Issuing the Law of Proof in Civil and Commercial Transactions09-06-2018
UAE Federal Law No. 10 of 1992 on the Issuance of the Evidence Act for Civil and Commercial Transactions
The plaintiff shall prove his claim and the defendant shall rebut it.
The statements to be proven shall be relevant to the claim and produced therein and acceptable.
The judge shall not base his decision on mere personal knowledge.
Judgments issued on the proof proceedings need not to be caused unless they comprise a definite decision to place or to sue.
In all cases, causation of judgments issued in respect of urgent claims shall be require for demonstrating a case or hearing a witness.
If the court orders the commencement of a particular proof proceeding, it shall specify in the ruling, the date of the first session to begin with the proceeding, and the court recorder shall notify the absent parties.
The proof proceedings shall be recorded by a clerk in a report, and the clerk shall sign said report.
Whenever the proceedings require more than one session, the day and hour of the subsequent session shall be mentioned in the proce’s verbal and no absent party shall be informed of said hour and day.
The court may decide to retract its order for any proof proceedings and shall give reasons for such retraction in the proce’s verbal. However, it is not necessary to give the reasons if the decision to retract was made at the court’s initiative and without a demand from the litigants.
The court may choose not to rely on the proof proceeding results provided that it gives reasons for this in its judgment.
If this law has no provision relating to this matter, the judge shall adjudicate according to Islamic Law, and for this purpose he shall select the most appropriate dispensations from the schools of Imam Malik and Imam Ahmed Bin Hanbal. However, if no appropriate solution is found in either of these two schools, he shall derive his legal opinion from other schools of jurisprudence to the extent required for the purpose.
Written Evidence, Official Exhibits
Official exhibits are documents in which a public official or person entrusted with a public duty shall register all acts performed by him or articles given to him by concerned parties according to the legal requirements and within the limits of his authority and jurisdiction.
If such exhibits have no official nature, they shall have only conventional value when such documents have been properly executed, signed, stamped and thumb printed.
The official exhibit shall be proof against all parties by virtue of its contents recorded by the official within the limits of his duty, or signed by the concerned parties in his presence unless it appears to have been forged by legally designed methods.
IF The original copy of the official exhibit is available, the official duplicate, whether it is hand-written or a photocopy, shall be considered proof to the extent it is in agreement with the original.
The photocopy shall be considered a true copy, however, if it is disputed by any of the concerned parties, the photocopy shall be checked against the original.
If the origin of the official document is not available, the photocopy shall be considered proof within the following limits:-
a.) The official original photocopy, whether it be executor or otherwise, shall have the same effect as the original if the external appearance leaves no doubt as to its agreement with the original.
b.) The official photocopy taken from the original copy shall have the same power of proof as the original. However, in this case, any of the concerned parties shall have the right to demand that it be checked with the original photocopies taken there from.
c.) As to the official photocopies taken from the original photocopies, they shall be relied solely for advice and consultation.
The conventional exhibit shall be considered to have been issued by the party who signed it unless he expressly denies the script or the signature or the stamp or the thumb print attributed to him. However, the heir or the successor is not required to make such a denial. Rather, it will suffice for him to deny knowing that the script or the signature or the stamp or the thumb print belong to the person from whom he inherited the title.
However, a party who has discussed the substance of the exhibit may not deny that the script or the signature or the stamp or the thumb print belong to him, or refuse to admit that the person from whom he received the title, had ever done any of such acts.
The conventional exhibit shall not be evidence against third parties with immediate effect unless it bears a fixed date. the date of the exhibit shall be considered to be fixed in the following cases:
From the day it is entered in the register made for this purpose.
Or from the day it is marked by a competent public official.
Or from the day of death of any one of those who have a recognized effect upon the exhibit such as the script, the signature, the stamp or the thumb print or from the day on which one of them to write or make thumb print due to a physical disability.
Or from the day of occurrences of any other incident which shows decisively that the exhibit has come into existence prior to said occurrence.
Or from the day the contents of said exhibit is written on another paper with a fixed date.
2. Yet the judge in accordance with the circumstances may choose not to apply the provision of this article to the commercial discharges, a securities and loan bond signed in favor of a businessman with or without a mortgage, regardless of the nature of the loan.
In establishing evidence, exhibits issued outside the country and authenticated by official authorities in the country where they have been issued shall be accepted.
Letters duly signed shall have the evidential value of a conventional exhibit, Cables shall have this value too if their original deposited in the out mail office has been signed by the sender. A cable shall be considered in agreement with its original until proof to the contrary has been established.
