A dispute may concern the meaning of a contractual term, a financial obligation or harm suffered by a party. Relying on a general statement is not enough: the starting point is to understand the facts, identify the applicable provisions and examine the evidence.
Article 720 of the Civil Transactions Law sets out 41 general principles relevant to civil matters. They apply only to the extent that they do not conflict with statutory provisions, taking account of each principle’s nature, conditions and exceptions.
What are general principles?
They are broad principles expressed concisely, useful in understanding civil matters. They address subjects such as intent, custom, certainty and the removal of harm.
A general principle is not a ready-made answer to every dispute. Its effect may differ according to the facts, evidence or specific legislation governing the matter.
When are general principles applied?
Article 1 establishes the following order of application:
- Apply the Law’s provisions to matters addressed by their wording or meaning.
- If no applicable provision exists, apply the general principles in the concluding provisions.
- If no applicable general principle exists, apply rules derived from Islamic Sharia that are most compatible with the Law.
Application of the Law does not prejudice specific statutory provisions. An applicable provision cannot be set aside merely because one party considers a general principle more favourable to its interests.
Main themes of the general principles
1. Intent and custom
These principles consider the purposes and substance of transactions and contracts, recognised custom, and customary terms. Their application requires attention to the conditions and limits under which intent and custom are relevant.
Hypothetical example: if parties disagree about the nature of their agreement, its substance and obligations may need to be examined alongside its title. This does not justify disregarding express wording or statutory formalities and documentation requirements.
2. Certainty and presumptions
These principles address certainty despite doubt, continuity of an established state, and the presumption of freedom from liability. They assist in understanding doubt and allegations but do not replace assessment of evidence and applicable evidentiary rules.
Hypothetical example: alleging a debt is not alone enough to resolve a dispute in the claimant’s favour. Equally, invoking freedom from liability does not alone defeat a claim supported by valid documentary evidence. Both positions must be assessed against the evidence and applicable provisions.
3. Harm and balancing interests
The Law includes principles concerning removal of harm, avoiding equivalent harm in doing so, addressing greater harm through lesser harm, and prioritising prevention of adverse consequences over obtaining benefits. They do not grant an unrestricted right to harm others or enforce a claim by any chosen means.
4. Hardship and necessity
These principles address relief from hardship, keeping necessity within its proper limits, and preserving the rights of others despite necessity.
Hypothetical example: difficulty performing a contract does not automatically extinguish an obligation or the other party’s rights. The difficulty, its effects and the applicable provisions must be examined rather than simply labelling it a necessity.
5. Interpreting words and conduct
The principles address literal meaning, giving effect to words rather than disregarding them, and the significance of silence when clarification is called for. Silence is not acceptance in every situation: context, the parties’ relationship and relevant provisions matter.
6. Return of property, liability and accessory rights
The article includes principles concerning return of property taken, the relationship between entitlement to yields and bearing liability, and the dependence of accessory rights and obligations on their principal rights and obligations. Each has its own scope, conditions and exceptions.
These thematic groups are an explanatory structure for this article, not a separate classification established by the Law.
Is citing a general principle enough to establish a right?
Not by itself. Effective reliance on a principle requires explaining:
- The facts supporting the claim or defence.
- The relevant general and specific statutory provisions.
- The evidence supporting the position.
- Why the principle and its conditions apply.
- Whether an exception or provision prevents its application.
A principle may be valid while reliance on it in a particular case is misplaced.
How can legal review help?
Legal review helps distinguish an applicable provision from a general principle, connect facts to documents, and identify appropriate claims and defences.
In contract, financial and compensation disputes, there can be a significant difference between citing an abstract principle and presenting a legal position explaining why it applies and what evidence supports it.
Key points
General principles help explain rights and obligations but cannot be applied independently of legislation and evidence. Correct use starts with identifying the legal issue, respecting the order of application and examining each principle’s conditions and exceptions.
Notice: This article provides general legal information. The examples are hypothetical and do not determine any case or replace advice based on its documents.