Private Law Notes 2020

Private laws
collected and prepared by

Mohamed Abdi Kadiye, Contacts:
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mckadiye@hotmail.com
Contents
1. Introduction to Private law
2. Natural persons
3. Property
4. Tort law
5. Law of contract
6. Legal systems
7. Intellectual property
8. Family law and Succession
9. And Commercial law

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Introduction to law
What is Law? There are couple different definitions for law which
includes – but not limited to –
1. Law is an instruction and order consists of any principle which is

recognized and enforced by the courts in the administration of
justice” or
2. It’s “A body of rules for the guidance of human conduct which are
imposed upon and enforced among the members of a given state”.
Or
3. It’s “the command of the sovereignty backed by suction and
force”. Or
4. It a set of rules and principles intended to guide conducts in
society, primarily by protecting persons and property, facilitating
personal and commercial interactions and providing mechanisms for
and existing disputes.
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Concept of law
One of the many ways in which human societies can be
distinguished from animal groups is by reference to social
rules.
We eat and sleep at certain intervals; we work on certain
days for certain periods; our behaviour towards others is
controlled, directly and indirectly, through moral standards,
religious doctrines, social traditions and legal rules.
For example: we may be born with a ‘mating instinct’ but it
is through social rules that the attempt is made to channel
this ‘instinct’ into the most common socially-sanctioned
form of relationship – heterosexual marriage.

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An important question however, is, what is law?
This is quite a difficult question.
It’s a question that has been struggled with by legal
theorists going back to Aristotle and Plato.
The question people have struggled with is what is the
content of the law, and how do we recognize a rule as a
law.
It is easier to describe what law does and what rules
apply than to define what law is.
Defining law is essentially a philosophical question,
which probably has no answer, but some theorists have
attempted to do so.
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For introductory purposes, when we speak of the law in a
democratic society, we are thinking about the rules that govern
how we live and how we do business.
The rules which are backed by the coercive power of the State.
These are rules that must be obeyed.
Failure to obey may lead to payment of a penalty, a fine, or
perhaps prison term.
Breaking of a criminal law may lead to payment of a fine or prison
term while breaking of civil law may lead to payment of
compensation/damages.
The idea that law is fundamentally concern with order in a society
is not a new idea, it goes back to the time of Aristotle who put it
very pithily: “law is order and good law is good order”.
But there are also other definitions and meanings of law.
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Law is conceived differently by various schools of thought.
Naturalists for example consider law differently from the
Positivists.
Historical School perceived it differently from Realist and
Philosophical School considered meaning of law different from the
Marxist theory or the Analytical School.
The meaning of law as conceived by the various schools of
thought revealed that there is no definite answer to the question
of what law is.
However one fundamental issue which can be deducted from the

examination of these schools of thought is that:
Law is concerned with ensuring legal order; and
Application of administration of justice in an organized society.
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Law is an instruction and order consists of any principle which is
recognized and enforced by the courts in the administration of
justice” or
It’s “A body of rules for the guidance of human conduct which are
imposed upon and enforced among the members of a given state”.
Or It’s “the command of the sovereignty backed by suction and

force”.
Or It a set of rules and principles intended to guide conducts in

society, primarily by protecting persons and property, facilitating
personal and commercial interactions and providing mechanisms
for and existing disputes.
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According to Islamic definition of law
Law in the (Sharia) is natural law by which is
meant the order of Allah which regulates the
actions of mankind at the side of social,
economic, practice, contract, custom, heritage,
gift, and attitude so on and so forth”.

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Chapter one
INTRODUCTION TO PRIVATE/CIVIL LAW
The courses Comparative Personal, Family and Inheritance Law,
Comparative Contract Law,
Comparative Property Law, Intellectual Property Law, and partly
Banking and Securities Law focus on questions that fall under t
he notion of private law/civil law.
Thereby, it is first necessary to briefly outline the major
characteristics of private/civil law and place our subject
matter within the system of private/civil law.
This is what the first lecture will be about.
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A preliminary remark must be made that the attempts t
o structure law in the way presented below and
identify separate body of civil law is shared in
most civil law
jurisdictions originating in continental Europe.
However, these may not be reflected so much
in the legal thinking of common law jurisdictions. Neve
rtheless,
On the one hand the choice of our subject matter perso
nal, family and inheritance law displays the characterist
ics of the civil law.
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Private law is that part of a civil law legal system which is
part of the jus commune that involves relationships
between individuals, such as the law of Torts, contracts,
intellectual property, family law, law of succession and
commercial law.
It is to be distinguished from public law, which deals with

relationships between the public order.
In general terms, private law involves interactions between

private individuals, whereas public law involves
interrelations between the state and the general population.

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Since Roman law there has existed an understanding
regarding the structure of the body of legal
norms, in that legal relations between actors (so‐
called legal subjects) can mainly be of two kinds.
One involves equality between the players: legal
subjects are free to enter into the legal relations
of their choice, and they have the power to
mutually influence the contents of their relation:
their rights and obligations.
Eventually this happens when persons enter into
legal relations with each other as private parties,
within their private capacities.
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Example;
When Janis and Inga decide, that Janis will buy Inga’s watch, they both have the
option to decide whether or not Janis will buy and Inga will sell the
watch – that is to say, whether to make the contract for the
sale of Inga’s watch.
The same is true of the question of what the major conditions of the deal should be
the-price, time and place of performance, supplementing services
such as whether or not Inga will provide Janis with extra batteries, etc.
All these issues are decided by the parties mutually and either of
the two parties can at any time say “no” to what the other party proposes.
The same is true of other kinds of private relations, e.g. whether or not
they will want to start seeing each other and later on be married to each other.

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Another, quite different set of cases is one in which this equality
between the parties does not exist.
In those cases one of the parties is subordinated to the other.
One of the parties can compel the other to enter into a legal relationship

with it and dictate the terms.
For example, when Janis has to pay taxes to the tax authority of his
country, he can not say “no, I do not want to pay taxes,
i.e. I do not want to enter into a tax paying relationship with you”.
He cannot alter the terms of the relationship with the tax authorities either: he can not say “oh, I
am willing to pay taxes, but less –or at a later time – than required”.
Or, if Janis suddenly
were to kill someone and the police were to arrest him, then the prosecution to charge and
finally the court to sentence him, he can not tell the
police, the prosecutor or the court “leave me alone, I do not want to enter into a
legal relationship with you”.

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In both examples, the nature of the legal relationships tax law, criminal law and
criminal procedural law is such that the legal subjects are not free to decide whether
or not to enter into a legal relationship
(pay taxes, be investigated, charged and sentenced) and to influence its content.
It is easy to discover that in these examples the representatives of “the
other side” the tax authority officer, the policeman, the prosecutor, the
judge did not act in their private capacities like Inga when selling her
watch to Janis.
They acted in a capacity to represent the interests of the public rather than of the
private individual.
To the tax authority officer as a private person it is likely not to matter whether Janis
pays taxes or not; however, to the public interest of the
community (the state) whom he represents, it is important that legal subjects pay the
ir due taxes.

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The policeman may personally not care if Janis killed someone per
haps for so long as it was nobody the policeman personally knew,
but to the wider society it is of primary importance that killers be c
aught, brought to justice and punished.
There,by,in all these situations it is a public interest that overwrite
s the equality and freedom of the other party
enjoyed in private relations.
It is not difficult to recognize that the public interest that
prevails over the autonomy of the private individual is represented
by the state.
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In legal relations where the parties act freely, they act in their own private interests
as private individuals or in another word as civilians.
Thereby, this area of law is named private law or civil law. In cases where
one of the parties lacks this freedom whereas the other has a compelling power to
bind the other party, it is usually for the interests of the public.
Thereby, this area of law is named public law.
Private or civil law covers such cases as company law, where relations are between
private individuals who want to associate for a
common business purpose and set up a company of their own to pursue a profit‐making
activity; contract law where
equals are making deals between themselves; family law, where private individuals
get together for the purposes of establishing a family through marriage, having-
children and taking care of and raising their children; copyright law, where one
individual creates a piece in the literary, artistic or scientific domain for the use
and enjoyment of all others in society, etc.

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Public law covers such areas as public
international law, constitutional law, the law of-
public administration, criminal law, all procedural-
laws such as criminal procedure and civil
procedure, financial law and tax law, etc.
The course Comparative administrative and
constitutional law, which students have had by the t
ime they
encounter their first private law courses, was a goo
d example of public law fields.
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Note that the contrast of private and public law
does not cover the entire legal system, albeit it
fairly well covers the overwhelming majority of legal
relations.
For example the branch of private international law
(conflict of laws) deals with situations in which the
subjects of the legal relationship are not the state and subordinated le
gal subjects such as
taxpayers, criminal offenders, etc., as in public law, or private persons
acting in theoretically
equal positions such as in private law, but legal systems between whic
h a choice has to be
made because the case is factually connected to more than one legal s
ystem.
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On the other hand, common law thinking often
comes to the same conclusions as civil law, even if
through different lines of thought.
It is, however, not the objective of this course to deal
in detail with the underlying differences between common
law and civil law, such as the source of law (judge‐
made law versus codified legislation); or the importance of the
differences between public and private law rules within the
same branch or field of law (whereas in common law the
rules of both public and private law nature may mix within the
same branch or legal field while civil law places a higher
importance on the separation of these two kinds of norms in its str
ucture of categorization), etc.
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These issues are to be discussed within
other courses, such as legal history and
comparative law.
However, a short discussion of the civil law and common

traditions through their sources of
law will appear in the chapter explaining legal
sources.
In this present lecture we will use the terms private law and civil law inte
rchangeably, to conform
students to both terms.
Roughly speaking, civil law is the name of private law in
civil law jurisdictions.
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Chapter two
Natural persons

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NATURAL PERSONS
Legal capacity in general:
Birth and Death

Legal capacity means eligibility to have rights and duties (Art 29 of the
Somali Civil Code): it can apply to natural and corporate persons.
The law lays down that to be the holder of a right (such as a chose in
action) or liable to a duty (such as the parental obligation to support)
one has to be recognized as eligible to Natural Persons enter into the
relevant relations.
For a natural person, such eligibility occurs automatically at birth(Art

29 civil code); corporate entities acquire it through recognition (Art 54
of the Somali Civil Code).
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Special legal capacity and its limits
General legal capacity needs to be distinguished from special legal capacity.
While the former has moral and historical significance, the latter is of great
practical importance. It denotes the eligibility to become a principal of
particular legal relations, and the issue is usually encountered in the negative,
when we speak of (special legal) incapacity.
To the extent that such ineligibility can be general or limited, there is a further
distinction between absolute (Articles 16, 45, 47 of the Somali Civil Code) and
relative special legal incapacity (Articles 112-114 of the Somali civil code).
An example of the absolute kind is that minors under the age of 15 may not
do work involving heavy labor; of the relative kind, that A, having killed or
attempted to kill B, cannot then become his heir.

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Acquisition and loss of legal capacity
Legal capacity attaches exclusively to persons. When, in everyday

language, we attribute rights, duties or benefits to things or
animals, the intention is obviously to refer to the relevant
owners.
Legal capacity is acquired at birth, the event with which life

outside the womb begins (Art 29 of the Somali civil code).
For an individual to have been born he must (following medical

science) be capable of breathing at least for a moment. The
previous requirement – that the newborn be ‘hale and hearty’
(healthy and robust) – has been dropped long ago.
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Birth is a crucial event even if the individual dies
immediately afterwards, because it is the moment when
various rights arise, such as rights of succession
(Art 724 of the Somali civil code and Sharia norms)) and
rights relating to gifts (Art 483 of the Somali civil code). For
example, if A leaves part of his estate to nephew B, the son
of C, and the rest to his sons C and D, it is important to
know if B was born dead, in which case his intended legacy
will be divided between C and D, or whether he died
immediately after being born alive, in which case his
intended legacy will devolve to C, and D will receive only the
part he was originally intended to have if B had survived.
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The law also provides for unborn children, already conceived, as well as
those who, at the time of the relevant disposition, have not yet been
conceived but could subsequently be born.
Children, either unborn or yet to be conceived, may be beneficiaries of a will,

but their rights are perfected only once they have been born, and are thus
dependent on the event of their birth (Art. 29/2 of the Somali civil code).
It must, however, be observed that a child en ventre sa mere has a

‘legitimate expectation’ of being born, which extends to that of being
Natural Persons born in a healthy mental and physical state.
If, therefore, the fetus was in a poor condition at the moment it came into
being, the problem arises of imputing this condition to the parents; if,
however, its condition deteriorates during pregnancy or during labor, this is
evidence of a civil wrong for which whoever caused it is liable

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Legal capacity ends with physical death.
(At one time it could be lost by sanction, such

as through bankruptcy, with attendant loss of
political rights: this was known as civil death.)
Physical death is certified either directly, by the
appropriate registrar or other authorized
public official, or indirectly when the person
cannot be identified or has disappeared
without trace (Art. 30 of the Somali civil code).
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Disappearance.
When no trace of a person can be found, and he does not
reappear or it is presumed that he has died in mysterious
circumstances, his interests must be taken care of in the
interim, until such time as he reappears or, if his absence is
prolonged, action must be taken on the assumption that the
missing person has died
(Art. 32 of the Somali civil code refers the disappearance

and absence of a person to provisions of the Sharia Law).
These situations are not uncommon, as can daily be

observed from newspapers.
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There are indeed some serious situations, such as war, deportations, natural
disasters, serious accidents and prolonged abduction, where disappearances
often occur.
The least serious case is a straightforward disappearance. Here, there is no

reason to doubt that the person is still alive, but his interests must be taken
care of while he is absent; this situation exists when the person has not
reappeared at his residence, family home or workplace and there is no news of
him.
In such cases, unless the missing person already has a legal representative, a
trustee is appointed. A request can be made to the court by any interested
party.
The trustee’s powers are wider than those of guardians for persons under a
disability as they can be given a general authority to perform acts of
disposition.
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Absence:
A disappearance which continues longer than two years is defined as an absence.
A declaration of absence, made by a court, can be requested by presumptive heirs and by anyone
with an interest.
The effects of such declaration are significant, as it gives rise to a legal uncertainty as to whether the
absentee is still alive; his rights are provisionally transferred to the presumptive heirs and legatees,
who may also request the temporary discharge of possession of goods by posting a bond with the
court. An inventory is made prior to discharge to prevent any misappropriation by the possessor.
The discharge permits acts of management, the representation of the absentee, the benefit of rents
and revenues. Any acts of disposition must, however, receive the consent of the court.
What happens if the absentee returns?

Or if he is shown to be still alive?
The effects of the declaration of absence are terminated, but measures taken to preserve the
property will still stand; the possessors must return goods, but may retain rents and revenues (Art
56 civil code). If on the other hand news of the absentee’s death is received during the possession
period, the process of succession takes place to the benefit of those who at the moment of death
were the heirs and legatees of the deceased.

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Presumed death.
Death is presumed when a disappearance continues longer than ten years.
Such a presumption of the absentee’s death is declared by the court. The

presumption is simple in the sense that it maybe rebutted by any proof to the
contrary.
Periods of less than 10 years are provided in special circumstances. Once

presumed death has been declared, a spouse may remarry; any remarriage is
annulled – though any civil consequences arising from the marriage are not
thereby retrospectively vitiated – by the return of the absentee or a finding that he
is still alive.
Administration of the estate may begin, but an inventory must be completed.
The return of a person previously presumed dead entitles him to repossession of

his property; however, the rules pertaining to absence still apply.

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Domicile and residence of the natural person
It is important to establish legally where a natural person works and resides

with his family (Art. 40 of the Somali civil code); many official documents need
to be delivered to a person’s domicile, as defined below, and in some cases
obligations must be performed at the obligee’s domicile; choice of domicile or
residence can have an effect on relations between spouses, and so on.
Different relevant places are distinguished and variously denoted.

The place where a person may currently be found is known as his residence
(home).
Of more importance is domicile, which is the place where a person takes care
of his affairs and interests (Art 41 of the Somali civil code).
The concept of domicile combines an objective aspect in the form of economic

interests being present and a subjective one consisting of the individual’s
intention to have his domicile there.
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In these cases, domicile is of choice, whereas it
is of origin when no choice has been made,
such as in the case of a minor under
protection.
It is of necessity (or ‘legal’) when it is imposed

on a minor or incompetent person, and special
when established by a person for specified
purposes.

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Residence is a person’s regular residence
(Art 40 of the Somali civil code), the place
where he normally leads his life. It can coincide
with domicile, if he works and lives on the
same premises.
Residence also combines objective and

subjective aspects: the latter being the
individual’s intention to establish his current
abode in a particular place.
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Capacity to exercise rights
Capacity to exercise rights is to be distinguished from.
Capacity to exercise rights means capacity to ‘perform acts’ (Art 44 of the

Somali civil code) which are material legally and touch one’s own interests.
Those who prefer a voluntarist conception of legal relations define this

capacity as the power to perform ‘valid legal acts and transactions’.
It is distinct, therefore, from legal capacity, which involves the individual’s
ability to undertake and complete actions. Minors under 18 have legal
capacity, but not capacity to exercise rights in the legal sense: they are
presumed, that is, incapable of looking after their own interests.
Legal capacity is acquired at birth, capacity to exercise rights only on

attaining majority (Art 29 of the Somali civil code).

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As with legal capacity, the capacity to exercise rights is generally encountered
in a negative context, when we speak of incapacity to exercise rights.
As well as minors, incompetent persons and persons under a disability lack
capacity to exercise rights. Incapacity to exercise rights is connected with
incapacity to take legal action, meaning legal proceedings to protect one’s
interests: a minor, for example, is represented in legal proceedings by
whoever exercises power over him (Art 75 of the Somali civil procedure code).
It also entails incompetence to enter into contracts and transactions affecting
property, since it is presumed that a minor is not in a position to properly
evaluate the benefits of such undertakings.
Exceptions are made, however, for contracts of employment.

Incapacity to exercise rights further entails incompetence to assume liability
for wrongful acts carried out to the detriment of third parties. However, in this
last case a parent can be liable, if the minor lives with him (Art 170 of the
Somali civil code).

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A minor is represented legally by parents who exercise parental
authority (Art 320 civil code).
If only one parent has such authority, he or she is the minor’s sole
representative. Parents with parental authority may separately execute
acts of management such as collecting or gathering claims and
revenues.
However, joint representation is required for acts of disposition,

which can diminish or prejudice the minor’s property or place it at
risk.
Actions which tend to preserve the property are acts of management;

those which entail an increase or reduction of it are acts of
disposition.
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Natural incapacity
Natural incapacity is to be distinguished both from legal incapacity and
from incapacity to exercise rights.
It refers to an individual’s inability to form a will or intention. Such

incapacity can befall anyone, whether temporarily (such as when in a
trance) or permanently, as is possible in cases of mental illness.
In contrast to legal incapacity, natural incapacity cannot be assumed, but
must be demonstrated. In other words, it is assumed that anyone over 18
is capable of forming a will and intention in relation to his actions.
Once this assumption is rebutted and incapacity, whether temporary or

permanent, is shown, important legal consequences flow. Any abnormal
emotional state is important in natural incapacity, even if it is
unanticipated and transitory.

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Apart from the various kinds of mental illness, natural incapacity can apply to hypnotic
suggestion, outbursts of anger, intense pain, etc., which cause a mental disturbance that
removes the ability to form a will or intention.
These conditions must exist at the moment the legal act in question is perfected, and specific
and rigorous proof of it must be adduced in order for the act to be annulled.
Since the law is concerned to protect those who, by reason of natural incapacity, are in a
weaker position and more exposed to risk than others, it is laid down that contracts
concluded by persons while in such a state are voidable if it is proved that: one party was in a
state of natural incapacity; the other acted in bad faith because he knew of this circumstance;
and the agreement was prejudicial to the incapacitated person (Art 45, and 109 of the Somali
civil code).
Knowledge on the part of the other party need not be shown (merely incapacity and economic
prejudice) when the incapacitated person has acted unilaterally.
Finally, some acts, such as marriage, wills and gifts, are so important, either intrinsically or
because the exercise of will is of the essence, that they can be annulled simply upon proof of
natural incapacity

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Disqualification
When the incapacity is serious and permanent, there are two different non-
contentious procedures that can be followed to obtain a declaration that the
person is either disqualified or under a disability.
These forms of legal incapacity are similar to those, respectively, of a minor.