However, if a cable has no original, the cable shall be relied upon solely for reference.
Businessmen’s ledgers shall not be only considered evidence against businessmen. However, the entries contained in their ledgers shall be valid as a basis for the judge to demand that either party make an oath, the evidence may be considered valid if it is testified by the witnesses.
Obligatory ledgers maintained by traders shall be considered evidence against litigant traders, if the dispute arises in connection with the business and if the ledgers are properly maintained. However, this evidence becomes invalid if counter proof has been presented, and such proof can be obtained from regular ledgers of the litigant party.
Lawful ledgers maintained by traders, without regular or irregular, shall be considered evidence against the dealer who maintains them in respect of matters on which his litigant, be he a dealer or otherwise, relies as a basis. However, entries which safeguard the interest of the ledger’s owner shall be considered evidence in his favor as well.
Either of the two disputing parties may be called upon to testify under oath to the correctness of his claim if he relies on the ledgers of his litigant and admits the contents of the ledgers in advance, after which the litigant refrains without reason from presenting his ledgers.
Ledgers and domestic papers shall not be evidence against the party from whom they have been issued except in the following two cases: a.) If he mentions explicitly that he has discharged his debt; b) IF he mentions explicitly that his purpose in recording the entries was to replace the bond which supports a claim in his favor. c.) In both cases, if the entry is not signed by the party by whom it was issued, he may demonstrate opposite by all means of proof.
Indication by the creditor on the debt bond by his handwriting and without signature, establishing the quittance of the debtor shall be considered an evidence against him until a proof to the contrary has been made, likewise the auditor’s indication as above shall be considered an evidence against him even though it is not written by his hand or signed thereby, so long as the bond remains in his possession only.
Similarly the case will be judged if the creditor proves by his handwriting and without his signature and indicates to the quittance of the debtor in duplicate original copy of a bond of discharge and such copy or discharge remains with the debtor.
Application For Obliging the Litigant to Submit the Exhibits in His Possession
In the following cases, one party may ask that his litigant be obliged to submit any exhibits or processed papers in his possession:
If his claim for submitting or handing over of the exhibits is allowed by law.
If it is a joint exhibit between him and his litigant. An exhibit is considered to be joint in particular if it serves the interest of both disputing parties, or if it confirms their mutual obligations and rights.
If the litigant considers the exhibit essential for him at anytime in the course of the court proceeding.
The application shall clarify the description of the exhibit, its contents, the occurrence associated therewith, the evidence and circumstances which indicates that it is in possession of the litigant, and the reason for obliging said party to submit it.
If the truth of his claim is established by the applicant, or if the other party to the dispute admits that the exhibit or the paper is in his possession or if he remains silent, the court shall order that the exhibit or the paper be presented immediately or at the earliest time the court may determine.
However, if the applicant fails to submit adequate evidence to the court in support of his claim, or if the litigant denies possessing the exhibit or paper, the latter shall make an oath that said exhibit or paper has no existence, that he has no knowledge of its whereabouts, and that he is not hiding it nor has he neglected to search for it in order to prevent his opponent from using it as evidence.
If the litigant fails to submit the exhibit or paper at the time determined by the court or if he abstains from making the aforesaid oath, a photocopy of the exhibit or the paper submitted by the applicant shall be considered a true copy. However, if he has failed to provide a photocopy of the exhibit, his statement related to the form and subject of the exhibit may be accepted.
While the law suit is in progress, even if it is before the court of appeal, the court may allow the admission of a third party and order him to produce an exhibit in his possession under such circumstances and subject to such terms and conditions as provided for in the preceding articles.
The court may also order – even at its own discretion to allow admission of any administrative department to provide any information and exhibits required for the proceedings to move forward.
If the litigant produces an exhibit as evidence in the case, he may not withdraw the same without the consent of his opponent except with written permission from the head of the circuit or the judge as the case may be and a photocopy thereof shall be maintained in the case file and shall be marked by the court recorder as being a true copy.
Verification of the Truth of Papers
The court shall estimate the consequences that arise from scraping, erasing, inserting and other material defects in the exhibit such as the loss of or detraction from its value as evidence.
If the validity of the exhibit is subject to doubt in the opinion of the court, it may spontaneously call the official who issued the exhibit or the person who executed the same to clarify the truth of the matter.
