Skip to content
Civil Law

Explanation of Article 354

Explanation of Article 354

The article clarifies the ruling on the sale and purchase by a terminally ill patient, and the necessity to explain that if the sale or purchase by such a patient involves favoritism, the amount of favoritism is treated as a donation. A donation by a terminally ill patient is subject to the rules of a will, in that a will is not valid for an heir, nor is it valid for more than one-third to a non-heir. This is because the actions of a terminally ill patient in this manner are suspect of intending to circumvent the legally established rules of wills, and because the rights of the heirs are attached to the patient's assets; thus, their actions are restricted not due to a deficiency in their capacity or a defect in their will, but to protect the heirs.

The first paragraph clarifies the ruling on the sale or purchase by a terminally ill patient to or from an heir. If the sale or purchase is at the market price, the transaction is valid against the other heirs as if it were a transaction by a healthy person, without issue. However, if it involves favoritism, such as selling to an heir for less than the market price or buying from an heir for more than the market price, the amount of favoritism in the sale or purchase is not valid against the other heirs unless they approve this transaction after death. The amount of favoritism is the difference from the market price when the patient is the seller or the excess over the market price when the patient is the buyer.

The second paragraph clarifies the ruling on the sale or purchase by a terminally ill patient to or from a non-heir. If the sale or purchase is at the market price, the transaction is valid against the heirs as if it were a transaction by a healthy person, without issue. However, if it involves favoritism, such as selling to a non-heir for less than the market price or buying from a non-heir for more than the market price, the transaction can fall into two scenarios:

The first scenario: If the amount of favoritism in the sale or purchase does not exceed one-third of the estate's value at the time of death, including the sold item itself, the sale is valid against the heirs as if it were a transaction by a healthy person. For example, if a terminally ill patient owns a property valued at four million riyals at the time of death and sold it for three million riyals, and the estate's value, including the sold property, is six million riyals, the amount of favoritism is less than one-third of the estate, thus the transaction is valid against the heirs as if it were a transaction by a healthy person.

The second scenario: If the amount of favoritism in the sale or purchase exceeds one-third of the estate's value at the time of death, including the sold item itself, the amount of favoritism exceeding one-third of the estate is not valid against the heirs unless they approve this transaction after death, or the transferee returns to the estate from the amount of favoritism what completes the two-thirds. For example, if a terminally ill patient owns a property valued at four million riyals at the time of death and sold it for one million riyals, and the estate's value, including the sold property, is six million riyals, the amount of favoritism is three million riyals, exceeding one-third of the estate, so the buyer must return one million riyals to the estate if the heirs do not approve the sale.

In applying the provisions of this article in its paragraphs, the following should be considered:

  1. The consideration of whether a person is an heir or not is at the time of the patient's death, not at the time of the transaction. The heir, according to this article, is the heir as defined by the Personal Status Law.
  2. The heir who has the right to request that the transaction not be valid against them is the one whose share is affected by that transaction. In cases where the system allows a person to bequeath more than one-third, and the heir's share is not reduced by that, such as a will exceeding the share of the husband or wife if there are no other heirs, according to Article (191) of the Personal Status Law, the validity of the transaction involving favoritism exceeding one-third does not depend on the heir's approval, as there is no right affected by the transaction that requires their approval for its validity.
  3. The consideration of the estate's value is at the time of death, not at the time of the transaction, and it includes the value of the sold item at the time of death, as the time of death is when the heirs' right to the estate arises, allowing them to demand that the transaction not be valid against them. For example, if a terminally ill patient sells land valued at two hundred thousand riyals at the time of sale for one hundred thousand riyals, and at the time of death its value decreases to one hundred fifty thousand riyals, and there is no other wealth, the amount of favoritism is only fifty thousand riyals, which does not exceed one-third of the estate.
  4. The heir's approval of a transaction is a unilateral legal act, subject to the general rules established in the first section of this system, including that it does not depend on the transferee's acceptance, and its effect dates back to the time of the patient's transaction, not the time of approval. It can be explicit or implicit, and implicit approval includes the heir's silence after the death of the testator with knowledge of the contract and not demanding that the transaction not be valid, or if the price is in installments and the buyer continues to pay installments after the testator's death. The conditions for the heir's approval are: The first condition: It must be after the testator's death, as waiving a right before it arises is not considered. The second condition: The approver must be capable of donating, as this approval involves waiving a right, thus falling under transactions that are purely detrimental to the approver. If the approver is also terminally ill, their approval takes the ruling of their will; if the approval is for the benefit of an heir, it is not valid without the approval of the other heirs, and if it is for a non-heir, it is not valid against the heirs for more than one-third of the estate without their approval. The third condition: The heir must be aware of the transaction and its favoritism, and their intention must be to approve it with the favoritism it includes.
  5. If some heirs approve the patient's transaction and others do not, the transaction is valid against those who approved it to the extent of their share in the estate, and it is not valid against those who did not approve it.
  6. If the heirs do not approve their testator's transaction, the transaction, if involving favoritism with an heir, requires the transferee to return the amount of favoritism to the estate. If the transaction is with a non-heir, the transferee must return to the estate what exceeds the amount of favoritism over one-third of the estate, meaning they must return from the amount of favoritism what completes the two-thirds. In the case of partial approval of the transaction, the return is to the extent of the share of those who did not approve from the estate. The effect of this obligation to return is that the part required to be returned is considered a transaction that is not valid against the heirs who did not approve the sale, and it is considered part of their share of the estate. If the transferee does not return that amount, they may file a lawsuit for the transaction not to be valid against them to recover it and request compulsory execution against it.

Related To

Article 354

  1. The sale or purchase made between a terminally ill person and any of his heirs which is based on favoritism shall not be deemed effective vis-a-vis other heirs with regard to the part affected by such favoritism, unless they ratify such sale or purchase.

  2. The sale or purchase made between a terminally ill person and a person other than his heirs which is based on favoritism shall not be deemed effective vis-a-vis the heirs with regard to the part affected by favoritism that exceeds one-third of the estate upon death, including the sold item, unless the heirs ratify such sale or purchase, or the assignee returns an amount sufficient to complete two-thirds of the estate.