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Al-Majallah al-Ahkam al-‘Adaliyyah
Book 12, Chapter 3
Chapter 3: The Subject Matter of the Settlement.
Section 1: Settlement in Respect to Specific Property.
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If a settlement by way of admission is made with regard to property in
an action relating to specific property, such settlement is in the nature
of a sale, and there is an option for defect, an option of inspection,
and a contractual option, and, in the event of either the subject matter
or the consideration of the settlement being real property, a right of
pre-emption attaches thereto. If the whole or part of the subject matter
of the settlement is seized by someone who is entitled thereto, the plaintiff
may recover the amount of the consideration from the defendant, that is
to say, either the whole or a portion thereof. If the whole of the consideration
of the settlement or part thereof is seized by someone who is entitled
thereto, the plaintiff may recover from the defendant the subject matter
of the settlement, that is to say, the whole or part thereof.
Example:- A brings an action against B claiming a house from him. B admits
that the house belongs to A and the two partners agree to a settlement
for a certain sum of money. The house is considered to have been sold to
the defendant, and, as stated above, the transaction is treated as though
it were a sale.
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If a settlement by way of admission is made in an action with regard to
property in respect to the usufruct thereof, such settlement is in the
nature of hire and is treated as though it were a contract of hire.
Example: A brings an action against B claiming a garden from him. B makes
a settlement with A on terms that A is to live in this house for a certain
period. A is considered to have taken the house on hire in exchange for
the garden in respect to such period.
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A settlement by way of denial or silence amounts to receiving satisfaction
in the case of the plaintiff, and abstention from swearing the oath by
the defendant, whereby the point at issue is decided. Consequently, a right
of pre-emption attaches to real property which is the consideration for
a settlement, but does not attach to real property which is the subject
matter of the settlement. If any person who is entitled thereto seizes
the whole or part of such real property, the plaintiff must return to the
defendant the amount of the consideration for the settlement, that is to
say, the whole or a portion thereof, and may bring an action against the
person who claims to be so entitled. If either the whole or part of the
consideration is seized by someone entitled thereto, the plaintiff may
again bring an action in respect thereto.
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If any person brings an action to recover any specific property, as, for
example, a garden, and agrees to a settlement in respect to a portion thereof
and releases the defendant in respect to the remainder of the action, such
person is considered to have received a part of his claim and to have foregone
the rest, that is to say, to have relinquished his right to bring an action
in respect of the remainder.
Section 2: Settlement with Regard to Debt and
Other Matters.
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If any person effects a settlement with any other person in respect to
a portion of a claim that he has against such person, the person effecting
the settlement is considered to have received payment of part of the claim
and to have foregone his right to the balance, that is to say, to have
released such person from the remainder.
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If any person effects a settlement whereby a debt repayable forthwith is
converted into a debt repayable at some future date, he is considered to
have relinquished his right to payment forthwith.
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If any person effects a settlement whereby a debt repayable in sound coin
may be repaid in base coin, such person is considered to have relinquished
his right to payment in sound coin.
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A settlement may validly be effected in actions relating to the right of
taking water, the right of pre-emption and the right of way, whereby a
payment is made in order to avoid swearing an oath.
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