The claim of forgery in the case of official and conventional exhibits shall be dismissed. However, the denial of script, the stamp, the signature or the thumb print shall not be dismissed except in conventional exhibits and anyone who claims forgery shall bear the onus probandi of his challenge. If someone denies the issuance by him of a conventional exhibit or swears that he has no knowledge that it has been issued by the person from whom he has received the title, his opponent shall bear the onus probandi of its issuance either by him or by his predecessor.
If the party admits the validity of the stamp that has been used for signing of conventional exhibit but denies having used it in thumb printing, he ought to adopt a way make a claim forgery.
Denial of Script, Signature, Stamp, or Thumbprint Script Verification:
If the person against whom an exhibit testifies denies his script, signature, stamp, or thumbprint, or if the heir or successor denies having knowledge that the exhibit was issued by the person from whom he received the title, while the other party holds onto the exhibit out of which the dispute arose, and if the case proceedings together with its documents are not adequate to satisfy the court in respect of the validity of the script, the signature, the stamp or the thumbprint, the court shall order an enquiry by signature matching, hearing witnesses or both.
Signature matching will be made according to the rules stipulated by those with expertise in this domain. Hearing of witnesses shall take place according to the rules provided for in the area of witness hearing, and their testimonies will be heard only to the extent that they pertain to demonstrating the placement of a script, signature, stamp, or thumbprint on the exhibit to be verified by the party to whom it was ascribed.
The court shall schedule a session to be attended by the litigants to produce their exhibits for matching, to agree on which of them are valid, and take down notes from the party who contests the validity of the exhibit. However, if the party who contests the validity of the exhibit abstains from attending for taking down notes without a reasonable excuse, a judgment may be issued in favor of the validity of the exhibit. If the party who is required to give evidence of the truth of the script, signature, stamp or thumbprint defaults, the exhibits produced for matching may be held to be valid.
The president of the court session shall order that the exhibits to be verified, the papers to be matched, and the papers appeal be deposited with the court recorder after being signed by him and by the session clerk. He shall also write a report showing the description of the exhibit to be investigated and said report shall be signed by him as well as by the session clerk.
The script, signature, stamp or thumbprint which has been denied shall be matched against those which have been established in the paper to be verified.
In the case of disagreement by the parties matching shall only be accepted for the following:
a.) Any script, signature, stamp or thumbprint or an official exhibit.
b.) Any part of an exhibit to be investigated the validity of which is recognized by the opponent.
c.) Any script or signature written by him or a thumbprint given by him before the court.
If a judgment has been issued in favor of the validity of the whole exhibit, the party who denies this shall be sentenced to a fine of not less than Dhs. 500 and not more than Dhs. 2000.
Charges of Forgery:
Forgery may be claimed at any stage of the case. The party who makes this claim shall specify all parts of the exhibit in which the alleged forgery took place together with the evidence and the investigative proceedings by which he requests that his claim be proven. In this connection, he shall present a memo to the court or shall record said evidence in the session record.
However, if the challenge results in a dispute, and the facts and documents of the case are not enough to satisfy the court concerning the validity or invalidity of the instrument and the court considers the investigation required by the impugner to be possible, it shall order an investigation through matching, through statements of witnesses or both, in the manner indicated in the preceding articles.
The party against whom a challenge of forgery is made may discontinue the progress of the investigation at any stage by waiving his claim to the challenged instrument. In this case, the court may order the seizure of the instrument if the party claiming the forgery demands this for a legitimate interest.
The party who challenges the forgery shall hand the challenged exhibit over to the court recorder if said exhibit or its authorized photocopy is available to him. However, if the exhibit is held by the court or the clerk, it should be deposited with the recorder. If it is with the challenger, the head of the court session shall order him, upon submitting the challenge of forgery, to hand it over immediately to the court recorder. Otherwise, he shall order that it be seized and deposited with the court recorder. However, if the challenger abstains from handing over and the seizure thereof becomes unfeasible, the instrument shall be considered unavailable, though such a consideration shall not prevent it from being seized in future if possible.
In all cases, the chief of the session and clerk of the session shall sign the instrument prior to its being deposited with the court recorder.
A court ruling ordering the investigation of a charge of forgery shall temporarily nullify the validity of the contested paper without prejudice to the precautionary measures.
Even if no charge of forgery has been made before the court, the court may order the dismissal and revocation of any exhibit if it becomes clear from the condition of the exhibit, or from the circumstances of the case that it has been forged. In such a case, the court must cite in its judgment the circumstances and suppositions from which it has deducted such evidence.