The second condition obtains in the less serious situations, such as blindness,
deaf-mutism and spendthriftness (Articles 113 and 114 of the Somali civil
code).
Disqualification can be judicial or legal. Judicial disqualification is obtained via

a procedure begun by relatives, persons related by sympathy (up to the second
degree), court-appointed guardian or trustee, or prosecutor (Articles 112 of
the civil code and 305 and 308 of the Somali civil procedure code).
Legal disqualification on the other hand is available as a sanction for voluntary

manslaughter carrying a prison sentence of not less than five years.
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The two forms of disqualification are equivalent, except that a person
under legal disqualification can marry, and can undertake personal acts for
which representation is not permitted.
The disqualified person loses the capacity to exercise rights.
He cannot perform legal transactions: these must be carried out in his

name and interests by the guardian.
If the disqualification is judicial, he cannot stand in court and is not liable

for harm caused to others, unless the court decides to impose an indemnity
(but not damages) in line with his means.
The disqualified person will be assigned a guardian, preferably a relative,

appointed by the tutelary judge (Article 116 of the Somali civil code).
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Citizenship
See Art 8 SPC 2012

By ‘citizenship’ is meant a condition applying
only to people who live within a given legal
order by virtue of belonging to the State of
which that order is the legal expression.

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Article 8 SPC 2012
The People and the Citizenship

(1) The people of the Federal Republic of Somalia are one, indivisible
and comprise all the citizens.
(2) There shall be only one Somali citizenship, and the House of the
People of the Federal Parliament of Somalia shall enact a special law
that shall define how to obtain, suspend, or lose it.
(3) A person who is a Somali citizen cannot be deprived of Somali

citizenship, even if they become a citizen of another country.
(4) Denial, suspension, or deprivation of Somali citizenship may not be

based on political grounds.
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. Personality rights
General characteristics.
Person and ‘statuses
The Constitution guarantees certain rights defined as inviolable (Arts 13- 21 of
the Federal Constitution)).
These rights are protected for every individual, but at the same time the
Constitution imposes a concomitant duty of political, economic and social
solidarity on everyone.
The guarantee of the human person is therefore extensive: beyond personal

liberty, the Constitution protects the inviolability of domicile and
correspondence, freedom of movement and travel, of religious conscience, of
expression, which contribute to self-fulfillment; and it protects the right to
health and the rights of groups to which the individual belongs (Articles 27/2
and 28 of the Federal Constitution).
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The legal position of the person varies according to his status or condition.
The concept of status is a traditional one, but it is flexible enough to evolve over time.
Roman law recognized statuses of liberty, citizenship and family.
Today liberty is guaranteed to all, citizenship to whoever is born in Somali (and to those
who acquire it by other means).
Family status still exists, in the form of spouses, legitimate and natural children. Other
laws are recognized as well, such as that of worker, with rights guaranteed by the
Constitution (Arts 23 and 24 of the Federal Constitution).
The expressions personal rights, personality rights and civil protection of private life all
indicate aspects of the same problem: how can an individual, considered as a natural
person, be protected within private relations? Rights relating to an individual qua
personare today regulated above all by constitutional and entrenched laws. Certain
provisions of the civil code also regulate in this area, but these by no means account for
all the rules governing personal rights
(Arts 83–86 of the Somali civil code).

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What are the rights of the person?
Two different answers may be given.

First, from a traditional viewpoint, accepted by judges and partly followed by
academic opinion,
personal rights can be defined as those expressly provided in the civil code and
by certain special laws (such as on copyright).
Second, it can be held that personal rights cannot be counted in this way, for
there is a single overarching right of the person, almost a general principle,
whose specific content is set out from time to time according to the person’s
status.
To put it more precisely: believers of the first school of thought maintain that
there can be no personal rights distinct from those specifically provided by law.

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On this view, the personal rights laid down in the civil code thus reflect
the most important and commonly encountered situations, but cannot be
held to have exhausted the entire field of personal rights.
This last point of view is predominant today, both in terms of

constitutional rules and the development of civil rights.
To identify the legal foundations of this viewpoint, not only the rules of
the civil code, but also those deriving from laws and the Constitution must
be taken into account.
Between them these yield the right to life, the right to physical integrity,
the right to physical and mental identity, the right to health, the right to
privacy, and finally the rights specifically governed by the civil code, such
as the right to one’s name, to respect, to the privacy of one’s likeness and
so on.
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The right to life
The right to life is connected with the right to self-fulfillment (Art

13 of the Federal Constitution), with the right to health (Art 27 of
the Federal Constitution) and with other rights enshrined under the
rubric of workers’ protection (Arts 23 of the Federal Constitution).
Privacy and private life

Among the rights of the person listed in the civil code there is no
mention of a right to privacy, the right to keep secret certain
conduct and other intimate aspects of one’s life.
This absence of a specific rule has for a long time given rise to the
belief that no such right exists to be protected.
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Individual members of groups:
The individual fulfils his personality not only as part of a family, but
also as a member of groups based not on relatedness but on other
common links, such as occupational interests (professional
associations), religious interests (religious associations), political
interests (parties), trade unionism, civil rights interests(movements
promoting the rights of women, disabled people, artistic and cultural
interests (scientific associations) and, especially, economic interests
(commercial companies).
In general, freedom of association is guaranteed (Art 16 of the Federal

Constitution); in some cases it may be obligatory, such as belonging
to the relevant professional body if one wishes to exercise a
profession such as doctor, lawyer, architect, engineer or accountant.
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Chapter three
GOODS AND PROPERTY IN THE LEGAL SENSE

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Property in the Constitution.
The social function of property and guarantee, that is, the defense
of private property, are an indissoluble pairing.
Insofar as private property is guaranteed by law, it is absolved of

its social function.
What is more, in the Constitution (Art 26) ‘private property is
recognized and guaranteed.
The fact that private property was a natural and inviolable right, it
has also been declared as such in the Constitution.
It is evident that property is accorded the status of fundamental

principle.
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Basic concepts
Things have always been one of the most important areas that the law
deals with.
They give rise to rights and are the object on which these rights are
exerted.
Rights can attach not only to things in a physical sense, but can be
activities, such as the work done by a paid employee, products of the
intellect, aspects of personality such as privacy, identity and so on.
Rights can also attach to energies (Art 82/1 Somali civil code).
Not all things, however, can be the object of rights. Things outside
commerce, such as those serving religious ends, like a mosque do not;
nor do things which belong to everyone, like the air, the sun and sea.
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Goods can be divided into various categories,
according to their nature and content.
The most important distinction is that of

entitlement, that is, the issue of whom they
belong to and who has use of them.
One of the most important aspects of rules

concerning goods and property is therefore
ownership.
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The regime of property ownership
The rules on property stem from Art 26 of the Federal Constitution which
states that property is public or private, and further, that economic
property belongs to the State, to bodies or to private persons; the
expression bodies can mean either public or private bodies, whether de
facto or de jure.
The fact that the Constitution provides for private property is significant
because it affords it a protection that could only be removed by laws to
change the Constitution.
Private and public property is regulated also by the civil code and by law.
The civil code sets out many principles drawn on such laws as those on
mines, quarries and peat extraction, on water, fisheries and so on.

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Neither the Constitution nor the civil code gives a
definition of private or public property, but they
(and particularly the civil code) distinguish
between categories of property that belong to
private persons or to the State or public bodies.
Public property is that belonging to a public

authority (public property by title) or those
distinguished from private property by some
characteristic feature (public property by nature).

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According to the distinctions established by formal
statutory criteria, public property, belonging to the
State and public bodies such as regions, districts,
local and other authorities, is divided into two
categories which we can render literally as domain
and patrimony, the latter being further subdivided
into the disposable and non-disposable (87 Somali
civil code).
Formally public property (public property by title) is

thus domain, disposable patrimony, or non-
disposable patrimony.
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Property can be either moveable or immoveable.
Alongside the distinction between private and

public property, the most important division of
types of property turns on whether it is moveable
or immoveable (Article 82 of the Somali civil code).
This distinction gives rise to profound legal

consequences and it also has a historic importance.

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Immoveable property have in most cases a higher value and because they are
so basic to the economy they have required particular attention by legislators.
Land, whether in town or country, outlives its owner, can be readily subjected
to taxation and is easier to defend. From these circumstances arises a
formalistic and restrictive regime based on its circulation.
Transfer of immoveable property has to be supported by a written document

and registered and extended limitation periods apply (Arts 744 and 938-941
of the Somali civil code).
Moveable property, on the other hand, can circulate with much more fluidity
and less formality, limitation periods are shorter and simple possession,
suitable evidence of title and good faith are sufficient to secure ownership of
the property, even if the purported transferor was not in fact the owner
(Article 743 of the Somali civil code).

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Other categories of property.
Productive property is that which can be used to ‘bear fruit’ in a broad

sense.
In this context natural fruits (pears from a tree, cereals, and grapes) are
distinguished from ‘civil fruits’ such as interest, rents and dividends
(Articles 223-227 of the Somali civil code).
The former are acquired once harvested, the latter mature day by day.
Intangible property consists essentially of creations of the intellect (Article

86 of the Somali civil code). There should be created a law concern on the
IP.
These properly belong under the heading of property and are regulated as
if they were things. For example, a film is considered the principal object,
with the soundtrack as an appurtenance affixed to it.
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Private property and the public interest
The limits placed on private property
Article 681 of the Somali civil code stipulates that the owner’s powers
are to be exercised ‘within the limits and with observance of the duties
established by the legal order’.
The limits imposed from time to time on private property become ever
greater in number.
At one time these limits were related to issues of urban policing,

appearance and ornamentation of buildings and civic hygiene.
Today the limits on building and circulation of property are numerous.

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Limitation of private property is divided in to two
External limit and internal limit
Articles 683-695 of the Somali civil code).
The first is the external limit or restriction.

The owner, within the area of his property, is ‘master’, but he cannot exceed the external
limit which could consist, for example, in a prohibition on discharges, or on constructing
within a prescribed distance, or of having windows that open onto a neighboring property,
or the owner might even be forced to give up his property because of a compulsory
purchase order.
The second is the internal limit.

This is the limit implied by the source of property rights, their social function.
In pursuance of this function, the owner may be obliged not to construct on his land, or to
construct only in a certain way.
The importance of the internal limit is thus clear, and not only in historical terms
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Social function of property
Securing compliance of property means imposing limits on it
which ensure that the use made of it is consistent with the
overall public interest.
Academic opinion differs on this point.
Those who wish to emphasize private interests seek a minimal

interpretation of the various restrictions on property, while their
opponents see them in wider terms.
The social function of property is clearly set out in the

Constitution, and does not permit an owner to do as he wishes,
but obliges him to submit to the limitations of property rights
imposed by ordinary laws.
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In other words, since the goods of this world are a gift from God to
humankind, he who is privileged must share with others who have
less, and must use what he has for the common good.
Thus the holder of an interest (the owner) assumes of his own
initiative and on the basis of a moral principle (seeking the common
good) a duty which has not been legally imposed.
In the liberal view, the social function of property is merely

programmatic, and should be considered side by side with
guaranteed individual rights. In the first place property is free, and
individual access to it protected.
Second, the State may limit it, but any time it applies limits that
constrain its potential use and economic value for the collective
benefit it must compensate the owner.
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Compulsory purchase
Expropriation occurs whenever property is taken from an
owner involuntarily (Article 681 of the Somali civil code).
In this process the expropriator may be the State or a
region or local authority, or indeed a private individual or
concern carrying out an initiative in the public interest.
In this case title in the property passes to the

expropriator, but as the dispossessed owner must always
be adequately compensated (Art 26/2 of the Federal
Constitution), it amounts to compulsory purchase of the
property.
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Acquiring of property:
By Contract or Succession
In the Somali civil code of 1973, property was considered a fundamental aspect
of private law and the code was organized entirely so as to regulate property,
persons with rights to property and the means by which property could be
acquired.
Transmission of property was considered to take place mainly through

succession on death and by contract.
The contract was and remains to be the principal means of transferring property.
As a result the rules of contract were mainly modelled on exchange, that is, the
contract for sale.

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Under the current code, contracts are subject to the principle of consent to
transfer.
Article 143 of the Somali civil code provides that ‘in contracts which have as
their object the transfer of the ownership of a specified thing, the creation or
assignment of a property right or the transfer of some other right, the
ownership or right in question is transferred and acquired by the consent,
legitimately made manifest, of the parties.’
This means that a will common to the parties, translated into an agreement, is
alone sufficient to affect the transfer of property. In other words delivery of the
property is not a prerequisite to concluding a transfer contract.
There are a very few exceptions to this rule.
Exception is where the law expressly requires written form or registration

(Article 938-939 of the Somali civil code).
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Succession on death and contract are means of
acquiring property by assignment, in the sense
that the right to be transferred already exists and
moves from one person to another.
There are other ways of acquiring originating title,

where the right is not a pre-existing one and there
is thus no one to assign it.
These were once of great importance, but are far

less so today.
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Chapter four
THE LAW OF TORTS
INTRODUCTION
This chapter introduces the reverse of criminal
wrongs which are civil wrongs.
A tort is a dispute between two persons as
opposed to a person and the state. This chapter
thus defines what actions constitute torts and
what remedies are available.

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What is a tort?
A tort is a civil wrong other than a breach of contract whose
remedy is a common law action for damages or other relief.
However, not every wrong is a tort. A single action may give
rise to a tort and a crime.
The law of tort protects various personal and proprietary

interests.
Tortious liability arises from the breach of a duty primarily

fixed by law; this duty is towards persons generally and its
breach is redress able by an action for unliquidated
damages.
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Tort and Contract distinguished.
*Tort *Contract
*The duty is fixed by law *The duty is fixed by the parties
*The duty is owed to persons generally-*The duty is owed to the parties to the contract
*The remedies are few (restricted) *The remedies are far much wider.

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Tort and Crime distinguished.
Tort, See Chapter 3 Somali civil code 1973

It is a wrong redressable by an action for
unliquidated damages.
The party suing is an individual or private person.

Crime
It is a wrong the action of which involves
punishment.
Almost always the party suing is the state.
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The Somali Civil Code 1973 also covers liability for "tort"
acts committed by employees.
Art. 171 of the code states that:

"1. An employer is liable for the damage caused by an
employee who commits unlawful act in the course of, or
in relation to, his employment.
2. The relationship between employer and employee

exists even when the employer has not been free to
choose his employee, provided he has actual powers of
supervision and control over his servant.
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THE PARTIES TO A SUIT (CAPACITY / LEGAL LIABILITY IN
TORTS)
Tortious liabilities in Somali laws.
We divide into two main categories
Strict liability and vicarious liability

As from Art160 of Somali civil code 1973 ( strict liability
(Any act that is unlawful act the wrong doer is the one
takes the responsibility of the committed act results)
The condition applying of strict liability is under Art, 161
(but he/she must be sound mind and not unsound mind)

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For vicarious liability
• Government
At common law no action in tort lay against the state for wrongs expressly
authorized by the state or for wrongs committed by its servants in the course of
their employment.
However, under the Government Proceedings Act , the Government is liable for
tortious acts.
The government shall be subject to all those liabilities in tort to which if it were a
full person of full age and capacity it would be subject;
In respect of torts committed by its servants or agents.

In respect of any breach of those duties which a person owes to his servants or
agents at common law by reason of being their employer.
In respect of any breach of duties attaching at common law to the ownership
occupation, possession or control of property.
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However,
The common law provides that before one can sue the government he
must give a 30 days notice.
Dorset Yatch Co Ltd v Home Office
Facts: An action was brought by owner of property against the home

office in respect of damage to his property done by runaway borstal boys.
Seven borstal boys ran away one night when the three officers in charge
of them were, contrary to instructions, all in bed. They boarded one of the
many /yatchvessels in the harbor, started it and collided with the
plaintiff’s vessel, which they then boarded and damaged further.
The defendant (Home Office) was held liable for not protecting the
plaintiff from the ravages of the borstal boys.

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Foreign Governments / Sovereigns
See Article 164 inter alia
Diplomats and foreign sovereign states enjoy absolute immunity to

criminal and civil liability before a court unless the immunity had been
waived by submission to international Jurisdiction (under the Vienna
Convention on Diplomatic Relations, 1961).
This applies only where the act was done in the exercise of the
sovereignty of the state.
Immunity ceases when one engages in private and commercial venture.
Immunity can be waived leading to a person being charged.

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Minors
After an early period of uncertainty the common law adopted 21 years as

the age of majority for most purposes and it remained at this until 1970
when it was reduced by statute to 18 years.
A minor can sue and be sued for tort. A minor can however not sue or be
sued in his own name but by his “next friend” (guardian ad litem ).
In the law of tort there is generally no defense of minority and a minor is

as much liable to be sued for his tort as is an adult.
In Gorely v Codd (1967), the defendant, a 16 ½ year old boy was held
liable when he accidentally shot the plaintiff with an air rifle in the
course of lurking about.
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Liability of minority
See article 170, (1)(2) Somali Civil Code 1973
Minority however may be a defense in an action for the tort of negligence or

malice. This is to be conditional from the fact that a young child may well be
incapable of the necessary mental state for liability in such torts.
In an action for negligence against a young child, therefore, it is insufficient to

show that he behaved in a way which would amount to negligence on the part of
the adult. It must be shown that his behavior was unreasonable for the child of
his age.
Parents are not liable for the torts of their children, but in situations where it is
established that the child was under control of the parent the commission of the
tort by the child will result to liability of the parent.
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• Persons Of Unsound Mind
See Article 161 (1)(2) inter alia
Liability depends on whether the person knew what he was doing when he committed the
tort. This can be proven by a psychiatrist.
In Morris v. Mardsen (1952), the defendant rented a room at a hotel. While there he
attacked the manager of the hotel. At that time he was suffering from a disease of the
mind. It was established that he knew the nature and quality of his act, but he did not
know that it was wrong.
It was held that as the defendant knew that nature and quality of his act, he was liable in
tort for assault and battery. It was immaterial that he did not know what he was doing was
wrong.
Unsoundness of mind is thus certainly not itself a ground of immunity from liability in
tort, and it is submitted that the true question in each case is whether the defendant was
possessed of the requisite state of mind for liability in the particular tort in which he is
charged.

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• Husbands And Wives
Married women can sue and be sued for torts
committed accordingly
The Law recognizes women as Femme Sole
(having legal capacity to sue and be sued).
Under common law the wife was never liable

for her torts but her husband was liable for
both his torts and those of his wife.

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GENERAL DEFENCES IN TORT LAW
Look at Articles from Somali civil code 1973
Art 162 (if proof of autonomous defenses)

Art 163 (if proof of self-defense)
Art 164 (if proof of upper order)Art 165 (if proof that
there was an act greater harm than the act committed)
Art 166 (if proof of joint commission with other people)
The following are defenses in general

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1. PLAINTIFF’S DEFAULT/CONTRIBUTORY NEGLIGENCE
This defense may be relied upon if the plaintiff is also to blame

for his suffering.
The defendant must prove that:

i. The plaintiff exposed himself to the danger/risk by act or
omission
ii. The plaintiff was at fault or negligent
iii. The plaintiff’s negligence or fault contributed to his suffering
This defense doesn’t absolve the defendant from liability. It
merely reduces the amount of damages payable by the defendant
to the extent of the plaintiff’s contribution.
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This defense is unavailable if the plaintiff is a child of tender years.
If the plaintiffs were to sue and the defendant proved that the plaintiff
was on the wrong, that can constitute a defense.
Under Common Law, if a person contributed to a tort, that prevented

him from suing. It was a complete defense.
The law was however changed by statute under the Common Law
Reforms.
A plaintiff on the wrong can recover as long as he has not contributed to

100% to the tort.
Thus if he has contributed 40% he can recover 60%.

