extend to cover …

Loopholes In Information Technology Contracts, Tark Kazim Ageel

UAEU Law Journal

This research deals with the loopholes that may be found in Information Technology (IT) contracts and attempts to answer the following research question: are the generalrules governing traditionalIT contracts sufficient to dealwith them, or is there a need for another set of rules which are more compatible with such contracts and are better able to dealwith the loopholes that may arise (both moraland logical) in said contracts?

Compensation For Moral Damage - A Comparative Study, Mohannad Azmi Abou-Moghli

UAEU Law Journal

The amount of material damage or loss incurred can be evaluated. No disputes are expected to arise in such cases. However, moral damage such as pain, sadness, infamy, and dishonor do not constitute material loss; therefore, no compensation may clearly be calculated; in other words, there is difficulty in evaluating moral damage and its indemnity. This paper undertakes such a task in order to regulate compensation of moral damage

The Purchaser's Securities In An Electronic Sale Contract - Part I, Osama Ahmed Bader

UAEU Law Journal

This article analyses the legal provisions that aim to posit the legal regulations necessary for the protection of the purchaser (consumer) via analyzing the French legal provisions and stipulations that address the purchaser as a consumer and via the judicial applications in this regard.

The Purchaser's Securities In An Electronic Sale Contract -Part 2, Osama Ahmed Bader

UAEU Law Journal

This part of the research study deals with the legal controls required for the fulfillment of the vendor's obligations; these include securing delivery, soundness of goods, and guarantees in case of defects.

Civil Liability Of Biological Damage A Comparative Study, Sameer Hamed Al Jamal

UAEU Law Journal

Biological damage to the environment is considered to be one of the most complicated problems that face the world nowadays. This paper studies this problem from some of its various aspects: the civil liability of biological damage, the concept of biological diversity, its legislative nature, and the damage caused by genetically modified species and the multiplicity of legislative regimes to protect biological diversity. Furthermore, this study deals with all the above listed aspects on the local, regional and international levels. To be more specific, the study investigates the legal basis of civil liability of biological damage in terms of three …

The Consumer's Right Of Withdrawal In Doorstep Selling And Distance Contracts, Aymen Masadeh, Alaa Khasawneh

UAEU Law Journal

This study deals with the right of withdrawal, which is one of the legal means to protect consumers in contracts. Due to the rapid developments of marketing techniques used by traders to promote the sales of their products, it has become important for legislators to intervene to protect consumers. Due to such marketing techniques, consumers may not have time to make sure they need the offered products in doorstep selling contracts. The same situation may apply in distance selling contracts where consumers usually do not have the chance to actually see the offered products and may find out late they …

Rules Of Sale With Right Of Redemption In Lebanese Contract Law And The Possibility Of Its Application In Jordanian Civil Law•, Yousef Mohammad Obiedat

UAEU Law Journal

This study aims at examining the contract of Sale with Right of Redemption in Lebanese Contract Law, and the possibility of its application in Jordanian Civil Law. The Sale with Right of Redemption is defined as a sale with a condition that when the seller refunds the price of the purchase during a fixed time, the purchaser should return to him/her that which was sold. This study started exploring such kind of sale under the Lebanese Contract Law, and then examined whether there are legal or economic justifications to adopt it in Jordanian law. To that intent, the study was …

A Comparative Legal Study Within A Civil Law Framework, Saleh Ahmed Al-Luhaibi

UAEU Law Journal

The Exit Contract is considered as one of the fields that did not receive sufficient legal research within the scope of civil law. Most legal studies have focused on civil status. Therefore, the researcher chose this aspect and treated it in terms of civil law as it is a well-known fact that the Exit Contract is the first contract carrier of property. That is why it must be studied in this regard with a focus on the contract in terms of its foundations and the conditions of its most important provisions that differentiate it from the rest of the contract …

Writing In The Electronic Era Within The Frame Of Jordanian Law, Nael Ali Masadeh Dr.

UAEU Law Journal

Writing is one of man’s ways of expression. Writing embraces ideas and thoughts able to be realized. Thus writing is used in contracts to express will of parties. In addition, writing is one of most important means of evidence. Besides, writing is required for some contracts to be contracted. Electronic writing is the one done on a computer. Both electronic and normal writing are similar to express thoughts and ideas and will. The law is equal regarding both normal and electronic writing. However, the condition of writing is achieved if it is performed electronically when it was required for contracting …

Time-Share Contract, A Comparative Study, Nada Salim Malla Alow

UAEU Law Journal

The Time-Share is one of the important contracts that appear in the tourism field. The contract idea is based on the participation of a large number of people who benefit from the tourist resorts and hotels for spending holidays and vacations. The beneficiary may contract with the owner of the tourist establishment to buy a share in a hotel or touristic unit or to get benefit from it. In both cases, he/she has the right of residence in this real estate unit for a limited time yearly; one week minimum and one month as maximum instead of buying a whole …

The Direct Case Of Law In Jordanian Civil Law, Yassin Mohammed Aljubouri

UAEU Law Journal

The direct case of law is one of the important means for the creditor to preserve and secure his right over the debtor’s assets. The creditor, according to this case of law, is entitled to sue the debtor of the original debtor, without any representation or agency. The direct case of law is a case decided by special provision of law, and accordingly, the creditor is granted the right of preference over other creditors. And therefore no plea can be pleaded against the creditor by the defendant. The direct case of law has its own special legal nature, therefore many …