If the charge of forgery has been dismissed or the right of the respondent to present evidence has been denied by judgment, he shall be sentenced to a fine not less than Dhs. Five Thousand and not more than Dhs. Three Thousand. However, he shall be acquitted if part of his claim proves to be true. If the instrument is shown to be forged, the court will send it to the public prosecutor with a copy of the records related to it in order or him to initiate the appropriate criminal proceedings in respect thereof.
Cases for Validity of Signatures and Original Forgery Cases
Anyone who possesses a conventional exhibit may contest the party against whom this exhibit testifies until he admits that it is written in his handwriting or bears his signature, stamp or thumbprint, even if the obligation arising there from is not yet due. Such an action shall be taken through normal procedures. If the defendant appears and admits the charge, the court shall make record of his admission, and all expenses shall be borne by the plaintiff. The exhibit shall be regarded as recognized if the defendant remains silent, or if he neither denies the charge nor ascribes the exhibit to others. However, if the defendant denies that the handwriting, the signature, the stamp or the thumbprint is his, then the investigation shall be conducted according to the advanced rules. If the defendant fails to appear without a reasonable excuse, the court will rule in his absence in favor of the validity of the handwriting, signature, stamp or thumbprint.
Anyone who fears being protested against with a forged exhibit shall contest the party who holds and benefits from such an exhibit due to having heard the ruling that it was forged. This action shall be brought originally and through the normal channels. As the court investigates this case, it shall observe the rules and procedures provided for in the preceding articles.
Testimony of Witnesses
With respect to non commercial items, if the value of a transaction exceeds Dhs five thousand or if it has an indefinite value, the testimony of witnesses in proof of the existence or occurrence of said transaction may not be held valid unless otherwise stipulated in an agreement or a provision.
The liability shall be estimated on the basis of its value at the time of the transaction without the addition of annexes to the origin.
If the action includes several claims arising from various sources, the testimony of witnesses may be given in proof of each claim with a value not exceeding dhs five thousand even though the total value of such claims exceeds that amount of if the origin thereof arises from relationships between the parties themselves or from transactions of the same nature.
The effect shall be considered if partial fulfillment of the original obligation has been proven.
The evidence given by witnesses may not be considered even if the value does not exceed Dhs. five thousand in the following cases:
Where it violates or exceeds that which is contained in written evidence.
If the liability is what remains of or part of a right, it may only be proved in writing.
If any of the parties to a law suit claims in excess of Dhs. five thousand, then increases his claim to an amount exceeding this value.
The testimony of witnesses may be considered proof in the following cases where proof should be given in writing:
If the concept of proof by writing exists. Such a concept of proof shall be applicable to any writing made by a party which helps to make the transaction at issue possible.
If a material or ethical objection prevents the obtainment of written evidence.
If the creditor loses his written voucher for reason beyond his control.
If the court, for sound reasons, views it as permissible to admit evidence through the testimony of witnesses.
If the written evidence has been challenged on grounds that it contains what is prohibited by law or held to be in violation of public discipline or manners.
Testimony given shall be based on eye-witness observation; however, testimony based on second hand reports shall be accepted in the following cases:
Origin of true charity as alienable property and its conditions.
The party in the lawsuit who demands proof through the testimony of a witness shall clearly state the facts while he wants to be proven either in writing or verbally in the session.
Each one of the incidences which are to be proved and the day on which the investigation begins shall be indicated in the text of the ruling which calls the proof through the testimony of the witnesses.
If the court permits any one of the parties to prove an incident through the testimony of witnesses, the other party shall have the right to refute it in the same manner.
The court may decide spontaneously to base its judgment on the testimony of witnesses in cases where the law allows proof in such a manner, whenever it considers this useful to the truth.
Whenever its decision is based upon the testimony of witnesses, the court may call anyone whom it considers necessary to hear his testimony and reveal the truth.
The testimony of employees and official entrusted with public service shall not be accepted even after they leave work if said testimony includes information they became aware of in the course of their work, and which the competent authority did not allow to be broadcast. However, said authority may allow them to testify at the request of the court or any of the parties to the dispute.
Each witness shall give his testimony individually, in the absence of other witnesses whose testimony has not yet been heard. Witnesses for the defense will be heard in the same session in which the prosecution witnesses give their testimony unless something prevents them from so doing. However if the investigation is adjourned to another session, the pronouncement of adjournment shall be considered an order to the witnesses present to appear in said session unless the court expressly excuses them from so doing.