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2. ACTS OF GOD
Where damage is caused directly by natural

circumstances which no human foresight can provide
against and of which human prudence is not bound to
recognize the possibility, the defense of act of God
applies.
For this defense to succeed it must be shown that the act

was not foreseeable and that it was unusual.
See these cases

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In the case of Nichols v. Marshland[xvii] the defendant has a number
of artificial lakes on his land.
Unprecedented rain such as had never been witnessed in living

memory caused the banks of the lakes to burst and the escaping water
carried away four bridges belonging to the plaintiff.
It was held that the plaintiff’s bridges were swept by an act of God and
the defendant was not liable.
In another case Ryde vs. Bushnell (1967),

Sir Charles Newbold observed, “Nothing can be said to be an act of
God unless it is an occurrence due exclusively to natural causes of so
extraordinary a nature that it could not reasonably have been foreseen
and the result avoided”
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3. VOLENTI NON FIT INJURIA
This defense is available in circumstances where the

plaintiff with full knowledge of the risk voluntarily
agrees to undertake the same .The defendant must
prove
a) That the plaintiff had actual knowledge of nature

and extent of the risk.
b) That the plaintiff agreed to incur the risk
voluntarily as was the case in Tugwell V Burnett.
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4. NECCESSITY
See Art 165 Somali civil code 1973
It may be relied upon if the tort complained of was necessary to

protect the society. It is usually relied upon by the state for acts taken
to protect the society at large as the interest of the public prevail.
The critical thing is that the act done has to be reasonable. Necessity
is limited to cases involving an urgent situation or imminent peril.
The measures taken must be reasonable and this will depend on

whether there is human life or merely property in danger.
See the case,,,,,Surocco v Geary

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5. STATUTORY AUTHORITY
Art 164 Civil code 1973
This defense may be relied upon by the defendant

(usually the State or its agents) if the nuisance is
authorized by statute.
The defendant has a complete defense only if he can

prove that he acted in accordance with the provisions
of the laws. Whether the defense succeeds or not
depends on the interpretation of that Statute
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In Kasturi Lal v. State of UP[xxxiv],
The plaintiff had been arrested by the police officers on a

suspicion of possessing stolen property.
On a search of his person, a large quantity of gold was found

and was seized under the provisions of the Code of Criminal
Procedure.
Ultimately, he was released, but the gold was not returned as the
Head Constable in charge of the malkhana (wherein the said gold
was stored) had absconded with the gold. The plaintiff thereupon
brought a suit against the State of UP for damages for the loss
caused to him.
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It was found by the courts below, that the concerned police
officers had failed to take the requisite care of the gold seized
from the plaintiff, as provided by the UP Police Regulations.
When the matter was taken to the Supreme Court, the court
found, on an appreciation of the relevant evidence, that the
police officers were negligent in dealing with the plaintiff’s
property and also, that they had also not complied with the
provisions of the UP Police Regulations in that behalf. In spite
of the said holding, the Supreme
Court rejected the plaintiff’s claim, on the ground that “the act
of negligence was committed by the police officers while
dealing with the property of Ralia Ram, which they had seized
in exercise of their statutory powers.
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SPECIFIC TORTS
1.NEGLIGENCE
In the words of Anderson B in

Blyth v Birmingham Water Works Co. negligence is
the omission to do something which a reasonable
man guided upon those regulations which
ordinarily regulate the conduct of human affairs
would do or do something which a reasonable and
prudent man would not have done.

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 ELEMENTS OF NEGLIGENCE
The tort of negligence consists of three
elements which a plaintiff must prove in any
action based on negligence.
 1. Legal duty of care.
 2. Breach of duty.
 3. Loss or damage.

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1. LEGAL DUTY OF CARE
The plaintiff must prove that the defendant owed him a duty of care in
the circumstances. The circumstance must have been such that the
defendant knew or ought to have known that acting negligently would
injure the plaintiff.
Who owes another a legal duty of care?
As a general rule every person owes his neighbor a legal duty of care.
In the words of Lord Atkin in Donoghue v Stevenson (1932), a person
owes a duty of care to his neighbours. This is the so called neighbor
principal. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbour.
Who then in law is my neighbour?
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The answer seems to be persons who are so
closely and directly affected by my acts that
I ought to reasonably have them in contention
as being so affected when am directing my
mind to the acts or omissions which are called
into question.
Whether a person owes another a duty of care
will depend on whether such a person could
reasonably have foreseen injuring the other.

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STANDARD OF CARE
As a general rule the standard of care expected of the

defendant is that of a reasonable man of reasonable prudence.
This is a person who has the minimum information and

knowledge necessary to act reasonably in any situation.
Where professionals and experts are involved the standard of
care is that of a reasonably competent professional.
The concept of reasonable man is an artificial concept

developed by law to promote objectivity. It is independent of
personal subjectivity and prejudices.
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Unforeseen plaintiffs
These are circumstances in which a defendant does not owe a plaintiff a duty
of care. In such circumstance the plaintiff cannot sustain an action against
the defendant irrespective of negligence.
In Kings v. Phillips where an expectant mother suffered nervous shock by

reason of hearing the son’s scream while 70 yard s away, it was held that she
could not recover since the defendant driver owed her no legal duty of care.
In Bourhill v. Young an expectant mother suffered a nervous shock on

hearing a loud band and seeing a pool of blood as a result of an accident
caused by a negligently ridden motor cycle.
It was that she could not recover since the motorcyclist could not have
reasonably foreseen her suffering.

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2. BREACH OF DUTY
The plaintiff must prove that the defendant acted negligently

thereby breaching his legal duty of care. The plaintiff must prove
specific acts or omissions the part of the defendant.
The plaintiff must adduce evidence to prove his case.
However in certain circumstances negligence is proved without

evidence. These cases are referred to as Res ipsa loquitor which
literally means “it speaks for itself”
This is a rule of evidence by which the plaintiff is deemed to have

established negligence on the part of the defendant without
adducing any evidence.
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REQUIREMENTS OF RES IPSA
• Absence of explanation; the plaintiff has no evidence on the
negligent acts or omissions of the defendant.
• Such a thing does not ordinarily occur when proper care is
taken
• The instrument or object which causes the harm was
exclusively within the control of the defendant or his servants or
his agents.
In Scott v London and St Catherine’s dock the plaintiff a custom’s

officer was injured by sugar bags falling on him inside the
defendant’s warehouse. It was held that the principle of Res ipsa
applied and he did not have to prove negligence on the part of
the defendant.
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3. LOSS OR DAMAGE
The plaintiff must prove that as a result of the defendant’s breach of duty he suffered loss or
damage.
The plaintiff’s loss must be traceable to the defendant’s breach of legal duty, failing which the
plaintiff’s damage is deemed to be remote and therefore irrevocable.
The defendant is reasonably liable for any loss which is reasonably foreseeable from his acts or
omissions. It was so held in The Wagon Mound II.
Question has arisen as to what losses the defendant must have foreseen and courts have taken
the view that as long as some loss is foreseeable the defendant is liable for any loss.
In Bradford v. Robinsons Rental Co. Ltd, where the plaintiff was exposed to extreme cold and
fatigued, in the course of his employment by his employers and as a consequence suffered from
frost bite,
it was held that the defendants were liable, since his suffering from frost bite was reasonably
foreseeable.
However, the defendant is not liable if the loss or damage suffered is not traceable to the
negligent act or omission of the defendant.

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 DEFENCES TO NEGLIGENCE
1. Contributory negligence
This defense is available in circumstances in which the
plaintiff is also to blame for the loss or injury. The defendant
must adduce evidence to establish the plaintiff’s contribution.
 The defendant must prove:-

 1. That the plaintiff exposed himself to danger.
 2. That the plaintiff was at fault or negligent.
 3. That the plaintiff’s fault or negligence contributed to his
suffering.

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STRICT LIABILITY:
See Article 160 Somali civil code 1973
In common law system

THE RULE IN RYLANDS v. FLETCHER
Anyone who in the course of non – natural use of his land, accumulates thereon
for his own purposes anything likely to do mischief if it escapes is answerable
for all direct damage thereby caused.
This is the rule in Rylands v. Fletcher where the defendant employed

independent contractors to construct a water reservoir on the land, which was
separated from the plaintiffs land by adjoining land. In the course the works the
contractors came upon some old shafts and passages filled with earth. The
contractors did not block them up. Unknown to them, the shafts connected their
land with the plaintiff’s mines. When the water filled the reservoir, it seeped
through the old shafts and into the plaintiff’s mines thence flooding them.
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It was found as a fact that the defendant was not
negligent, although the contractors had been.
However, although the defendant was neither
negligent nor vicariously liable in the tort of his
independent contractors, he was held liable by the
Court of Exchequer chamber and the House of
Lords.
The judgment of the Court of Exchequer chamber

was delivered by Blackburn J. at P. 279 -280 and it
has become a classical exposition of doctrine
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“We think that the true rule of law is, that the person who for
his own purpose brings on his land and collects and keeps
there anything likely to do mischief if it escapes, must keep it in
at his peril, and, if he does not do so, is prima facie answerable
for all the damage which is the natural consequences of its
escape.”
This may be regarded as the ‘rule in Rylands v. Fletcher’

But what follows is equally important. The court further said:
“He can excuse himself by showing that the escape was owing
to the plaintiff’s default; or the act of God: it is unnecessary to
inquire what excuse would be sufficient”.
The general rule, as above stated, seems to be just in principle.

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“The person whose grass or corn is eaten down by the escaping
cattle of his neighbor, or whose mine is flooded by the water from
the neighbor’s reservoir, whose cellar is invaded by filth of his
neighbors
Or whose habitation is made unhealthy by the fumes and noise and

vapours of his neighbors alkali works, is damnified without any fault
of his own;
And it seems reasonable and just that the neighbor, who has
brought something on his own property which was naturally there
harmless to others so long as it is confirmed to his own property,
but which he knows to be mischievous if it gets on his neighbors
should be obliged to make good the damage which ensues if he does
not succeed in confining it to his property.
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But for his act in bringing it there no mischief
could have accrued, and it seems but just that
he should at his peril keep it there so that no
mischief may accrue, or answer for the natural
and anticipated consequences and upon
authority, this we think is established to be the
law whether the things so brought be beasts,
or water, or filth, or stenches.”

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DEFENCES TO THE RULE IN RYLANDS v. FLETCHER
CONSENT OF THE PLAINTIFF

If the plaintiff has permitted the defendant to accumulate
the thing the escape of is complained of, then he cannot sue
if it escapes.
Implied consent will also be a defence; thus a person

becoming a tenant of business or domestic premises that
the time when the condition of the adjoining premises
occupied by the landlord is such that the happening of the
Ryland v. Fletcher type is likely to ensue, is deemed to have
consented to take the risk of such an event occurring.
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In Kiddle-v-City Business Properties Ltd, the plaintiff
became a tenant of the defendant in a house below the
house occupied by the defendant (Landlord).
The gutter of the Landlord’s house was blocked and when it

rained, an overflow of rainwater from the blocked gutter at
the bottom of the sloping roof in possession of the
Landlord and above the tenant’s premises damaged the
stock in the tenant’s premises.
It was held that the Landlord had a defence as the tenant

impliedly consented to the risk of rainwater overflowing into
his premises
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If the accumulation benefits both the plaintiff and the
defendant, the plaintiff may be deemed to have
consented to its accumulation e.g. where for the benefit
of several occupants’ rainwater is accumulated on the
roof or a water closet installed or water pipes fitted, the
several occupants are deemed to have consented.
On the other hand, the defence is not available as

between a commercial supplier of gas in respect of gas
mains under the highway. In any event an occupier will
not be presumed to have consented to installations
being left in a dangerously unsafe state
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VICARIOUS LIABILITY
See Article Article 171 inter alia
The expression “vicarious liability” signifies liabilities which A may incur

to C for damage caused to C by the negligence or other tort of B.
It is not necessary that A should not have participated in any way in the
commission of the tort nor that a day owed in Law by A to C shall have
been broken.
What is required is that A should stand in particular relationship to B and
that B’s tort should be referable in a certain manner to that relation.
The commonest instance in Law is the liability of a master for the torts of
his servants. Vicarious liability generally arises from a contract service

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MASTER-SERVANT RELATIONSHIP.
Who is a servant?
Since vicarious liability generally arises from a

contract of service (“servant”) not a contract of
services (“independent contractor”) it is important
to determine the indicia if a contract of service.
In an often cited statement in Short v. J & W
Henderson Ltd Lord Thankkerton said that there
are four indications of a contract of service;

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a) The master’s power of selection of is servant
b) The payment of wages or other remuneration
c) The master’s right to control the method of doing
the work, and
The master’s right of suspension
This list has been found helpful in determining whether

a master-servant relationship exists but it is not
conclusive. It is not possible to compile an exhaustive
list of all the relevant considerations. The court stated
in Market Investigation Ltd v. Minister of Social Security
(1969 ) per Cooke J:
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Once the Master-servant relationship is established, the master
will be liable or all torts committed by the servant in the course
of the employment.
a) Hospitals
It has held that radiographers, house surgeons, house time-

assistant medical officers and probably staff anesthetics are
employees of the hospital authority for various liabilities.
But visiting consultants and surgeons are not employees of the
hospital and thus the hospital is not liable.
In Hillyer v. St-Bartholomew’s Hospital the plaintiff bought an
action against the governor of a hospital for injuries allegedly
caused to him by negligence of an operating surgeon. The
hospital was a charitable body.
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Where there is a contract between the doctor and the patient, the
hospital is not liable.
A hospital is thus liable for negligence of doctor and surgeons employed
by the hospital authority under a contract of service arising in the course
of the performance of their professional duties. The hospital owes a duty
to give proper treatment to its patients.
In Cassidy v. Minister of Health the plaintiff entered a hospital for an

operation of this left hand, which necessitated post-operational
treatment. While undergoing the treatment he was under the care of a
surgeon who performed the operation and who was a whole-time
assistant medical officer of the hospital, the house surgeon and members
of the nursing staff, all of whom were employed under a contract of
service. At the end of the treatment it was found that his hand had been
rendered useless.
Held: The hospital was liable
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A hospital may also be liable for breach of duty to
patients to provide proper medical service although
it may have delegated the performance of that duty
to persons who are not its servants and its duty is
improper or inadequately performed by its delegate.
An example is where the hospital authority is

negligent in failing to secure adequate staffing as
where a delegate is given a task, which is beyond the
competence of a doctor holding a post of seniority.

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ESSENTIALS FOR THE LIABILITY OF THE MASTER
For a master to be liable for his servant’s torts the tort must have been committed
“in the course of employment”. An act is done in the course of employment if;
a) It was a wrongful act authorized by the master
b) It was a wrongful and unauthorized mode of doing something authorized by
the master.
In London County Council v. Caltermoles (Garages) Ltd, the defendant employed a

general garage hank, part of whose job involved moving vehicles around the
garage. He was only supposed to push the vehicles and not to drive them. On
one occasion, he drove a vehicle in order to make room for other vehicles. Whilst
doing so, he negligently damaged a vehicle belonging to the plaintiff.
Held: That the negligent act was within the course of the garage hand’s
employment although he had carried his duties in an unauthorized manner. His
master was thus vicariously liable.

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OCCUPIERS LIABILITY
This is the liability of an occupier of premises

for damage a done to visitors to the premises.
OCCUPIER’S LIABILITY AT COMMON LAW

At common law the duties of an occupier were
cast in a descending scale to four different
kinds of persons. For example:

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a) The highest duty of care was owed by the occupier to one who
entered in pursuance of a contract with him e.g. a guest in a hotel. In
that case there was an implied warranty that the premises were as safe
as reasonable care and skill could make them.
b) A lower duty was owed to the invitee i.e. a person who without any
contract entered on business of interest both to himself and the
occupier e.g. a customer coming into a shop to view the wares he was
entitled to expect that the occupier should prevent damage from
unusual danger of which knew or ought to have know.
c) Lower still was the duty of the licensee i.e. a person who entered with
the occupiers express or implied permission but without any community
of interest with the occupier; the occupiers duty towards him was to
warn him of any concealed danger or trap of which he actually knew.
d) Finally, there was the trespasser to whom there was owed only a duty
to abstain from deliberate or reckless injury.

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Occupiers liability deals with the liability of an occupier of
premises and extends to immovable property as open
land house, railway stations and bridges as well as
movable structures like ships, gangways or even vehicles
although lawyers prefer to treat injury in the latter as
falling with common law negligence.
Under common law lawful visitors who did not fall under
the above classifications of contractual entrants, invitees
or licensees were not clearly covered and accidents
arising from the premises and affecting such person were
commonly governed by the general law of negligence.

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COMMON DUTY OF CARE
The common duty of care owed to all visitors as well as an entrant
on contract with implied terms is defined as a duty such care as in
all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the
purpose for permitted to be there.
The Act gives some guidance in applying the common duty of care:
i. An occupier must prepared for children to be less careful than
adults; and
ii. An occupier may expect that a person in the exercise of his
calling will appreciate and guard against any special risks ordinarily
incident to it, so far as the occupier leaves him free to do so.

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TRESPASS TO THE PERSON
This is interference with the body of a person. Every person has a

right to non-interference with his body.
The law of torts evolved 3 torts to protect these right or interest

namely; assault, battery and false imprisonment
A) ASSAULT
This is an act of the defendant which causes the plaintiff reasonable
apprehension of the infliction of a battery on him by the defendant. It
is an act of the defendant which directly and either intentionally or
negligently causes the plaintiff immediately to apprehend a contact
with the body of the defendant .This tort protects a person from
mental anxiety.
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Rules of the Tort
1. There must be some nervousness of contact
2. There must be a means of carrying out the threat by the
defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute
assault.
Assault is constituted by:-

i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner
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B) BATTERY
This is the intentional and direct application of force to another person. It

has been defined as any act of the defendant which directly and either
intentionally or negligently causes some physical contact with the person
or body of the plaintiff without his consent.
As a general rule battery is based on an intentional act and is both a crime
and a tort.
Meaning of Force
Any physical contact with the body of the plaintiff or with his clothing is
sufficient to amount to force. There is battery where the defendant shoots
the plaintiff from a distance just as much as when he strikes him with his
fist. Mere passive obstruction is however not battery.
In the technical sense however, no physical hurt is necessary, for all forms
of trespass are actionable per se i.e. without prove of damage.
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Where there is express or implied consent to contact the
plaintiff can’t sue.
Life would be difficult if all bodily contact was actionable

and courts have struggled to find some further ingredient to
distinguish battery from legally unobjectionable conduct.
In Collins v. Wilcock (1984) Goff L J stated that apart from

specific defenses such as lawful authority in effecting an
arrest or prevention of crime, bodily contact was not
actionable if it was generally acceptable in the ordinary
conduct of daily life.

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However, the court of appeal in Wilson v. Prigle while not wholly rejecting
this approach has laid down that battery involves a 'hostile' touching by
the defendant i.e. where he willfully interferes with the plaintiff inn a way
to which he is known to object.
Touching another person in the course of a conversation in or to draw
his attention to something is not battery but 'an unwanted kiss is as
much actionable as a blow’
For battery there must be a voluntary act by the defendant intended to

bring about the contact with the plaintiff. The battery need not be
committed with the person of the person of the defendant.
It is battery to strike the plaintiff by throwing a stone at him. Provided
the force used has its effect on the person of the plaintiff's person must
be intended by the defendant e.g. it is battery to remove a chair on which
the plaintiff is about to sit as a result of which he falls on the ground.

