By Nizar Kochery/Doha
QUESTION: We are a contracting company on the verge of terminating our activities as its partners and are independently forming entities and taking over works. We plan to share the debts under contracts individually. Please advice on novation of contracts in Qatar. What will happen to the personal security, guarantee and surety?
AS, Doha
ANSWER: Novation is the legal name given to the process whereby both the benefit and the burden of a contract are transferred from one party to another. Qatar’s Civil Laws recognise novation under Articles 381 to 386. A change of the debt when two parties agree to substitute a new obligation for the original obligation is novation. Accordingly, the new obligation differs from the original obligation in respect of its object or as regards its source.
A creditor and a third party may agree that such third party shall take the place of the original debtor and that the original debtor shall be released of the debt without its consent being necessary.
With regard to guarantee when the novation results from a change of the debtor, the creditor and the new debtor may agree, without the consent of the original debtor that the real securities shall be maintained.
If the real securities are provided by a third party, the parties to the novation may agree on maintaining the securities. In all case, the agreement providing for the transfer of the real securities cannot be effective against third parties, unless it is made at the same time as the novation to the extent that it does not prejudice third parties, and the provisions as to the registration of real rights are complied with.
According to Article 386, real and personal as well as joint and several suretyship is only transferred to the new obligation with the consent of the sureties and of the joint and several co-debtors.
Claim of unpaid employment dues
Q: I am a long-service employee with a company. My employer wants me now to resign from my job and to cancel my visa. However, the company has not paid my salary for the last five months and other benefits due to me. It has, however, agreed to provide NOC for my re-entry. If I claim my dues now, could they stop my NOC? Can I claim the dues after my return to Qatar under a new visa?
KH, Doha
A: Claim of your unpaid employment dues will be entertained legally even after cancellation of visa, re-entry under employment with the new employer or otherwise but within one year from the date of termination of your employment contract.
According to Article 10 of the Labour Law, the right to file a lawsuit for a claim of the entitlements, accruing under the provisions of the Labour Law or the service contract shall lapse only by the expiry of one year from the date of expiry of the contract.
How to recover lost belongings
Q: I lost some of my personal belongings a few years ago in Qatar but I didn’t take any action or lodged any complaint then. I have now found them with someone. He says that he has bought them from one of our common friends. Can I retrieve my belongings now?
DT, Doha
A: According to Article 972 of the Qatar Civil Code, a person who has lost or has been robbed of a movable or a bearer warrant, can, within three years from the date of the loss or the theft, bring an action to recover it from a third party in possession, even if such third party is of a just title and good faith.
When the thing lost or stolen is found in possession of a third party who bought it on the market, at a public sale or from a merchant selling similar articles, such third party is entitled to recover from the person, claiming restitution the price he paid for the thing.
Prosecution’s responsibility
Q: I have lodged a complaint at the Capital police station against one of my colleagues for cheating over a dishonoured cheque. The police took my statement and told me that they would detain him and refer him to public prosecutor. But they released him on bail later. I have not received any notice from the public prosecutor on the status of the case. Do I need take any further action to get my money back?
VV, Doha
A: Public prosecutor is an official charged with the investigation and prosecution of punishable acts on behalf of the state. The prosecution is responsible for presenting the case in a criminal trial against an individual accused of breaking the law. Follow up with the public prosecution as well as the competent court in order to understand the status of the case.
Public Prosecution is not required legally to inform the complainant neither about the status of the case nor the date of referring the case to the competent court as do so.
If the accused has been referred to the criminal court, apply for such court and demand right of the full amount of the cheque or to file a case before the civil court if the case before the criminal court is over.
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LEGAL SYSTEM IN QATAR
Legally pledge means bailment or delivery of personal property to a creditor as security for a debt or for the performance of an act. In general pledges are a form of security to assure that a person will repay a debt or perform an act under contract. Pledge shall be commercial in respect of all concerned if it is created over movable property as a guarantee for a commercial debt related to the debtor.
According to Article 234, pledge shall not be effective against a third party unless possession of the pledged property is transferred to the pledgee or to a trustee appointed by the parties to the contract and remains in the possession of the person receiving it until the release of the pledge.
The pledgee or the trustee shall be considered as the possessor of the pledged property; if the property is placed at disposal in a manner that leads others to believe that the property is brought under custody, or if he receives an instrument that represents the pledged property and confers the holder exclusive right to take delivery of such property.
Pledge in relation to the parties to the contract and against third parties shall be proved with all means of proof. As per Article 237, if the pledge property consisted of a fungible property, it shall remain in existence even in case of replacing the pledged property by another property of the same kind.
If the pledged property is ascertained, the pledger may replace it with another property provided that such replacement is stipulated in the pledge contract and the creditor accepts the replacement, without prejudice to the rights of a bona fide third party.
The pledgee or trustee shall deliver to the debtor on request, a receipt recording the nature, quality, quantity and other distinctive characteristics of the pledged property.
The pledgor is bound to pay all the expenses agreed upon to preserve the pledged article. The pledgee creditor may not bene?t from the pledged article without payment.
What the creditor has obtained by way of net income and what he has gained from the use of the article will be deducted from the amount guaranteed by the pledge, even if it has not become due.
If the debtor makes default in payment of debt guaranteed by the pledge, the pledgee creditor may bring lawsuit seeking an order for sale of the pledged article in full or in part.
