Terms and conditions
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The Letter Rogatory is "the authorization issued by the judge in charge of the investigation to another judge or judicial police officer to carry out an investigation in his place." It is also defined as: "a procedure whereby a judicial police officer undertakes the execution of a judicial order addressed to him by the judicial authority, regarding the implementation of one of the procedures resulting from the investigation or court's procedure or the implementation of a specific decision, which the judicial authority did not have the opportunity to do, due to lack of time or distance." Or the desire to expedite the implementation of the procedure that is the subject of the judicial delegation, such as the procedure of hearing a person or a witness in a state of danger, or a person in a difficult situation, or carrying out an inspection, inspection, or detention. Subsequently, the content of the Letter Rogatory is based on the investigation judge requesting another judge or an officer of the judicial police officers who are present in the sphere of influence of his court to carry out whatever procedures he deems necessary of investigation work in the places under the influence of the judicial police officer.
The terms "deputation" are similar to "delegation" and "subrogation" in the exercise of one’s competence, so that the Egyptian legislator, for example, used the three terms interchangeably because delegation, subrogation, and deputation are exceptional ways to undertake the functions of competence, just as, in all three cases, a person other than the original occupant exercises jurisdiction.
In view of the importance of the letter rogatory, a number of formal conditions are required for it, such as that it be in writing, it must be dated, and it must be signed and bear the seal of the main judge in charge of the investigation. It is also necessary for it to bear the name of the judge in charge of the investigation and indicate the type of crime that caused the investigation, as well as the name of the accused, and if he is unknown, it must be directed against an unknown person.
The letter rogatory also has a number of objective conditions, the most important of which are:
First: Being part of the investigation process, it should be issued by a judge in charge of an investigation.
Second: A letter rogatory can be addressed to another investigating judge, to a judge court of first instance, or to officers in the judicial police. Whereas, an investigation judge is requested to undertake a certain function by virtue of a letter rogatory issued by another investigation judge, a second letter rogatory could be addressed to a judicial police officer. However, judicial police officers are not entitled to delegate other police officers to undertake their duties on their behalf. In general, they are drafted in three forms:
First Limited letters rogatory:
The judge carrying out an investigation specifies the required functions to be undertaken. In that case, the delegated party shall strictly adhere to the content of the letter rogatory, such as the examination of a specific witness or the inspection of a specific home.
Second General letters rogatory:
The judge carrying out an investigation does not specify the requested function but rather leaves the door open. The judge can request to listen to all witnesses or undertake any action that could help the investigation. In this type of letter rogatory, the judicial police officers are empowered with wide authority but limited to a specific case.
Third International letters rogatory:
Where the two countries are bound by a judicial treaty or executive agreement, the judges of the two countries can delegate each other to undertake the investigation process, provided that the request is transmitted through the diplomatic channels (Ministry of Foreign Affairs). The judicial process undertaken by a letter rogatory shall have the same legal power as if it were undertaken by the judicial authority in the sending state. Letters rogatory are considered an important manifestation of international cooperation between judicial authorities. Each country endeavours to organise its procedures regulating or related to letters rogatory with the objective of consolidating justice in the country, safeguarding its independence, and reinforcing its territorial sovereignty. Letters rogatory are gaining increasing importance in international relations as a result of the widespread developments in the fields of communication, the freedom of movement of persons and goods, and the interlacing interests and complexity of different aspects of international relations. All aspects of life are characterised nowadays by globalisation. This resulted in an increase in criminal practises, including the surge of transnational crimes such as terrorism, drug trafficking, money laundering, and human trafficking. Crime organisers and perpetrators take advantage of the facilities provided by modern developments in the fields of transport, communications, and information. Consequently, judges are facing increasing challenges. The violation of countries' sovereignty constitutes an obstacle to the realisation of criminal justice, as countries do not always have the same legal concepts or criminal and procedural rules. Nevertheless, letters rogatory enable an investigative authority in one country to use the investigative process in another country. This process is considered one of the most important features of international cooperation. It allows a country to conclude the investigations in its own national cases when such a process is rendered unachievable for its judicial authorities while the witness to be examined or the required evidence are beyond its territorial borders or in the hands of foreign authorities. Therefore, countries resorted to including some articles in their national legislations to regulate international judicial cooperation. Bilateral agreements to regulate such judicial cooperation are concluded for this purpose. The United Arab Emirates is a federal state. Law No. 11 of 1973 was promulgated to regulate the judicial relations between the seven emirates. This Law provides in Article 5 that "any of the member emirates may request from another member emirate to undertake on its territory and on its behalf a judicial process related to a case under consideration." Article 6 of the same law provides for the procedure to be followed. The judicial authority in one emirate shall communicate its requests for letters rogatory to the judicial authority in another emirate. The latter is required to execute the request in accordance with its laws and procedural rules. Whereas the requesting party wishes for its request to be answered differently, this demand shall be considered as long as it does not contradict the local legislation in force. The law provides for the requesting judicial authority to be informed of the place and time of the implementation to enable a party or his legal representatives to be present. Whereas the subject matter relates to a subject or a procedure considered illegal under the law of the requested emirate, or if the execution of the request proved impossible, in both cases the requesting judicial authority shall be notified thereon, supported by the necessary justifications.