The witness shall make the oath by saying, ‘I swear by the Gracious Allah, to tell the whole truth and nothing but the truth.” The oath may be given in the manner stipulated by his religion if so required.
If a party to the lawsuit fails to bring his witness or has not required him to attend the scheduled session, the court shall order said party to bring the witness or to require him to appear in another session. However, if he fails to do so, the right to make him a witness shall no longer be valid. This, however, shall be without prejudice to any penalty provided by the law in consequence of such a delay.
If the witness refuses to appear in reply to the summons of the litigant or the court, the litigant or the records clerk, as the case may be, shall require him to appear to give his testimony at least twenty-four hours before the time fixed for his hearing excluding distance time. In urgent cases this time shall be reduced, and the witness may be notified by the records clerk to appear through a cable ordered by the court.
If the witness has been properly summoned to appear and fails to do so, the court shall sentence him to a fine not exceeding Dhs. five hundred. The judgment will be recorded in the session proce’s-verbal, and shall not be subject to challenge. In extremely urgent cases, the court may issue an order for the witness to appear. However, in other cases, a second summons shall be sent to the witness, if so required, with all expenses of said summons to be borne by the witness. If he fails to appear, he shall be sentenced to a fine not less than Dhs. two hundred and not exceeding Dhs. one thousand. Said decision will not be subject to challenge, and the court may issue an order for his arraignment.
In all cases, the court may exempt the witness from the fine if he appears and gives a reasonable excuse.
If the witness appears and abstains from taking an oath, or if he abstains from replying without legal justification, he shall be sentenced to the punishment stipulated in the law of penalties.
If the witness has an excuse which prevents him from appearing, the deputed judge may travel to where he is to hear his statements. However, if the questioning is to take places before the court, it may deputize one of its judges for this purpose. The court or the judge will fix a date and place to hear the witnesses statements and the court records clerk shall notify the absent par ties, make a minute thereof, and get it signed by the deputed judge as well as the clerk.
Questions shall be directed by the court to the witness. The witness shall first reply to the questions of the party who made him a witness and then to the questions of the other party. The party who made him a witness shall then question him again. However, when the party has completed the questioning of the witness he may not ask him further questions except with permission from the court.
The head or any other member of the session and the deputed judge as the case may be shall put to the witness directly such questions as he considers useful in revealing of the truth. Testimony shall be given verbally, and written memos may not be resorted to except with permission from the court or deputed judge and where the nature of the action justifies this. If the witness fails to mention any point of interest, the court or the deputed judge shall question him accordingly.
The witness’s reply shall be recorded in the minutes and then be read out to and signed by him after the correction of what he thinks necessary. If he abstains from signing, this shall be mentioned with its reason in the minute.
If it appears to the court while hearing the case or when judging the merits of the case that the witness has given a perjured testimony, a minute shall be made to this effect and sent to the public prosecutor to take the necessary criminal actions.
Anyone who fears the loss of an opportunity to provide a witness on an issue which has not yet been brought before the law but which is likely to be brought, before may request that said witness to be heard by the concerned parties. Such a request should be submitted in the usual manner to the judge of urgent issues and all expenses thereof shall be incurred by the applicant. When necessary the judge will decide to hear the witness if the nature of the incident is such that it may proven by the testimony of witnesses.
The judge may hear witness for the defense at the request of the other party, and to the extent that the urgentness of the case necessitates.
Otherwise the rules and procedures stated in the preceding articles shall be observed in providing testimony. And in such a case, a photocopy of the investigation report may not be handed over or submitted to the law unless the court of merits, upon hearing the testimony, considers it valid to demonstrate the occurrence of the event based on the evidence of witnesses. However, a party to the lawsuit shall have the right to raise an objection before the court against acceptance of such evidence and may also request that witnesses for the defense be heard in his favor.
Presumptions and Argument of the Litigated ISSUE:
Presumptions provided for under the law shall be considered adequate proof for the person in whose interest they have been decided. However, such presumption may be nullified by evidence to the contrary unless otherwise provided for.
The judge may infer other presumption to establish proof in cases where the evidence given by witnesses is not acceptable as proof.
Judgments that constitute an argument in the litigated issue shall be considered proof towards a settlement of the dispute and no evidence contrary to this presumption may be produced. However, such judgment shall not have this argumentational force except in a dispute that arises between the litigants themselves, provided that their identities remain unchanged and that the dispute has relevance to the same right with respect to both subject and cause.
The court shall rule independently on the basis of this argument.
