According to the fundamental principle, a dispute can solely occur between living parties, and it cannot be established unless both parties are alive. Otherwise, the dispute is considered void and it cannot be rectified through subsequent procedures.
However, in practical reality, it sometimes becomes difficult
for the claimant to know or be aware of the death of the opposing
party before filing the lawsuit.
Consequently, The rulings issued by the Court of Cassation have varied regarding the permissibility of correcting the form of the lawsuit by joining the heirs of the deceased person whose death was established before the filing of the claim.
Some circles of the Court of Cassation have ruled against the validity of correcting the form of the dispute or including the heirs of the deceased based on the argument that the dispute was originally null and void due to the absence of one of the parties.
On the other hand, some other circles have concluded that the principle of nullity does not apply, and they have accepted the request to correct the form of the lawsuit by joining the heirs of the deceased person whose death was established before filing the claim, before a single level of adjudication, based on a new document that fulfills all legal requirements and within the prescribed time for submission and announcement, in order to uphold the principle of confrontation in the dispute.
In light of this divergence, one of the circles in the Court of Cassation referred the appeal of the litigant before it to the General Authority for Civil and Commercial Matters to resolve this difference and establish a unified principle.
On May 23, 2023, the General Authority for Civil and Commercial Matters at the Court of Cassation resolved this dispute. It concluded by affirming the second direction, which accepted the request to correct the form of the claim and consolidate the heirs of the deceased defendant, whose death was established prior to the filing of the lawsuit and before the same degree of litigation.
The Court of Cassation deemed that substantive legislation embodies justice in its content and essence, and its realization is achieved through procedural laws that should be accessible, reliable, and not drowned in formalities.
Originally published 7 June 2023
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