Egyptian Civil Code PDF

General Index
To From Page
Article Article No
Articles Of Issuance
A view on the project of amendment of the Civil
Code – Explanatory Memorandum
Preliminary Chapter
General Provisions 1 88
Section 1: Law and its application
Law and right 1 5
Application of law 6 28
Section 2: Persons
Natural Person 29 51
Legal (juridical) Person 52 53
Associations ( from 54-80 are repealed) 54 80
Section 3: Classification of things and properties 81 88
Part 1: Obligations or personal rights
Book 1: Obligations in general
Chapter 1: sources of obligation
Section 1: Contract
Elements of contract 89 144
Effects of a contract 145 156
Dissolution of the contract 157 161
Section2: unilateral will 162
Section 3: unlawful acts
Liability for personal acts 163 172
Liability for others' acts 173 175
Liability resulting from things 176 178
Section 4: Enrichment without cause 179 180
Restitution of the undue 181 187
Management of others’ business 188 197
Section 5:
The Law 198
199 201
Chapter 2: effects of obligations
Section1: specific performance 202 214
Section 2: execution through compensation 223 215
Section 3: the guarantees of creditors as to
234
methods of execution and securities
Means of execution 245 235
means of security: right of retention 248 246
Insolvency 264 249
Chapter 3: The effects amending the modality
b
GENERAL INDEX
of obligations
Section1: condition and term
Condition 265 270
Term 271 274
Section2:Plurality of the objects of obligation
Facultative obligation 275 277
Alternative obligation 278
Section 3: plurality of the parties of the
obligation
Solidarity 279 299
Indivisibility 300 302
Chapter 4: Transfer of obligation
Section1: assignment of rights 303 314
Section2: assignment of debt 315
Chapter 5: extinguishment of obligation
Section1: payment
Parties to payment 323 340
Subject-matter of payment 341 349
Section 2: Extinguishment of the obligation by
means of equivalents to payment
Giving in Payment 350 351
Novation and delegation
Set off 352 361
Confusion 370
Section 3: extinguishment of obligation without
payment
Remission 371 372
Impossibility of Performance 373
Extinctive Prescription 374 388
Chapter 6: proof of obligation
Book 2: SPECIFIC (NOMINATE)
CONTRACTS
chapter 1: contracts related to ownership
Section 1: Sale
Sale in general
Elements of sale 418 427
Obligations of the seller 428 455
Obligations of the buyer 456 464
Some types of sale
Sale with a Right of Redemption 465
Sale of others’ property 466 468
Sale of litigious rights 469 472
Sale of the succession 473 473
Sale while in death illness 477 481
Section2: Exchange 482 485
c
General Index
Section3: Gift
Elements of gifts 486 492
Effects of gifts 493 499
Revocation of gifts 500 504
Section4: Company 505 506
Elements of company 507 515
Management of company 516 520
Effects of company 521 525
Means of dissolution of a company 526 531
Liquidation and division of a company 532 537
Section5: Loans and perpetual annuities
Loan 538 544
perpetual annuities 545 548
Section 6: Compromise
The Elements of Compromise 549 552
Effects of Compromise 553 555
Nullity of Compromise 556 557
Chapter 2: contracts related to things usufruct
Section 1: Lease
Lease in general
Elements of lease 558 592
Revocation of lease and sub-lease 593 597
Termination of lease 598 600
Death of lessee or insolvency 601 609
Some Types of lease
Agricultural lease 618 610
Lease of planted lands 627 619
Lease of wakf 634 628
Section 2: Lending Contract 635
Obligations of the lender 638 636
Obligations of the borrower 642 639
termination of the lending contract 645 643
Chapter 3: Contracts related to labor
Section I: Enterprise contract and public
services contract
Enterprise contract 646
Obligations of the contractor 647 654
Obligations of the client 655 660
Sub-enterprise contract 661 662
Termination of enterprise 663 667
Public services contract 668 673
Section2: contract of labor 674 676
Elements of the contract 677 684
Rules of the contract
d
GENERAL INDEX
Obligations of the employee 685 689

Obligations of the employer 690 693
Termination of the of Labor contract 694 698
Section 3: Mandate
Elements of mandate 699 702
Effects of mandate 703 713
Termination of mandate 714 717
Section 4 : the contract of deposit 718
Obligations of depositary 719 723
Obligations of the depositor 724 725
Some kinds of deposit 726 728
Section V: sequestration 729 738
4 th chapter: hazardous contracts
Section 1: Gambling and Betting 739 740
Section2: perpetual annuity 741 746
Section3: Insurance contract
General Provisions 747 753
Some types of insurance
Life insurance 754 765
Fire insurance 766 771
Chapter 5: suretyship
Section 1: elements of suretyship 772 781
Effects of general guarantee
The relation between the surety and the creditor 782 797
The relation between the surety and the debtor 798 801
Part 2: real rights
Book 3: original real rights
Chapter 1: the right of ownership
Section1: the right of ownership in general
Its scope and means of its protection 802 805
Limits to the right of ownership 806 824
Ownership in Indivision
Rules of Indivision 825 833
Extinguishment of Indivision by partition 834 849
Obligatory Indivision 850
Family ownership 851 855
Ownership of superficies 856 861
Union of joint owners of superficies of the same
building
Section 3: Causes of ownership acquiescence
Occupation
Occupation of a movable which does not have an
870 874
owner
Inheritance and liquidation of succession 875
appointment of a liquidator 876 882
e
General Index
Inventory of the succession 883 913

Status of the non-liquidated succession 914
The will 915 917
Accession 918 931
Contract 932 934
Pre-emption
Conditions of pre-emption 935 939
Procedures of pre-emption 940 944
Effects of pre-emption 945 947
Forfeiture Of pre-emption 948
Possession 949 957
Effects of possession
Protection of Possession (possessory lawsuits) 958 967
Acquisitive Prescription 968 977
Acquiescence of fruits’ Ownership by possession 978 979
Restitution of fees 980 982
Liability resulting from deterioration 983 984
Chapter II: Rights resulting from ownership
rights
Section I: Right of usufruct, use and habitation
Usufruct 985 995
Rights of use and habitation 996 998
Section II :The Hekr 999 1011
Some types of Hekr 1012 1014
Servitude right 1015 1029
Book IV : Accessory real rights or real
guarantees
Chapter I : Official mortgage 1030
Section I: Creation of mortgage 1031 1042
Section II: Effects of mortgage
Effects of mortgage between the contracting parties
Effects of mortgage regarding the mortgagor 1043 1049
Effects of mortgage regarding the mortgagee 1050 1081
Section III: Extinguishment of mortgage 1082 1084
Chapter II: Judicial Mortgage
Section I: Formation of Judicial mortgage 1085 1093
Section II: Effects, reduction and
1094 1095
extinguishment of Judicial mortgage
Chapter III: Pledge
Section I: Elements of pledge 1096 1098
Section II: Effects of pledge
Between the parties
Obligations of the Pledger 1099 1102
Obligations of the Pledgee 1103 1108
f
GENERAL INDEX
Vis-à-vis third parties 1109 1111