The criminal judgment shall not have any bearing upon the civil judge except in the cases where such judgment has been awarded if it is necessary, yet it shall not hear upon the judgment of acquittal, unless it has been constructed on the non-attribution of the occurrence to the defendant.
Affidavits and Questioning of Litigating Parties
An affidavit is a statement by an individual with a liability against him in favor of another. The affidavit shall be legally valid if the party to the action has admitted before the law to committing an action of which is accused during the proceeding of the case related to such action.
The affidavit shall be considered illegal if it occurs somewhere other than a place of law or if it arises in connection with a dispute related to another case.
As a condition for the legal validity of an affidavit, the deponent shall be sane, mature, unconstrained, and unobstructed by law in whatever he admits.
A legally valid affidavit is an argument against the deponent and no retraction there from shall be accepted.
Questioning of the Parties to the Dispute
The parties to a dispute may not be heard as witnesses in the case. However, the court may question whoever is present from among the parties to the dispute, and any one of them may request that his opponent be a questioned if he is present. The court may also order the arraignment of a litigant to appear for questioning, either spontaneously or at the request of his opponent. Any one whom the court has decided to question shall attend the court session specified in the decision.
If a party to the dispute is completely or partially incapacitated, his deputy may be questioned. Moreover, the court may interrogate him if he has special competence in matters in which he is authorized. Also, bodies corporate may be questioned through their legal representatives. However, in all cases, the person to be questioned is required to have competence in dealing with the disputed right.
The court shall direct the questions it considers necessary to the litigant, as well as those which his opponent requests be directed to him. Answers shall be given in the same session unless the court gives another time for such replies.
The reply shall take place by facing the person who appeals for questioning. However, the questioning shall not be dependent upon his appearance.
The questions and answers shall be recorded in the minutes of the session and shall be signed by the head of the session as well as the clerk and the interrogated person. However, if the integrated person abstains from replying or from signing, his abstention and its causes shall be stated in the minutes.
If the litigant does not appear for questioning without an acceptable excuse or if he abstains from answering without legal justification, the court shall conclude from this whatever it deems appropriate. However, it may accept proof based on the testimony of witnesses and presumptions in cases where it would not be acceptable to do so.
However, if a party to a lawsuit gives a reasonable excuse that bars him from appearance to answer the question, the court may deputize judge to question him.
At any stage of the lawsuit, either party may make a decisive oath, to the oath, on condition that the occurrence in respect of which the oath is to be made be relevant to the person to whom the oath was referred. If it does not pertain to his personality, the oath shall be taken from him merely for his knowledge thereof. However, the judge may prevent the oath from being made if the concerned party is arbitrary in the manner it is made.
A trustee, the guardian or representative for an absent party may not direct or refer back the oath except within his power under the law.
A conclusive oath may not be made in respect of an occurrence contrary to public discipline or manners.
Anyone who withdraws from giving the oath directed to him without referring it back to his opponent in the litigation, and anyone who withdraws from giving the oath referred back to him shall lose his case.
No party to the lawsuit may prove the perjury of an oath after it has been made by the party to whom it is directed or referred back. However, if the false oath has been proved by a criminal judgment, the party who suffers damages there from may claim compensation without prejudice to his right to challenge the judgment issued against him.
At any stage of the case, the judge himself may direct the complementary oath to either party to the litigation in order to establish the judgment on the merits of the case or on the value of the subject at issue. However, as a condition for directing this oath, the case should lack complete evidence, but the case should not lack any evidence.
The person to whom the oath is directed may not refer it back to the other party in the litigation.
The judge may not require that the plaintiff make the complementary oath to assess the value of the claim made by the plaintiff unless it becomes impossible to assess this value in another manner. The judge in this case shall assess the maximum value of the claim to by the plaintiff.
The party who refers the oath to his litigant shall give exactly the points he wants the other party to swear upon, and shall mention the wording of the oath in a clear way. The court shall have the option to amend the wording given by the party in such a manner as to show clearly the document of the case on which the oath is to be made.
IF the person to whom the oath is directed does not contest its validity or its relevance to the case, he shall either make the oath or refer it back to his opponent if he is present. Otherwise, he will be considered a defaulter. However, the court may give him a time to make the oath if it finds it reasonable. If he is not present, he should be informed of the oath is wording as decided by the court in order to appear in the session fixed for swearing. However, if he appears and abstains from giving an oath without a dispute or if he fails to appear without an excuse, he shall be considered a defaulter.
