The impact of form failure in the Jordanian Civil Law

Abstract

This paper aims to examine the impact of form failure in the Jordanian Civil Law

To achieve this impact the author chose descriptive analysis to the Jordanian Law Pre and after-release of Jordanian Civil law. The study find that the contract of sale of real estate is not considered as a valid contract if it registered out of the Department of Registration.

Key words: Civil Law; Jordan; Contracts; Sale; Official; Registration

INTRODUCTION

The form is one of the most important issues in civil law; we can define form as a registration of contracts according to the procedures of Jordanian law makers.

According to Jordanian law of settlement of land and water item 16: In settlement's places sale, swap, excretion and Cuts in land or water only true if the transaction had taken place in the Department of Registration. Item 2 of the Act of immovable funds Law No.(49) of 1953 states that: confined to conduct all transactions of public lands, suspended, property, taxes, exploited endowment and give its ownership at the land registration.

The Court of Cassation explained formalities and registration saying: The contract of immovable property are not legal but the fulfillment of its pillar, formal appointed by law a measure that treatment, in the Department of Registration and signed in front of the officer in charge and recorded in the official record after the payment of fees, as set out in resolution No. (1) Of the Special Court to interpret the laws on 3rd March, 1971.

1. RESEARCH METHODOLOGY

To study the impact of analysis form failure in the Jordanian Civil Law the author chooses descriptive analysis to the Jordanian Law Pre and after-release of Jordanian Civil law. To achieve this, the study is structured into 3 sections: section (1) deals with the methodology, section (2) discusses literature review, while analysis of results, conclusion and recommendations are presented in section (3).

2. LITERATURE REVIEW

2.1 Formalism in the Sales Contracts

The meaning of registered in the official register is emptying the contents of the contract of sale in the official record and not support the issuance of registration freelancer actually selling, and to say otherwise downloading the text of what did not the magnitude of the content and meaning of the vocabulary of the text.

If the court of Appeal reached of its decision that the pieces sale contracts have met their legal status and registered in the Land Registry on the same day, the only way to see which ones earlier in registered is the number of contract.

We can say that the legislature may consider registration in real estate sales rise form the pillars of his power to force the sale and considered the loss of this form arranges nullity. It is also a difference between recording the property after the sale contract and the promise to sell. The controversy erupted around the corner shape and nullification.

2.1.1 Pre-Release of Jordanian Civil Law

Some scholars say that sales outside the circle of registration is a void selling because the legislature make registration one of the pillars of the contract, so if there was no record there is no room to talk about the contract and the penalty clause which is a companion to this contract is like not, based on the rule: If the thing invalidate,

Invalidate what within it, and then the establishment of compensation in such cases on the basis of liability for tort or tort.

The Jordanian Court of Cassation settled in most of its provisions that sales of real estate outside the circle of registration are invalid and not considered true. Sale, swap, excretion and cuts in the land or water in places that has a settlement were true only if the transaction had taken place in the Department of Registration, and to punish every team in the treatment took place, contrary to what male - after his conviction to a fine not exceeding five Jordanian dinars - under Item (16/3) of the Law of the settlement number (40) for the year 1952, the addition to the regular courts, the legal and other government departments may ban under Item (3) of the Act to dispose of immovable property No.(49/53) to hear any claim or conduct any transaction in which all land bonds issued by registration under the law of the settlement. That the Court of Cassation had ruled despite the invalidity of contracts outside the circle Join the governance of compensation to the buyer by the seller reneging on registration.

Court of Cassation has ruled that the contract of sale of immovable money outside the circle Registration is held invalid by virtue of a provision of law does not benefit the buyer already has the right to demand refund the price paid to the seller.

As well as the person who pledged to empty the land back from its commitment as shown Appellate Court that The agreement on the sale of immovable property, although the consequent withdraw from the right to claim holidays and damage, but it does not prevent a pledge of emptiness return for his commitment and then shall be obliged to refund the price.

The Court of Cassation ruled that the agreement between the two teams, which includes a pledge one of them to establish a case with the competent court to prove his ownership of a property that the vacuum half of what governs him on behalf to the other team and the commitment of this team to pay the full fees, expenses and attorneys' fees required by that case, is agreement on the sale of half of what it terms the first team to second team to meet the amounts pledged this team pay. That the old Law (No) (1) of 1952 that it considered the pledge to transfer ownership of the property agreement valid but not enforceable in kind and arranged on pay compensation to the victim and in accordance with the provisions of Item (175) of the Procedural Law.

2.1.2 After the Publication of the Jordanian Civil Second

Law It remained after the issuance of civil law for what it is and remains the position of the Court of Cassation to acknowledge invalidity outside sales contracts with the Department of Registration of compensation for the benefit of the buyer in the event of tire seller for registration. It has ruled the Court of Cassation that: "pledged to the seller to go to the Department of Registration and vacuum Sales is an act permissible by law because he pledged to pursue the rule of law which requires an emptiness in that district, which is pledged to properly and is void and the right of the prosecutor to ask the referee retrieves what he paid with the holidays and the damage to the right by the regression on the implementation of the pledge within the period agreed upon.

