The position of the civil Jordanian code towards the doctrine of performance and subrogation: An analytical and evaluative Study

Nisreen Mahasneh

Abstract


No general Doctrine of Substitution (Holol) within Civil Code has been provided for by Jordanian Legislature, rather only some particular applications for such a doctrine were provided for explicitly sometimes, such as in Article 309 concerning the settlement of other’s debt, Article 926 concerning insurance or Articles 1355 and 1363 concerning the recourse by the holder of a mortgaged property against the debtor, or implicitly on other occasions, as with Article 980 concerning the recourse of the guarantor against the debtor. Further, Contractual Substitution is unknown under Jordanian Civil Law. The said approach by Jordanian Legislature is against the relevant approaches of most Arab Legislatures, particularly the Egyptian, whereby both forms of Substitution, Legal and Contractual, are known and dealt with in detail under the Egyptian Civil Law. Despite this fact, most of Jordanian jurists still insist to expand the applications of Substitution under Jordanian Civil Law to include such applications provided for under the General Substitution Doctrine within the Civil Law of Egypt, without any legal proxy to support their argument. This study has revealed that Substitution does not take place in the case of the recourse of the Joint Debtor against other Debtors, neither in the case of undividable debt, being unknown concept under Jordanian law, nor in the case of the settlement of debt by a second creditor to a first creditor in mortgage. Substitution of the creditor by the payee of a debt cannot be here presumed, as Substitution is deemed the exception from the general notion in the law that recourse by creditor is based on a personal lawsuit, and so there is no “Substitution without a Provision”. When Subrogation is compared with Contractual Substation under Jordanian Civil Law, it has appeared that both are different systems, albeit some similarity among them exists. Substitution is a consequence of Subrogation (Hewaleh), but not a replacement thereof.

 


Keywords


Legal substitution, contractual substitution, creditor, debtor, the possessor of the mortgaged property.

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DOI: http://dx.doi.org/10.24200/jass.vol7iss1pp93-110

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