Section III: extinguishment of pledge 1112 1113
Section IV: Some types of pledge
Pledge of an immovable 1114 1116
Pledge of movables 1117 1129
Chapter 4: Privilege rights
Section 1: general provisions 1130 1136
Section 2: Types of Privileges 1137
Public and private privilege rights over
1138 1146
movables
Private privilege rights related to immovable. 1147 1149
1- Articles of issuance
Art. 1
Civil law applied before indigenous courts issued on October 28, 1883 and the civil law applied
before the mixed courts shall be repealed and replaced by the statute annexed to the present statute
Art. 2
The minister of justice shall execute the current statute; it shall be applied from October 15th, 1949.
We order the stamping of this law by the State’s stamp, its publication in the Official Gazette and
its applications as a statute among the states’ statutes.
Issued in the Kobba Palace on Ramadan 9th, 1367 (June 16th, 1948)
g
A view on the project of amendment of the Civil Law
Explanatory memorandum:
The comprehensive amendment of the civil code is essential regarding the circumstances
which surrounded its enacting, and is required by the progression of modern laws. It may be
objected that the Egyptian civil law does not need to be amended, and that it is sufficient to
complete its provisions, in order to be adequately applied at the current era. It also may be objected
that even if the idea of civil law amendment sounds plausible, it is uncertain that the last world war
events would not change the current characteristics of human civilization, which are not noticeable
for the time being, and that whenever things become clearer later, it will appear that the project of
amendment of the civil law itself needs to be amended.
As for the first objection, it can be simply undermined when the defects of the current civil
law are reviewed. These defects were summarized in an article published on the fiftieth's
anniversary of the national courts in the following words " It can be said that our civil law lacks
completeness, inquisitive, obscure when clearness is required, laconic when elaboration is needed,
treating deeply valueless matters, giving them a special attention incompatible with their
insignificant importance, imitating the French law blindly when copying a lot of its defects.
Concerning the incompleteness, it can be attributed to the failure of our law to cope with the great
progressiveness made by the science of law in the current era since it was copied from the French
law, and this later was enacted in the beginning of the nineteenth century. Consequently, in order
for our civil law to be matching with its era, it has to progress proportionally to the progress made
by the science of law in 133 years which is a long time during which the science of law has
progressed.
There are a lot of matters that we need to take, not from the French law, but from modern
laws where the newest legal theories are applied coherently. There are general principles of law
that became a common heritage for all nations and cannot however be found in our law, or it can
be found incomplete and laconic, such as the theory of the abuse of rights, a general theory of
lesion affecting all law aspects, a law concerning associations, facilities and legal persons in
general, a legislation concerning labor and the organization of insurance contracts, monopoly
contracts, public utilities, a theory for representation in contracts, the organization of ownership in
indivision, the recognition of debt assignment like the assignment of rights, the recognition of
individual will as a source of obligations, the recognition of abstract contracts and membership
agreements …. Despite the importance of all these theories in a modern legislation, they cannot be
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found in our law … Moreover, regarding one of the very important law topics which is contracts
and precisely the formation of contracts, the silence of our law is one of a kind. It can only be
justified by the blind imitation of the civil law and the French legislature, even in the mistakes he
made."
As for the refutation of the other objection, aiming at delaying the amendment until the
impact of the world war on the development of human civility can be found out, fears are not
justified, since whatever great was its effects; war does not change substantially the technical
principles of civil law. War might change the governing, economic and social systems, but it does
not change legal drafting techniques. And if law consists – as the French professor Geny says – of
science and drafting, and that drafting is the element that makes law gain its uniqueness, it is then
possible to assure the stability of legal systems. In this respect, it is sufficient to point out that the
world in its modern history has seen two violent and very influential revolutions. The first one was
the French revolution at the end of the 18th century which had overturned significantly the
governance regime. Nevertheless, the French law enacted after this revolution was nothing but a
regression to the law of the past, that of the pre-revolution. This law remained all the nineteenth
century and until now, and the question as to whether it should be amended or not was not answered
yet.
The other revolution is the Russian revolution, emerged in the twentieth century, and was not of a
lesser impact on the world systems than the French revolution, and however, we can see that
Russian civil law kept the known civil drafting. Moreover there are the Dutch law which is a sign of
art and science, and the Swiss code which is an example of a democratic legislation, both were
made before the grand war emerged at the beginning of this century and remained without change.
They were even contemporaneous to another war more dramatic than the first one and they will
remain without a substantive change. What should be taken into consideration is the prevalence of
the expected tendency towards social justice. In this respect the project of amendment copes with
the present time necessities, without deprecatory nor being old fashioned. Consequently, the
comprehensive amendment of the civil law is a necessity which came to the attention of jurists in
Egypt from a long time ago.
In this general view, it is sufficient to enumerate the sources on which the project of amendment
relied, to mention how its provisions were put into order, what aspects of amendment have been
realized, and its general tendencies. Concerning the sources upon which it relied, there was no
hesitation as to the recourse to the comparative law, Egyptian case law and the Islamic law.
2
The comparative law represents the modern progress of the science of law and legislation where the
newest legal developments can be seen within its folds, it must therefore be the first source among
sources that inspires the amendment. The status of the comparative law can be deduced from the
movement of world laws after the French law, similar to it sometimes and going against it other
times. Such movement remained active all the nineteenth century, and continued its activity from
the dawn of the twentieth century until today. The Austrian code appeared on 1812 after the French
code, then appeared a chain of Latin codes during the 19th century for which the French code served
as a model, such as the Italian code, Spanish code, Portuguese code, Netherlands code, codes of
South America countries, code of south Canada. The movement of the Latin codifications continued
with a view of modernity and development, so appeared the Tunisian code, the code of Marrakesh,
and the Lebanese code. Between times, the Italian- French project on contracts and obligations
appeared. It is considered as a summary of the Latin codes. Finally it has been integrated into the
Italian civil code and became a part of it.
The viewer of this project (Italian- French project) cannot disregard the huge efforts made by its
makers. It made the Latin codes gaining a modernity which it lacked before, brought the spirit of
the time being to its provisions and combined simplicity and clearness with significant preciseness.
However, the project can be merely conservative if compared to other world codifications since it
has conserved the spirit of the Latin codes to the extent that made it sacrificing- as to some aspects-
the matching with the spirit of modern progressivity.
Vis-à-vis Latin codes, the Germanic codes should be placed, among which the most important are:
the Dutch code, the Austrian code, the Swiss code.
As for the German code, it is the most prestigious code enacted in the modern time. It is the
summary of the German scientific theories of a whole century. Its first project had been prepared in
1887 and was subject to referendum, it has been presented to the legislative body and the
government agreed with the political parties that the latters should only review the political,
economic and social matters, leaving the issues of legal wording as they are without amendments,
in order to maintain their coherence. Therefore, the law has been approved with simplicity and
rapidity, and was finally issued in 1896 and started to be applied on January 1st 1900. The German
law surpasses, from the jurisprudential point of view any other law, it follows a method which is
one of the most accurate scientific methods, and the nearest one to the legal reasoning. However,
this factor constitutes an obstacle for the German law to expand due to its technical complications.
Its scientific preciseness excluded it somehow from the practical life, and made it closed on itself,
hard to understand.
The Austrian code reaches back to the beginning of the 19th century, it appeared on 1812 after the
French code, but it has not succeeded as the French code has done, therefore, it had a limited
3
expansion in Europe till it was absorbed by the German code. The Austrians have amended their
code in the first year of the First World War which appeared in 1916. It permitted to this old code to
acquire a modernity compatible with the spirit of the time. However the amendment was not
comprehensive and the old code was kept after the integration of some partial modifications
dispersed among its different provisions. Consequently, the amendment had not affected its limited
expansion.
As for the Swiss code, it consists of two codes, not one. One of them concerns the obligations and
contracts, the other concerns the rest of the civil law. The reason of this duality is due to
constitutional considerations which are irrelevant to the scope of the current work. The Swiss code
has the advantage of clearness and simplicity, differing therefore from the closed German code. It
combines in addition to the simplicity and clearness the preciseness and depth. Moreover, it is
characterized by modernity, and the matching with the newest scientific theories combining
therefore the advantages of the German code as for its technical value and those of the French code
as for the simplicity and clearness. However, this clearness is deceiving sometimes, as a large
number of the Swiss code provisions appear - prima facie – easy to understand. Nevertheless, when
the provision is deeply examined, obscurity and incompleteness appear, the need for preciseness
emerges and the clearness of the wording of statutory provisions overturns into obscurity when the
provision is applied in concreto.
Beside the Latin and Germanic codes, a series of selected codes appeared during the 20th century
without being aligned completely to one of the two schools, but select the best solution from both.
On the top of these codes, stands the Polish code for obligations and contracts. This code combines
the simplicity of the Latin codes and the preciseness and depth of the Germanic codes. In addition
to the Polish code, can be mentioned the Japanese code issued in 1896, the Brazilian code issued in
1916 and the Chinese code issued in 1929 – 1930.
All of these codes characterized by their different tendencies have inspired the project of
amendment of the civil code. No provision was integrated into the project, without previously
examining its equivalent provision in the different codes where the best provision has been selected.
To that extent, it can be said that the project of amendment represents, regarding the world
codification movement, a stone for the unification of a lot of civil codes.
As for the Egyptian case law, it has been used to a large extent in the project of amendment since it
is not sufficient for the project to be an international model, but it has also to be complying with the
needs of the country, and the judiciary is the best expression of these needs. The mission of the
Egyptian judiciary was very difficult since its task was to transform a foreign law into an Egyptian
one in a distant dawn. It had accomplished its work with a lot of accuracy and talent. Therefore, it
was possible to deduce a lot of beneficial lessons. As an example, can be mentioned here some
4
examples of the Egyptian case law which were integrated into the project of amendment and
transformed into statutory provisions.
The case law had inspired some whole topics such as the ownership in indivision. In this respect,
despite the importance of this topic and its expansion in Egypt, no relevant provision can be found
in the current code. The Egyptian case law has taken the responsibility of detailing its rules, and the
project of amendment has transformed the principles decided by the Courts in this respect into
statutory provisions. As an example, can be mentioned the convention of partition of ownership
made between joint owners who have undivided shares in the property as a whole, where the case
law had cleared its principles. The case law was incorporated into the project, to which some
provisions inspired by the Egyptian environment were also added. The case law had also inspired
the rules governing sequestration, Hekr1, servitude rights, and obligations arising out from
neighborhood. The rules governing these topics were all detailed by case law and the project of
amendment codified these principles and rulings.
Besides the codification of the Egyptian case law in some whole topics, the project of amendment
had also codified the case law concerning a lot of important detailed issues. They will not be all
mentioned here, but some examples will be given.
The case law concerning contracts made by mail and concerning the circumstances in which the
silence of the contracting party might be considered as an acceptance was codified by the project of