The Court of Cassation ruled that: Pursuant to item 1148 of the Civil Law ownership and rights in rem in the material property between the two contracting parties and in the rights of others does not transfer, but to register in accordance with the provisions of special laws. Also had the second item of the law to dispose of immovable property No. 49 of 1952 to conduct all transactions disposition of rights in rem involving real estate circles in the land registry.

As well as the Court of Cassation ruled that the sale of immovable property outside the circle of registration shall be void and the consequent re- as to what it was, and thus re-price to the buyer.

As the seller refused to refund, it binding push with benefits from the date of the proceeding.

As well as the Court of Cassation ruled that: If the amount alleged driven by a token based on a contract for the sale of land is not in front of the Department of Registration has the right motivation (the buyer) to recover even if the tire is for sale, nor is contained asked the respondent to provide evidence of personal or additional to prove that the amount claimed under the promissory notes liberated by the seller to the buyer as collateral for the value of the deposit is a deposit and has the right to keep it.

As well as the Court of Cassation ruled that: settled jurisprudence of the Jordanian judiciary that all contracts mentioned in the item (16/3) of the Settlement Act land and water No. 40/1952, a sale, swap, excretion, cuts in the ground or water in places in which the settlement void If held outside the Department of Registration.

The court also ruled that: The sale of the land outside the circle Join selling void pursuant to item 16/3 of the Law on settlement land, water, and the second article of the law to dispose of immovable property No. 49 for the year 1953 and therefore perform the contract in front of a notary and sign a written contract between the two teams do not are changing a thing for the seller to stick to the invalidity of the contract pursuant to Article 168 of the Civil Law, it also has the right to put his hand on the ground and oppose them as a buyer is still owned by him has the right to dispose of them in kind and utilized pursuant to item 1018 of the Civil Law.

As the focus of separate conflict in the suit is determined by a statement as to whether the pledge of emptiness is a valid contract arranges warranty on the implementation of the commitment to the transfer of ownership of the property is held invalid or does not arrange an impact.

And by reference to the provisions of the legal materials governing this matter, we find that item 105/1 and 2 of the Civil law, a researcher at the agreement, which pledges to which both contractors or one of them, the conclusion of a specific contract has ruled explicitly that if the law stipulated for the completion of the contract are met certain form, this form must be taken into account also in the agreement, which includes a promise to conclude the contract.

As the item 1148/2 of the Civil law has stated explicitly that when applied to the provisions of this law, taking into account the provisions of special laws, and by reference to the provisions of the laws that govern the contract to sell the property, which has a settlement, we find that the third item of the law to dispose of immovable property which ruled that prohibits Sharia courts and regulatory and other government departments to hear the case or conduct any transaction in immovable property, which issued bonds registered their lands under the provisions of the laws of the settlement. Also, item 16 of the Law on settlement land and water No. (40) for the year 1952 has seen sales transactions outside the circle Join a crime punishable by law.

Since the sale of the property subject of the case outside the circle of registration shall be void and the promise to sell the pledge is void of emptiness frankly text of the second paragraph of item 105 of the Civil law and special laws applicable referenced.

some scholars goes to comment on this ruling that the appeals court has confused the issue of compensation for breach of the obligation which is a personal right of the injured party, and pledged to the seller to go to the Department of Registration and vacuum sales and is the work of "permissible by law as settled upon the discretion of the Court of Cassation because he pledged to follow the rule of law that requires an emptiness in the Registration Department, this pledge is right is void.

If based on this view to the text of item 1149 of the Civil law that requires compensation in case withdraw from all pledge to transfer ownership of the property, as well as to the principle of consensual who took Jordanian Civil law as well as based on this view also to the principle of good faith on which contracts all.

latter the provisions of the Court of Cassation stabilized for a long time and even now that the sales that take place on land or real estate or water has been the work of a settlement outside the circle of land registration is invalid, and all the consequences of the buyer to the seller at this void contract is to restore the price only, and that the consequences for the seller to the buyer is the recovery of sales without the seller is bound to holidays and the damage to the buyer, and that the contract, which is outside the circle of registration is not required of any party and can any one of them irreversible.

But the Jordanian legislator text on the provisions of the promise contract in item 105 of the Civil law while singled out a provision of the pledged transfer of ownership of a property in item 1149 of it, on the other hand has stipulated that the legislator in the promise to sell a property to retain the shape required for a contract to be concluded while the legislator did not require the pledge to transfer ownership of the property, and the promise of a third party to sell a property name as it appears on the sale of real estate mainly, while undertaking the transfer of property can not be adapted in any way as a sale of real estate.

CONCLUSION AND RECOMMENDATIONS

We have reached in this study that the contract of sale of real estate is not considered a valid contract only if it is registered in the Department of Registration competent, so that if failure Corner Join consider the contract null and void and the original that the invalidity does not confer any rights of the parties but also leads to return the situation to what it was before hiring. We also found that the Jordanian legislator also taken under the pretext of health contracting and entry into force of the contract in order to prevent fraud and the implementation of the contracts and to require contractors to implement what has been adhered to in the contract. As we came to the real estate sales contract is a contract product is registered for all except the right to dispose vestige.

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