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Civil Law

Explanation of Article 44

Explanation of Article 44

This article addresses the statement of "lack of capacity," which is: that the contracting party is "discerning," "not of sound mind," and "not interdicted," or that they are "afflicted with some impediments to capacity." The article stipulates that a lack of capacity leads to the "nullity of the contract," so it does not produce any legal effect, except in the cases exempted by the article, which are:

  • First: If the contract is "purely beneficial," meaning: the contract is beneficial to the contracting party with a lack of capacity and does not result in any harm, such as: accepting a gift, accepting a will, accepting an endowment, accepting an inheritance, and similar cases. In this situation, the contract is "valid" and produces its legal effects.

  • Second: If the contract is "purely harmful," meaning: the contract is harmful to the contracting party with a lack of capacity and does not result in any benefit, such as: selling property for a low price, buying property for an exorbitant price, gifting without compensation, bequeathing without return, and similar cases. In this situation, the contract is "void" and does not produce any legal effect.

  • Third: If the contract is "between benefit and harm," meaning: the contract is potentially beneficial and harmful, such as: selling, buying, leasing, contracting, and similar cases. In this situation, the contract is "voidable" and produces its legal effects, unless the party with a lack of capacity or their guardian or trustee requests its annulment. In this case, the contract is annulled and does not produce any legal effect.

It is worth noting that these provisions apply to all types of contracts, whether they are contracts of exchange or contracts of donation, and whether they are consensual contracts or formal contracts.

This article is considered one of the most important articles related to the lack of capacity, as it protects the rights of the contracting party with a lack of capacity and provides them with an opportunity to annul the contract if it is harmful to them.

Related To

Article 44

  1. A deposit paid at the time of concluding a contract shall mean that only the payer of the deposit has the right to withdraw from the contract and that, upon his withdrawal, he may not recover the deposited amount, unless agreed otherwise.

  2. If the contracting parties do not set a deadline for withdrawal from the contract, the court shall set a deadline according to custom and the circumstances of the contract.

  3. If the payer of the deposit remains silent until the expiration of the deadline or if he fails to perform his obligations prior to such expiration, he shall be deemed to have withdrawn from the contract.