amendment. Also, the case law relating to the determination of the "term" whenever the fulfillment
of an obligation is agreed to be delayed till the debtor is able of doing so, the possibility to moderate
the penalty clause, and the ban from reduction of the agent's salary whenever it was paid voluntary
after the end of the agency, the warranty on account of the latent defects of the thing leased. The
prescription by 15 years not 5 years, of the right to sue the possessor in bad faith for the fruit of the
things, and the debts due to the deservers in Wakf by the master. Moreover, case law relating to gifts
and wills made to heirs and concealed by sale, the commencement of the prescription running in
warranty against dispossession lawsuit, the consideration of pledge in the hand of creditors as
interrupting the prescription, and the right of the possessor of the mortgaged property who paid the
integrality of the debt to sue (to be reimbursed by) the other possessors, the transmission of the
preemption right by inheritance, and a lot of other issues dispersed among the project of
amendment's provisions.
As for the Islamic Sharia as a source among sources upon which the project relied, the project had
borrowed a lot of its general principles, and a lot of its detailed principles too.
5
Before doing so, the project of amendment had made a dangerous innovation concerning the
Islamic Sharia since it has put it among the official sources of the Egyptian law, if the judge does
not find a statutory provision to apply. These circumstances are not rare. The courts must therefore
refer to the Islamic Sharia to be inspired by its principles in a lot of cases. This is a great step
forward for the beautiful Sharia, particularly if the fact that the provisions of the project are capable
of adaptation with Islamic Sharia rules is noticed. The judge will be therefore, in order to rule,
either applying statutory provisions which are not in contrast to the Islamic Sharia, either applying
the Islamic Sharia itself.
The innovation did not stop at this point. As mentioned above the project had borrowed some
Islamic Sharia general principles and some detailed principles.
The most important general principles borrowed are the objective or the materialistic tendency
which characterizes the Islamic jurisprudence, also the theory of the abuse of rights, the liability of
undiscriminating people, the assignment of rights, and the principles of unpredictable events. It is
sufficient to give a brief summary for each of these above mentioned issues.
As for the materialistic tendency, it is common to classify legislations into legislations where the
subjective or psychological tendency is preponderant "Tendance subjective" like Latin legislations
in general, and others where the objective or the materialistic tendency prevails "Tendance
objective" which are the Germanic legislations. These two types differ from each other in their
perception of legal systems. Legislations with a subjective tendency make the personal element of
the obligation prevail over its materialistic object, and look to the interior and psychological will in
contracts, disregarding the apparent materialistic one, setting some psychological criterions which
take the concealed will into consideration, not objective criterions which consider the custom and
what is common in transactions between people. Unlike Legislations with subjective tendency,
those with the objective tendency make the materialistic object of the obligation prevail, and look to
the external will in contracts, setting objective criterions which consider the familiar customs. The
objective tendency of law is a sign of its progressiveness because it reveals its eager to ensure the
stability of transactions. Therefore, if we need to identify the tendency of the Islamic Sharia, it will
be certainly an objective one. And if the criterion in this law is the meaning not the wording, it
should be noted that the meanings taken into consideration are those deduced from the words not
those inferred from wills concealed in the soul. Thus, the criterion is the external not the internal
will. That's why Islamic scholars are keen to precise the meaning of words and figure out different
conclusions from their divergence. In doing so, they don't make the meaning prevail over the
wording, as could be thought, but they take into consideration the external will revealed by the word
used in order to ensure the stability of transactions.
6
Furthermore, the standards set out by Islamic Sharia are objective. They consider what is familiar in
transactions and common between people. The project of amendment follows the step of Islamic
Sharia in all these issues. It is therefore characterized by an obvious objective tendency which
appears in a lot of the standards considered by it, in its perception of the obligation as a patrimonial
element more than a personal bond, and in its perception of contracts where it takes the external will
into consideration more than the interior will.
The project had also taken the theory of the abuse of rights from Islamic Sharia. It is a theory
prescribed by the Islamic Sharia to a wide extent and is not limited to the psychological criterion as
most of the legislations have prescribed. It joins an objective criterion to it, making a restriction on
every right by the social and economic purposes of this right. The project borrowed these rules and
codified the two standards of the principle: the personal and the objective. The project had also
brought a lot of real cases borrowed from the Islamic Sharia. Also, the liability of undiscriminating
people is recognized by Germanic codes unlike Latin codes, the project had therefore chosen the
recognition of such liability because it complies with the Islamic Sharia. The same position was
taken regarding the assignment of debt, omitted by Latin codes and prescribed by Germanic codes
in compliance with Islamic Sharia. The theory of unpredictable events (Principe de l'mprévision)
was applied by the administrative courts in France in contrast with the position of civil courts. The
project chose to prescribe it to comply with the theory of necessity in Islamic Sharia. There are a lot
of detailed rules which were borrowed by the project from the Islamic Sharia. Some of these rules
will be mentioned herein, such as rules relating to the place of contract, leasing of Wakf, Hekr, lease
of agriculture lands, deterioration of plants in the leased land, prescription of leasing by the tenant's
death, its termination due to unpredictable events, and the occurrence of the discharge (remittance)
of the debt by individual will, in addition to a lot of other issues which were borrowed by the
current code from the Islamic Sharia and were, in this respect, followed by the project of
amendment, such as the sale made by a seller who is suffering from his death disease, lesion, seeing
option, consequences of deterioration of sold things, plantation of trees in the leased land, rules
governing superficies, common wall, period of prescription. As for capacity, gifts, preemption, and
the principle of “no heritage without previous settlement of all debts", they are all topics of major
importance which were all borrowed from Islamic Sharia.
The arrangement of the project had not been an easy work, since it was necessary to choose an
arrangement that copes with the scientific movement, and which is not inconsistent with scientific
facts, at the meantime to be inspired by the arrangement of modern legislations issued in the 20th
century, keeping - as much as possible - the arrangement of the current code. The project chose to
arrange the issues logically where the idea could be sequenced, in order to enable the researcher to
perceive the interdependence and harmony between different issues. That what justifies the current
7
arrangement of the project. As for its classification and indexing, the project was not a creative one,
since it had borrowed this method from the most modern and expanded legislations.
As for the aspects of amendment, it can be said in general that the project has added new topics,
completed some laconic ones, and brought some remedies to expanded defects:
1- The project avoided the complexity and obscurity of the German code by not dissociating
between the contracts and legal acts. Thus, the project demonstrated its scientific tendency
preferring the theoretical abstract tendency which characterizes the German code. It had
made a section for the effects of obligations where it avoided a lot of the disturbance and
confusion reasons set out by other codes;
2- The project had completed some topics which are very laconic in the current code, and
brought remedies to a lot of the current code defects such as the rules governing the
formation of the contract, the exercise by the creditor of the actions belonging to the debtor
(action oblique), the stipulation for the benefit of a third person, contractual liability,
liability in tort, sequestration, ownership in indivision, ownership of floors, pledge, the right
to judicial mortgage.
3- The project had drawn the essential line of some dispersed topics in the current code without
arrangement or coordination. It has combined their different provisions and enumerated
them once for all. So could appear the interdependence between their different parts and
their common background, such as possession, servitude rights, privilege rights, retention
right, exception of non-performance of the obligation due, and the representation in
contracts.
4- The project set out new topics which were missing in the current code, such as rules
governing the conflict of laws, the legal (juridical) person, the assignment of debt, public
utility contracts, labor contract, insurance contract, gift contract, Hekr, lease of Wakf. The
two new topics that deserve to be pointed out are the regulation of insolvency and heritage
liquidation.
As for the important general tendencies drawn for the project, they are three:-
Firstly, concerning the technical wording, it is of materialistic selective nature which means -as had
been said before- that the project makes a choice between the psychological and objective
tendencies with a preference to the objective tendency, in order to preserve the stability of
transactions. In this respect, the project is characterized by an obvious pragmatic nature.
The second general tendency concerns its legislative policy where it grants the judge a large liberty
in appreciation to face the changing of circumstances in the different cases viewed by him. That is
the nearest solution to realize real justice, since the judge limited in his appreciation by rigid rules
8
and narrowed provisions would not be able to qualify the legal rules, in such a way that such liberty
permits a fair application in different circumstances. Therefore, either he achieves real justice by
breaking law ties, or he sticks to the limits prescribed by the law and the result would be a
mathematical and formal justice. It is now constant that rigid legal provisions should be broken due
to practical needs and that the choice of flexible rules would be better to cover new events and what
might be revealed by the continued movement of progressiveness.
The final main general tendency is that the project as far as its social and economic basis is
concerned is matching with the tendencies of its time. Thus, its perception of democracy is not
limited to its old meaning, but it takes into consideration the deep progressiveness of this concept
which will have an extensive effect after the end of the war. The project does not tolerate individual
liberty to the detriment of collective interest, and does not make the autonomy of the will the center
around which legal bonds turns. However, it reconciles between the individual liberty and the
community interest, and in the relations between individuals, the project does not let the powerful
beats the weak on the grounds of respect of the personal liberty. The individual is not free to abuse
of his power created by the economic and social systems. Therefore, the project stood beside the
weak party to protect him, as it is the case in membership agreements where it made the
interpretation of abusive clauses subject to the appreciation of the judge, and as it did concerning
exploitation contracts where the intervention of the judge was stipulated to support the weak party
every time there was an abuse of his needs, of his indiscretion, of his lack of experience, or his
weak perception, and as the project did regarding the protection of the employee by surrounding the
labor contract by a strong chain of guarantees to avoid the abuse of the employer. But above all, the
project is prescribing a general principle banning from the abuse of rights. The project shows
clearly a certain sympathy for the debtor in so far as it limits the right of enforcement of the creditor
when compelling him to commence the execution by selling the property which will have the lesser
cost on the debtor, and brings remedies to the judicial mortgage by enabling the debtor to remove it
whether by limiting it to a part of the mortgaged property, or by transferring the judicial mortgage
to another property having a sufficient value to honor the debt. Furthermore, the project prescribes
the necessity of the judge's intervention in the case of exceptional unpredictable events occurrence,
which makes the fulfillment of the obligation significantly hard, and which threatens of a fatal loss.
The judge will reconcile between the interests of the contracting parties and moderate the obligation
to a reasonable extent. Besides, there are a lot of provisions dispersed among the project which
protect the debtor and prevent him from the creditor's abuse. Finally, the project restricts the
ownership right by prescribing a social function to this right, which should not be disregarded by
the owner. In its first provisions defining the ownership right the project stipulated that the owner -
as a long as he respects the limits prescribed by the law – is entitled to use, enjoy and alienate his
property without the intervention of third parties, so long as these prerogatives are compatible with
the social function attached to the ownership right. Subsequently, it enumerates concrete cases to
9
confirm this meaning by banning the owner from abusing his rights to the extent that harms the
property of the neighbor. Moreover, the project allowed the intervention of third parties in the
enjoyment of the property so far as this intervention was necessary to prevent from a damage which