Attribution Rules Of The Electronic Message To The Creator In The Uae E-Commerce And Transactions Law, Ali Hadi Elobaidi

UAEU Law Journal

Rules of attribution of the electronic message to the creator are some of the aspects of legal development processions of technological development in the field of electronic commerce and transactions. A person may that he did not send an electronic message or did not mean to send it, or that he may have sent it but with a different content than the one that was in the message that reached the consignee. Because of these allegations, rules started to show us where the email of the creator originated from, whether it is real or default, and the legal consequences of …

The Civil Liability Claim Arising Out Of The Infringement Of The Privacy Right A Study In Jordanian Private International Law, Nour Hamed Al-Hajaya

UAEU Law Journal

Protection of privacy right is vital. Therefore, the injured person is entitled to claim damages for any infringement of his privacy right. However, claiming damages face some difficulties pertaining to the determination of the competent court and the applicable law in case where the infringement involves a foreign element. This Article is devoted to tackle these two issues in two chapters and a conclusion. Chapter one will tackle the issue of competent court through the application of the criteria stated in Articles 27 and 28 of the Jordanian Law of Civil Proceedings on the International Jurisdiction of Jordanian Courts to …

Exchange Contract; A Comparative Study, Duha Mohamed Al Nuaaman

UAEU Law Journal

Exchange in Islamic law addresses exchange of gold and silver and has been addressed by Muslim jurists under the topic of cash sale or exchange. These jurists distinguish this particular exchange from absolute selling mainly regarding the nature of the conditions of sale. They warn against the presence of usury and according to the rules of the Quran and Sunnah. However, it has been found that most of the civil Arab laws did not provide texts for contract exchange which distinguish absolute selling of which provisions of the latter apply to the exchange today in these countries. We chose to …

Legal View Of The Domain Names’ Registration Contract, Fayez Mohammed Al Nusair, Bashar Talal Al Momani

UAEU Law Journal

The importance of the Domain Names has exceeded the importance of any other distinctive mark due to its cross borders nature. The Domain Names Registration Contract is an electronic contract. Therefore, it raises several legal questions such as the effectiveness and validity of the traditional provisions of the contract, especially when it is related to consumer protection. Another question that is raised is related to the international nature of this contract, which obliges us to deal with the private international law. There is a legislative absence in this concern, thus; it is a must to study the general rules of …

Contractual Custom, Alaa Hussein Ali, Riad Ahmed Abdulghafoor

UAEU Law Journal

The idea behind this research revolves around the effect of custom in contracts which was coined as "the contractual custom". This custom refers to traditions that people consider common practice in the conclusion of contracts, until it became in their view an obligation that they can't breach. Therefore, this study attempts to establish a theory of the contractual custom to define it and its effects on the actual contract.

In order to develop a complete theory of the contractual custom, the research draws a general framework of a contract, starting with its definition and distinguishing it from the usual agreement …

Determining The Abusive Clause In Insurance Contracts Under The Kuwaiti Law: A Comparative Study, Hussein Muheisen Al-Rashidi

UAEU Law Journal

The Law aims at organizing the community through clarifying rights and obligations of legal positions. Therefore, legislator has interfered – in several issues – to protect the weaker party in the contractual relation. An example of such protection is legislative intervention against abusive conditions by making it subject to amendment or nullification. As a result of the independence of one party in writing down the contract conditions, the legislator has stipulated, frankly, that every abusive condition can be nullified unless it has not infringed the insured risk.

However, legislative ideologies have diverged in determining abusive conditions/clauses. Some legal systems have …

The Extended Damage Between The Provisions Of The Law And The Decisions Of The Uae Judiciary, Yousef Mohammad Obaidat

UAEU Law Journal

This study examines the role of courts to fill the legislative vacuum as to the extended damage inflicted on third party. The current law of UAE Civil Transactions does not provide for the right of innocent party to claim financial damage, nor for moral damage in the event of suffering from non-fatal injury. Does that mean no right of claiming compensation by the innocent party? A question, which has been answered in this study. The study ended with the following results:

1- Under article 293 of UAE Civil Transactions Law, an action for extended moral damage is given for spouses …

Exchange Of Credit Information Contract: Concept And Legal Nature: Comparative Study, Zaala Said Yahya

UAEU Law Journal

During the recent financial crisis, credit information companies arise as a critical mechanism to resolve issues especially as it deals with collecting and analyzing credit information about the consumers, who in turn, request the credit from the providers such as banks and financial institutions. These companies, whereupon its part, conclude an agreement for exchange credit information with credit providers themselves, as a prelude to granting the credit to consumer or not. Accordingly, the importance of exchange credit information contract reflects in terms of being characterized by several features that distinguish it from other kinds of contracts.

By comparing several laws …

Legal Qualification Of Non-Isolated Agency, Badr Hamid Al-Malla

UAEU Law Journal

In recent years, there was an increase in the process of selling real estates under irrevocable agency agreement in the state of Kuwait. This takes place due to easy dealing related to this issue and this made it common among transacting parties since it summarizes time taken by procedures of making sale agreements with dept of real estate registration, in addition to that this type of agreements ensures easiness sought by the buyer where the buyers existence is not required any more, the buyer under irrevocable agency can make all authenticated sale procedures alone on the basis of this agency …