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INTENTION
Assault is committed where the plaintiff apprehends

the commission of a battery on this person. If the
defendant does not intent to commit a battery but
induced a belief in the plaintiffs mind that he is
about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an

assault but if the gun is unloaded it is still assault
unless the person at whom it is pointed knows this.
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RULES OF BATTERY
1. Absence of the plaintiff’s consent
2. The act is based on an act of the defendant mere obstruction
is not battery
3. A contact caused by an accident over which the defendant has
no control is not battery
4. There must be contact with the person of the plaintiff it has
been observed The least touching of another person in anger is
battery
5. Battery must be direct and the conduct must follow from the
defendant’s act
6. The tort is actionable per se. The essence of battery is to
protect a person from un-permitted contacts with his body. The
principal remedy is monetary award in damages.
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FALSE IMPRISONMENT
See Article 160 1nd 161 Somali civil code 1973, says
A person is liable for any wrongful act against others having knowledge of
the act being wrong
This is the infliction of bodily restraint which is not expressly authorized by

law. It’s an act which is directly and either intentionally or negligently
causes the confinement of the plaintiff within an area limited by the
defendant.
This tort protects a person’s freedom by making unlawful confinement

actionable.
It is possible to commit the tort without imprisonment of a person in the
common acceptance of the tort. In fact neither physical conduct nor
anything resembling prison is necessary.
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If for example I as a lecturer locks my students in a
lecture room after the usual time of dismissal that is
false imprisonment.
So also is the case where a person is restrained from

leaving his own house or part of it or even forcibly
detained in a public street. A person is said to be a
prisoner if he has no liberty to go freely at all times to
all places that he would like to go.
It has been held in Grainger v. Hill that imprisonment
is possible even if the plaintiff is too ill to move in the
absence of restraint.
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MAIN INGREDIENTS OF THE TORT
Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may affect the quantum of
damages. In Meeting v. Graham White Aviation Co the plaintiff was being
questioned at the defendants company in connection with certain thefts
from the defendants company. He did not know of the presence of two
works police outside the room who would have prevented his leaving if
necessary.
Held; the defendant was liable for false imprisonment. Arcing L J said
“it appears to me that a person can be imprisoned without his knowing. I
think a person can be imprisoned while he is asleep or in a state of
drunkenness, while unconscious or while he is a lunatic. Of course the
damages might be diminished and would be affected by the question
whether he was conscious or not'
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(b) Intention and directness
The tort is defined to exclude negligent imprisonment of another person.

The tort must be intentional and should be committed directly. Where for
reason of lack of intention or directness the plaintiff cannot establish
false imprisonment an action in negligence may still be available.
In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the

defendant’s toilet because of negligent maintenance of the door lock by
the defendant’s servants. In trying to climb out of the toilet she fell and
was injured. She recovered damages from the defendant because it was a
reasonable act on her part to escape from a situation in which the
defendant by his negligence had placed her.
An action for false imprisonment would not have been available because
there was no direct act of imprisonment.

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(c) The restraint must be complete
There must be a total restraint placed upon the plaintiff’s freedom of

action In Bird v Jones the defendant closed off the public footpath
over one side of a bridge. The plaintiff wishing to use the footpath
was prevented by the defendant. In the plaintiffs action one of the
questions that was necessary to decide was whether the defendant's
act amounted to false imprisonment.
Held: It did not since the defendant has not placed a total restraint
on the plaintiff. The blocking of a part of a public highway might be
a public nuisance for which the plaintiff could bring an action in tort
if he could show special damage arising from. Provided the area of
restraint is total it does not seem to matter that it is very large.

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RULES OF THE TORT
1. The tort must be intentional. It is immaterial that the defendant acted
maliciously
3. The restraint or confinement must be total.
However, it need not take place in an enclosed environment It has been observed
every confinement of a person is an imprisonment whether it be in a common
prison, private house or in the stocks or even forcibly detaining one in the public
5. The boundary of the area of confinement is fixed by the defendant. The barriers
need not be physical. A restraint affected by the assertion of authority is
sufficient.
6. The imprisonment must be direct and the plaintiff need not have been aware of
the restraint, The tort is actionable per se. The principal remedy is a monetary
award in damages.

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In Somali customary law/battery, assault
Somali customary law has generally adopted the

principles of Shariat law. In order to illustrate the
interaction of Shariat law and customary law in
respect of wound compensation, reference is made
to the case of Shamis Godleh v. Hawira Godleh,
Supreme Court Civil Appeal No. 21 of 1965
wherein the Supreme Court, on the basis of Shariat
law classification, has enumerated the following
9 kinds of wounds on the head and face
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1. Harisa, i.e. if only the skin has been cut or scraped;
2. Damia, if blood has flowed;
3. Badia, if the flesh has been injured;
4. Mutalahima, if the flesh has been penetrated;
5. Simhak, if the membrane enters the flesh and the bone
is injured;
6. Mudiha, if the bone has been uncovered;
7. Hashima, if the bone itself has been injured;
8. Munakkila, if the bone is broken, so that the fragments
are separated;
9. Mamuma, if the membrane of the brain has been injured;
10. Damigha, if the brain is injured.
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In the above case, the Supreme Court also laid
down the general rule that compensation for
wounds under customary law should be
awarded according to the rates prescribed in
Shariat law.
The court observed that as regards wounds on

the head or face the indemnities due for
causing such wounds are:

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(i) for a mudiha, five camels;
(ii) for a hashima which is also a mudiha, ten
camels, otherwise, five;
(iii) for a munakkila, fifteen camels;
(iv) for a mamuma, a third of the price of blood
prescribed for homicides
Wounds on the head and face classified as less

serious than a mudihanecessitatean indemnity
fixed according to the gravity in due proportion to
a mu
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PROTECTION OF CHATTELS OR GOODS
Owners of goods are entitled to enjoy their possession and control and their
use without any interference. To protect goods the common law developed 3
torts namely;
• Detinue
• Trespass to goods
• Conversion
DETINUE
This is the unlawful detention of goods. It is the oldest tort relating to the
protection of the chattels and protects possession of goods by the owner.
The plaintiff must prove:-
i. Right to immediate possession
ii. That the defendant detained the goods after the plaintiff demanded their
return. The plaintiff is entitled to damages for the detention.
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TRESPASS TO GOODS
This is the intentional or negligent interference of goods

in possession of the plaintiff. This tort protects a party
interest in goods with regard to retention their physical
condition and invariability.
Types/Forms of Trespass
1. Taking a chattel out of the possession of another
2. Moving a chattel
3. Contact with a chattel
4. Directing a missile to a chattel
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Rules/Requirements of the Tort
1. The trespass must be direct
The plaintiff must be in possession of the chattel at the
time of interference
The tort is actionable per se

The principal remedy is a monetary award in damages
The defenses available to this tort include:-

1. Plaintiff’s consent
2. Necessity
3. Mistake
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CONVERSION
This is the intentional dealing with goods which is seriously

inconsistent to possession or right to possession of another person.
This tort protects a person’s interest in dominion or control of

goods.
The plaintiff must have possession or the right to immediate

possession. However, a bailee of goods can sue 3rd parties in
conversion so can a licensee or a holder of a lien or a finder.
Any good or chattel can be the subject matter of conversion. There

must be physical contact resulting in interference with the goods.

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DEFAMATION
Defamation is the publication of a statement which reflects on a

person’s reputation and tends to lower him in the estimation of
right- thinking members of the society generally or tends to
make them shun or avoid him.
Defamation is sometimes defined simply as the publication of a

statement which tends to bring a person “into hatred, contempt
or ridicule”; but this is not quite exact for a statement may
possibly be defamatory even if it does not excite in reasonable
people feelings quite so strong as hatred, contempt or ridicule
and the definition is defective in omitting any reference to the
alternative of tending to shun or avoid him
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This addition is necessary, for falsely imputing
insolvency or insanity to a man is unquestionably
defamation, although, far from tending to excite
hatred, contempt or ridicule, it would rouse only
pity and sympathy in the minds of reasonable
people, who would nevertheless be inclined to
shun his society.
 The tort of defamation is of 2 kinds:

 • Libel
 • Slander

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DIFFERENCES BETWEEN SLANDER AND LIBEL
In libel – the defamatory statement is made in some

permanent form such as writing, printing, and pictures
In slander – The statement is made in spoken words or

in some other transient form whether visible or audible
such as gestures or inarticulate but significant sounds.
It has been stated that Slander is addressed to the ear

while Libel is addressed to the eye

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This distinction is however not accurate because Slander can
as well be addressed to the eye as in the case of defamatory
gestures whereas libel can be addressed to the ear as in the
case of Youssoupoff v. M.G.M Picture Ltd where Slesser L.J.
stated that:
“There can be no doubt that so far as the photographic part

of the exhibition is concerned, that is a permanent matter to
be seen by the eye, and is proper subject of an action eye,
and is the proper subject of an action for Libel.”
Thus the ‘talking’ film, though generally addressed to the

ear, was in permanent form thus making it a Libel.
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There are however clear differences between Libel
and Slander;
1. Libel is defamation in permanent form whereas
Slander is defamation in transient form.
2. Libel is not merely actionable as a tort but is
also a criminal offence whereas Slander is a civil
wrong only.
3. All cases of Libel are actionable per se but
Slander is only actionable on proof of actual
damage with 4 exceptions under the Defamation
Act, which are actionable per se.
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ESSENTIALS OF DEFAMATION GENERALLY
Whether defamation consists of Libel or

Slander the following requisites are common to
both, and must be proved by the plaintiff.
i. The words must be defamatory
ii. They must refer to the plaintiff
iii. They must be maliciously published.

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Defamation of a Class
A problem arises where a defamatory statement referred

to a class to which the plaintiff belongs. The test is the
same i.e. would a sensible ordinary person identify the
plaintiff as the person defamed?
In Eastwood v. Holmes,
Willes J stated:
“If a man wrote that all lawyers were thieves, no
particular lawyer could sue him unless there was
something to point to the particular individual.”
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DEFENCES OF DEFAMATION
UNINTENTIONAL DEFAMATION
Under common law, the fact that the maker of a statement

was unaware of the circumstances making it defamatory
does not absolve him from liability. The Defamation Act
seeks to redress this situation by enabling the defendant to
make an ‘offer of amends’ for the innocent defamation.
Under the Act, words shall be treated as innocently
published in relation to another person if and only if:

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1. The publisher did not intend to publish them of
and concerning that other person, and did not
know of circumstances by virtue of which they
might be understood to refer to him; or
2. The words were not defamatory on the face of

them, and the publisher did not know of
circumstances by virtue of which they might be
understood to be defamatory of that person, in
either case, the publisher has exercised all
necessary care in relation to the publication.
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2. CONSENT AND ASSUMPTION OF RISK
If the plaintiff expressly or impliedly assents to the publication of the matter

which is true on the face of it, the defendant is not liable; and this is so even if
it appears that some persons may interpret the statement in a sense much
more prejudicial to the plaintiff that is warranted by the plain meaning of the
words.
In Cookson v. Harewood, Scrutton L.J said

“If you get a true statement and an authority to publish the true statement, it
does not matter in the least what people will understand it to mean.”
The defence of consent has been regarded as an instance of voluntary

assumption of risk (volenti non fit injuria). This defence was upheld in
Chapman v. Elsemele where the plaintiff by being a member of the Jockey Club
was deemed to have consented to publication of a report in the Jockeys
Journal.
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3. JUSTIFICATION OR TRUTH
The plaintiff does not have to prove that the statement

complained of was false. On the contrary the burden is on
the defendant to prove that the statement was true.
Truth is a defense because the law will not permit a person

to recover damages in respect of any injury to a character,
which he either does not have or ought not to posses.
The defendant must establish the truth of the precise
charge that has been made which is ultimately a matter of
interpretation of the facts

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In Wakley v. Cooke, the defendant called the plaintiff a ‘Libelous
Journalist.’ He proved that the plaintiff had been found liable for Libel
once. The court took the view that these words did not mean that the
plaintiff was held liable on one occasion but mean that the Journalist
habitually libeled people. The defence of truth accordingly failed.
The defendant must justify the statement by showing that it was

substantially accurate. The standard of proof for jurisdiction is the
normal civil one of balance of probabilities, but as is other civil cases,
the seriousness of the defendant’s allegation may be taken into
account in determining whether he has discharged that burden.
The defence will not fail if the truth of several charges is not
established provided that having regard of the truth of the remaining
charges, the charge not proved does not materially injure the
plaintiff’s reputation.

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4. FAIR COMMENT
This defence stems from the belief that honest and

fair criticism is indispensable in every freedom
loving society. The law weighs the interest of the
plaintiff against the freedom of speech and it is for
the judge to rule whether any comment was called
for in particular situation and to say whether the
statements are of facts or opinions, and if they are
opinions, whether they are honest and fair.
The requirements of this defence are as follows:
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5. PRIVILEGE
There are two categories of privilege:
1. Absolute privilege
2. Qualified privilege
3. Absolute Privilege
A privileged statement may be defined as one which is made in such

circumstances as to exempt one from the rule that a person attacks the
reputation of another at his own risk.
A statement is said to be absolutely privileged when it is of such a

nature that no action will lie for it, however false or defamatory it may
be and even though it is made maliciously. The defence is available in
the following cases
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a) Any statement made in the course of and with reference of
judicial proceedings by any judge, jury, party, witness or
advocate.
b) Fair and accurate report in any newspaper of proceedings
heard before any court.
c) Any statement made in parliament by a member of parliament
d) Reports, papers, votes and proceedings published by the
order and / or under the authority of the National Assembly.
e) Communication made by one officer of state to another in the
course of his official duty.
f) Communication between an advocate and his client in
connection with litigation.
g) Communication between husband and wife.

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2. Qualified privilege
It is limited in scope.
When an occasion of qualified privilege exists, a person, provided he is not
actuated by malice is entitled to make defamatory statements about another.
Like absolute privilege, here the right freedom of speech prevails over the right
of reputation but only to a limited extent.
The statement must be made honestly and without any indirect or improper
motives. Qualified privilege is thus an intermediate case between absolute
privileges but only to a limited extent.
The statement must be made honestly and without any indirect or improper
motives. Qualified privilege is thus an intermediate case between absolute
privilege and absence of privilege.
The general principle is that the statement is protected if it is fairly made by a
person in the discharge of some public or private duty whether legal or moral
or in the conduct of his own affairs in maters where his interest is concerned.
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MALICE
The defense of a qualified privilege is negated by malice.

Malice means the presence of improper motive or even gross
and unreasoning prejudice.
A statement is malicious if it is made for some purpose other
than the purpose for which the law confers the privilege.
In Horrocks v. Lowe the court stated that malice destroys the

privilege and leaves the defendant subject to the ordinary law
by which a mistake, however reasonable, is no defence.
The law requires that a privilege shall be used honestly, but
not that it should be used carefully
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LIMITATION OF ACTIONS
Causes of actions are not enforceable in

permanence, they must be enforced within the
duration prescribed by law failing which they
become statute barred.

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The purpose of the Limitation of Actions Act in fixing the
duration is to facilitate the administration of justice by
ensuring that cases are heard as and when they occur.
The duration also ensures that cases are decided on the
best available evidence. It also ensures that the hearing of
cases is spread out.
When does time start running?

As a general rule it starts running from the date a cause
of action arises e.g the date of a breach of contract or the
date when the accident occurred. However, the running of
time may be postponed in certain circumstances:

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a) When the propective defendant is the president or is
exercising the functions of the office of the president,
time strats running when he ceassees to hold office or
stops exercising the functions or dies, whichever
comes first.
b) If the prospective defendant or plaintiff is an infant/
minor, time starts running when he attains the age of
majority (18 years) or dies, whichever comes first
c) If the prospective plaintiff is a person of unsound
mind, time starts running when he becomes of sound
mind or dies, whichever comes first.
considering the circumstances of the case.
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d) If the prospective plaintiff is laboring under mistake,
fraud or ignorance of material facts, time starts running
when he ascertains the true position or when a
reasonable person would have so ascertained.
When time starts running, it generally runs through and

the action becomes statute-barred in which case the
defendant escapes liability.
However, a statute barred action may be proceeded

with “with leave of the court” if the court is satisfied
that the delay was justifiable after
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Chapter four
Law of contract

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The meaning of contract/contract law
Though the questions „what is contract?‟ and “what is contract

law?” are of paramount importance,
it is difficult to give a definitive answer to either. But one may say
contract law is most obviously the law relating to agreements or
promises. It is primarily concerned with agreements in which one
party, or each party, gives an undertaking or promise to the other.
It governs such questions as which agreements the law will

enforce, what obligations are imposed by the agreement in
question and what remedies are available if the obligations are
not performed

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Thus contract law is the law based on liability for breach
of promises. However, „Contract law‟ is also used to mean
the whole collections of rules, which apply to contracts,
and these includes many rules, which are not contractual
in the sense of being based on a promise to do
something. For example, if
one party induces the other to enter a contract by fraud or

misrepresentation, the innocent party may avail himself of
certain remedies based on the rules of misrepresentation
(fraud). There are certain conceptual differences on
whether such rules are part of contract law or tort.

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Contract law is primarily concerned with
supporting the social institution of exchange.
However, it is not as broad as the institution
itself. An enormous proportion of our life is
carried on the basis of exchanges that are in
some sense agreements, but many of them are
not governed by what is usually thought as
contract law. Some agreements, such as
domestic arrangements, are not governed by
law at all.
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What is a contract?
In Anglo-American legal systems defines contract
as a promises or set of promises for the breach of
which the law gives a remedy or the performance
of which the law recognizes in some way as a
duty. However, not all promises give rise to
contracts. For instance, if you agreed to keep the
house tidy while your parents are away on holiday
you would not expect to find yourself in the court
of law being sued for the breach of contract if
you failed to do so.
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So, what kind of agreements does the law
recognize as creating enforceable rights and
duties?
To answer this, we need to look in the rules of
each legal system, which provide their own
specific definitions of the term contract and its
elements.
For instance, the French civil code defines
contract in article 1101 as an agreement to
establish, vary, and extinguish rights and
obligations of the parties.
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When we come to the Somali legal system, we find
the definition of contracts (enforceable agreements)
Under Article 88 of the Somali Civil Code. As such
contract is defined as;
An agreement whereby two or more persons as
between themselves create, vary or extinguish
obligation of proprietary nature‟‟.
This definitional as elements of contract tell as in

general the type of agreements enforceable by the
law of contract in Somali legal system.
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Purpose of the contract law
Contract law is primarily concerned with supporting institutions of exchange, which

is an huge part of our life carried on the basis of that are in some sense termed as
agreement.
Contract law has many purposes but the central one is to support and control the
millions of agreements that collectively make up the market economy, and hence
operates in the context of dispute resolution mechanism.
Besides it empowers the parties to make agreements that the law will enforce. It also
enables parties to the contract to make exchanges that might otherwise carry too
great risk whether of disruption by some contingencies or default by the other party.
Accordingly, contract law in this respect is the most important which creates smooth
functioning of business transaction by creating certainty, predictability, and
enforceability.

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In this context, it is also important to note the different
approaches to contract law determine its role.
In the nineteenth century, at least in common law legal
systems, the courts seemed to place great emphasis on
freedom of contract.
During this period the courts tended to reduce the numbers

of rules controlling contract power. They see the role of
contract law as enforcing the agreement of the parties.
There are still writers who suggest that the law should
enforce any agreement which was „freely made‟ between the
parties provided it has no adverse effect on others.
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These “libertarians” see the individual as the
best judge of his or her own interest and
consider that what was freely agreed is by
definition, fair.
Any attempt to use contract law to influence

substantive outcomes (e.g. to try to produce a
fairer distribution of wealth in society, or even
to maintain the previous distribution) is both
illegitimate and misguided.
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Others take a less extreme position.
They agree that individuals should be free to pursue
their own self-interest but they recognize that in some
cases „the market‟ may not operate efficiently.
For example, in cases where there is some kind of

monopoly or where one party does not fully understand
the contract, the law may need to intervene.
Many such writers would say the contract law, whether

we like it or not, does affect the distribution of wealth in
society and that this should be recognized.
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A few writers go further and argue that it is no longer
adequate to describe the law of contract as primarily
concerned with supporting voluntary exchange in the market
and correcting occasional abuses or market failures.
In their view another transformation has taken place and the

modern law's prime concern is with controlling domination
and promoting fair exchange and cooperation.
When you see made a Somali law of contract, you need to

assess which approach can be adopted in the Somalian legal
system.