The term "coercion" is derived from the verb "coerce" and is defined as an action or practice of persuading someone to do something by using force or threats. It is the compulsion of others to do something unwillingly, which they may not do, if they opt to. In legal text, coercion is a pressure against the will of others. The UAE legislator stipulates in articles 176 and 177 of the Civil Transactions Law No. 5 of 1985, the meaning of coercion as follows, "Duress is coercion of a person unrightfully to perform an act without his consent. Duress may be forcible or non-forcible and may be material or moral. Duress is forcible (full and utter) if it involves threat of causing grave and imminent danger to person or property; and it is non-forcible (minor and partial) if it involves a lesser threat. Based on the previous definition; coercion is divided to material (physical) coercion and moral coercion. The material coercion is to compel a person to conclude an action or to perform something under a material force that he cannot resist or avoid, so he loses his will, power and freedom to choose, and becomes a controlled machine, e.g. holding someone's thumb and compelling him to affix his fingerprint on an instrument indicating his acknowledgement of a certain obligation. The material coercion is deemed as a state of human force majeure. Thus, a physical coercion results in a consent taken forcibly and fearfully. A physical coercion may occur due to an internal reason, e.g. an accident caused by a driver for losing his power to control the car after getting a sudden paralysis. The moral coercion is a threat directed from a person to another by any means, causing him a state of fear and panic that obligates him to acknowledge acceptance of something he would not willingly accept. Hence, the difference between physical coercion and moral coercion is that the first case involves paralyzed and blind will, as if it does not exist at all; while in the second case the will is existing, but it is defected and partial. The moral coercion has two aspects: external and internal. The external coercion is caused by an outside source including the presence of someone who threatens another to urge him to work; the internal coercion is caused by one's emotions, beliefs, doubts and convictions. Laws coincide to identify a number of general conditions that frame coercion, including: a threat of grave imminent danger, and the threat to use physical means e.g. weapons that would make someone imagine the presence of a real threat and a grave imminent danger to himself, his body or property, or to someone important and dear to him. Thus, the threat to beat and abuse someone or to assault his dignity is deemed as a state of de facto coercion if exercised against the person himself, or against his relative (son, brother, wife or any other person with whom he has an intimate relationship) i.e. relations extend to include blood relatives, kinships and friendships. Besides, such threat may be directed against one's property, such as threats of burning a house, or damaging a crop. Additionally, a threat must be imminent, so if there is a time frame between a threat and the possibility of danger occurrence, the threatened person would have taken the necessary precautions to prevent this danger. Again, the means of threat must be illegal, so if the means of threat was legal, there would be no threat to defect the person's will. Accordingly, any threat by a creditor against his debtor to attach or seize his money, in case of default, would not be deemed a coercion, noting that coercion infers a person's incapacity to prevent duress or avoid dander by any means. All legislative provisions related to coercion and necessity, despite different expressions and terms, stipulate that no punishment will be imposed on anyone commits a crime under these circumstances, being defined as "the effects of coercion". In other words, such effects are the implications resulted from coercion, be material or moral. In this regards, the Islamic jurisprudence was a pioneer in this area, so all Islamic sects urge to release any threated person from his crime, be it felony, misdemeanour, or violation. The UAE legislations, in line with the Islamic jurisprudence, repeal any act performed under the influence of coercion, as such act is made against a person's will. In most criminal legislations, coercion is deemed as a kind of necessity, so the person under coercion may claim any compensation for the damages he incurred as a result of coercion, pursuant to the rules of tort, based on the principle that "every error causes harm to others would require the payment of compensation by the defaulting party". In the UAE law, coercion would defect any concluded contract, i.e. any contract would be deemed invalid of concluded under coercion, as stipulated in Article 182 of the Civil Transactions Law: "A person who is under either kind of duress to conclude a contract may not enforce his contract, but the contract will be valid if the victim or his heirs so permit after the threat has ceased, either expressly or by their acts". At any rate, coercion must be proved first before invalidating the resulting inaction. Personal evidences (testimony) and clues, including declaration and assertive oath, may be used to verify the occurrence of coercion; and the burden of proof rests with the person who claims the occurrence of coercion. The second paragraph of Article 64 of the UAE Penal Code No. 3 of 1987 regulates the legal implications of coercion, so it reads "a person shall not be criminally responsible if he commits a crime acting under constraint for protection of himself or his property or the person or property of a third party from serious imminent danger whose occurrence is beyond his own will Likewise, a person who was forced to commit a crime due to physical or moral coercion is not criminally liable.