If the person to whom the oath is directed contests its validity or its relevance to the case at issue and the court dismisses his objection and orders that he be made to swear, the court shall include the wording of the oath in its judgment. The text of said judgment shall be made known to the other party if he was not present himself, and the procedures provided for in the preceding paragraph shall be observed.
If the person to whom the oath is directed has an excuse which prevents him from appearing, the court may move to the place where he is or may delegate one of its judges to take an oath from him.
The oath shall be administered to the swearer as follows: “swear by the Gracious Allah” and then he quotes the wording dictated by the court. The person who is obliged to make the oath may perform it according to the practices observed in his religion if he so requests.
In the case of the dumb, his habitual signs shall be considered his oath, or his withdrawal from and objection to making the oath if he is unable to write. If he knows how to write, his withdrawal from and objection to making the oath shall be in writing.
The minute including the oath shall be signed by the swearer, the head of the session and the clerk.
Inspection and Proof of the Case:
At the request of either party or at its own discretion, the court may decide to relocate to inspect the disputed matter or may it deputize for this purpose any one of its judges. It shall give in its decision the date and place of the inspection. The court or the judge shall make a record of all proceedings related to the inspection.
The court or any of its deputed judges may appoint an expert to give his assistance in the inspection and shall hear any witnesses it sees of it. Such witnesses may be summoned to appear even at the verbal request of the court’s clerk.
If a person fears the loss of particular facts which may become a subject of dispute before the law, in facing the concerned parties, he may appeal to the judge of urgent matters in the ordinary manner to move for inspection, and the rules in the preceding article shall be observed in this case.
In the aforesaid case, the judge of urgent matters may deputize any expert to move for inspection and hear the witnesses under no oath. The judge shall then schedule a session for hearing the comments of the parties to the dispute on the expert’s report. The rules provided for in the part related to expertise shall be observed.
When necessary, the court shall deputize one or more experts from among the employees of the state or from among the experts registered on the list to give their advice in matters related to the case to be decided. The court shall estimate the trust money that shall be deposited with the court’s treasury to cover the expert’s expenses and to remunerate him for of his efforts. It shall also identify the party to the dispute who will deposit trust money, and the time during which the deposit should be made, and the amount that the expert may withdraw to cover his expenses.
If the parties to the dispute agree on the selection of one or more experts, the court will ratify their agreement. Otherwise, the court shall select the expert from among those acceptable to it unless certain circumstances require otherwise, in which case the court shall specify what these circumstances are.
If the court orders the deputation of one or more experts, the text of its judgment shall include the following:
An exact description of the expert’s assignment and the urgent measures he is authorized to take.
The time appointed for depositing the expert’s report.
The date to which the session has been adjourned to proceed with the legal action if the trust money has been deposited, and another, earlier session to hear the case if the trust money has not been deposited.
If the trust money has not been deposited by the party assigned to deposit it or by any other litigant, the expert shall not be obliged to perform the work assigned to him, and the court may decide to deny the party who has failed to pay the trust money the right to hold on to the judgment given for appointment of the expert if it finds that the excuses given by him are unacceptable.
Within two days following the deposit of the trust money, the court’s record shall call the expert to examine the papers deposited in the case file without taking them, unless he is permitted to do so by the court or by the parties and a text of the judgment shall be handed over to him.
If the expert’s name is not registered on the list, he shall swear before the court which deputized him that he will perform his work faithfully and honestly. Otherwise, the work will be considered to be invalid. The presence of the litigants shall not be required when the expert takes the oath, and a minute of oath – taking shall be recorded.
Within the five days following his receipt of the text of the judgment from the records clerk, the expert may request an exemption from performance of the work entrusted to him. In urgent legal actions, the court may decide in its judgment to make this period shorter.
The court that has appointed him may exempt him from said assignment if it considers the reasons given by him acceptable.
If the expert has not performed his assignment without being exempted from doing so, the court which has appointed him shall order him to bear all expenses that have been born in vain as well as nay damages caused by him without prejudice to whatever disciplinary penalties he may have to bear.
The parties to the dispute may apply for dismissal of the expert if it appears that he is incapable of performing his assignment without bias. In particular, he may be dismissed if he is a relative or in-law to any of the parties in the legal action up to the fourth degree, or if he is appointed as an attorney for either party in his personal work, if he is a trustee or guardian, if he works for any of the litigants, or if he or his wife is involved in an existing dispute with any of the parties in the lawsuit, unless such a dispute has arisen after appointment of the expert for the purpose of having him dismissed.