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Scope of Contract Law
The scope of contract law varies from country to country and

from legal system to legal systems depending on the types of
obligations they govern.
Unlike non- contractual obligations in which a person

undertakes an obligation not to wrong another by conduct
that the law of tort establishes as wrongful, contract law
governs contractual obligations which arises from agreements
made between two or more persons which puts the promisor
under the obligation to perform his or her promises under the
sanction of an action against him for breach of the contract

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A contractual obligation implies the existence
of an „obligor‟-the person who is legally under
the obligation and the „obligee‟for whose
benefit the obligation exists.
This feature of contract distinguishes contract

law from criminal law obligations.

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GENERAL INTRODUCTION
DEFINITION OF CONTRACT AND AGREEMENT

CLASSIFICATIONS OF CONTRACTS
ESSENTIALS OR ELEMENTS OF AN
ENFORCEABLE/VALID CONTRACT (Offer;
termination of an offer, Acceptance;
Consideration; Capacity and Intention to create
legal relationship) Legality
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DEFINITION OF CONTRACT AND AGREEMENT
According to Art 88 Somali civil code 1973, a contract is a legally binding agreement
or relationship that exist between two or more parties and which creates rights and
obligations that may be legally enforced in the courts.
See Art 88 that says The agreement sticks as soon as both parties agree to the
declaration of their consensus while maintaining the same legal framework, to
achieve that agreement.
An arrangement (usually informal) between two or more parties that is not

enforceable by law.
The difference between agreement and contract is that all lawful contracts are
enforceable in law while all agreement are social in nature and do not have the force
of law for its enforceability.
In a nutshell, all contracts involve an agreement while not all agreement leads to a
valid contract.
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In contract, the parties must have a final
agreement, that is their minds must meet.
This is what is called consensus ad idem (meeting
of the mind) and must exercise their free will.
A party to a contract is said to be in breach if that

party has failed to fulfil the terms of the contract
as agreed upon by both parties.
Similarly, when the parties minds are at cross
roads, there is no contract.

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CLASSIFICATIONS OF CONTRACTS
Contract may be divided into four broad

classes:
1. Contract by Deed and Simple Contract

2. Bilateral and Unilateral Contracts
3. Void, Voidable and Unenforceable Contracts
4. Executed and Executory Contract

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CONTRACT BY DEED AND SIMPLE CONTRACT
Contracts by Deed/Specialty/Contract of Records

This type of contract must be executed in a prescribed
form and all the terms of such contract are reduced to
writing and then the contract is signed, sealed and
delivered.
A deed is a formal legal document signed, witnessed

and delivered to effect a conveyance of leases and land
or transfer of property or to create a legal obligation or
contract.
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However, in First National Securities Ltd. v. Jones (1978) All ER 221, the Court
of Appeals of England decided that a document could be regarded as a deed
even though not sealed where the parties intended it to operate as a deed.
Simple Contract
Contracts which are not deeds are known as simple contracts.
They are informal contract and may be made in any way – in writing, orally
(by word of mouth), partly oral and partly written or they may be implied
from conduct.
See Art 89
Desire can be expressed in oral, written or simple directions, or it can be
shown to take unobtrusive positions that prove the purpose of the parties as
determined by specific circumstances.
This to mean that it can be either of the over said.
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BILATERAL AND UNILATERAL CONTRACTS
Bilateral Contract
This is where a promise by one party is exchanged for a promise
by the other.
The exchange of promises is enough to render them both

enforceable.
Thus in a contract for the sale of goods, the buyer promises to pay
the seller and the seller promises to deliver the goods.
Unilateral Contract
This is where one party promises to do something in return for an
act of the other party as opposed to a promise.
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.Unilateral Contract
This is where one party promises to do something in return for an act of the
other party as opposed to a promise.
According to Art 145

(1)the contract must be carried out according to its terms and conditions.
2. The agreement not only applies to the fulfillment of the clause but also to any
effect that the law, custom and justice may bring in relation to the contract in
accordance with the nature of the obligation.
Article 146 If the agreement is made in a leadership style, and it is met with a
stricter requirement, it is up to the Judge to modify or to waive that requirement
in compliance, in accordance with justice. There is nothing else to do otherwise
This mean to the effect there is no freedom to contract by the parties

(consensus ad idem)

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VOID, VOIDABLE AND UNFORCEABLE CONTRACT
Void Contract
1. A void contract is one where the whole transaction is regarded as a nullity ab
initio (from the onset).
It means, at no time has there been a contract between the parties.
Such contracts include those which are prohibited by law or are against public
policy.
Any goods or money obtained under the agreement must be returned. Where items
have been resold to a third party, they may be recovered by the original owner.
See Article 139 of somalin civil code says

(If the agreement is false or annulled, the parties will be subject to their pre-
contract status, and if this is not possible the Court may award appropriate
compensation.)

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2. Voidable Contract
A contract which is voidable operates in every

respect as a valid contract unless and until avoided
(one of the parties takes steps to avoid it) or have it
set aside.
This is an agreement that is binding and enforceable

but because of lack of one or more of the essentials
of a valid contract, it may be set aside or avoided at
the instance (option) of the aggrieved party.
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Such contracts include: those entered into by minors (infants) for purchase of
share, those affected by duress, undue influence and other vitiating factors.
Anything obtained under the contract must be returned, in so far as this is

possible. If goods have been resold before the contract was avoided, the original
owner will not be able to reclaim them.
Unenforceable Contract
(Article 108 generally everyone has the ability to sign into a contract .
Article 109 , a person who is inexperienced does not have the power to control
everything and his judgment is null and void.
Article 110 (1) say a minor who can distinguish, no matter what he does, and his
dealings with his property is valid if that is to his advantage in a clear way,
except if there is a loss in the obvious.)
In law who is a minor?. See Article 29 PC 2012 and Articles 44 and 45 Civil code,

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Duress
Article 126 (1) Duress annuls an agreement if the party makes the
underlying threat to the other party aggressively
(2) The threat will be based if the claimant asserts that there is a serious
risk by limiting himself or others to life or property or honor or wealth.
(3) When considering coercion, gender, age, social status, health and any
factors that may increase the degree of coercion are taken into account.
All the above mentioned makes the contract voidable

NB, According Article 137 says If a party entitled to such right fails to
exercise it within a reasonable time, then the contract is said to have
been affirmed by him and from that time is said to be binding on him.

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3. An unenforceable contract is a valid contract but it cannot be enforced in the
courts if one of the parties refuses to carry out its terms.
A contract may be good, but incapable of proof due to lapse of time limitation
period), laches (needless delay or neglect) even though the statute of limitations
may not have expired.
Example: Mary bought a house from Pete using a written purchase and sale
agreement. After taking possession,
Mary discovers a small leak in a pipe in the crawl space of the house, but does
not take any action against Pete for four years.
The court decided that the contract was unenforceable because of Mary’s delay,
even though the Statute of Limitations had not expired.
In equity say (delay defeats justice) see also Article 137

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4. EXECUTED AND EXECUTORY CONTRACT
Executed Contract
Executed Contract means a contract that has been fully
performed by both parties. In other words, a contract whose
terms have been completely fulfilled. It could also mean a signed
contract. Once all parties sign the contract and the transaction is
closed, the contract is considered an executed contract.
Example: A and B agree to exchange A’s Scooter for B’s

motorcycle and they do it immediately, the possession and rights
to the goods are transferred together the contract is executed.

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Executory Contract
An executory contract is a contract made by two parties in
which the terms are set to be fulfilled at a later date. The
contract stipulates that both sides still have duties to
perform before it becomes fully executed.
Example: John has been looking at a TV he wants to

purchase. After some debate, he finally decides to go lease
it instead. John enters the electronics store, signs a lease
agreement that states the he will pay $100 per month until
the purchase price has been paid in full. Until John makes
the final payment, the contract has not been fulfilled.

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ESSENTIALS OR ELEMENTS OF AN ENFORCEABLE/VALID
CONTRACT
For there to be a valid contract, such contract must be

in accordance with the dictates of the law and must
contain the necessary ingredients for its enforceability.
(see Chapter one of Somali civil code 1973, Art 88-

125.
--OBLIGATIONS AND PERSONAL RIGHTS and GENERAL
RESPONSIBILITY)

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Essentially, the following are the elements of a
valid contract:
Offer;
Acceptance;
Consideration;
Capacity,
Intention to create legal relationship
Legality of the contract

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OFFER
An offer may be described as an expression of willingness by one
party (the offeror) to contract on certain terms specified by the
offer which if accepted by another person (the offeree) gives rise
to a binding contract. (See Art 88)
According to Art 89 an offer may be made expressly in words i.e.

orally or in writing or by conduct. It may be made to an
individual, a group of persons or the public at large.
The essential characteristic of an offer is that it must intend to

bind the parties without further negotiations.
An offer must be conclusive in nature and must leave no room
for negotiations.
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The first task of the plaintiff is to prove the presence of a definite offer
made to either a particular person or, as in advertisement of rewards for
services to be rendered, to the public at large.
In the famous case of Carlill v. Carbolic Smoke Ball Co. (1892) 2 QB 484 it
was strenuously argued that an offer cannot be made to the public at
large.
The defendants who were the proprietors of a medical preparation called

“The Carbolic Smoke Ball”, issued an advertisement in which they offered
to pay £100 to any person who submitted to influenza after having used
one of their smoke balls in a specified manner and for a specified period.
They added that they had deposited a sum of £1,000 with their bankers
‘to show their sincerity’. The plaintiff, on the faith of the advertisement,
bought and used the ball as prescribed, but succeeded in catching
influenza. She sued for the £100.
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The defendants among others, argued that the advertisement was a mere
‘puff’ never intended to create a binding obligation, that there was no offer
to nay particular person, and that even if there were, the plaintiff had failed
to notify her acceptance.
The Court of Appeal found no difficulty in rejecting these various pleas.

Bowen LJ stated that:
It was also said that the contract is made with all the world – that is, with
everybody and that you cannot contract with everybody. It is not a contract
made with all the world. There is the fallacy of the argument. It is an offer
made to all the world; and why should not an offer be made to all the world
which is to ripen into a contract with anybody who comes forward and
performs the condition? … although an offer is made to the world, the
contract is made with that limited portion of the public who come forward
and perform the condition on the faith of the advertisement.

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2. A mere invitation to treat is not an offer
An offer should be distinguished from an invitation to treat which in
law is treated as mere invitation for potential offers.
The major characteristic of an offer is that if it is accepted, it will

result into a binding contract.
An invitation to treat on the other hand, is where a party is merely
inviting prospective offers, which he is then free to accept or reject.
There is no contract that can result from it at that point before he
accepts.
By way of example, where goods are displayed in a shop window
with price tags on them, it is the customer or the prospective buyer
who must make an offer to the shop keeper by picking up the items
and tendering money.

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There are some offers which are not binding by
the party, these are following
Invitation to treat is not an offer
AUCTIONS
DISPLAY OF GOODS IN A SHOP
ADVERTISEMENTS
COMPANY PROSPECTUSES
SUPPLY OF INFORMATION
INVITATION TO TENDERS

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The offers which are not binding by the party is
called invitation to treat , these are according to
the Somali civil law 1963
Under Article 98 and 100

In the case of auctions, contracts are made by
examining the auction who offers the highest
price in accordance with the foregoing and
published terms and conditions of the auction or
if they fail to do so, in accordance with nature. the
use of rituals and rituals
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Article 100
(1) The agreement that one party promises or one
of them will enter into a binding agreement with
the other, does not make that agreement unless it
is unclear what all the factors that make up the
contract are and how long they must be made.
(2) If the law requires that the contract be made in

a certain manner in which it is sought to be
obtained, it must be protected by that form and the
promise concerning the contracting of the contract.
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invitation to treat
1. In an auction, the auctioneer’s call for bids has always been treated
as an invitation to treat or a mere request for offers.
His call for bids is not the offer itself.
The bids made by persons at the auction are offers, which the
auctioneer can accept or reject as he chooses.
Similarly, the bidder may retract his bid before it is accepted.
In Payne v. Cave (1789) 3 Term Rep 148, the defendant made the
highest bid for the plaintiff’s good at an action sale, but he withdrew
his bid before the fall of the auctioneer’s hammer. It was held that the
defendant was not bound to purchase the goods. His bid amounted to
an offer which he was entitled to withdraw at anytime before the
auctioneer signified acceptance by knocking down the hammer.

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DISPLAY OF GOODS IN A SHOP
The law is that display of goods in shop windows or shelves in a

self-service store even with the price marked does not amount to
an offer.
Rather, the intention is to invite persons to come forward and make
offers to buy.
It is the customer who makes an offer by asking to buy the goods
or by taking them to the cash desk, and the shop owner or his
employee may accept this offer by receiving the purchase price or
decline.
In Fisher v. Bell (1961) 1 QB 394, Mr. Bell was charged with offering
for sale a flick knife (a knife which opens by pressing a button) in
violation of the Restriction of Offensive Weapons Act, 1959.

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The relevant provision of which provided in part:
“Any person who manufactures, sells or hires or
offers for sale or lends or gives to any
person….. a flick knife shall be guilty of an
offence”. The trial court decided that there had
not been “an offer for sale” of the flick knife. On
appeal, the Queen’s Bench held that in the
absence of a definition of “offer for sale” in the
Act, the display of an article with a price on it in
a shop window is merely an invitation to treat.

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ADVERTISEMENTS
These are normally interpreted as invitations to treat. In Katalemwa
v. Attorney General, the question was whether a newspaper
advertisement amounted to an offer. The court held that an
advertisement calling for tenders is not an offer but an invitation to
treat.
In Partridge v. Crittenden (1968) 2 All ER 421, the appellant had
placed an advertisement indicating that he had certain wild birds
for sale. The advert did specify the price but gave no details about
delivery or quantities available. It was an offence to offer such birds
for sale. In order to prove the offence, it was necessary to prove
that the advert was an offer. The trial court was satisfied that the
advert was an offer and thus convicted the accused. On appeal, it
was argued that the advert was not an offer but a mere invitation to
treat.
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The appeal court held that the advert was not an offer but a mere
invitation to treat on the basis that the advert was not sufficiently
specific and it would be unreasonable to think that the appellant
was willing to be bound by any and every acceptance made.
However, advertisement may be construed as offers if they are
unilateral, that is open to the entire world to accept (for example,
offers for rewards). See Carlill v. Carbolic Smoke Ball Ltd.
COMPANY PROSPECTUSES
A prospectus issued by a company in order to invite the public to
subscribe for its shares is an invitation to treat, so that members
of the public can make offers to buy the shares and the company
in return accepts each offer by allotting shares to the subscriber
or reject such subscription

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SUPPLY OF INFORMATION
A reply given in answer to a request for information is not an
offer. Thus in Harvey v. Facey (1893) AC 552, H sent a
telegraph to P “will you sell us Bumper Hall Pen? Telegraph the
lowest price” P replied the telegram “lowest price for Bumper
Hall Pen £900” H sent another telegram “We agree to buy
Bumper Hall Pen for £900 asked by you. Please send us your
title deed” P made no reply. The court held that there was no
contract.
INVITATION TO TENDERS
Where a public or private authority advertises in a newspaper
inviting tenders. e.g. for carrying out of building works or
supply of goods, it makes not an offer but an invitation to
treat.
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An offer is made by each firm which submits a tender in
answer to the advert. The public or private authority being free
to accept or reject any tender.
The law is to the effect that where a person is invited to tender
under certain conditions and he complies, then he acquires the
right to have his tender considered along with other tenders.
The basis of this legal position is that there is an intention on
the part of the person inviting tenders that if and when a
tender is submitted in accordance with the terms and
conditions of the tender, a binding contractual obligation
arises.
The obligation is that a tender submitted in accordance with
the stated guideline and within the specified time limit must be
opened and considered with other tenders
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However, where a person is aware of the offer but
performs the act for a motive other than that of
claiming the reward, such motive is irrelevant and he is
entitled to the reward.
Thus, where P, knowing of the offer of a reward for
information leading to the conviction of a murderer,
supplied the information in order to “ease her own
conscience”, she was held entitled to claim the reward.
See Williams v. Carwadine (1833) EWHC KB J44.
It is worth noting that, for there to be a valid offer, it
must meet the following requirements:
It shall be unconditional;
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It shall be made at a time and place and under
circumstances that the person to whom it is
made has a reasonable opportunity of
ascertaining that the person by whom it is made
is able and willing to do what he or she is bound
to do by the promise; and
Where the offer is an offer to deliver anything to
the promise, the promise shall have a reasonable
opportunity to see that what is offered is what
the promisor is bound by the promise to deliver.

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TERMINATION OF AN OFFER
An offer may be terminated by any of the following events:
Lapse of Time
An offer which is expressly stated to last for a fixed time cannot
be accepted after that time and will lapse on expiration of the
period.
An offer which does not stipulate any time limit for acceptance, it
will lapse if not accepted within a reasonable time.
What is a reasonable time depends on such circumstances as the
nature of the subject matter and the means used to
communicate the offer.
Thus, an offer to sell perishable goods, or an offer made by
telegram would lapse after a short time, whereas an offer to sell
shares or land would remain open for longer period.
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Revocation (Withdrawal)
An offer can be revoked at any time before its acceptance .
This is the case even where the offeror has stated that his offer
is open for a specified period of time. Provided his promise to
keep the offer has not been accepted and is not supported by
consideration, it does not bind him and as such, he can revoke
his offer even within the period when the offer is open.
In Routledge v. Grant (1928) 4 Bing 653 where Grant offered
to buy R’s house. He gave 6 weeks within which R should
respond. Grant then withdrew the offer before the end of 6
weeks. It was held that the defendant was entitled to withdraw
his offer even before the 6 weeks has passed, if the offer had
not been accepted.

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An offer becomes irrevocable if the offeree starts to meet or comply with
conditions of performance or if he has given some consideration.
Although, revocation must be communicated to the offeree, it need not be
communicated by the offeror. It is effective if the offeree learns from any
reliable source that the offeror no longer intends to contract with him.
In Dickinson v. Dodds where the defendant offered to sell a house to the
plaintiff and promised to leave the offer open for a given time. Before the
expiration of the offer and before acceptance by the plaintiff, the
defendant sold it to a third party. However, the plaintiff was informed of
the sale by a third party.
By the time it was received, the house had been sold.. Dickinson claimed
an unlawful revocation and a breach of contract. The court held that the
revocation was acceptable and valid. Berry was shown to be a mutual
acquaintance on whom both could rely.
It is also a rule that revocation by Post Office will not come into effect
until it is actually received by the offeree.
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Death or Insanity of One of the Parties
If one of the parties dies then the effect on the offer and any potential
acceptance may be different depending on which party dies.
If the offeree dies then this will cause the offer to lapse and his
representatives will be unable to accept on his behalf.
This opinion was shared as an obiter in Reynolds v. Atherton (1921)
125 LT 690.
If an offeror dies, however, his representatives may still be bound by
an acceptance that is made in ignorance of the offeror’s death.
In Bradbury v. Morgan (1862) 1 H & C 249, X had written to the
plaintiffs, requesting them to give credit to Y and guaranteeing
payment of up to £100. the plaintiffs gave credit to Y. X then died,
and the plaintiffs in ignorance of this fact, continued the credit to Y.
The plaintiffs now sued X’s executors on the guarantee. It was held
that the defendants were liable
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Rejection by Offeree
An offer may be terminated by the offeree
rejecting the offer. A rejection cannot be
effective unless and until it is communicated to
the offeror.
Counter-Offer/Cross Offer
A counter offer is an attempt to vary the terms
of the offer

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Counter-Offer/Cross Offer
A counter offer is an attempt to vary the terms of the offer.
The effect of counter-offer is that it terminates an original offer
and the original offer cannot be revived by the person to whom it
was originally made even if he is prepared to accept the original
offer unconditionally.
In Hyde v. Wrench (1840) 3 Beav. 334, the defendant on 6 June
offered to sell an estate to the plaintiff for £1000. on 8 June, in
reply, the plaintiff made an offer of £950, which was refused by the
defendant on 27 June. Finally, on 29 June, the plaintiff, having
realized that the defendant was selling to another party, wrote that
he was now prepared to pay £1000. The plaintiff sued for an order
of specific performance, it was held that no contract existed.
See also Brogden v. Metropolitan Rly Co. (1877) App. Cas 666

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ACCEPTANCE
This is an indication to enter into and the will to be bound

by the contract. It is a positive response to an offer.
Once the existence of an offer has been proved, court must
be satisfied that the offeree has accepted the offer,
otherwise there is no contract concluded.
Under Article 90
The declaration of will ceases when the person is identified,
and it is presumed that the intended recipient has
discovered the will as soon as it is received unless otherwise
noted.
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Acceptance can be:
In writing
Oral form
By conduct
As Article 89 says
1. Desire can be expressed in oral, written or
commonplace directions, or it can be shown to take
unobtrusive positions that prove the purpose of the
parties as determined by specific circumstances.
2. Proof of acceptance can be silent if the Code does
not specify or the parties agree to be more explicit.
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Where there is no express acceptance, the
conduct of the parties must be looked at in
order to establish whether there is anything to
infer or imply an acceptance on the part of the
offeree.
See Carlill v. Carbolic Smoke Ball Co. (supra)
See also Brogden v. Metropolitan Rly Co.
(supra)

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Rules Governing Acceptance
Acceptance Only Effective if Communicated to
and Received by Offeror
For there to be a binding contract, acceptance
must be communicated and mere mental
intention to accept is not sufficient.
Communication means that the acceptance is
actually brought to the notice of the offeror.

