English عربي

The Court is not obliged to return the mandate to the expert when it becomes convinced of the reasons and when the pleadings presented there against do not deserve rescission..

RECITALS:
Whereas it is verified by the papers in respect of the subject matter that all the pleadings of the appellant against the appealed judgment relate to the report of the expert that is deposited with the court of first instance;


 

Whereas the court has reviewed the report and became convinced with the soundness of its reasons

Therefore, pleading against the report of the expert becomes de facto and de jure baseless. Meanwhile, the court is not obliged to return the mandate to the expert, since the pleadings given there against do not deserve more clarification than that given in the report of the expert.
Dependence of the court of appeal on the ruling of the court of first instance as long as the ruling was passed dependent on sufficient reasons approved by the court of appeal to be foundation of its judgment.

Recitals :
Whereas the court of first instance passed its ruling dependent on reasons sufficient to be the basis of this ruling and can be used by this court as reasons for its judgment in respect of the subject matter of this appeal.

Whereas in addition, the appellant did not present anything new that may negate that ruling.

Accordingly, the appeal was not filed dependent on serious factors. Hence its subject should be nonsuited and the appealed ruling should be upheld for its reasons and for the other reasons given by this court, as will be given in the pronunciation.
Presentation of a fax message in reference to a telephone communication between the appellant and the first appellee that the dispute has been amicably settled and that instructions have been given to this effect is not sufficient alone for verifying that reconciliation has been made between them.

Recitals :
The representation of the appellant that reconciliation has been made with the first appellee dependent on the fax message presented with the docket in the hearing of 18/9/2006, which was reviewed by the court, that referring to the telephone call between the appellant and the first appellee that the dispute has been settled amicably and instructions have been given to the lawyers accordingly; cannot be used as evidence.

That is because the fax message is not alone sufficient to verify that reconciliation has been made between them. This fax message is only one of the papers of the lawsuit.

Judgment :
The court ruled acceptance of the appeal in form. In respect of the subject the court ruled its nontsuit and upheld the appealed ruling. The court obliged the appellant to incur the charges and One Hundred Egyptian Pounds for lawyers' fees.


The Circuit Ismailia Court of Appeal Port Said Commission
Lawsuit Seventh Civil
Appeal No 305/46 J Judgment Of 20/3/2007 Hearing
 

 

This verdict established a legal important principle. This principle concerns non-liability of the shipping agent for the damage of the consignment or its hygienic refusal and non-capacity of Alexandria Container and Cargo Handling Company to claim against the shipping agency for the storing and guarding fees of the containers.

RECITALS:
Whereas the documents verify that the plaintiff filed its lawsuit moving for obliging the first defendant, considering that the shipping agency constituted the ship trustee and the cargo trustee,


assuming that the purpose of the first defendant company is to carry out all the functions of the shipping agency (trustee of the ship and trustee of the cargo in compliance with the articles of association of the first defendant company);

 

Whereas the documents were free of any evidence that the first defendant company is considered in respect of the litigated consignment the cargo trustee which means that this cannot be supposed; Whereas the plaintiff has to give the evidence that the first defendant company is considered the consignment trustee, to be able to claim for the litigated rights, in its capacity as the consignment trustee
Whereas the plaintiff could not give evidence for such assumption and in addition to the fact that the first defendant company has pleaded to nonsuit the claim and that it was filed without capacity, considering it shipping agency and not the consignment trustee.Whereas such procedure unqualified the claim in respect of the first defendant, which makes the given pleading de facto and de jure proper, the court upholds such pleading and passes its verdict accordingly.

Judgment:
The court passed its judgment in a commercial aspect as follows:
First: The court affirms that the plaintiff has abandoned the dispute in respect of the second defendant company, obliging the plaintiff to incur the expense of such abandonment.
Second: The court judges nonsuit of the claim because it was filed without capacity in respect of the first defendant company and obliging the plaintiff to incur the charges and Seventy Five Egyptian Pounds for the lawyers' fees.

The Circuit ALEXANDRIA COURT OF FIRST INSTANCE - HEARING OF 24/12/2006
Lawsuit DISTRICT COMMERCIAL
Lawsuit No 271 /2004
 

 

Pleading to consider the claim null and void for acceleration of the claim from penal stay of execution by the plaintiff without execution of the orders of the court should be insisted on before handling the subject matter; otherwise right therein shall be abated.

RECITALS:
the claim null and void since it did not execute the order of the court:
Whereas the appellee did not insist on this pleading except in its closing brief it presented to the court of first instance after presenting documents and pleadings relating to the subject matter of the claim.


 

Whereas pleading to consider the claim null and void is a formal pleading that should be insisted on before examining the subject matter, otherwise right therein shall be abated in compliance with Article 108 of the civil procedure code.

Therefore, the judgment that accepted this pleading has violated the law.

Judgment :
Whereas the appellant decries the appealed judgment that it violated the law and made mistake in its execution; Whereas it assumed that this was because the verdict of the court of first instance, which is upheld by the appealed judgment, considered The court disclaimed the appealed judgment and obliged the appellee to incur the charges and Thirty Egyptian Ponds for lawyers' fees. In the subject matter of the appeal, the court judged revocation of the appealed judgment. The court returned the claim to the court of first instance for deciding on its subject matter obliging the appellee to incur the charges for the two instances plus Twenty Egyptian Pounds for lawyers' fees.
The Circuit Cassation
LawsuitCivil & Commercial
Lawsuit No3492/60 J

 

 

This verdict established an important legal principle, which is invoking the penal clause stipulated in the contract in case of violation of any contracting party in execution of its contract obligations.

RECITALS:
Whereas the court found out on reviewing the sale contract of the housing unit that is the subject of litigation that the claim legal title included a penal clause for non execution by any of the two parties its legal obligations to pay to the other party Ten Thousand Egyptian Pounds without notice;


 

Whereas the court was evidently convinced that the defending company has violated its obligation For providing a water tank and electric generator, as evidenced by the report of the claim expert, soundness of whose research is satisfactory to the court;

Whereas the court is convinced of the report of the expert;
Whereas the court considers the report a support of its judgment;
Therefore, the court rules application of the stipulated penalty and obliges the defending company to pay Ten Thousand Egyptian Pounds, being the amount of the penal clause, as will be detailed in the pronouncement.

Judgment:
The court ruled obliging the defending company to pay the plaintiff Ten Thousand Egyptian Pounds, being the amount of the penal clause. The court also obliged the defendant to incur the charges and Seventy Five Egyptian Pounds for the lawyers' fees.

The Circuit Alexandria Court of First Instance
Lawsuit 37 Civil
Lawsuit No 1141/2003
 

 
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