The effect of the creditor’s knowledge or possibility of his knowledge of the reason necessitating the guarantee in contracts transferring ownership “A comparative analytical study between Egyptian, French, Omani, Emirati and Jordanian law”

Abstract

It is natural, in contracts binding on both sides, especially those transferring ownership, that each party will try to prove that it has not breached its contractual obligations, including its obligation to guarantee. The creditor will work hard to prove that the debtor abandoned it despite his ignorance of the reason that required the guarantee, in order to prove his bad faith, and thus, hold him accountable with strict liability without benefiting from the terms of exemption or limitation of the guarantee. The debtor, in return, will seek to prove the creditor’s knowledge or possibility of his knowledge of this reason in order to reject his claim. The scope of this study was limited to explaining the effect of the creditor’s knowledge without addressing the effect of the debtor’s knowledge.
We have discussed this matter and explained the effect of the creditor’s knowledge of the defect requiring the guarantee, then the effect of his knowledge of the reason that requires the exposure and entitlement in two successive parts of the study. And we applied, that to two cases, to the sales contract as it is the sale that most triggers a commitment to the guarantee, in addition to being the general law to which one can refer in the event of a legislative vacuum.
The study produced a set of results, the most notable of which are: the agreement of the laws being compared that the buyer’s knowledge of the defect prevents him from recourse to the seller for a guarantee, unlike the effect of his knowledge of the burdens and costs, which differed from one law to another. French, Omani, Jordanian, and Emirati law have made the buyer’s knowledge or possibility of knowing the general burdens and costs a reason for not giving rise to his right to return with the guarantee. Egyptian law differentiates between easement rights and other burdens and costs. Among these results also is that it is not permissible to agree on not guaranteeing the entitlement resulting from the seller’s personal act in all the laws under comparison, unlike the agreement on not guaranteeing the entitlement resulting from the act of others, as there is some difference. It is also not permissible in Omani, Jordanian and Emirati law and it invalidates the sale. Thus, the combination of the condition of no warranty and the buyer’s knowledge of the reason for the entitlement exempts the seller, in Egyptian and French law, from any warranty. As for the mere knowledge of the buyer without being coupled with the condition of non-warranty, it has no effect. The seller remains responsible for returning the value of the sale, in Egyptian law, or its price, in French law.