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Silence Does not Amount to Acceptance
Acceptance must be communicated by the offeree or someone
authorized by him.
If someone accepts on behalf of the offeree without authorization,
this will not amount to a valid acceptance.
In Powell v. Lee (1908) 99 LT 284, the plaintiff applied for a job as a

headmaster and the school managers decided to appoint him. One
of them acting without authority, told the plaintiff that he had been
accepted. Later the mangers decided to appoint someone else.
The plaintiff brought an action alleging that by breach of a contract
to employ him he had suffered damages in loss of salary. The
county judge held that there was no contract as there had been no
authorized communication.

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Silence Does not Amount to Acceptance
Acceptance must be communicated by the offeree or someone
authorized by him.
If someone accepts on behalf of the offeree without authorization,
this will not amount to a valid acceptance.
In Powell v. Lee (1908) 99 LT 284, the plaintiff applied for a job as a

headmaster and the school managers decided to appoint him. One
of them acting without authority, told the plaintiff that he had been
accepted. Later the mangers decided to appoint someone else.
The plaintiff brought an action alleging that by breach of a contract
to employ him he had suffered damages in loss of salary. The
county judge held that there was no contract as there had been no
authorized communication.

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Consideration
A civil law system as discussed in the introduction is

generally more prescriptive than a common law system.
There is definitely less freedom of contract than in a
common law system. Many provisions are implied into a
contract by law and parties cannot contract out of certain
provisions.
Example under Article 146 of the Somali civil code,
If the agreement is made in a leadership style, and it is met
with a stricter requirement, it is up to the Judge to modify
or to waive that requirement in compliance, in accordance
with justice. There is nothing else to do otherwise
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Therefore less importance is placed on setting
out ALL the terms governing the relationship
between the parties to a contract. Rather than
be defined in the contract itself, such lacks or
ambiguities tend to be remedied or resolved by
operation of law. This will often result in a
contract being shorter than one in a common
law country.

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In common law
Consideration means a right, interest, profit or benefit accruing to
one party or forbearance, detriment, loss or responsibility given,
suffered or undertaken by the other party.
So if I contract with you for the sale and purchase of my Textbook

for 20,000/—, I am gaining the benefit of the 20,000/- but I have
the detriment of giving up the book. For you, it is the other way
round: you gain the book and give up the money.
The most comprehensive and most applied definition of
consideration is that of Lush J, in Currie v. Misa (1875) 1 AC 554“
said A valuable consideration in the eye of the law may consist either
in some right, interest, profit or benefit accruing to one party, or
some forbearance, detriment, loss or responsibility given, suffered or
undertaken by the other.
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Thus, consideration does not only consist of profit by one party but also
exists where the other party abandons some legal right in the present or
limits his legal freedom of action in the future as an inducement for the
promise of the first. So it is irrelevant whether one party benefits but
enough that he accepts the consideration and that the party giving it
does thereby undertake some burden, or lose something which in the
contemplation of the law may be of value”.
Another definition was given in the case of Dunlop v. Selfridge (1915) AC
847 where consideration was defined as the price for which the promise
of the other is bought and the promise thus given for value is
enforceable.
Consideration is thus essential for the formation of a contract. There
must be a quid pro quo (something for something).
In Rann v. Hughes (1778) Temple Rep 350, it was stated that in all
written contracts which are not by deed or a will, consideration must be
proved.
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Types of consideration
Executory consideration
Executory Consideration is simply the exchange of promises to carry out
acts or pass property at a later stage or in future.
For example, a promises to deliver goods to B at a future date and B
promises to pay on delivery of the goods. Their consideration is
executory.
If one party (A) breaks their promise and fails to do what they are
supposed to do, then the party (A) is in breach of contract and (A) may be
sued by B. If A delivers the goods delivers the goods then the
consideration is executed.
Executed consideration
This arises when a promise is made in return for the performance of an
act.
When the act is performed in return for a promise, the consideration is
referred to as executed consideration.
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The most common examples are offers or
reward by the owner of a lost article to anyone
who finds and return it to him or offers of
reward by the police to anyone who could give
information that can lead to the arrest of a
criminal. The offer of £100 in the case of
Carbolic Smoke Ball Company to anyone who
uses the smoke ball and still succumbs to
influenza was an excellent example of this
phenomenon.
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Past consideration
This is consideration that is given before the promise is made. Thus the
consideration and the promise are not part of the same transaction.
This kind of promise is in fact regarded as a mere expression of gratitude
for past favours done.
Thus in Re McCardle (1842) 2 Q.B 851, a testator died and left a house
jointly to his children. The wife of one of the children was living in the
house without her husband and carrying out developments and
renovations to the house which prompted the other children to jointly
signed a document agreeing to compensate her to the tune of 480
pounds, for money she expended to improving the house.
The Court accordingly held that since the performance of the act is prior
to the promise subsequently made, she is not entitled to the money. It is a
case of past consideration.
Note: As a general rule an agreement made without consideration is void
except under some exceptions
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Rules governing consideration
1. Consideration Must Not Be Past
It simply means that any consideration given cannot come
before the agreement but MUST follow it.
The rule applies where one party has done a voluntary act
and is trying to enforce the other party’s later promise to
pay.
The consideration is said to be past In brief, an agreement
has to be reached before giving consideration.
These rule helps prevent the unscrupulous from forcing
people into contracts on the basis of providing goods or
services, which they have not ordered.

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Consideration Must Move from the Promisee
to the Promisor
 The promisor is the person who makes the
promise and the promisee is the person to
whom the promise is made.
 This implies that if A wishes to sue
successfully upon a promise made by B, it is
essential for A as a recipient of the promise
(promisee) to show that he gave consideration
to B, the promisor.
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Consideration Must be Lawful
See Article 121 of the Somali civil code it says the
agreement can be revoked if it is made in an
arbitrary manner, when the terms of the actual
offense are found in accordance with the
preceding rules, unless otherwise stated by law.
To support a contract consideration must be
lawful. For a contract to be binding on both parties
the subject matter of the contract must be lawful.
This implies that it must not be prohibited by the
law or against public policy.
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, Contracts to sell an unlawful dangerous staffs (see Article 338 penal
code 1962)
This position of the law derives it basis from the case of Foster v.
Driscoll (1921) 1 KB 470.
In this case a contract was entered into for the buying of whisky and
reselling it in the U.SA which at that time had laws against alcohol,
commonly known at the time as “prohibition”. When the shipment was
not ‘paid for, the plaintiff sued for breach of contract; It was held that
the contract could not be enforced owing to its illegal nature.
 Illegal contracts involve some degree of moral wrong and an
element of crime, or fraud.
 Such contracts include the following:-
i. Courts will be unprepared to enforce a contract to commit a crime
of whatever sort in return for a payment.
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This is explained in the case of Dann v. Curzon (1910) 104
LT 66, the claimant had been hire to start a riot in a
theatre. When he sued for the unpaid fee of 20 pounds he
was unsuccessful. Court held that the action could not
succeed as it was an agreement to commit a crime and
against public policy.
ii. An agreement to defraud or deceive is also illegal. This
is explained in the case of Waldo v. Martin (1825).
 In this case an agreement was concluded to the effect
that the plaintiff would secure a job for the defendant who
agreed to pay part of the emoluments as a secret
commission. The defendant failed to pay. Court held that
the agreement was illegal and could not be enforced.
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Contracts to promote sexual immorality are not enforceable.
If a man promises to pay money to a woman as recompense for

sexual pleasure, such illicit intercourse is illegal and the contract is
unenforceable.
 The law in Somalia makes prostitution and living on earnings of
prostitution an offence.
This explanation was made in case of Pearce v. Brook (1866) LR 1 Ex
213. A prostitute was conducting her trade from hired carriages. She
engaged in this activity with the full knowledge of the party from
whom she hired the carriage. When she then failed to pay the fee
owed the owner’s action for the price failed. The contract was for
immoral sexual purposes and was known to be so by both parties.
As a result, it was against public policy and was unenforceable.

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Contracts damaging to public safety.
 In Furtado v. Rogers (1802). Lord Alvanley observed

“we are all of the opinion that it is not competent for
any subject to enter into any arrangement which may be
detrimental to the interests of his own country and such
a contract is as much prohibited as if it had been
expressly prohibited by the Acts of Parliament. The
detrimental contracts in this context are those intended
either to benefit an enemy country or to disturb the
good relations of the state with a friendly country.”

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Contracts damaging to the administration of justice.
It is a well-established rule that courts will neither enforce nor recognize an
agreement which has the effect of withdrawing from the ordinary course of
justice or prosecution of a public offence.
 Consequently an agreement to prevent or to compromise prosecution is
illegal and void even though the prosecutor derives no gain financial or
otherwise. ]
Contracts to corrupt public life. Contracts that have material influence to

diminish the respectability, responsibility and purity of public officers are
illegal.
The authority on this point is Parkinson v. The College of Ambulance Limited
and Harrison (1925). The first defendant was a charitable institution the
second defendant fraudulently represented to the plaintiff that the charity
would obtain him some honor if he could make suitable donation which he
did. No such honor was obtained for the plaintiff court held that the contract
was unenforceable.
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INTENTION TO CREATE LEGAL RELATIONS
In this chapter we shall discuss the following
the two different forms of
1. Intention in domestic/social arrangement:
this mostly include arrangements between
husband and wife; family members and
friends; and
2. Intention in business or commercial
arrangement.

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Family structure in Somalia is relatively traditional in Islam and thus
resembles how family life is organized in other parts of the African and
Arab (Muslim) world.
 An agreement between a husband and a wife who are living together
is, in the absence of contrary facts to show otherwise, presumed not to
create a legal relation between the parties.
 In Balfour v Balfour (1919) 2 KB 571 a husband who worked overseas in
Ceylon promised to pay maintenance allowance of £30 per month to his
wife who had to stay in England because of illness. The husband,
however, failed to pay. At later point in time the husband suggested that
the two should separate and the wife petitioned for divorce. Her claim to
payment of the allowance failed. The court held that the no legal
relations had been contemplated by the parties. It was purely a domestic
arrangement which the court felt was beyond its competence to interfere
in what was a purely domestic arrangement and therefore the agreement
was not legally enforceable.
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However, an agreement between husband and wife may in a
given case be held to create legal relations.
 In Merritt v. Merritt (1970) 1 WLR 1211, a husband deserted
his wife for another woman. The marital home was in joint
names. Later the two parties made an agreement in which the
husband agreed to pay the wife £40 per month out of which
she was to pay the outstanding mortgage for their marital
home and that on completion of payment of the mortgage, the
husband would transfer the house to the wife. The wife took
the document and later paid off the mortgage. The husband
subsequently refused to effect the transfer of the property into
her names and the wife sued. It was held that the parties had
intended to create legal relations and that an action for breach
of contract could be sustained by the wife.
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This decision has been seen as having been reached by the
court because the agreement was made when the parties
were already living in separation.
Even more importantly, the wife had at the time of the
arrangement got her husband to put in writing that he would
transfer title in the property to her on completion of the
mortgage.
However, agreements made between wife and husband which
are clearly not of a domestic nature are valid and enforceable.
For example, a husband can be a tenant to his wife.
However, in circumstance where the terms of the contract are
left ambiguous and uncertain it will be concluded that there
was no contractual intention.

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Agreements between parents and their children may also face a similar
problem. In the case of Jones v. Padavatton (1969) 2 All ER 616 where
court held that a mother who had promised her daughter that she would
provide an allowance to allow the daughter to complete her legal studies
was not liable for breach of contract when she later withdrew from the
arrangement. This is because it was a family arrangement and there was
no intention to create legal relations. The daughter had unwillingly
accepted the offer to go and study to be a barrister. The court described
the arrangement as falling in a class of family agreements which
depended on the good faith of the promises which are made and
Exceptions
 Where the parties have expressly agreed that the agreement shall be
binding.
 Where the parties are husband and wife, but they are not living in good
terms particularly when their relationship has degenerated to a level of
mutual hostility and distrust or they are separated.
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Where the agreement is tainted with a commercial purpose.
 In Simpkins v. Pays (1995) All ER 10, the defendant owned a house in
which she lived with her granddaughter. The plaintiff was a paying
lodger. The three of them regularly entered a competition in a Sunday
Newspaper.
 The entries were sent in the entry name of the defendant but all the
three contributed. One week after, the entry was successful and the
defendant won a prize of 750 pounds. The plaintiff claimed a third of
this sum but the defendant refused to pay on the ground that there was
no intention to create legal relations. The court held that the agreement
was intended to be legally binding, having been tainted with commercial
purpose.
Where the performance of a domestic or social agreement involves great

sacrifice on the part of one or both parties, and the plaintiff has
performed his own part of the agreement.
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Commercial/Business Agreements
 In commercial or business transactions, there is a
general presumption that the parties intend to create a
legal relationship except when this presumption is
expressly rebuttable on the facts.
 The presumption can only be denied by strong evidence
such as a clear statement in a written contract. As
mentioned in the previous chapter of the meaning of the
contract
 In Rose & Frank & Co v. J.R Crompton (1923) 2 KB 261,
an exhaustive agreement was drawn between one American
and two English firms for their dealings in paper tissues.

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The agreement contained the following clause:
“This agreement is not entered into as a formal
legal agreement and shall not be subject to a
legal jurisdiction in the law courts either in the
U.S or in England”.
The agreement was terminated by one of the
parties contrary to its terms. The American firm
brought an action for breach. The court held that
the document did not constitute a binding
contract as there was no intention to effect legal
relations.
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CAPACITY TO CONTRACT
 Introduction
 Minors or Infants
 Corporations
 Insane or Person of Unsound Mind
 Illiterates

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The general rule is that every person is presumed to have the
capacity to contract. The onus is therefore on a party alleging
incapacity to prove it.
This is aimed at promoting freedom of contract.
The logic of the rule of capacity is to protect certain types of
people who may enter into a contract either for their own
protection or for the protection of the party who contracts with
them.
This helps avoid unfair advantage being taken by a party in a
superior position.
There, are four classes of natural persons who may be affected
by capacity: minors, people who are drunk when the contract is
formed, mental patients (those suffering from mental illness
when the contract is formed) and illiterates.
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MINORS OR INFANTS
A minor is defined by the Constitution of Somalia as a
person who has not attained the age of 18.
(3) of Article 29 of FCS 2012 says that No child may
perform work or provide services that are not suitable for
the child’s age or create a risk to the child’s health or
development in any way.
Generally contracts entered into by a minor are divided into
three categories the different categories in essence
represent different consequences for the parties to the
contract in each case.
The three categories are: valid, void and voidable contracts.

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Art 29 (8) of FCS 2012 states that a minor means a person
less than 18 years of age. According to Juvenile Courts
and Reformatories Law no. 13 of 8 March 1970 says
“Young person” means a person who has attained the age
of fourteen years and is under the age of eighteen years;
Article 108 generally everyone has the ability to sign into
a contract.
Article 109 of Somali civil code provides a person who is
inexperienced does not have the power to control
everything and his judgment is null and void but with the
exception of the necessity and for the benefit of the
minor.

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Article 110 (1) say a minor who can distinguish, no matter
what he does, and his dealings with his property is valid if
that is to his advantage in a clear way, except if there is a
loss in the obvious.)
Article 111 of Somali civil code
A minor is a person eighteen years of age, it can manage its
property in accordance with the law,
This is that every person has capacity to contract where the
person is:
a) eighteen years and above
b) of sound mind and
c) not disqualified from contracting by any law to which he
or she is subjected]
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Valid or Enforceable Contracts against Minors]
Contracts, which are binding on a minor, are contracts of
necessities and contracts of service.
 Necessities of life are defined under the Sale of Goods Act
as goods suitable to the condition in life of an infant and to
his actual requirement at the time of sale and delivery (at the
time when the contract is formed).
 Necessaries include services and goods, food, shelter,
medical care education and other services like legal advice.
i. Contracts of Necessaries
 The law defined Necessaries as goods suitable to the
condition in life of such infant/minor…. and to his actual
requirements at the time of sale and delivery
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Necessaries include not only necessary goods but also
such essentials as board or lodging, medical expenses,
food and clothing for the infant’s wife or children
Although a minor is liable on contracts of necessities
of life the burden is on the plaintiff or seller to prove
that not only the goods supplied were suitable to the
condition of life of an infant, but that the minor was
not adequately supplied.
In brief the seller has to prove that the goods sold to
the minor are necessaries and that the minor was not
adequately supplied with the item or has need of them
by the time of the contract.
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This position of the law has been pronounced in the case of Nash v.
Inman [1908] 2 KB 1.
In this case the plaintiff who was a tailor, in the course of three
months sold 11 fancy waistcoats to the value of the £145 to the
defendant who was an infant and ‘undergraduate of Cambridge.
The infant failed to pay and the plaintiff sued for the price. The
defendant father proved that minor was an infant and was
sufficiently supplied with proper clothing’s according to his
position. It was held that the defendant ‘was not liable on the
contract as there was no evidence to’ prove that the goods supplied
were necessaries of life, which had not, been sufficiently supplied
to the minor.
This is because facts showed that the minor was already adequately
supplied with clothes therefore those that the tailor supplied could
not be classed as necessaries.
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Contracts of Service
 These are contracts entered into to support the minor
financially and are usually beneficial in nature to the minor.
 Such contracts entered into by the minor are enforceable and
valid.
 Article 110 (1) say a minor who can distinguish, no matter
what he does, and his dealings with his property, the contract is
valid if that is to his advantage in a clear way, except if there is
a loss in the obvious.
This means that a person of 16 years and above can enter into a
contract of employment. However, the terms of the contract
should benefit the minor. The employment should not be
exploitative or hazardous to the health and education of the
minor.
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Examples of contracts beneficial to the minor include
contracts for education, contracts enabling a minor to earn
a living or improve their skills, occupation or profession.
This is illustrated in Roberts v. Grey (1913). The defendant,
an infant and professional player agreed with the plaintiff
(who was a leading professional player) to accompany him
on a world tour competing against each other in matches.
The plaintiff made all the necessary arrangement but the
defendant declined to go and repudiated the contract. The
plaintiff sued and court observed that the contract was for
the infant’s benefit, as he would gain experience and fame
by his association with the outstanding player like the
plaintiff
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The same observation was made in Doyle v. White City Stadium [1935)1 KB
110.
 A minor who was a professional boxer entered into a contract with the British
Boxing Board of Control. Under the agreement, the minor would loose his
purse (payment for the fight if he were disqualified). The agreement was held
to be binding on the minor since it was to encourage not only clean fighting,
but also proficiency in boxing, and was therefore for the benefit of the minor.
 However, where a contract is made up of terms which are predominantly
detrimental to (not for the benefit of) the minor, the court will invalidate the
whole contract.
In De Francesco v Barnum (1890) 45 Ch 430, a 14-year-old girl entered into a
7-year apprenticeship with De Francesco, to be taught stage dancing. By a
partnership deed, the girl agreed that she would be at de Francesco’s total
disposal during the 7 years and that she would accept no professional
agreements except with his express approval. He was under no obligation to
maintain her or to employ her. In the event that he employed her, the payment
was extremely

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Contracts Avoidable by Minors
 These are contracts that are binding on the minor during
his or her infancy and he or she is entitled to repudiate or
reject his obligations under the contract while still a minor or
within a reasonable time after reaching the age of 18 years.
The common feature of such contracts is that they involve
subject matter of some permanency.
They are contracts of Continuous or recurring obligations.
They involve long-term interests and the law considers that
while a minor should be able to enter such contracts, the
minor should also be in a position to repudiate all obligations
and avoid further liability provided that the repudiation
occurs early.
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Contracts Void and Unenforceable against Minors
 These are contracts, which do not bind a minor.
 They include: contracts of trade, contracts for the repayment of money
lent or to be lent, contracts for the supply of goods that are not
necessaries.
i. Trading Contracts
 Minors cannot be held responsible for trading contracts and such
contracts are not binding however beneficial they may be to the minor.
 Thus if an infant receives goods on credit and sells them in the course
of his business for cash, the minor is not bound to pay for the goods. In
Mercantile Limited Union v. Ball [1937] the defendant, an infant, hired the
plaintiff company lorry. He refused to pay the hire purchase price. The
plaintiff contended that it was for the defendants benefit. Court held that
trading Contracts whether beneficial or not, are not binding on the
infant.