The term "bankruptcy" in the lexical definition comes from the source "bankrupt," which is the situation in which an individual or an organisation becomes unable to pay its obligations.
And it is said that the company declared bankruptcy, that is, announced its loss and acknowledged its commercial failure. It is said that the judge is bankrupt, meaning that the judge officially declared that a person is bankrupt. Bankruptcy is a state that results from the merchant's cessation of fulfilling his debts, and it generally means financial inability. So that bankruptcy expresses the state of a person who is no longer able to fulfil his obligations. The term "state bankruptcy" is used to mean the state's refusal to pay credit bonds. Bankruptcy is also defined by the judicial declaration that a natural or legal person is unable to pay his debts.
In bankruptcy law, it means: a way of executing on the money of the debtor when he stops paying his commercial debts.
The legal regulation of bankruptcy rests on a number of grounds.
The first basis: protecting creditors and enabling them to obtain their rights or as much of them as possible on an equal footing among them; and since the merchant may deliberately dispose of his money when he feels that he has stopped paying his debts, it was logical for the legal legislator to arrange the issuance of the bankruptcy ruling to prevent the debtor from disposing of his money. On the other hand, just as the protection of creditors is from the actions of the bankrupt debtor by restricting his hands from managing his money, the protection of creditors must also be achieved from each other through the principle of equality among them and by preventing them from competing to obtain extraordinary advantages whenever the debtor’s business is disturbed.
The second basis is the legal regulation of bankruptcy, which involves achieving a balance between conflicting interests. If there is a conflict between the interests of the bankrupt debtor and the creditors, then the legislator restrains the debtor from managing his money and hands it over to the bankruptcy trustee in preparation for its liquidation. At the same time, he gives the bankrupt debtor an amount to spend on himself and his family. The conflict of interest that the street organised extends to the creditors themselves, as the interests of ordinary creditors conflict with those of creditors with private insurance, and the interests of creditors before the declaration of bankruptcy also conflict with those whose rights arose after the declaration of bankruptcy.
The third basis for the legal regulation of bankruptcy is that bankruptcy is a system of collective liquidation, whereby no one of the creditors undertakes any individual procedures for execution on the debtor’s funds, but rather the procedures that are taken for liquidation and execution are collective and taken by the bankruptcy trustee in the name of all debtors. There are several characteristics defined by the various laws of the bankruptcy system, the first of which is that it is a system for merchants, as it applies only to merchants. A trader is every person, whether an individual or a company, who engages in commercial business on a regular and professional basis with the intention of earning a living. The second characteristic is that bankruptcy is only possible through a judicial procedure, so declaring the debtor bankrupt is only possible through a court ruling revealing the cessation of payments. As for the third characteristic, it is that bankruptcy is a collective action: that the debtor’s stopping of paying his commercial debts is not limited to the private interests of the creditors, but rather is likely to prejudice the public interest as it leads to an imbalance affecting the merchant community. For this reason, the legislator considered bankruptcy by negligence and bankruptcy by fraud as crimes, and in both cases, the debtor's bankruptcy is associated with mistakes ranging from minor to serious. The fourth characteristic is that bankruptcy is based on the simplification and speed of procedures in an attempt to reach its end as quickly as possible, by shortening the appeal dates and including bankruptcy provisions for urgent enforcement. As for the fifth characteristic, it is: Most of the bankruptcy provisions are rules that are considered part of the public order because they are related to the activation of credit.