The appeal for dismissal of the expert’s assignment shall be made by appearing before the court within one week of the date of his appointment, if such order has been issued in presence of the party who applies for dismissal. However, if the order has been issued in his absence, the appeal for dismissal shall be submitted within the next week following the service of the order upon him. However, the right to appeal for dismissal shall not be elapsed if the reasons therefore have arisen after such time is being given or if the litigant has produced a proof that he has no knowledge of such reasons except after the lapse of the time given.
If the expert has been appointed by agreement of the parties in the legal action, the appeal for his dismissal may not be accepted by any of them, unless the reason for dismissal has occurred after his appointment or if it is proven that he has no knowledge of such reasons upon his appointment.
The court shall decide immediately in the appeal for dismissal, and the decision given in the appeal shall be irrefutable under any reason, however if the appeal for dismissal has been overruled, the appellant shall be sentenced to a fine of not less than two hundred Dirhams and not more than five hundred Dirhams.
The expert shall fix a date to begin with his work and at least seven days before such date he shall serve the parties in the legal action, with a notice showing the place, day and hour of the first meeting.
In the urgent case, the expert may send a notice by cable to the parties.
Anyhow, the failure to summon the parties shall render the expert’s work invalid.
The parties shall appear before the expert by themselves or by an attorney on behalf of them.
The expert may start his work even in absence of the parties whom he has called for appearance in the proper way.
No governmental authority or other agency shall, without legal cause, prevent the expert from having access to any ledgers, registers, documents or papers held with them, in execution of the court’s order for deputation of the expert.
The expert shall prepare a report on his work which shall include the following:
A report on the appearance of the parties and their signed statements and comments, unless they object to signing, in which case the reason should be stated in the minutes.
A detailed description of the jobs carried out by the expert, and statements of the persons whom he has heard at his own discretion or at the request of any party to the lawsuit.
The expert shall submit a signed report on the result of all his work, his comments and the points on which he has relied. In the case of multiple experts, each one of them may submit an individual report on his opinion unless they agree to submit one report.
The expert shall deposit his report, the minutes of his work, and all the papers received by him with the records clerk of the court which has appointed him.
The court’s record clerk shall inform the parties to the legal action of said deposit within the next twenty-four hours.
The expert shall send each party in the legal action a photocopy of the report within three days of making the deposit.
If the expert fails to submit a report within the time fixed in the ruling of the court that appointed him, arrangements should be made by him before the expiry of such time to supply the chief clerk of the court with a memorandum in which he gives a summary of the works performed by him and the reasons that prevented him from completing his assignment.
If the court finds in the expert’s memorandum satisfactory reasons for his delay, it shall grant him an extended time to perform his assignment and deposit his report. Otherwise, it will sentence him to a fine not exceeding five hundred Dirhams. In this last case, the court may give him time to finish his work and deposit his report, or it shall replace him and oblige him to refund any amount he has received from the trust money to the records clerk without any prejudice to disciplinary measures and compensation which he may have to bear.
The ruling issued for the replacement of the expert and obliging him to refund any amount he has received from the trust money shall not be subject to challenge.
If it appears to the court after perusing the memorandum submitted by the expert in accordance with the preceding article that the delay has arisen as a result of the litigants mistake, the court shall sentence him to a fine not exceeding one thousand dirhams, in addition to a possible denial of the right of said litigant to retain the order given for appointment of the expert.
The court, either at its own discretion or at the request of the litigants, shall order the expert to appear in a session scheduled by the court, to discuss his report with him, and it shall direct to him the questions that it considers useful in the case.
The court may order the expert to correct what is lacking in his work and rectify the errors or it may entrust the work to another expert(s).
The court appoints an expert to give his advice verbally in the session without making a report and his remarks shall be recorded in the minute.
The ad vice given by the expert shall not constrain the work of the court.
If the court gives a judgment contrary to the expert’s advice it shall refer in its judgment to the reasons for not taking such advice in full or in part.
The expenses and the fees of the expert shall be estimated according to an order issued without pleading by the court which appointed him. However, each of the parties to the legal action as well as the expert may lodge a complaint against the estimate within eight days of its being announced.
The complaint shall be made by depositing a written report with the court’s record clerk, as a result of which the order of estimation will not be carried out. Said complaint shall be ruled on by another judge or another circuit after the statements of the complainants are heard and the ruling given in this matter shall be final and irrevocable.
The expert shall receive the estimated fees from the trust money while any amount over and above the order of estimation shall be payable by the litigant who has ordered by the court to bear all the expenses