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CORPORATIONS
 A corporation is a body or artificial person accepted in law as having its
own separate legal personality Corporations can take two basic forms:
i. Those created by statute (Statutory corporations or parastatals) these
have powers conferred upon them by the statute creating them; and
ii. Those created under the Companies Act generally referred to as
companies.
 Like natural persons, a corporation can enter into valid contract and sue
or be sued in its own name.
They can own property and dispose it off, they can enter into tenancy
agreements and occupy the premises, they can enter into contracts of
employment etc.
A corporation is made up of a variety of people, whether employees or
officers. However, while it is these individuals who run the business of the
corporation and make contracts on behalf of the corporation, they can
neither sue or be sued.
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INSANE PERSON OR PERSONS OF UNSOUND MIND
Article 112 of Somali civil code says that the court will remove from the
custody of a person who is mentally ill, mentally, foolish and insane and
shall return it in accordance with the procedures and steps set out in the
Law. Article 114 Obliterations by an incapacitated person due to madness
or innocence, after registering for self-determination, shall be regulated
by the immaturity of the minor.
Contracts that are made prior and decision are invalid and may be
revoked if they do not result in collusion.
In considering contracts entered into by a party mentally disordered, court
will make an inquiry as to whether at the actual time of contracting that
party was actually suffering from a mental disability to the extent that he
was incapable of understanding the nature of his acts when forming the
contract.
See the case of Imperial Loan Co v. Stone (1892) 1 QB 99.

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DRUNKENNESS
 When a party who is drunk enters into a contract, he is
given certain protection provided that;
i. He does not know the quality of his actions at the time the
contract is formed; and
ii. His drunkenness is also evident to the other party to the
contract.
 In such a situation, the contract is voidable at the instance
of the drunkard on his return to a sober state.
 However in cases where the drunken party ratifies the
contract, such a contract is valid and enforceable.
See Mathews v Baxter (1873) LR 8 Exch 132

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ILLITERATES
 At common law, the defence of non est factum may be available to an
illiterate person who signs a document under a fundamental mistake as to
its nature or contents.
 Ugandan law, unlike English law, contains provisions regulating the
contractual capacity of illiterates.
 In Somalia there is no Illiterates Protection laws
 This protection is only in respect of written documents. Where an
illiterate enters into an oral contract, he is in the same position as any
other person.
Limitation of Protection: The essence of the law is to protect the illiterates

and not to be used as an engine of fraud.
 An illiterate person may not use the provision of these laws as a means
of fraudulently evading trading obligation whose implication he was fully
aware of at the time at the time of the bargain was struck.
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Chapter five
Legal system;
What is legal system?

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There are generally considered to be five legal systems in the world today:
civil law, common law, customary law, religious law, and mixed legal systems.
Civil law systems
Civil law systems have their origin in the Roman legal tradition.
Civil systems vary widely, both in procedure and substantive law, so conducting
research on a particular nation's civil law system should include looking at that
nation's specific system of law, but they do have some trademark characteristics.
Nations with civil law systems have comprehensive, frequently updated legal
codes.
Most importantly, case law is a secondary source in these jurisdictions. France

and Germany are two examples of countries with a civil law system.

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Common law systems,
Common law system while they often have statutes, rely

more on precedent, judicial decisions that have already been
made.
Common law systems are adversarial, rather than

investigatory, with the judge moderating between two
opposing parties.
The legal system in the United States is a common law

system (with the exception of Louisiana, which has a mix of
civil and common law).
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Customary law systems are based on designs of behavior (or
customs) that have come to be accepted as legal requirements or
rules of conduct within a particular country.
The laws of customary legal systems are usually unwritten and

are often dispensed by elders, passed down through generations.
As such, customary law research depends greatly on the use of

secondary sources.
Oftentimes, customary law practices can be found in mixed legal

system jurisdictions, where they've combined with civil or
common law.
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Religious legal systems are systems where the
law emanates from texts or traditions within a
given religious tradition.
Many Islamic nations have legal systems based
in whole or in part on the Quran.
Mixed legal systems refer to legal systems

where two or more of the above legal systems
work together.

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Somali legal system
The Somali Legal system: mixed legal system of civil law, Islamic law, and
customary law (referred to as Xeer)
Definition:
This entry provides the description of a country's legal system. A statement
on judicial review of legislative acts is also included for a number of
countries.
The legal systems of nearly all countries are generally modeled upon
elements of five main types: civil law (including French law, the Napoleonic
Code, Roman law, Roman-Dutch law, and Spanish law);
common law (including United State law); customary law; mixed or

pluralistic law; and religious law (including Islamic law).
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An additional type of legal system -
international law, which governs the conduct of
independent nations in their relationships with
one another - is also addressed below.
The following list describes these legal

systems, the countries or world regions where
these systems are enforced, and a brief
statement on the origins and major features of
each.
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Civil Law –
The most widespread type of legal system in the world, applied in various forms in
approximately 150 countries.
Also referred to as European continental law, the civil law system is derived mainly
from the Roman Corpus Juris Civilus, (Body of Civil Law), a collection of laws and
legal interpretations compiled under the East Roman (Byzantine) Emperor Justinian I
between A.D. 528 and 565.
The major feature of civil law systems is that the laws are organized into systematic
written codes.
In civil law the sources recognized as authoritative are principally legislation -

especially codifications in constitutions or statutes enacted by governments - and
secondarily, custom.
The civil law systems in some countries are based on more than one code.
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Common Law –
A type of legal system, often identical with "English common law," which is the
system of England and Wales in the UK, and is also in force in approximately
80 countries formerly part of or influenced by the former British Empire.
English common law reflects Biblical influences as well as remnants of law

systems imposed by early conquerors including the Romans, Anglo-Saxons,
and Normans.
Some legal scholars attribute the formation of the English common law system
to King Henry II (r.1154-1189).
Until the time of his reign, laws customary among England's various manorial
and ecclesiastical (church) jurisdictions were administered locally. Henry II
established the king's court and designated that laws were "common" to the
entire English realm.
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The foundation of English common law is "legal
precedent" - referred to as stare decisis,
meaning "to stand by things decided."
In the English common law system, court

judges are bound in their decisions in large
part by the rules and other doctrines developed
- and supplemented over time - by the judges
of earlier English courts.

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Customary Law –
A type of legal system that serves as the basis of, or

has influenced, the present-day laws in approximately
40 countries - mostly in Africa, but some in the Pacific
islands, Europe, and the Near East. Customary law is
also referred to as "primitive law," "unwritten law,"
"indigenous law," and "folk law."
There is no single history of customary law such as

that found in Roman civil law, English common law,
Islamic law, or the Napoleonic Civil Code.
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The earliest systems of law in human society were customary, and usually
developed in small agrarian and hunter-gatherer communities.
As the term implies, customary law is based upon the customs of a

community. Common attributes of customary legal systems are that they
are seldom written down, they embody an organized set of rules regulating
social relations, and they are agreed upon by members of the community.
Although such law systems include sanctions for law infractions, resolution
tends to be reconciliatory rather than punitive. A number of African states
practiced customary law many centuries prior to colonial influences.
Following colonization, such laws were written down and incorporated to

varying extents into the legal systems imposed by their colonial powers.

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International Law –
The law of the international community, or the body of customary rules and treaty
rules accepted as legally binding by states in their relations with each other.
International law differs from other legal systems in that it primarily concerns
sovereign political entities.
There are three separate disciplines of international law: public international law,
which governs the relationship between provinces and international entities and
includes treaty law, law of the sea,
international criminal law, and international humanitarian law;

private international law, which addresses legal jurisdiction; and multinational law
- a legal framework wherein countries are bound by regional agreements in which
the laws of the member countries are held inapplicable when in conflict with
supranational laws.

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At present the European Union is the only entity under a supranational
legal system.
The term "international law" was coined by Jeremy Bentham in 1780 in his
Principles of Morals and Legislation, though laws governing relations
between states have been recognized from very early times (many
centuries B.C.).
Modern international law developed alongside the emergence and growth

of the European nation-states beginning in the early 16th century. Other
factors that influenced the development of international law included the
revival of legal studies, the growth of international trade, and the practice
of exchanging emissaries and establishing legations.
The sources of International law are set out in Article 38-1 of the Statute
of the International Court of Justice within the UN Charter.
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Islamic Law –
The most widespread type of religious law, it is the legal system enforced in over 30
countries, particularly in the Near East, but also in Central and South Asia, Africa, and
Indonesia.
In many countries Islamic law operates in cycle with a civil law system. Islamic law is
embodied in the sharia, an Arabic word meaning "the right path." Sharia covers all
aspects of public and private life and organizes them into five categories: obligatory,
recommended, permitted, disliked, and forbidden.
The primary sources of sharia law are the Qur'an, believed by Muslims to be the word of
God revealed to the Prophet Muhammad by the angel Gabriel, and the Sunnah, the
teachings of the Prophet and his works.
In addition to these two primary sources, traditional Sunni Muslims recognize the
consensus of Muhammad's companions and Islamic jurists on certain issues, called
ijmas, and various forms of reasoning, including analogy by legal scholars, referred to as
qiyas. Shia Muslims reject ijmas and qiyas as sources of sharia law.
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Mixed Law –
Also referred to as pluralistic law, mixed law

consists of elements of some or all of the other main
types of legal systems - civil, common, customary,
and religious.
The mixed legal systems of a number of countries

came about when colonial powers overlaid their own
legal systems upon colonized regions but retained
elements of the colonies' existing legal systems.
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Chapter six
Intellectual property law
Summary
Intellectual property law
The topic reviews the Law governing intellectual Property
Rights, identifies areas requiring reform relative to
international treaties and the proposals.
Finally is treatment of intellectual property rights management

geared towards the development of research findings into
innovations, transfer thereof to users and private sector aimed
at their commercialization and exploitation.
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Introduction
It is intended to present an overview of the law governing
intellectual property rights in Somalia, followed by an
examination of areas thereof requiring reform, particularly
in view of International Treaties which have introduced
change in the intellectual property rights regime.
The discussion is divided into nine sections including the

introduction and conclusion and sections dealing
specifically with copyrights, patents, trade marks, designs,
geographical indications and policy aspects of the
management of intellectual property rights.

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Copyrights
Copyright is a legal right, existing in many countries, that grants the creator of
original work exclusive rights to determine whether this original work may be
used by others.
1. Eligibility
Works eligible for copyright include literary works, musical works, artistic works,
cinematography films, gramophone records and broadcasts
For such works to become eligible for copyright, sufficient effort must have been
expended to make the work original in character and the work must have been
written down, recorded or otherwise reduced to material form with or without
consent or be a work which is intended to be used by the author as a model or
pattern to be multiplied by any industrial process
The duration of a copyright is generally fifty years

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Consequences of Copyright
The owner of a copyright is entitled to the
exclusive right to control or do in that country
or other country the distribution of copies;
public performance for payment in the case of
literary, musical or artistic works; public
exhibition for payment in the case of films;
public communication in the case of
broadcasts and broadcasting in respect of all
the works
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The copyright is, however, limited by a law in that it does not apply to
the distribution, performance and broadcasting: for purposes of
criticism, review or the reporting current events if such public use is
accompanied by an acknowledgement of title and authorship; by way of
imitation, for inclusion in a film/broadcast of an artistic work located in a
place where it can be viewed by the public; involving the incidental
inclusion of an artistic work in a film or broadcast; involving the inclusion
of not more than two short passages of the work where the collection is
designed
for use in educational institutions and carries an acknowledgement of

the title and author of the work; involving the use of the work for
purposes of instruction in educational institutions;
involving the distribution of sound recording of a published literary or

musical work for which fees have been paid to the copyright holder.
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Ownership of Copyright
The incidents of ownership of a copyright are the rights to:
have the copyright vest in the author; assign ownership, and
license the copyright.
The breach of the copyright entitle the owner to damages for

the loss arising from the infringement, an injunction to restrain
further infringement and an injunction requiring the delivery
up to the court and destruction or other disposal of copies or
articles directed by the Court With regard to licensing, the
Minister may intervene to grant a licence in respect of the use
of a copyright if the licence has been unreasonably withheld by
the owner or has been granted on unreasonable terms

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Is there copyright liability in Somalia
Somali background of copy right

In the late 19th century the British and Italian empires established
the colonies of British Somaliland and Italian Somaliland. Italian
occupation lasted until 1941, when a British military
administration took over.
In 1949 Italian Somaliland became a United Nations Trusteeship

under Italian administration. The two regions united on 1 July
1960 to form the independent Somali Republic.
On 18 May 1991 the former British Somaliland unilaterally declared

independence from Somalia.
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Copyright in British Somaliland was covered by the
1911 Copyright Act, which was superseded by the
Copyright Act 1956. Italian laws covered Italian
Somaliland.
These two sets of laws remained in force in the

respective regions until the Somali Democratic
Republic passed the first Copyright Law, Law No. 66
of 7 September 1977.[1] The 1977 law does not
appear to have been widely used or enforced, and it is
unclear whether it is relevant to the breakaway state
of Somaliland.
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As of 2018 the World Intellectual Property Organization
(WIPO), an agency of the United Nations, did not list any
IP laws enacted by the legislature of Somalia.
The Ministry of Education, Culture & Tourism has

published a press law dated June 2017 on the
government website, which refers to copyright.
The law does not specify a duration and is unclear.

The United States Copyright Office declares the state of
copyright relations with Somalia to be "unclear, as
opposed to none.
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Islam and intellectual property
According to a statement of the Islamic Fiqh

Council:
Trade names, business names, trademarks,
written works, inventions and patents are all
rights that belong to their owners or authors.
According to modern customs and usage they
have acquired considerable monetary value. These
rights are respected in sharee‘ah and it is not
permissible to transgress against them.
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The fact that rights are reserved for the authors does not mean that it is
not allowed to quote from the works and make use of and benefit from
what they contain of knowledge and goodness.
Therefore there is nothing wrong with a person quoting or making use of

these works, on condition that he attributes the quotation to the source.
Daliil/reference,
Quran says- O you who believe, fulfill the contracts.” (Al-Ma’idah:
Also, the Prophet, peace and blessings be upon him, said, “Muslims
must abide by their agreements, except an agreement that make Haram
(unlawful) what is Halal (lawful) or make Halal what was Haram.” (At-
Tirmidhi, Hadith No. 1272)

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Human right recognition in intellectual property
The protection of the moral and material interests resulting from any
scientific, literary or artistic production is now also recognized as a
‘human right’, for example, in the following international instruments.
UDHR (1948) - Art. 27:

(1) Everyone has the right freely to participate in the cultural life of
the community, to enjoy the arts and to share in scientific its
benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author’.

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International treaties on copyrights
The treaty which is particularly relevant in this regard is the
World Trade Organization (WTO) Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS) of 1994.
In relation to copyrights, TRIPS requires

(a) Compliance with Articles 1 to 21 of the Berne Convention
1971;
(b) Protection of computer programs constituting intellectual
creations;
(c) Recognition of the right by the authors of computer programs
and cinematographic works to prohibit the commercial rental to
the public of originals or copies of their copyright works;

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(d) Protection of a work for at least 50 years from the end of the calendar year of
authorized publication or within 50 years from the making of the work;
(e) Limitation or exceptions to exclusive rights should not conflict with a normal
exploitation of the work and not unreasonably prejudice the legitimate interests of the
right holder;
(f) Recognition of phonogram performers and producers to prevent the fixation,

unfixed performance and reproduction of such fixation as well as the broadcasting by
wireless and communication to the public of their live performance and also prohibit
direct/indirect reproduction of their phonograms.
(g) Recognition of broadcasting organizations to restrict
(i) the fixation;

(ii) (ii) reproduction of fixation;
(iii) (iii) rebroadcasting by wireless mean; and
(iv) (iv) communication to the public of television broadcasts of the above.

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Essentially the Art 8 of WIPO Copyright Treaty
permits the authors of Literary and artistic
works the exclusive rights of authorizing any
communication to the public of their works by
wire or winders means, including making
available to the public of their works.
In such a way that members of the public may

access the works in a place and time chosen by
them.
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Patents
Patentability
It is defined as an invention as a solution to a specified
technological problem, which may be or may relate to a
product or process. However the following are not
inventions:
(a) Discoveries and scientific and mathematical theories;
(b) Plant/animal varieties or biological processes for the
production of: plants, animals
(c) Schemes, rules or methods for doing business performing
purely mental acts or playing games;
(d) Methods of treatment of the human animal body;
(e) Mere presentation of information

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An invention is new if it is not anticipated by prior art.
An inventive step means that having regard to novelty

a step would not have been obvious to a person
skilled in the art on the date of filing an application
for grant of a patent or if priority is claimed on the
priority date validly claimed for it
Industrial application means that an invention is

capable of being technologically made or used in any
kind of industry

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Grant of a Patent
An application for the grant of a patent is lodged
to the Registrar of patents by the applicant or his
agent.
Certain particulars should accompany the

application. These include: a description of the
invention; claim defining the matter to be
protected; relevant drawing; abstract containing
technical information to be used to interpret the
scope of the protection sought and relevant fee
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The application may relate to one or groups of
invention which are linked to form a single inventive
concept.
Upon being satisfied by the applicant, the Registrar
grants the patent and issues the relevant certificate
and records the patent in the Register of Patents.
A patent granted to the applicant by the African
Regional Intellectual Property Organization (ARIPO)
(Harare Protocol on Patents & Industrial Design, 1982)
has the same effect as one granted under the Patents
Act except where the Registrar has notified ARIPO
office that the patent shall be ineffective in Somalia.
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Ownership of a Patent
(a) Duties
The Owner of a patent is required to disclose
the invention clearly and completely and also
indicate the best method of its execution; work
the patented invention within the prescribed
time; pay the prescribed fees; pay the annual
fee to maintain the application or grant.