Its meaning is that it, without the need for a special text, governs the effects that have not been settled and that result at the time of its entry into force, even if they arose from legal centres prior to it, in the implementation of their immediate effect. It should be noted that there is a correlation between the terms "bankruptcy" and "insolvency." Insolvency is a system for non-merchant civilians, and it assumes that the debtor's funds are insufficient to fulfil his due debts. The declaration of insolvency shall prevent the creditors from taking individual actions against the debtor.
The UAE legislator has paid great attention to the issue of bankruptcy due to its impact on a wide segment of society, namely merchants in their natural and legal capacities, and its impact on the national economy. As stated in the explanatory memorandum of UAE Commercial Transactions Law No. 18 of 1993, a trader who stops paying his commercial debts on time is considered to be in a state of bankruptcy, and he equates this actual stop with the case of the trader who uses, in order to pay off his debts, illegal or unusual means that indicate his poor financial condition. The aforementioned UAE law also sets conditions for declaring bankruptcy: that the bankrupt debtor be a merchant, that he stop paying as a result of his troubled financial position and credit, and that the debts that he stopped paying are commercial and undisputed, and that these debts are payable. So that if these conditions are met, the head of the department that declared bankruptcy is appointed as a bankruptcy judge who observes the procedures and actions of the bankruptcy, as well as appointing one or more bankruptcy trustees to manage it. The UAE legislator has also been working on preparing a new bankruptcy and insolvency bill, which is still in the process of being approved, that includes provisions for speedy settlement of procedures in order to reduce the burdens required to submit a request for protective composition, which allows the debtor party to restructure his business according to a protective composition plan from bankruptcy with its creditors, under the supervision of the concerned authority. The new draft law also works to create an ideal investment environment that guarantees the protection of the rights of the parties according to studied mechanisms. The draft law allows the debtor to reorganise the indebtedness and allows him to borrow again on concessional terms. It also protects the debtor from criminal prosecution and denies the criminal status of the financial obligations of the insolvent person. The new law allows the debtor to reorganise the indebtedness and allows him to borrow again on concessional terms. It also protects the debtor from criminal prosecution and denies the criminal status of the financial obligations of the insolvent person. The aforementioned draft law also contributes to preserving the vitality of the financial sector through the solutions it provides for debtors who face insolvency or are on the brink of bankruptcy, and thus, it will enhance the confidence of banks in the local market and in the performance of their customers.
Conditional release (parole) is defined as "the release of a convict from a custodial punishment before the completion of the sentence period, before the full term of his sentence expires, absolutely subject to conditions, represented by obligations imposed on him and restricting his freedom, and this freedom depends on the fulfilment of those obligations." In other words, it is "a means used by the developed punitive systems to reduce the disadvantages of staying in punitive institutions for long periods that may have bad effects that impede the rehabilitation and correction of the prisoner.
According to this common system, the prisoner serves his sentence in the penal institution for a certain period of time, after which it is decided to release him before the end of the period he is sentenced to, so that if the convict’s behaviour worsens or he violates the obligations imposed on him during the period of conditional release, the release is cancelled, and he returns to the penal institution to spend the remaining period of punishment. The release ends either with the expiration of its period and thus becomes a final release, or with its cancellation and the perpetrator's return to prison again. Conditional release dates back historically to France, where, in 1790, Mirabeau submitted a report to the French National Assembly calling for the inclusion of the conditional release system in the French Penal Code as one of the means to reform prison systems. In 1874 AD, the famous French judge "Bonville de Marsangani" led a wide campaign in favour of conditional release, and he continued in this campaign and was the most famous of its enthusiasts and advocates until the French National Assembly adopted the system of conditional release in the year 1885.