is superior to the one that could be suffered by the owner, and so far as this latter is duly
compensated. Therefore, whenever the ownership right is inconsistent with the general interest, or
even with a private interest worthy of protection, the project restricts this right in order to preserve
the legitimate interests, and to realize the social solidarity. Such position was taken without
exaggeration since the individual liberty and the autonomy of the will are still preserved, and the
creditors' rights and the respect of property are subject to a lot of provisions in the project where the
reconciliation between the rights of the individuals and those of the community can be seen.
Consequently, the project has recorded social justice principles of the 20th century. It is
characterized by a strong nature of the civilization of the time being and the civility of the
generation.
10
Preliminary section: General provision
A PRELEMINARY SECTION: GENERAL PROVISIONS
A GENERAL VIEW:
The preliminary provisions aim at enabling the civil law to accomplish the role assigned to it by its
place in the legal system. It is the origin of this system, and there is no doubt that this situation
requires that civil law regulates general issues, some of them are relating to the wording of legal
provisions in general, others concern the interpretation and the application of these provisions. The
French law has taken this fact into consideration. This law was the model followed by the 19 th
century codes. The French code was concerned by highlighting the status of these provisions in
relation to the entirety of the legislation as they are general provisions applicable to the entire
branches of private law. This concern appeared in setting out firstly these rules which will be later
on detailed by this legislation in a preliminary section called "of the publication, effects, and
application of statutes in general". The place assigned to this section was pretty small, it contained
only six articles. It has briefly enumerated some issues of which the biggest part was set out by the
current project in the first of its three chapters contained in its preliminary section. The first issue is
the sources of law. The French code dealt partially with this matter in two articles as it was enacted
in a period when we used to believe in the sufficiency of the legislation to produce all the legal
rules: The first of these two articles concerns the time at which statutes enter into force, the second
concerns the prohibition for judges to decide cases submitted to them by way of general and
regulatory provisions. The second issue is related to the rules made for the courts to solve the
questions relating to the international conflict of laws. At the beginning of the 19th century, these
rules were so primitive so that the French code could not codify them except in a single article
among the preliminary articles, which is article 3. The third issue concerns the succession of laws in
time. This matter was lacking a lot of preciseness and clearness when the French code was enacted;
the French legislator thought that he can combine the rules governing this matter in the misleading
article 2 of the French civil code, even if it primarily appear simple. The Egyptian mixed civil code
followed the French civil code in this respect and began with a preliminary section containing 14
articles one of which dealt with the entry of laws into force (article 1), the second prescribed that
legislations provides only for the future with no retroactive effect (article 2), the third treated the
case of inexistence, laconism or obscurity of provisions (article 11), nine of the remaining articles
traces the limits of the mixed courts’ jurisdiction concerning persons and articles from the domestic
and international point of view (articles 3,4,5,6,7,8,9,13,14), one article prescribed the principle of
laws’ territoriality (article 10), another concerned the organization of legislative competence of the
general assembly of the mixed court of appeal judges before the abolition of the foreign privileges
(article 12). Articles 1 to 13 were repealed by virtue of the ordinance n* 89/1937 concerning the
legislation applied by the mixed courts. Only articles 13 and 14 which concern the limits of the
international jurisdiction of the mixed courts were left untouched. The result of this abolishment
was the re-introduction of the rules governing family law issues and the determination of their
11
applicable law in articles 28 and 29 of the regulation concerning the judicial organization of the
mixed courts, and the transmission of the rule governing the incompleteness, laconism, or the
obscurity of the law to article 52 of the same regulation. It appears that the removal of the above
mentioned rule from the preliminary section was due to two reasons: the first is that these rules
were subject to discussions during the conference on the abolishment of foreign privileges, it was
therefore mentioned in the documents of the conference. The second reason is that the indigenous
civil code did not contain a preliminary section, but its makers referred to the regulation of
indigenous courts’ organization and commenced it with preliminary provisions concerning the entry
of laws into force (article 1), the assumption of non-ignorance of laws (article 2), the non-
retroactive effect of laws (article 3), amendment or repeal of laws (article 5), and then added two
other rules concerning the nullity of conventions that violate the public policy or the morality
(article 28), and the application of the rules of equity or the commercial usages " in commercial
matters" by the judge in the absence of an explicit statutory provision (article 29). The indigenous
code did not treat directly the question of conflict of laws, except in article 54 (heritage), 55 (gifts),
130 (capacity) which are equivalent to articles 77, 78,190 of the mixed civil code. It is however
constant that the rules contained in the preliminary section of the mixed civil code and their
dissociation from those contained in the two regulations concerning mixed and indigenous courts’
judicial organization, represent an old fashioned method of laws creation. The laconism
characterizing their provisions was a sign of tardiness, particularly after the huge efforts made by
courts and the doctrine to complete this laconism. In this respect, the rules governing the sources of
law and the conflict of laws as to time and place have greatly progressed in the modern time in the
domains of science and legislation. It can be seen that the number of provisions which dealt with
these questions in the French code were doubled in the Italian civil code issued in 1863, then
augmented to 21 articles in the preliminary rules of the new Italian code issued in 1938, 16 articles
in the Spanish code, 21 article in the Brazilian code issued in 1916, and about 30 articles in the
Japanese code. However, the preliminary sections in these codes are still laconic despite the large
scope of their rules and the increase of the number of their provisions. However, the two codes
which had a scientific influence internationally were the German and the Swiss codes. They dealt
carefully with these rules in a logic manner. The preliminary law of the German civil law contained
the elements of the entire organization of the conflict of laws as to place and time; it assigned to this
question a group of scientifically valuable articles that exceed the particularities of the cases that
these articles were originally intended to treat. The Swiss code organized these two types of
conflicts between laws in a detailed organization, and above all, it intended to create a general
theory for the sources of law.
The current project in the first section of its preliminary chapter, tracked the method generated by
the French code, which was also followed by subsequent codes, in the first chapter of the
preliminary section. In this section, provisions governing sources of law were combined (article 1
12
and 2), provisions relating to the limits to the lawful use of the right (article 4 and 5), a general rule
governing the calculation of periods (article 3).
The project was careful to show the relation between the legal rule and the right, so it enumerated
the use of rights as an aspect of the application of the law and dealt with the limits restricting rights
when they concur. This method was rarely used by previous codes. Consequently, the recourse to
the case law of other countries’ courts during the last years was inevitable. In this respect, the
project contributes at enabling civil laws to solve problems initiated by the interpretation of legal
rules in general. The second branch dealt in firstly with the conflict of laws as to time (articles 6 to
10), and its conflict as to place secondly (articles 11 to 31). In the introduction of these last two
sections the project prescribed the traditional rule of non-retroactive effect of laws (article 6), then
stipulated general rules concerning matters influenced by the succession of laws in time such as
capacity (article 7), prescription (articles 8 and 9), pre-established evidences (article 10). Therefore,
the project was enabled in this section to draw the theoretical basis for the non-retroactive effect of
laws which made it matching with the modern tendencies in doctrine, case law and legislation. It
also avoided apparent defects in the current law. The second section contains a detailed
organization of the conflict of law as to place. The project set out two other chapters, one concerns
persons, the other concerns the classification of things and property. The chapter concerning
persons was divided into two branches. The first branch dealt with natural persons, the project
treated their commencement, termination, characteristics, and protection (article 32-54). In the
second branch, the project presented legal persons whose definition, characteristics, and types were
shown and particularly rules governing non-profit organization and foundations (articles 55-82).
The other chapter dealt with the classification of things and property where the rules governing the
validity of transactions made regarding things (article 83) movable and immovable property and
their types (articles 84-85), things susceptible of consumption (article 86), interchangeable things
from the settlement of debts point of view (article 87), intellectual property (article 88), and public
domain (article 89-90), were prescribed. The project dissociated the provisions governing persons
and those governing the classification of things and property and set them out in two chapters due to
special and general reasons. The fact that the project of amendment does not contain a section
concerning all the rules governing persons or family law bonds in general requires the existence of
some general principles relating to these bonds which can be easily added to the current law, unlike
special legislations governing family law. However, this consideration was not sufficient to lead the
project tendency in so far that if ever the rules governing family law were combined to those
governing patrimonial transactions, the two chapters shall be deemed as the introduction of the
entire legislation without laconism.
This view can be justified by the fact that civil law deals with the status of persons considering
them as subject to its provisions and the status of property as subject to the transactions made by
persons. It is therefore logic to introduce by a general idea about persons and property. The value of
13
this introduction is not limited to the theoretical side, its practical advantages are obvious
particularly the connection made between topics having a harmonious nature, it is also a good
introduction to the presentation of the rules governing legal persons.
14
The Law and The right Article 1
2- The Law and the right
Art. 1
Statutory provisions apply to all matters governed by these provisions, whether in their words or
their exposition.
Whenever there is no statutory provision to apply, the judge shall decide according to customs, if
there is no custom, by virtue of the principles of Islamic sharia, if they do not exist according to
principles of natural law and rules of equity.
Preparatory works: In this article, the project collected what is called by the doctrine as 'the
sources of law' ... the combination of these sources is not aiming at their enumeration, but it aims
particularly at presenting the priority of their application... therefore, the judge has to search the
applicable rule to the case in statutes, when he finds it or deduce it from statutory provisions, he has
to simply apply it... in order for statutory provisions to be flexible and applied without difficulty,
the recourse to the spirit of the provision by the examination of its historical sources, preparatory
works, deducing its requisites, revealing its real meaning or its indication by the different means of
interpretation are beneficial.
Art. 2
Statutory provisions shall not be repealed except by a subsequent legislation prescribing such
repeal expressly, or containing a provision in contrast with the provision of the old legislation, or
reorganizing the topic previously regulated by this legislation.
Preparatory works: … the general principle as to legislation repeal is that it should be made
expressly by a subsequent legislation. Nevertheless, repeal can be made impliedly in two ways: by
the enactment of a new legislation containing a provision flagrantly inconsistent with the provision
of the old legislation. In this case the repeal is limited to the extent of inconsistency; or by the
enactment of a new legislation containing a complete reorganization of a given topic which was
regulated by an old legislation. In this second case, the old legislation is deemed repealed in its
entirety, even if there is no contradiction between some of its provision and those of the subsequent
one. It is out of question that the non-admissibility of statutes repeal except by virtue of a legislation
implies the non-admissibility of such repeal by a subsequent custom.
15
Article 5 The application of Laws
Art. 3
Periods shall be calculated according to the Gregorian calendar, unless otherwise provided
for by the law.
Art. 4
Whoever makes a legitimate use of his right shall not be liable for the prejudice resulting
thereby.
Art. 5
The use of a right shall be unlawful in the following circumstances:
a- If it intended only to prejudice another person.

