Dr Abdul Karim Rabie Al Enezi
Associate Professor of Civil Law
Department of Law, College of Business Studies, PAAET, State of Kuwait

Dr Fawaz Mohammed Al Awadi

Assistant Professor of Civil Law
Department of Law, College of Business Studies, PAAET, State of Kuwait

Abstract:

This research sheds light on a topic of great importance within the scope of the theory of obligation, specifically on one of the reasons for the expiration of an obligation without fulfillment in Kuwaiti civil law, namely: the passage of time preventing the hearing of the lawsuit. Researchers have been invited to review the ruling of the First Civil Circuit of the Court of Cassation No. 1112/1124 of 2018, issued on March 23, 2021 AD, to address this topic, and it becomes clear from reading it that the court departed from the nature of this system and its provisions in some parts of the ruling, and returned to applying the traditional statute of limitations known in laws with Latin systems, in addition to the fact that it raises some problems and challenges related to the passage of time that prevents the hearing of the lawsuit.
Therefore, the researchers saw that the subject of the study was worthy of research and investigation, by commenting on the legal issues addressed by the ruling, and reviewing the legal problems raised by the statute of limitations that prevents the hearing of the lawsuit. They followed the analytical and foundational approaches in this study. At the end of the research, they reached a number of conclusions, the most important of which is that the Kuwaiti legislator’s organization of the system of non-hearing of a lawsuit among the reasons for the expiration of rights is the reason for the disorder in the legislative organization of this system, the lack of consistency in the legal provisions it contains, and the resulting distortion of the judicial rulings on this system.
In addition, the researchers agree with the Majallat al-Ahkam al-Adliyya in requiring the debtor to make an acknowledgment before the judge (the Judicial Council) in order for it to have an effect in hearing the case, and that the debtor’s silence regarding the denial of the creditor’s right in the system of not hearing the case can be considered an acknowledgment on his part that leads to hearing the case, and that the ruling of not accepting the case, due to the passage of time preventing it from being heard, has the force of res judicata. This prevents the lawsuit from being heard if the creditor files it again, provided he obtains a written acknowledgment from the debtor. Furthermore, the study concluded with several recommendations, most notably a call for the Kuwaiti legislator to reconsider the regulation of the issue of not hearing the lawsuit as a reason for the expiration of an obligation in civil law, as its nature necessitates that it be regulated within the Code of Civil Procedure. The researchers also called on the Kuwaiti legislator to amend the text of Article (452) of the Civil Code, by limiting the right to adhere to the defense of inadmissibility of the case to the debtor himself. As for his heirs, they are allowed to either deny the debt of their deceased or swear an oath that the debt does not exist, or that they know that their deceased has paid him.
At the judicial level, the study recommended that judges regulate legal terminology, by using the term “non-hearing of the case” instead of the term “statute of limitations,” as well as regulating the wording of the ruling issued to dismiss the case, and not using the term “lapse of the case” to express the idea of ​​non-hearing the case, and not requiring the debtor to issue an acknowledgment of the creditor’s right before the completion of the period of non-hearing of the case in order to arrange its effect in hearing the case and its acceptance even if it was issued after the expiration of that period. Finally, the researchers urged the judiciary not to accept the debtor’s implicit acknowledgment in order to hear the creditor’s claim, and they believe that an explicit acknowledgment is necessary.
Keywords: statute of limitations, failure to hear the claim, denial, acknowledgment, dismissal of the claim.

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