Conditional release was introduced successively to the legislation of the countries, so this system was applied in England in 1850, the Saxon law in 1862, the German Penal Code (Article 26), and the Italian Penal Code (Articles 176 and 177), and this system was introduced in Egypt by decree issued on December 23, 1897. The UAE Federal Law No. 43 of 1992 regulating punitive facilities stipulates the conditional release system in Articles (44–47), and the Federal Partial Procedure Law No. 35 of 1992 also includes Article 302 of it, which is related to conditional release, as it states that:: "Everyone sentenced to a penalty restricting his freedom may be released under condition if he fulfils the conditions stipulated in the Penal Institutions Law, and the released person is subject to a condition during the remainder of the period to which he is sentenced, according to the conditions set forth in the aforementioned law."
It is permissible, at the request of the public prosecution, to cancel a conditional release if the released person violates the restrictions referred to in the previous paragraph. In fact, the conditional release is not an end to the sentence; rather, it is one of the methods of punitive treatment or one of the methods of punitive execution, as it is not considered a suspension of the sentence or an end to its implementation or a reason for its expiry, but rather a modification in the method of its implementation, and therefore the sentence does not expire unless the period specified in the sentence expires. fully without revoking the conditional release.
Likewise, a conditional release is not a final release, as it is liable to be revoked during the period of the conditional release, and a conditional release does not turn into a final release unless its period expires without being revoked. Also, conditional release is not a right for the convict, as the latter cannot demand his release due to the fulfilment of the conditions he has, and therefore it does not need the consent of the convict to decide his or her release.
Most countries recognise conditional release in their legislation because it has advantages, including: it urges the convict to adhere to correct behaviour during the period of execution of the sentence inside prison in order to benefit from conditional release, and it helps to socially rehabilitate the convict in two aspects: the first is through the measures of control, assistance, and obligations imposed on the parolee. Secondly, it guarantees gradual treatment of the convict. It also contributes to reforming the convict outside the penal institution, in preparation for his integration into society and his adaptation with it in order to prepare him for final release. The UAE legislator has established conditions for conditional release: substantive conditions and procedural conditions. The substantive conditions are divided into two parts:
A. Conditions relating to the period spent by the convict in prison
B. Conditions related to the convict.
The conditions relating to the duration are:
First, the conditional release should be applied to all custodial penalties, regardless of the type of crime.
Secondly, conditional release does not apply to precautionary measures. Third, the convict must have served three-quarters of the sentence.
It is worth noting that if the penalty is life imprisonment, he will be released if he has served twenty years, and the convict may apply after 15 years. As for the conditions for the convict, they are: that the behaviour of the convict calls for confidence in correcting himself; otherwise, the conditional release of the convict would be a danger to public security. As for the procedural conditions for conditional release in the UAE law, it gives the administrative authority release in some cases and the judicial authority grants release in other cases. On this point, the UAE legislator tried to resolve the controversy between legal scholars, and the views of legislators and researchers differed regarding its legal adaptation from the punitive aspect. An opinion held that the conditional release be considered an administrative act, arguing that it is in fact a modification of the punitive treatment in order to suit the development that occurred in the personality of the convict.
From this point of view, it is more like the aspects of administrative activity practised by the punitive administration in the implementation of the sentence. A second opinion held that it is considered a judicial act because it entails a violation of the executive power of the ruling and introduces an amendment to it in terms of specifying a specific term for the sentence.
The legislative proposal is defined as "submitting the draft law to the competent authority for legislation in order to fulfil the constitutionally required procedures for the issuance of legislation." In this sense, the legislative proposal is of great importance, as it is the basic step in legislation and the first building block in the legal structure, without which it cannot be established. Ordinary legal legislation goes through a number of stages before it becomes law. The stages of legislation begin with the stage of proposing legislation, where the "suggestion" is submitted to the legislative authority in order to take the necessary measures regarding it, such as discussion, amendment, addition, and deletion. At this point, it is known as the "legal draft". The next stage in the life of the legislative proposal is the formulation of its first draft. At this stage, the process of realistic embodiment begins to meet the legislative need and achieve the objectives of the legislative policy in the form of a first draft of the draft law to be promulgated. This draft is being discussed by the legislative authority. Later, it is ratified by the authority approved by the constitution, and then the project becomes a "law." The authority that ultimately ratifies the law differs from one party to another, as determined by the constitution of each country. Once the law is ratified, it is then considered part of the Basic Law of the State. In order to exercise the right to propose legislation, two parts are required, one objective and the other personal. As for the substantive part, it is that the proposal aims to lay the first foundations of legislation, and it follows from that that the subject of the proposal is one of the topics dealt with by law in accordance with the state’s constitution. Show the scope of the law.