b- If its targeted interests are valueless so they become noticeably not proportional to the
prejudice that could be suffered thereby by the others.
c- If it pursued the realization of illegitimate interests.
Preparatory works: the legislator eluded the expression of “abuse” due to its width and obscurity,
and also avoided all general words due to their lack of preciseness and obscurity. He seized the
three criterions enumerated in the provision from the Islamic sharia. Such enumeration provides the
judge with useful elements that guides him, particularly because they are the result of real cases
which was applied by the Egyptian courts by means of interpretation.
The first criterion is the use of the right for the sole purpose of prejudicing another person. This
criterion is a subjective one; it was constantly approved by the Islamic doctrine, the occidental
doctrine and the courts. It was prescribed by article 226 of the German civil law which is one of the
first statutory provisions that supported the theory of the “abuse of rights”. The questioning in this
respect is relating to the existence of the intention to cause damage even if the use of the right
beneficiates its user. The courts used to deduce this intention from the absence a potential gain to be
realized by the user of the right.
1- The application of Laws
Conflict of laws as to time
Explanatory memorandum: A general view:
16
Conflict of laws as to time Article 6
Old laws used to find sufficient the treatment of the non-retroactive effect of statutes in brief
words to which some exceptions might be added following the circumstances (article 2 of the
French civil code, article 5 of the Austrian code, article 3 of the Spanish code), therefore, article 3
of the ordinance of June 14th 1883 concerning indigenous courts stipulated that “rules of statutes
and ordinances shall govern only situations which occur on the date of its entry into force. They
do not influence previous facts, unless otherwise prescribed expressly.” The Egyptian
constitution prescribed a similar provision with a small difference in wording. The repealed
article 2 of the mixed civil code used to prescribe the non –retroactive effect of statutes and
provided for an exception concerning procedural law and judicial jurisdiction in the following
words “they shall apply to disputes concerning obligations arisen before the entry into force of
this statute.” The width of the legislative activity in the modern era implied the increase of
subsequent laws. As a result of this subsequence, the doctrine paid attention to this question to
comply with its practical importance. Legislation was also influenced by this phenomenon, so
that new statutes do not only point out to the question but they elaborate the issue
comprehensively by regulating the question of the transfer of jurisdiction between the two
statutes, such as the German law (articles 153 to 218 of the law of issuance), the Swiss code in its
final chapter and the law of June 1st 1925 concerning the application of the French civil law in
Alsace & Lorraine. These rules which emerged within the movement of jurisprudence and
legislation are merely characterized by their uniqueness and are considered as a particular branch
of law. In compliance with this movement, the project contained in its preliminary chapter a
detailed organization of the questions that might arise due to the conflict of statutes as to time.
The project prescribed the general rule (art.7) which wording eluded the idea of considering the
non-retroactive effect as an exception. It also coped with the modern doctrine and enumerated the
most important practical cases such as capacity (art. 8), guardianship and curatorship (art. 9),
non-contractual obligations (art.10), prescription (art. 11 & 12), procedural laws (art.13 & 16),
capacity to sue (art. 14), judicial organization and courts’ jurisdiction (art. 15), evidence (art. 17,
18 & 19), rulings and their effects. Therefore, the legislator completed a vacuum which was not
easy for the courts to fill in a way that assures the stability of rights and transactions.
Art. 6
Provisions concerning capacity shall apply to all persons who fulfil the conditions
prescribed by such provisions.
If a person who has capacity by virtue of old provisions becomes incapable by virtue of new
provisions, previous acts made by him remain, nevertheless valid.
17
Article 7 Conflict of laws as to time
Preparatory works (art.8): … provisions concerning capacity shall apply from the date of their
entry into force to all persons who fulfil the conditions prescribed by such provisions. It results that
these provisions might overturn emancipated persons into minors in the case of raise of the
emancipation age, or transform a minor into an emancipated person if the age of emancipation is
decreased. The capacity to dispose- transfer - which is the ability to be committed by will- aims at
protecting a group of persons. This protection is relating to public policy. Therefore, the author of
the explanatory memorandum of the ordinance of October 13th 1925 made a mistake when he
mentioned that the rule concerning the raise of the emancipation age (from 18 to 21) shall not be
applicable to those who attained the age of 18 – prescribed by the old law as the age at which the
guardianship ends - before the entry into force of the new statute” as these persons are considered as
emancipated by the law. However, the fact that a person having capacity becomes a minor by virtue
of a new statute does not affect the validity of the acts made by him within the old legislation. These
acts remain non-susceptible of appeal because of the lack of capacity whenever the contacting party
had the full capacity at the time of their formation, since the new law transform them into minors,
only for the future.
Art. 7
New provisions concerning prescription shall apply from the date of their entry into force to
each uncompleted prescription.
Nevertheless, concerning the period prior to the application of the new provisions, old
provisions shall apply to questions relating to the commencement, suspension, and
interruption of prescription.
Preparatory works (art.8): … the general principle as regards the limitation period is that its
completeness makes an irrefragable presumption in favour of the beneficiary of the limitation, so
that he shall be discharged from proving the acquiescence of the right or his release due to public
policy considerations. Each uncompleted limitation period does not have such effect, so that if a
new statute extends this period, it shall be applied. However, the commencement, suspension and
interruption of prescription are realized whenever the conditions prescribed by the statute in vigour
are fulfilled. If the period had commenced or had been suspended or interrupted pursuant to a
certain statute, they shall produce the effects prescribed to them by this statute. The period
commenced continues running, and the period suspended cannot recommence running as long as
the cause of suspension exists, unless otherwise provided by the new statute. The period previous to
the cause of suspension shall not be calculated.
18
Conflict of laws as to time Article 8
Art. 8
If a new provision stipulates a shorter period of limitation than the old provision, the new
period applies from the date of application of the new provision even if the old period had
started to run before.
Nevertheless, if the remaining time of the period prescribed by the old statute was shorter
than the period prescribed by the new provision, the prescription shall be completed upon
the expiry of such remaining time.
Preparatory works (art.12): … the new statute might provide for a shorter period of limitation
than the period stipulated by the old provision (paragraph 1 of article 12). In this case, the new
period does not commence to run regarding a commenced prescription except from the date of
application of the new provision (indigenous court of appeal, 15 December 1898, judicial gazette
n*6, page 186; 4 February 1902, official compilation n*3, page 190), in order to preserve the
stability of transactions. The reality is that the prescription has not been completed under the old
statute…
It has been seen that an exception should be made to the general principle prescribed by the first
paragraph of article 12 in the case of completeness of the prescription prescribed by the old statute
within the jurisdiction of the new statute, and before the expiry of the new period. This occurs
whenever the remaining time of the old period is shorter than the period stipulated by the new
provision such as if the old period was 15 years and only 2 years were remaining in order for the
limitation period to be completed, and the new legislation has created a limitation period of three
years. In this case, the prescription shall be deemed completed upon the expiration of these two
years. Thus, the extension of the jurisdiction of the old statute after its disappearance realizes
justice.
Therefore, the application of the 1 st paragraph of article 12 is reserved to the case where the
remaining time of the old period is longer than the entirety of the new period. That what justifies the
disregarding of the time elapsed and the inauguration of a new period which commence on the date
of application of the new statute upon which interested persons shall rely without being subjected to
surprises. The legislator preferred this solution among others provided by the doctrine and case law
since it is the nearest solution to realize justice and stability, and the one that might face the lesser
critics.
19
Article 9 Conflict of laws as to time
Art. 9
In respect to pre-established evidences, the provisions in force at the time of their

