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Al-Majallah al-Ahkam al-‘Adaliyyah
Book 4: Transfer of Debt.
Introduction.
Terms of Islamic Jurisprudence Relating to the Transfer of Debt.
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By transfer of debt is meant transferring a debt from the account
of one person to that of another.
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The transferor is the debtor who makes the transfer.
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The person in whose favour the debt is transferred is the creditor.
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The transferee is the person who agrees the transfer of the debt
to himself.
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The subject matter of the transfer is the property transferred.
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A restricted transfer of debt is a transfer of debt whereby the
transferor limits the payment by the transferee to property of his owing
by the transferee or in his possession.
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An absolute transfer of debt is a transfer of debt whereby the transferor
does not limit the payment to property of his in the possession of the
transferee.
Chapter 1: The Contract of Transfer of Debt.
Section 1: The Fundamental Basis of a Transfer
of Debt.
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A contract for the transfer of a debt is concluded by the transferor informing
his creditor that he has transferred his debt to some other person, and
by the agreement thereto of the creditor and such other person.
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A contract for the transfer of a debt may be concluded between the person
in whose favour the transfer is made and the transferee alone.
Example: A informs B that he has transferred to him a certain sum of money
owing to him by C, and B agrees thereto; or A tells B to transfer to him
a sum of money owing to him by C and B agrees thereto. In both cases a
valid contract for the transfer of the debt has been concluded and the
transferee may not thereafter go back on the transaction.
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A contract for the transfer of a debt may validly be concluded between
the transferor and the person in whose favour the transfer is made alone,
provided the transferee, on being informed thereof,agrees thereto.
Example: A transfers a debt which he owes B, to C, who is resident in some
other country. B agrees thereto. If the transferee, on being informed thereof,
agrees thereto, a valid contract for the transfer of the debt is concluded.
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A contract for the transfer of a debt may be concluded between the transferor
and the transferee only, subject to the agreement of the person in whose
favour the transfer is made.
Example: A transfers a debt owing to him by B to C. C agrees. The contract
for the transfer of a debt has been concluded, subject to the consent of
the person in whose favour the transfer has been made, and if the latter
agrees thereto, such transfer becomes executory.
Section 2: Conditions Relating to Transfer of Debt.
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To conclude a contract for the transfer of a debt, the transferor and the
person in whose favour the transfer is made must be of sound mind, and
the transferee must be of sound mind and have reached the age of puberty.
Consequently, any transfer or acceptance of the transfer of a debt by a
minor of imperfect understanding is void, and any acceptance of the of
the transfer of a debt by a minor whether of perfect or imperfect understanding,
or whether permitted by his tutor to undertake business, or whether interdicted,
is void.
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for the contract of transfer of debt to be executory, the transferor and
the person in whose favour the transfer is made must have reached the age
of puberty. Consequently, The transfer or acceptance of the transfer of
a debt by a minor of perfect understanding is dependent upon ratification
by the tutor. If the tutor ratifies, the contract becomes executory. Moreover,
if the minor accepts the transfer of a debt and the tutor gives his permission,
the transferee must be wealthier than the transferor.
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It is not essential to the validity of a contract for the transfer of a
debt that the transferee should be indebted to the transferor, nor that
the transferor should be entitled to receive something from him.
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A contract for the transfer of a debt in respect to which a valid contract
of guarantee cannot be concluded, is invalid.
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Any contract for the transfer of debt in respect to which a valid contract
of guarantee can be concluded, is valid. The subject matter of the contract
must, however, be clearly ascertained. Consequently, any contract for the
transfer of a adept which is unknown is invalid.
Example: A agrees to accept the transfer by B of some debt which may be
proved in the future to be due to him. The contract is invalid.
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A contract for the transfer of a debt incurred by reason of a guarantee
or arising out of a contract for the transfer of a debt may be validly
concluded, in the same way as a contract for the transfer of debts which
have been incurred directly.
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