Evidence: "burden of proof in commercial matters"," commercial business". Obligation: "preconditions thereof, consideration for". Judgment: "reasoning of", "defects in proving: misapplication of law". Contract.

 

Mention of consideration in the contract does not preclude debtor from proving lack of it by all means of proof. Condition for, obligation must be commercial. Judgment appealed, not complying with this position and ruling against Appellant's petition to refer the case for investigation to prove lack of his commercial obligation. Misapplication of law. Reason thereof.

 

Mention of consideration in the contract does not preclude debtor from proving existence of such consideration is not true, and that there is no consideration to support obligation. And though such allegation may not be proved, in civil obligations, other than by writing, as it is an allegation against a written proof, but it may be proved by all means of proof in commercial obligations as in commercial matters it is admissible to disprove written evidence by non-written evidence. As such being the law, and as it is established from the basic paper of the debt claim, that it includes, inter alia, commercial business, therefore, the judgment appealed, having denied referral to investigation to enable the Appellant to prove lack of consideration for his commercial obligation, is against the law.

 

Court:

After reviewing the papers and hearing the report read by the reporting judge and the pleading, and after deliberation.

Whereas the appeal has satisfied its formal conditions; and

The facts - as stated in the appealed judgment- are that Respondents instituted suit No. 294/2000, full civil circuit, Against Appellant, claiming for judgment ordering him to pay them the sum of 5,635,000 Riyals and legal interest at the rate of 5% as of the date suit filing until full payment, alleging that Appellant was indebted to their predecessor in the amount claimed as a result of commercial and real property transactions as well as expenses of studying abroad which he acknowledged in writing.  Appellant attacked this acknowledgment as a forgery. The court appointed an expert and after depositing his report, it passed judgment on 17/1/2005 rejecting the debt acknowledgment as being void and a later session rejected the suit. Respondents appealed against this judgment, Appeal No. 513/2005, and the court repeated the expert mission with the same expert and after depositing his report the court cancelled judgment of the first instance court on 17/1/2005 and accepted the debt acknowledgment as valid signature on it as true and returned the suit back for retrial and decision on its subject matter. On 28/5/2008 set aside the judgment appealed against and ordered Appellant to pay Respondents the sum of 5,635,000 Riyals and denied other the claims. Appellant appealed this judgment by way of cassation, which was put before this court in the consultation room for fixing a date for hearing.

 

Whereas Appellant argues against this judgment for misapplication of law, in that the court diverged from the rule for referral to investigation to prove or disprove the existence of consideration for the acknowledged obligation opining that written evidence may not be disproved except by written evidence, and rejected Respondents' defense arguing that the written acknowledgment specified the consideration for the obligation, which included commercial transactions, thereby permitting of proving or disproving such obligation by all means of proof. For this reason, the judgment appealed against is flawed and requires cassation.

 

Whereas this argument is correct, for mention of consideration in the contract does not preclude debtor from proving nonexistence of such consideration, and that there is no consideration to support obligation. Although such allegation may not be proved, in civil obligations, other than by written proof, as it is an allegation against a written proof, but it may be proved by all means of proof in commercial obligations as in commercial matters it is admissible to disprove written evidence by non-written evidence. As such being the law, and as it is established from the paper forming the basis of the claim of indebtedness, that it includes, inter alia, commercial business, therefore, the appealed judgment, having denied referral to investigation to enable the Appellant to prove lack of consideration for his commercial obligation, is contrary to law, which is a flaw that deserves cassation.