establishment, or those in force at the time at which they should have been established,
apply.
Preparatory works (art.18): … the project made an exception to the general rule stipulated in
article 17, concerning pre-established evidences prescribed by article 18 where it was provided that
the applicable provisions to pre-established evidences are the provisions in force at the time of their
establishment or those in force at the time at which they should or could have been established. The
courts in Egypt approved this exception (Egyptian court of appeal, 24 February 1930, Advocacy
n*10, page 690, n* 346; Mixed court of appeal, 25 June 1913, B25, page 471), as the pre-
established evidence supposes the existence of the provision prescribed to it before it had been
prepared which will have the closet connection with the substantive aspect of the right.
1- The application of Laws
Conflict of laws as to place
Explanatory memorandum: A general view:
The Egyptian civil code does not contain provisions regulating the question of conflict of laws
except the rules enumerated in article 54, 55,130,77,78 and 190 concerning the applicable law to
questions of inheritance, wills, and capacity, and article 13 & 14 of the mixed civil code concerning
courts’ international jurisdictions. It is not sufficient to remedy this laconism by the provisions of
article 407 & 468 of the procedural law concerning the execution of foreign rulings, article 3 of the
law on family councils enumerating the jurisdiction of these councils regarding foreigners, articles
27 to 32 of the regulation concerning the judicial organization of the mixed courts providing for
criminal penalties relating to conflict of laws’ certain questions, and some provisions in treaties
such as the Egyptian-Turkish treaty or the treaty made between Egypt and Iran. Therefore, it had
been seen that the project should contain a detailed regulation of the conflict of laws, treating the
two comprehensive aspects of this conflict: the international conflict as to judicial jurisdiction and
the international conflict as to the legislative jurisdiction. Furthermore, the project contained an
additional section concerning the domestic conflict as regards family laws (article 58), but it had
been seen that this article is – to a wide extent- in contrast with the rules stipulated in the Egyptian
positive law, and the project of laws concerning sectorial courts. Therefore, the removal of article
58 from the project was decided, especially because among these projects, some have been
introduced to the parliament and are about to become legislations in force.
20
Conflict of laws as to place Article 11
Art. 10
It shall be referred to Egyptian law to qualify relations, whenever the determination of the nature of
these relations is required in a case involving conflict of laws, in order to know the applicable law
among these laws.
Preparatory works (art.25): … it has to be understood from the obligation made to Egyptian
courts to refer to its law concerning qualification questions, that they should refer to the Egyptian
law in its entirety, which include rules governing persons and property whatever was the source of
these rules, without referring only to the rules they have jurisdiction to apply according to the
distribution of the courts’ jurisdiction. It should also be taken into consideration that the application
of the Egyptian law as it is the law of the judge “loi du for” on qualification questions is reserved to
the determination of the nature of relations in the case at hand in order to characterize them into
their component legal categories which have –each- its own choice of law rules determining the
legislative jurisdiction, such as categories relating to the form of acts or the status of persons,
inheritance, gifts, or the status of property. Once the determination of the applicable law is made,
the mission of the judge ends, and he has to apply the rules of this law…
Art. 11
The civil status and the capacity of persons shall be governed by the law of the country of their
nationality.
Nevertheless, in pecuniary transactions created and producing their effects in Egypt, if one of the
contracting parties is an incapable foreigner, and this incapacity was due to a concealed reason
which cannot be discovered by the other party, this reason does not alter his capacity.
As for the legal system of foreign legal (juridical) persons such as companies, associations,
foundations and others, it shall be governed by the law of the country in which exists its principal
real seat of management.
Nevertheless, Egyptian law shall apply if they pursued their activity in Egypt.
Preparatory works (art.27): … the first paragraph of this article determines the applicable law to
the status of persons and their capacity. Status means the entire characteristics which determine the
status of the person towards his family and his country. These characteristics are based upon real
facts such as the age, masculinity, femininity, health, or on legal facts such as marriage,
guardianship and nationality. The capacity refers to the capacity of disposition only, which is the
ability to be committed by virtue of the acts of will. Such ability is intimately close to the status.
21
Article 17 Conflict of laws as to place
The legislator made the status of persons and their capacity subject to the law of nationality,
prescribing therefore, the same rule stipulated by the first paragraph of article 29 of the regulation
of judicial organization and articles 190, 130 of the current civil code. These rules match with those
prescribed by the Latin and Germanic legislations in general, but he did not make the restricted or
the special capacity subject to the law of nationality since such capacity has a special status that
should be left to the interpretation of the courts.
2- Article 7 of the new Italian code and article 7 of the law of issuance of the German code
contain an exception as to capacity, by which the foreigner who makes a transaction while
he is not capable of passing it according to his law of nationality shall be deemed capable of
making it. This is the case in the German and Italian law concerning citizens unless the
matter concerns the family, inheritance, gifts, or an act made on an immovable property
located outside the country ( see also article 3 of the polish code issued in 1926). Such rule
is quasi-similar to what had been decided by the French courts and what was considered by
the doctrine as the basis of national protection of interests. Thus, it is better for the project to
contain a similar exception because it is difficult to the co-contracting party to a foreigner to
know the rules governing his capacity, particularly when his apparent status gives no doubt
about the completeness of this capacity.
3- The second paragraph deals with the status of foreign legal (juridical) persons like
companies, and associations. It requires the application of the law of the country in which
the legal person has its principal seat of management. The mixed courts was hesitant about
this question, some of their judgements chose the law of the country pursuant to which the
legal person is formed (Mixed court of appeal, 3 march 1910, B22, page 158), while others
applied the law of the nationality of the co-partners, if they have the same nationality (Mixed
court of appeal, 10 December 1891, B, page 49), others approved the jurisdiction of the law
of the country in which the legal person has its principal seat of management, but did not
succeed to apply it (Mixed court of appeal, 15 January 1913, B 25, page 131). Therefore,
the project had well done to remove all doubts concerning the rule that should be followed.
4- Thus, it is suitable to amend this rule in order to enable the application of the law of the
country in which the legal person pursues all or a part of its activity, or the law of the
country in which exists its real seat, without other restrictions (see article 29 of the Italian
commercial law which took the same position). It shall be referred to the applicable law to
the status of the legal person concerning its enjoyment of the juristic personality, its
organization, and particularly concerning its formation, management, its constitutive act,
methods of amendments of such act, and the legal effect of this amendment, and ways of
extinguishment of the legal person.
22
Art. 12
As regards substantial conditions required for the validity of marriage, it shall be referred to the law
of both spouses.
Preparatory works (art.28): … Article 28 deals with the formation of marriage. In its first
paragraph, it copied the second paragraph of article 29 of the judicial organization regulation and
stipulated that the law of both spouses shall be applied as regards substantial conditions required for
the validity of marriage. Such rule was prescribed by article 1 of Hague convention made on the
13th of June 1902, and was reproduced by a lot of legislations (article 12 of the law of issuance of
the German code, article 5 of the Swiss law issued in 1891 and article 50 of the final chapter of the
Swiss code, article 3 of the law annexed to the Japanese law, article 12 of the polish legislation
issued in 1926). This rule was applied by the mixed court of appeal before its stipulation in the
judicial organization regulation. It declared the nullity of the marriage made between a Muslim
women and a non- Muslim man since the Islamic religion of the man is a substantive condition
required for the validity of marriage under the wife’s law (11 June 1913, B 25, page 443).
Art. 13
The law of the husband’s country at the time the marriage is concluded applies to the effects
produced by the contract of marriage including the effects on property.
As to divorce, the law of the husband’s country at the time of divorce applies. The law of the
husband’s country at the time of introduction of the case applies regarding repudiation and
separation.
Preparatory works (art.29): … this article prescribes the rule of legislative jurisdiction concerning
spouses’ relations, including separation, divorce and the effects produced by such relations. All
shall be governed by the husband’s law at the time of conclusion of marriage. This is the rule
prescribed by article 29 of the judicial organization regulation of the mixed courts; it complies with
a lot of rules prescribed by new legislations in this respect (article 8 & 9 of the new Italian code,
article 14, 15, 16 of the polish code issued in 1926, comp. article 16 of the law of issuance of the
German law). However, the husband’s personal law jurisdiction concerning the organization of
property between spouses (which is an organization not known by the Islamic sharia or other non-
Muslim sects in Egypt) does not alter the jurisdiction of the Egyptian law as it is the law of the
place of the immovable property, also that what was meant by the last paragraph of article 29 of the
judicial organization regulation when it stipulated that the rules of this article do not alter “those
concerning the immovable property system in Egypt”. It results from this reserve that it is not
admissible to rule in Egypt that the … is considered as an inalienable property according to the
23
husband’s personal law, since this question is related to the regulation of property, and it shall not
be referred except to the law of the place of property (the mixed court of appeal had ruled otherwise
in few judgements such as 22 June 1914, B 26, page 179) but it had lately reversed its case law.
Art. 14
In cases stipulated in the two previous articles, if one of the spouses was Egyptian at the time of
conclusion of the marriage, the Egyptian law shall exclusively apply, except concerning the
capacity to marriage.
Art. 15.
As regards alimony between relatives, the law of the debtor shall apply.
Preparatory works (art.33): Article 33 envisages the obligation to alimony; it prescribes the