As for the personal part, it is that the proposal is submitted by the person entrusted with this task by the constitution. A petition submitted by a citizen is not considered a proposal for a law, unless its ideas are adopted by a member of Parliament, the government, or the body entrusted with proposing legislation. The right of suggestion is the right exercised by a "specialist" in this regard, with the intention of laying the foundations of legislation, and work is considered a proposal for a law when the previous conditions are met.
With regard to those entrusted with proposing legislation, there are three approaches to the constitutions in determining who has the right to propose legislation, the first approach: the constitutions make the right to propose a right specific to the legislative authority, and the constitutions that follow the presidential republic system have adopted this approach, as it deprives the executive authority of the right to propose laws, And limit it to the legislative authority, because these constitutions believe that the principle of separation of powers prevents the executive authority from participating in legislation in any way, such as the French constitution of 1791, where it adopted the system of unilateral parliament with the right to propose. In fact, the idea of cooperation between the authorities quickly weakened, and events overcame this opinion. Even in light of these constitutions that adopted the exclusive right of the legislative authority to propose, ministers proposed laws through their contact with parliamentary committees, and therefore constitutional amendments were made that allow the cooperation of the executive and legislative authorities in the field of proposing legislation. The second trend: it is constitutions that make the right to propose a common right for both the executive and the legislative authorities, so that the constitution gives the right to propose laws for both the legislative and executive authorities at the same time. This trend has been endorsed by the constitutions that adopt the principle of flexible separation of powers, as is the case in the US Constitution, the Egyptian Constitution, the Jordanian Constitution, and the Lebanese Constitution. As for the third approach: the constitutions make the right to propose a right of the executive authority. The executive authority is granted the right to propose without the legislative authority, and this is what the Egyptian constitution adopted until 1930. Within the framework of this approach comes the constitution of the United Arab Emirates, which stipulates in Article No. 110 of it that the draft law shall be considered a law after the Council of Ministers prepares it and presents it to The Federal National Council (that is, the legislative entity) and the Council of Ministers presents the draft law to the President of the Federation for approval and for submission to the Supreme Council for ratification.
The order of stages for issuing the law in the United Arab Emirates is:
1. Proposal: "The Council of Ministers/Executive Authority" shall be the right of the Council of Ministers, then it shall be presented to the Federal National Council for a vote on it.
2. Approval: (the National Assembly, the legislative authority) The Federal National Council carries out the process of voting on the project, and here are three possibilities in this context: The first is that the Federal National Council approves the project. The second is that the Federal National Council introduce amendments to the project. Third: That the Federal National Council reject the project.
3. Issuance comes from the Supreme Council of the Union) and it goes through two steps: The first is that the Supreme Council approves the project. Second: Issuing a law by the President of the Union (His Highness the Head of State).
4. Publication: Laws issued must be published in the Official Gazette.
Whoever has the right to propose legislation, for the drafting of the legislative proposal, there are a number of stages that are agreed upon as obligatory and the necessity of adhering to them, including: making sure that there is a constitutional or legal basis for the issuance, as well as making sure of the need to issue the proposed legislation by studying the compelling reasons and related legislation, Studying the texts of the project in subject matter and form and making amendments to it in the light of a number of considerations, such as: the provisions of the draft not violating the provisions of the constitution; the provisions of the draft not violating international agreements signed by the state; the provisions of the project taking into account the prevailing beliefs and values in society; and being guided by jurisprudence and comparative laws in borders as required to complete the gap in the project, if any.
Transfer of obligation
The "transfer of obligation" means: "a change in one of the parties to the obligation (the debtor or the creditor)" and is also defined as "the transfer of the legal bond linking the creditor and the debtor to other persons."
In other words, it is to shift the obligation, including all its components, warranties, and qualities, from one contracting party to another person, referred to as the "assignee."
