Dr Sami Al Hathal Al Anzy
Second Author
Assistant Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait

Dr Abdulkarim Rabee Al Enezi
First Author
Associate Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait

Abstract:

This study casts light on a subject that has received scant scholarly attention in Kuwaiti law: the express termination clause and the courts’ authority over its operation. While Article 210 of the Kuwaiti Civil Code regulates this clause, its wording significantly differs from comparable termination provisions in most other Arab civil codes. This textual divergence has spawned numerous doctrinal questions and practical difficulties. As such, this study evaluates the wording of Article 210 and Kuwaiti judicial approaches to express termination clauses, supplemented by comparative insights from Egyptian case law.
The clause’s practical significance cannot be overstated. It appears in a wide variety of contracts, and, by excluding judicial oversight, may trigger dire consequences even where the debtor’s breach is minor or temporary. The inquiry is confined to the express termination clause as framed by Article 210 of the Civil Code and does not venture into the specific statutory applications of this clause.
Using both descriptive and analytical methodology, alongside insights from other legal systems, the findings show that courts generally uphold clear termination clauses, even for small breaches, so long the wording of the clause is explicit and unequivocal. Moreover, the analysis shows that under the Kuwaiti Civil Code, notice waiver clauses are void, court decisions lack uniformity, and reveals a doctrinal division over whether a creditor forfeits the right to invoke the option of termination when insisting on specific performance.
The study concludes with several recommendations, including urging the Kuwaiti and Egyptian courts to consider the concept of fundamental breach as a key factor to invoke the express termination clause. It also suggests avoiding the application of overly broad termination clauses that allow contracts to be ended for any violation. Lastly, we propose that a debtor›s good faith conduct should prevent automatic termination where the creditor suffers no damage, who retains the right to pursue judicial termination instead.
Keywords: Express Termination Clause, Automatic Termination, Contractual Obligation, Notice, Specific Performance, and Good Faith.

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