application of the debtor’s law. This is a general rule copied by the legislator from article 29 of the
judicial organization regulation. It contains in its general words all types of alimonies unless
otherwise provided for by a special provision…
Art. 16
The law of the person who is intended be protected shall apply to all substantive questions relating
to guardianship, tutorship, curatorship and other established systems aiming at protecting persons
under guardianship, or absentees.
Preparatory works (art.36): the legislator kept the rules prescribed by paragraph 8 of article 29 of
the judicial organization regulation with a generalization of its words in order to absorb all
substantive systems protecting incapable and lost people, without being limited to tutorship,
curatorship, and the authorization to manage. The legislative competence had been attributed – as
regards these systems - to the law of the incapable, or under guardianship in general because it is
the best law to protect him…
Art. 17.
Inheritances, wills and all acts which produce their effects after death shall be governed by the law
of the predecessor, the testator, or the law of the person who made the act before his death.
24
Nevertheless, the form of the will shall be governed by the law of the testator at the time the will
was made, or the law of the country in which it was made. The form of all acts which produce their
effects after death shall be subject to the same rule.
Preparatory works (art.38): these articles (38-40) are the last ones concerning the jurisdiction of
the personal law. They include the rules governing inheritances, wills, acts which produce their
effects after death in general, and gifts. They end by a rule relating to the distribution of jurisdiction
between procedural rules and substantive rules.
2- The project envisaged inheritances, wills, and acts which produce their effects after death in
article 38. It copied the provisions of paragraph 9 of article 29 of the judicial organization
regulation of mixed courts, and articles 54 & 55/77, 78 of the civil code, but it modified
these provisions as regards two of their aspects : it determined the time at which it shall be
referred to the law of nationality of the predecessor which was not pointed out by the above
mentioned article 29, stipulating that questions relating to inheritance shall be governed by
the law of the predecessor at the time of his death, like article 13 of the new Italian code.
The second paragraph prescribed the application of the law of the testator at the time the will
is made to wills and other acts which produce their effects after death. Making wills subject
to the law of nationality of the testator at the time they were made generally means their
regulation as legal acts without regulating their substantive aspect. Interestingly, article
55/78 of the civil code stipulates that “the capacity of the testator to make the will and the
wording of such will shall be governed by the law to which belongs the testator.” Therefore,
it is worthy to prescribe a similar rule for inheritance and wills as far as they are
substantively connected, and to make a single provision for the law applicable to wills
beyond substantive issues.
3- The project did not only mention the will in the second paragraph, but added mutual wills
and contracts of inheritance.
Art. 18.
Possession, ownership, and other real rights, shall be governed by the law of the place of the
immovable property. Regarding movable property, the law of the place at which the movable is
situated at the time of realization of the cause of acquiescence of the possession, of ownership, or
other real rights.
Preparatory works (art.41): the Egyptian legislation did not provide expressly for the
application of the law of the place of the immovable to the property systems. It was deduced
from ancient Ottoman legislations, from judicial jurisdictions’ rules, or from the last
paragraph of the judicial organization regulation. This article completed this laconism and
25
prescribed in article 41 that questions relating to possession, ownership, other real rights
shall be governed by the law of the place of the immovable property; and regarding
movables the law of the place at which the movable is situated at the time the cause of
acquiescence or loosing of its property, possession, or the relevant real right has been
realized. This article has equivalents in the foreign legislations…
Art. 19.
Contractual obligations shall be governed by the law of the country in which the contracting parties
have their common domicile. If they have different domiciles, the law of the country in which the
contract was concluded applies, unless the parties agreed, or the circumstances showed that another
law was sought to be applied.
Nevertheless, the law of the place of the immovable property shall apply to contracts made
concerning this immovable.
Preparatory works (art. 42)2: the project presented in these articles (42-48) the general
rule as to contractual obligations, and other illustrations of contracts and their execution, and
prescribed at its end the rule relating to the obligation to respect mandatory provisions in a
certain limit. First of all, the fact that international doctrine is still hesitant as to the
applicable law to contractual obligations, due to the variety of contracts and the divergence
of their applicable rules as to conditions of formation, conditions of validity and effects,
should be considered.
Therefore, the project avoided details and approved only the most stable rule within the
scope of legislation. It stipulated in article 42 that contractual obligations shall be governed
by the law prescribed by the two parties, without prejudice to articles 44 and 48. This
general rule makes the autonomy of will prevail, and ensures the unity of the applicable law
to the contract. This unity cannot be guaranteed by the idea of analysis of the elements of the
contract, and the choice of the suitable law that should be applicable to each element. The
project was inspired by article 7 of the law annexed to the Japanese law and article 15 of the
new Italian code. The first of these articles stipulates that the law chosen by the parties shall
be applied to questions relating to the existence and effects of the legal act. The second
prescribes that obligations arisen out from contracts shall be governed by the law of
nationality of the parties if they have a common nationality, or the law of the place of
2
Article 42 of the project of amendment of the civil code used to be read as follows “contractual obligations shall be
governed by the law prescribed by the two parties expressly or impliedly, without prejudice to the provisions of articles
44 and 48.
Article 44 “the law of the place of the immovable property shall apply to contracts made concerning this immovable.
26
contract in other cases. All that is conditioned by the absence of an agreement to the
contrary by the parties.
It can be seen that the project chose a flexible wording which does not ban the courts from
innovating, and does not prevent from beneficiating from the progressiveness of the doctrine
movement.
The project linked this wording to special provisions some of which determine a legislative
jurisdiction as to some type of contracts, others put presumptions from which the will might
be deduced whenever there is no agreement, and finally others determine a legislative
jurisdiction relating to the execution of contracts.
Art. 20
The form of contracts made between living persons shall be governed by the law of the country in
which they were made; it is also admissible that these contracts be governed by the applicable law
to their substantive conditions, by the law of their common domicile, or by their common national
law.
Preparatory works (art. 51): … this rule envisages legal acts either those concluded by a
unilateral will or those concluded by the meeting of two wills. The absolute character of this
provision is limited by two restrictions: the first restriction is that it governs only acts made
between living persons; therefore wills and other acts which produce their effects after death
are out of its scope…
The project admitted in the second paragraph that the applicable law to these contracts could
be the law applicable to the conditions of validity of the act, the law of the contracting party
common domicile or their common national law. Therefore, the debate as to whether the
jurisdiction of the law of conclusion is stipulated by virtue of a mandatory provision or
according to practical considerations becomes without subject. The jurisdiction of the
country of conclusion is based upon practical necessities, so that if the parties were able to
respect the form prescribed for their act by the law applicable to the substance, or the law of
their common domicile or common nationality, they shall not be therefore banned from
doing it, particularly because the jurisdiction of the law of the common nationality is the
nearest to the nature of things and the best to realize the unity of the applicable law to the
contract.
Thus, some legislations begin by stipulating that the form of the act is governed by the law
applicable to its substantive questions ( article 11 of the law of issuance of the German law,
article 5 of the polish code issued in 1936), and then allow the recourse to the law of the
place of conclusion of the act, and some of them put this latter, the applicable law to the
27
substance of the act, and the law of common nationality on the same level (article 16 of the
new Italian code). The project added to the law of common nationality, the law of the
domicile of those who made the act because some countries replace the jurisdiction of the
law of common nationality with the jurisdiction of the law of domicile such as England.
Such addition matches with the importance of the domicile in the implementation of
contracts and particularly the commercial ones.
The jurisdiction of the law applicable to the form of the act pursuant to the pre-mentioned
paragraphs concerns only its external elements. As for substantial questions relating to the
form which constitute an element of the conclusion of the act such as registration of pledge,
they shall be governed exclusively by the law applicable to the substance of the act.
Art. 21
Non-contractual obligations shall be governed by the law of the country in which the constitutive
act of the obligation took place.
Nevertheless, concerning obligations arising out from tort, the previous provision does not apply to
acts committed abroad and which are lawful in Egypt, even if they were unlawful in the country in
which they were committed.
Preparatory works (art. 49): … regarding non-contractual obligations, the general rule is
the applicability of the law of the country in which the constitutive act of the obligation
occurred. It is indifferent that the source of the obligation be the tort or the enrichment
without cause. The jurisdiction of this law concerns the determination of the elements of
liability including the capacity of the person to be sued for his harmful acts despite the
absence of the capacity to contract, and the effects of such liability. The obligations
prescribed directly by the law are not governed the scope of this provision, because the law
itself creates them and determines the responsible person without setting a general criterion
to that effect.
Art. 22
Jurisdiction rules and all questions relating to procedures shall be governed by the law of the
country in which the action is brought or in which procedures were pursued.
Preparatory works (art. 52): … it can be seen that the word “jurisdiction” refers to the
jurisdiction of courts, the jurisdiction related to the type of the case, its place, and the
personal jurisdiction, and that the expression “procedures” refers to all the acts made before
28
the courts in order to issue a jurisdictional order or a judgement, to enforce the judgement
and other procedures prescribed by the law.