There are two types of "commitment transfer." The first type is "assignment of right," which is an agreement by which the creditor transfers his right to another person to become a creditor in his place. The original creditor here is called the assignor, the new creditor the assignee, and the debtor the new obligor (the new debtor). The assignment of right involves any personal rights whatsoever, of any nature or character, including transfers by way of security, deferred added benefits, conditional rights, and civil and commercial rights.
The assignment of right is subject to certain requirements, including the consent of the assignee and the assignor, regardless of the obligor's approval, since such change will not cause any extra burdens on him.
The assignment of rights requires a legitimate reason and might be made in lieu of consideration (sale), or without consideration (grant). By assigning the right, the assignor may tend to settle some debt due to the assignee, so the value of the transferred right will be deducted from his debt. Besides, such assignment requires the debtor's explicit or implicit approval, and such approval will be given at the same time of the assignment, or thereafter, but his approval may not be given prior to it, even if the debtor certifies, on the debt bond, his prior approval of right assignment to others. Hence, the purpose is to inform the debtor of the assignment of right, followed by his subsequent approval. The meaning of the debtor's acceptance is limited to mere knowledge of the assignment, without this acceptance including any acknowledgement by the debtor of the assigned debt. Other requirements for an assignment of rights include serving an official document on the debtor at the request of the assignor or assignee.
In fact, the assignment of right has prominent importance and various benefits. The assignor (creditor) may wish to make a lien on his rights to the assignee (the new obligee), especially if his rights were deferred and he was in need of cash money but does not want to sell his right out. The assignment of right is permissible under the four sects of Islam, but its subject is not unanimously agreed upon. For example, some approve it in gold and money but prohibit it in food.
The second type is "the assignment of debt"; in other words, it is the assignment of the burden of debt, by agreement, from the original debtor ("assignor") to a new debtor ("assignee"). In other words, it is an agreement under which the debt is assigned from one debtor to another, who will be fully responsible for the whole debt. As per the definition above, the assignment of debt entails three parties: the assignor (the original debtor), the obligor (the new debtor), and the obligee (the creditor).
The assignment of debt has two kinds: restricted assignment and absolute assignment. The restricted assignment involves repayment from the assignor's funds owed to him by the assignee, while the absolute assignment is to settle money from the assignee's funds. The assignment of debt results in the transfer of the same debt, including all its payments and warranties, to the new debtor, i.e., the original debtor will be released from any commitments towards the creditor as the new debtor will subrogate the original debtor. The original debtor's release will be pending on the condition that the creditor will recover his right in full; otherwise, he may revert to the assignor. The assignment of debt may be made by an agreement concluded between the original debtor and the new debtor to whom the debt has been assigned or directly between the creditor and the assignee. According to law, the assignment of debt requires an existing object that meets certain legal conditions, which is the assigned debt. Besides, the new legislation does not require the debt to be realised, i.e., the assigned debt might be a debt due now or in the future; a deferred benefit or a conditional debt; or a civil or commercial debt with or without interest. The agreement for assignment of debt, concluded between the original debtor and the new debtor, should be made by fully competent and capacitated persons without any coercion, deception, or illusion. Additionally, there should be a reason for this assignment, e.g., the assignee may intend to borrow the amount of debt from the debtor, or he may wish to settle a debt owed by him to the debtor. It should be noted that the legislature does not approve the "assignment of right", due to a lack of unanimous agreement thereon by sharia scholars. However, the assignment of debt is approved and regulated under the Federal Civil Transaction Act. Such failure to regulate the assignment of right might be deemed a legislative hindrance against this action in the UAE; however, some believe that the UAE legislature has implicitly approved the "assignment of right". Despite the lack of legislative regulation in this area, the action is still applicable under the agreement of parties. The legislature has cited some articles that are applied only to the "assignment of right" in particular Articles 1130 and 1131 of the Federal Civil Transactions Act. The said Article 1130 reads as follows: "If there are several assignments in respect of one right the first assignment shall take priority and be effective with regard to third party rights... an assignment shall not be effective with regard to third parties unless official notice thereof is given to the assignee or is accepted by him in a document of specified date." Accordingly, this article does not apply to the "assignment of debt," so the implementation of the assignment of right must be accepted.