Art. 23
The rules stipulated in the previous article do not apply except in the absence of a provision to the
contrary contained in a special statute or in an international treaty in force in Egypt.
Preparatory works (art. 53): these subsequent provisions (53-57) envisage problems
occurring while applying the rules of private international law prescribed by the previous
provisions3. These rules might be in contrast to a provision prescribed by a special statute or
an international treaty. A question which is not regulated by these provisions, special
statutes, or international treaties might arise; or a rule can prescribe the application of the
law of nationality and in the case at hand the person has no known nationality or has
multiple nationalities; finally, the application of foreign laws might be in contrast to public
policy or morality.
The project was inspired by article 62 of the Czechoslovakian project. It matches with the
rules concerning the interpretation of the provisions and the doctrine of private international
law. The rules of interpretation prescribe that the special provision restricts the absolute
character of the general provision concerning the particular case it is intended to govern.
Treaties do not enter into force in Egypt except if a statute prescribed such entry into force
expressly4. Whenever the statute is enacted, the international treaty shall be signed
according to the doctrine even if it was in contrast to the above mentioned rules.
3
Article 24 of the civil law.
4
Article 49 of the Egyptian constitution, of April 19th, 1923.
29
Art. 24
Principles of private international law shall be followed in conflict of laws situations to which
special provision was not stipulated
Preparatory works (art. 545): article 54 envisages the case where there is no provision to
apply regarding a question of conflict of laws. As previously mentioned, article 1 of the
project prescribes that in the absence of a statutory provision to apply, the judge shall
pronounce according to custom or the principles of justice and the rules of equity. It is clear
that the judge refers firstly to the custom. Wherever there is a customary rule to apply, it
should be the applicable law to questions relating to conflict of laws, because custom
replaces statutory provisions in their absence. If the judge does not find a custom to apply,
he shall apply the most common principles of private international law. The preciseness and
clearness of these principles make them preferable to the principles of natural law due to its
specialization in a particular branch of law.
Art. 25
The judge shall determine the applicable law to persons who have no know nationality, or who have
several nationalities at the same time.
Nevertheless, it is the Egyptian law that shall be applied as regards persons who have the Egyptian
nationality while they have the nationality of one or more foreign countries.
Preparatory works (art. 55): Article 55 copied the rules of article 30 of the mixed courts’
judicial organization regulation. It prescribes in its first paragraph that the judge shall
determine the applicable law in the two cases of negative conflicts (inexistence of
nationality of the concerned person) and the positive conflict as to nationality (the person
who has several nationalities) without being limited by any restrictions in this respect. It
prescribes in its second paragraph the prevalence of the Egyptian nationality over other
nationalities whenever the person concerned has several nationalities. This is a general
constant principle of the international custom since the determination of nationality is
relating to sovereignty, and it is not admissible for the concerned country to recourse to the
laws of another country. It should be noted that the judge’s appreciation authority is
preferable to surrounding him by restrictions which he shall be abided by. In most cases the
judge in the case of negative conflict will take the law of the domicile of the person into
5
Article 54 of the project of amendment of the civil code stipulated that “The most common rules of private
international law shall be followed in conflict of laws situations to which special provision was not stipulated.”
30
consideration (article 29 of the law of issuance of the German code which prescribes the
application of the law of the last nationality of the person) or his place of residence (article
19 of the new Italian code…
Art. 26
Whenever it appears from previous articles that the applicable law is the law of a country which
have several laws, it is the domestic law of this country which determines which law among them
shall be applied
Preparatory works (art. 56): Article 56 envisages the case of multiplicity of laws which
constitute the applicable law in a given country (that because of several applicable laws to
Egyptians concerning marriage due to the application of the system of non-Islamic sects)
and prescribes that the domestic law of this country determines the applicable law among
these laws. The project took the rule prescribed by this provision from the polish law issued
in 1926 and what was approved by the doctrine and the case law in general.
It should be noted that this rule is different from “the renvoi” despite that the case of article
56 is called by some scholars as “the internal renvoi”. In fact the “renvoi” generally
determines the legislative jurisdiction of a given country, but the law of this latter renounces
to its jurisdiction in favour of another law. However concerning the internal renvoi, the law
of the country does not renounce to its jurisdiction, but the jurisdiction is disseminated
between several laws so that it is necessary to consult the domestic law of this country to
know which law to apply among these laws. In other words, the law of the country
renounces to its jurisdiction to renvoi and attributes this jurisdiction to the law of another
country by virtue of a conflict of law rule regulating the international conflict between laws.
In the internal renvoi, the law of the country does not renounce to its jurisdiction, but it
determines the applicable law among applicable laws in this country by virtue of a rule
regulating the internal conflict between laws.
Art. 27
If it was decided that the applicable law is a foreign law, the internal rules of this law only applies
without those relating to private international law
Preparatory works (art. 24): article 24 prescribes the application of the substantive rules of
the foreign law decided according to the following provisions without those inherent to
private international law. Therefore, it does not allow the “renvoi” and generalize the rule
prescribed by article 31 of the mixed courts’ judicial organization regulation by not
reserving it to the cases prescribed by this article, but extends it to all the rules of conflict.
31
The project did not imitate other legislations which allows the “renvoi” if it indicates the
application of the national law (article 27 of the law of issuance of the German law and 29
of the law annexed to the Japanese law), or allow absolutely the “renvoi” (article 36 of the
polish code), that is because the conflict rule, when it attributes the jurisdiction to a given
law, it makes it due to special considerations, and the absolute acceptance of “renvoi”
breaks them up and quashes the reality of the rule prescribed by the rule of conflict.
By disregarding of the idea of “renvoi”, the project followed article 20 of the new Italian
code despite its application by Egyptian courts in few judgements.
Art. 28
It is forbidden to apply the rules of a foreign law designated by the previous articles whenever they
are in contrast to the public policy or morality in Egypt.
Preparatory works (art. 57): Article 57 stipulates that it is absolutely forbidden to apply
the rules designated by the previous articles whenever they are in contrast to the public
policy or morality. This rule was unanimously agreed upon and the project followed, in this
respect, a lot of foreign legislations (article 30 of the law of issuance of the German law,
article 37 of the polish law issued in 1926, and article 21 of the new Italian code). It should
be noted that the application of the idea of public policy and morality to deduce the above
mentioned rule concerning the exclusion of foreign laws application is different from its
application within the scope of obligations formed without the presence of a foreign
element.
32
1- Natural Person Article 29
Section II: Persons
1- Natural person
Preparatory works: Natural persons:
One of the obvious defects of the current code is that it is an uncompleted law. It is missing the
family law which is an important part of each civil law. The circumstances obliged to keep this
defect; the family law have not yet completed all of its relevant questions, and is still detached from
the civil law. Thus, regarding the absence of family law regulation, it was necessary for the project
to contain some provisions envisaging the natural person as to the commencement, termination of
personality, the characteristics of the natural personality, and the means of protection of such
personality prescribed by the law. The project innovated in enacting these provisions, particularly
regarding two aspects: it prescribed the obligation for everyone to dispose of a distinctive name, and
stipulated the full protection of the associated rights to this personality.
If it is not possible for the time being to fill the gap of family law in the Egyptian civil code, it is
still doable to integrate the part related to the capacity, guardianship, tutorship and curatorship
which falls within the jurisdiction of family councils by reviewing such councils regulations to
integrate their substantive rules into the project. As for procedural provisions, they will remain
disassociated or will be integrated into the procedural law. Therefore, it will be easy for the
substantive provisions – according to this plan – to find their place in the project with the few
provisions concerning capacity (articles 75-79). The implementation of this plan does not require a
huge effort, since the committee of amendment of family councils regulation was constituted and
accomplished its mission. It remains only to copy the substantive provisions approved by the
committee to the project with some arrangement, if it was required so. It is not an innovation for the
civil law to transform the rules relating to capacity into statutory provisions and to unify theme in
order to be applied to all Egyptians either Muslims or non-Muslims, since the current family council
regulation had made such renovation, and the remaining step consisting of integrating these rules
into the civil law is nothing but a completion of a formal issue.
Art. 29
The personality of the human being commences by the completion of his birth alive, and terminates
by his death.
33
Article 29 Section II: Persons
Nevertheless, the rights of the embryo shall be determined by the law
Preparatory works (art. 59): the natural personality of the human being commences by his birth
alive, it musts be therefore a completed
34

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General Index

Obligations of the employee 685 689

Inventory of the succession 883 913

Vis-à-vis third parties 1109 1111

A PRELEMINARY SECTION: GENERAL PROVISIONS

2- The Law and the right

The use of a right shall be unlawful in the following circumstances:

a- If it intended only to prejudice another person.

1- The application of Laws

Conflict of laws as to time

Explanatory memorandum: A general view:

In respect to pre-established evidences, the provisions in force at the time of their

1- The application of Laws

Conflict of laws as to place

Explanatory memorandum: A general view:

Section II: Persons

Preparatory works: Natural persons:

Nevertheless, the rights of the embryo shall be determined by the law

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