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(b) Rights
The owner of a patent is entitled to the exclusive
right to make, use, exercise, vend the invention
and preclude any person from exploiting the
patented invention without his/her authority;
assign or transfer by succession the application
for a patent or patent; institute violation
proceedings in court to secure damages, an
injunction to prevent the infringement or
continuing infringement, any other civil remedy

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(c) Limitation on the Owner’s Rights
The use of the owner of a patent are limited to the terms of
the claims and the use of the patented invention for
industrial or commercial purposes.
The rights of the owner are not trespassed by acts done in

pursuance of research; acts in respect of articles which have
been put on the market in Somalia by the owner of the
patent or with his express consent, the use of a patented
article on foreign aircrafts, land vehicles or vessels of other
countries which temporarily or accidentally enter the
borders of Somalia; acts done in good faith before the filing
or determination of the priority date of the patent.
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Trademarks
Definition
A trademark is a mark used or proposed to be used
in relation to the goods for the purpose of indicating
a connection in the course of trade between the
goods and some person having the right as a
proprietor or registered user to use the mark.
In relation to a certification trademark this means a

mark registered or deemed to have been registered
under the laws related to trade marks.
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Registration
General
The Minister is empowered to elect a registrar of trademarks
who keeps a record of trademarks.
There is entered in the register: all registered trademarks

with the names, addresses and descriptions of their
proprietors; notification, assignments and transmissions;
the names, addresses and descriptions of all registered
users; disclaimers, conditions,
limitations and such other matters relating to registered

trademarks as may be prescribed.
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Violation through Breach of Restrictions
Violation occurs where a purchaser or owner of the goods has
undertaken not to do the following, but nevertheless does them:
i. Applying the trademark upon goods after they have been changed
with regard to their state, condition get-up; or packing;
ii. Where the trademark is on the goods, the alteration, part removal or
part obliteration thereof;
iii. Where the trademark is on the goods, the application of any other
trademark to the goods;
iv. Where the trademark is on the goods, the addition to the goods of
any written matter likely to injure the reputation of the trademark
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Methods of registration
The following elements are essential to registration:

(i) Name of company/individual/firm represented in a
special or particular manner;
(ii) Signature of the applicant/predecessor in the
business;
(iii) The invented word(s);
(iv) Word(s) with no direct reference to the character of
the goods and not being a geographical name or
surname;
(v) Any other distinctive mark other than the above

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Trademark is not registrable if its use is:
(i) likely to deceive or cause confusion, is disentitled to
protection of a court or is contrary to law or morality or is
a scandalous design
(ii) In relation of any goods/description of goods identical to

a mark belonging to a different proprietor and already
registered in respect of the same goods/description of
goods or that so rarely resembles such a trademark as to
be likely to deceive or cause confusion.
The court may in special circumstances waive the restrictions

above and allow registration on certain conditions/limitations
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Procedure for Registration
A proprietor of a trademark should make a written application to the Registrar, who may refuse
the application, accept it absolutely or subject to amendments, modifications, conditions or
limitations as he/she thinks rights.
An application for registration in one part of the register may be treated as an application for
registration in another part.
The Registrar should state reasons for his/her decision, which is appealable to the High Court
The application for registration should be advertised normally in the Gazette and other media to
enable those opposed to it to give notice to the Registrar, which is referred to the applicant.
The final decision of the Registrar is appealable in the High Court.
After the above process the Registrar shall register the trademark either in Part A or B of the
Register and issue a Certificate of Registration.
Duration of Registration
The registration of a trademark is seven years and may be renewed

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Conclusion
At the practical level, institutional intellectual
property rights management policies are
desirable to facilitate the translation of
research findings into innovations, inventions
and subsequent commercialization thereof.

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Chapter seven
family law
The greatest desire of all young men and women who reach the age of puberty is to
marry.
Through the establishment of a joint marital life, they would earn more independence,
as well as have a kind and trustworthy partner. They regard marriage as the beginning
of their lives of prosperity.
Man has been created for woman and vice versa. They are attracted to each other like
magnets. Marriage and establishing a joint life is a natural desire of human beings
responding to their instincts. It is considered one of the greatest Divine blessings.
See Art, 28 Cons 2012
In fact where else could one find a better shelter for the youth than a sincere family
unit? It is the desire of raising a family which preserves the youth from pursuing
irrational dreams and internal anxieties.
The marital union enables them to find a kind and faithful partner who could share the
hard and difficult times.

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Islam
Law
Custom, case, Hassan Hussein and Isman Farah
v. Sulbub, Shamis Godleh v hawira Godleh
1965

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The blessed marital covenant is a Divine rope which links the hearts,
calms them when they become unsettled and focuses irrational
dreams on one ideal goal.
The house is the center of love, kindness and friendship, whereby it is

the best place to relax and live comfortably.
The Almighty Allah mentions this blessing in the Holy Qur'an:
"And one of His signs is that He created mates for you from
yourselves that you may find rest in them and He put between you
love and compassion; most surely there are signs in this for a people
who reflect." (30:21)
The Prophet (SA) of Islam stated: "A man who is not married, even
though he may be wealthy is surely poor and needy; and the same is
true for a woman."
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Introduction The social order of every society, evolves
around several instincts and out of those two are not only
powerful rather make a lot of influence on the society: the
natural appetite or hunger and the sexual desire.
The former signals for the preservation of individual itself,

whereas the later deals with the preservation of descent,
especially the lineage of mankind. For this object, almost
every society on the earth has made certain rules in order
to secure itself. But the devine way of life ---the
Shari’ah--- has developed a unique system for the
preservation of its subjects, its values, the society and
mankind at large.
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Somali family union
See Art 28 of the const 2012 and Art 12 to 28 of Somali civil code
1973

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Marriage
This part of the course will discuss the
institution of marriage in Islam, its contractual
nature and the requisites of a valid marriage,
such as dower (mahr).
It always generates a lot of interest in class and

students find it fascinating to read verses from
the Qur’an regarding marriage, polygamy and
so on.
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The aims and objectives of this session are to:
-give students a clear grasp of the requirements
for a valid marriage contract in Islamic law
--encourage students to look at the law of
marriage from a comparative perspective
-look at the influence of customary practice
-engage with issues such as polygamy and
consent
-ask who can contract a valid Islamic marriage?

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In the following line it shall be tried to elaborate the relevant
feature of marriage and divorce in the Muslim family law
which are the focal symbols of the Islamic society.
A slight discussion shall be made regarding the contemporary

law in vogue and at the end of this paper the findings of the
study shall be presented.
The family is the basic unit of Islamic society. It has its

beginning by the coming into existence of the relationship of
a husband and a wife. Then this chain extends to their further
generation and thus the human society comes into existence.

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Objectives of Nikah
There are certain objectives behind the introduction of marriage
(nikah) for the attainment of which Allah Almighty has commanded
man to lead his life under a system. A study of the Holy Qur’an
and the Sunnah of the Prophet, peace be upon him, shows that the
significant objectives of marriage (nikah) are as under:
 Protection of Human morals

Allah Almighty has created this universe for man in which he
declared man as the crown creation.
It is the man who being subject to the divine law administers the
affairs of the worldly system. By joining of human beings come
into existence the families, the tribes, the classes and the races.

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But in the very beginning of them they are
constructed by one social unit which starts by
the wedlock of a man and a woman.
Then this chain spreads by way of their

children. This is possible only when their
relationship is maintained within natural limits
and to maintain the natural limits is possible
through the institution of marriage (nikah).

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Marriage (nikah) is the means of fulfilling the natural need of
human beings.
Only by means of it is possible to construct and protect
human morals and culture.
For this reason marriage has been termed as Ihsan in the
Holy Qur’an.
Ihsan means to construct a fort. Thus nikah is such strong
fort that protects the morals of a man and a woman.
The Holy Qur’an after describing certain prohibited degrees

of women says:
Except for those, all others are lawful, provided ye seek (them in marriage) with gift from your
property, desiring chastity not fornication.
Al-Quran 4:24,
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 Establishment of Islamic society
It is necessary for the accomplishment of the ends of
Islamic Shariàh that such means be available that may
fulfill such ends.
This would be possible only after the Islamic society

comes before other nations as an ideal example and
they be convinced that Islam alone is the true religion
in which human relations are established in the best
manner.
To achieve this end Islam adopts many means. Out of
those means nikah is also one such mean.
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By means of marriage (nikah) on the one side the generation is protected
and on the other human beings fulfill their natural need in the natural
way. Resultantly they perform their social responsibilities in a valid
manner. There are certain responsibilities which are on man and there
are also certain rights established for him. A woman after coming into
his Ihsan (fort of nikah) becomes the protector and supervisor of his
house.
The man struggles for earning the livelihood and she assists him in some
fields. Thus both of them perform their respective responsibilities and
leave all that they had accumulated during their life time as an estate for
their future progeny.
This chain is continuous since the first human couple or spouses.

By this process good element gets development in the Islamic society
and there remains no possibility of mischief. Islamic State plays its other
functions for the evolution of human civilization.
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 Love and affection among the spouses
One of the objectives of nikah is to create mutual love and

affection among both sexes.
This objective can be accomplished only when the spouses get

happiness and satisfaction. Rather, it would be better to say
that the very object of creation of two opposite sexes of
human beings was that they may be cause of peace and
satisfaction to each other. The Holy Qur’an says:
It is He who created your from a single person, and made mate of like nature in
order that he might dwell with her (in love).
Al-Quran 7:189.
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Definition of nikah Literally, the word nikah means "to collect things".
The word nikah is used to mean the intense or absorbing of a thing

into another thing. When the water of rainfall absorbs into the earth
the Arabs say: nakaha'l-matru'l-'ard. Likewise when the trees are
intermingled it is said: tanakahat'il-ashjar.
Technically, the word nikah refers to cohabitation (mubasharat).

In Shariàh nikah refers to a contract.
A contract means a knot or a tie. As a woman and a man are tied
together by a knot (of wedding called the wedlock), hence nikah is
also called àqd (a contract)4. Betrothing or asking for marriage
(nikah) or engagement is a ceremony that takes place prior to the
ceremony of nikah. it is like a preface of the nikah.

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Engagement (khitbah) and its rules
In Arabic language betrothing or engagement is called: khitbah.

It is a promise of a man with the intention that he will marry a certain woman.
It is a sort of agreement that serves as a preliminary to the contract of
marriage (nikah).
Engagement (khitbah) is permissible legally. Rather, it is commendable

(mustahsan).
The legal wisdom behind the permissibility of engagement (khitbah) is to

make the other members of the society known that such and such woman is
attributed to such and such man. Hence sending message for asking her hand
in marriage (nikah) by another man is not correct. According to the generality
of the ùlama, engagement (khitbah) is a permissible act (mubah)

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It is better to have a glance over the woman
before formal engagement (khitbah). There is a
saying of the Messenger of Allah:
When any one of you makes an engagement, if it
is possible for him, he should see such woman to
know what incites him to marry her.
Hadiith, Al-Jama’, Abwab al-Nikah, al-Tirmadhi, Muhammad bin ‘Isa
The words of the hadith show that to see the woman by a man is
subject to possibility. It is he to create possible permissible
means. It is his responsibility to create such circumstances
whereby he could be successful to see the woman without any
unpleasantness.
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Classes of marriage (maratib nikah)
Maratib" is a noun plural in the Arabic language. Its singular form

is "martabah" which means a rank, a class, a category.
According to the jurists (fuqaha) marriage (nikah) is of five

classes. The jurists (fuqaha) have made these five categories to
bring in conformity with the diversity of juristic rule.
Their understanding and grasping needs deep insight and juristic

skill otherwise the fact is that in the Holy Qur’an and the Sunnah
of the Prophet peace be upon him, every person has been made
to incline to contract a marriage (nikah). In Surah al-Nur the Holy
Qur’an says: Al-Quran 24:32
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Marry those among you who are single, and the virtuous ones among your slaves, male or
female, if they are in poverty, Allah will give them means out of His grace.
In many ahadith there is persuasion for nikah, e.g., in one

hadith mentioned in al-Nisa'i there is prohibition to lead an
unmarried life (tajarrud). 'Umm al-Mu'minin Hadrat À'ishah
Siddiqah (Allah’s Pleasure be on her) said: “that the Messenger
of Allah prohibited to lead an unmarried life.
The five classes of nikah described by the jurists (fuqaha) are

the following:

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1. Compulsory (Fard)
Where a person has all such resources that are generally necessary for a
family life, such as adulthood, earning livelihood, health, having a house
to live and is certain that along with the possession of these resources if
he remains unmarried he will indulge in major sin (of commission of
Zina), then it is, fard (compulsory) for him to contract a marriage
(nikah). If he does not contract marriage (nikah) he will be sinful.
2. Obligatory (Wajib)
In the presence of the aforesaid circumstance if such a person instead of

having a certainty (yaqin) he has a probability (zann) that a it is possible
that he may commit a major sin, then to contract a marriage (nikah) is
obligatory (wajib) for him.

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3. Unlawful (haram)
In the following two circumstances the contract of marriage (nikah) is

unlawful (haram):
Firstly, the necessary requirement of marital life are not existing.
Secondly, Where an individual is certain that after marriage (nikah) he
shall commit major sin.
In such a circumstance to contract a marriage (nikah) becomes unlawful.
For example, a person is persuaded (has deep secret interest) in a

particular woman but he cannot marry her and if he contracts the
marriage (nikah) with some one else his feeling in the former remains in
tact and he is certain that he would commit major sin. In such a
circumstance his contracting a marriage (nikah) with this second woman
is unlawful.

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4. Disliked (Makruh)
Where a person has a probability (zann) that after his marriage (nikah)
he instead of doing justice with his wife shall do injustice or he has
the probability (zann) that he would commit major sin after such
nikah, then in such a circumstance the nikah is disliked (makruh).
5. Sunnat (acting according to the practice of the Messenger of Allah)
When all the requirements of a marital life are available, viz. a man is
adult, of sound mind, and there is no zann or yaqin of any injustice
with the wife, nikah is Sunnat.
There is a saying of the Messenger of Allah: “To contract a marriage

(nikah) is my Sunnah (way)”

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IEquality (al-Kafa'at) among spouses (zaujayn)
It is necessary that in certain matters, which are next mentioned, there must be Equality
(al-Kafa'at) among the spouses (zaujayn).
The reason for the existence of such likeness is that individuals living in a like environment
become acquainted with each other within no time.
Their problems are common. There needs and difficulties are similar. If there is difference
of way of living and of the belief there is apprehension of dislike and detachment as against
love and attachment.
In such a situation the engagements of the husband are often totally different than the
wives. Requirements of a wife may be beyond the capacity of the husband. Hence, to hope
to lead a good and pure life in such a non-resembling wedlock is the most difficult thing.
This non existence of likeness even adversely affects the children born of such a wedlock.
Hence, the jurists (fuqaha) are of the view that there must exist likeness among the
spouses (zaujayn) in certain matters.
This likeness is to exist in five matters,

As follows----

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 Equality in the matter of descent (nasab) :
Where the husband and the wife both belong to the same tribe
(qabilah) it is called equality in the matter of descent (nasab).
Where the spouses belong to two different families but of equal

status it is also termed equality in descent (nasab).
However, where one of the spouses (zaujayn) belongs to a high and
noble family while the other belongs to a low or a commoner family
then may be the spouses (zaujayn) carry on their life with each other
without any inferior or superior complex but this joint would perhaps
not be acceptable to the remaining members of the two families.
The adverse effect of such complex subsists not only on the spouses
but also on both the families throughout the marital life.

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 Equality in the matter of faith (din) and piety (taqwa):
It is also necessary that the spouses (zaujayn) must have belief in

one and the same faith (din).
By equality in the matter of belief is meant that such difference
might not a bone of contention between them in their daily life.
Fellowship in belief does not mean that the spouses (zaujayn)
must also have the same belief in the matter of details (furu`).
Likewise it is also necessary that they both must be alike in the

matter of observance of piety (taqwa). Where one partner of life is
pious, faithful and observer of the limit of Allah Almighty while the
other is impious, faithless and transgressor of the limits of Allah
Almighty, it is impossible to conceive a peaceful life for them.

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 Equality in the matter of social status
It is also necessary that the spouses (zaujayn) must be equal in

the matter of their social status.
They and their families should have adopted the same profession.
This is essential for the reason that any one of the two or his or
her family may become the victim of superiority complex and
become a constant cause of torture for the other.
For example the husband is a small shopkeeper in a town while
the wife is holding a high office in a big city. This would not be
equality in social status.

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According to Imam Abu Hanifah, social status or inequality
of professions have no significance in the matter of marital
life.
His argument is that the profession has no concerned with

the human attribute. Rather it is an external state that goes
on changing in life.
Hence the great Imam has not attached this condition to

the marital life of the spouses (zaujayn). In his view
peaceful marital life is possible even where the professions
adopted by the spouses (zaujayn) are contrasting

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 Equality in the matter of wealth and property
For leading a successful marital life equality in the matter of wealth

and property among the spouses (zaujayn) is commendable
(mustahsan). Equality in wealth and property means that the spouses
(zaujayn) must at least belong to like classes of society.
It is true that marriage (nikah) of the Messenger of Allah with Hadrat

Khadijah (Allah’s Pleasure be on her) negates the concept of equality
in wealth and property, but this was possible for a Prophet to make
his way through the social inequalities.
The welfare of the generality of Muslims lies in it that they should

establish relationships with like families. This is also established on
the strength of experience.
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 Equality in the matter of health
According to the Maliki and Shafiì Ùlama none of the

spouses (zaujayn) should be having the bodily defects
like leprosy that is seriously disliked by human beings.
Some Maliki Ùlama add madness and say that a

contract of marriage (nikah) between a person of sound
mind with a mad person is not valid. However the
generality of the Ùlama are of the view that there is no
harm in a contract of marriage (nikah) between such
persons.
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Essential Elements of Marriage (Arkan Nikah)
There is conflict of opinion among different schools of thought in the matter of

the essential elements of marriage (Arkan Nikah).
According to the Ahnaf like other matters the nikah has only one essential
element that is called "Sighah", which means an offer (Ijab) and an acceptance
(Qubul). Ijab is used for such word or phrase that is expressed by the guardian
(wali) of the girl or a person acting on his behalf.
For example, where A’s daughter B is to be married C, the expression by A in the

following words is called an offer ('ijab): "I married my daughter B for a dower
consideration of a hundred dinars with C".
It is a condition that the offer must be in the past tense.

In the above quoted sentence the offer is in the past tense (fi`l madi). Hence,
this is valid offer
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The second part of the "Sighah" is called acceptance (qubul).
It is the word or the sentence which is uttered in response to
the offer by the man or a person acting on his behalf.
For example, the man, namely C, says: "I accepted B the
daughter of A for a dower consideration of a hundred
dinars". This whole sentence is called acceptance (qubul).
All jurists (fuqaha) agree that the offer and acceptance must
be in the same sitting or session of assembly. In case the
sitting or session had dispersed and thereafter the
acceptance occurred then such an acceptance would be void
automatically.
The acceptance must also be in the past tense.
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The Maliki school also mentions five essential elements of nikah.
Those are:
(1) Wording (Sighah): These are the offer and acceptance. Their
conditions have already been mentioned above.
(2) Guardian (Wali); He is a person from the side of the female who
performs the function of offer on behalf of the female. For example, the
father of the female or any other male within prohibited degrees to her.
According to Maliki jurists (fuqaha) there can be no nikah without a
guardian (wali). Their argument is based on the hadith: "a female who
enters into a contract of Marriage (nikah) without guardian (wali) her nikah
is void,
(3) Dower (Mahr): It is also one of the essential elements of nikah in the
absence of which there cannot be nikah. However, the mention of the
dower at the time of nikah is not essential.
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(4) Man: A male person who intends to marry
the female person.
(5) Woman: A female who is going to be

married with the male person. It is essential for
a woman to be free from all impediments like
ìddat (observance of waiting period in cases
of death of or divorce by the previous husband)
and hamal (in case of pregnancy had delivered
the child).
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According to the Shafi;
Ulama the essential elements of nikah are five though a little
different in concept as compared to the concept of the Maliki
Ùlama. These essential elements are: "Sighah"; Male; Female;
Guardian; and Two witnesses.
The Shafiì Ùlama have declared that the presence of two

witnesses is essential element of nikah. Their argument has the
support of a hadith according to which the Messenger of Allah
said:
“A marriage (nikah) contract without two witnesses is not
permissible.
See this Hadiith; Sunan al-Tirmidhi, Abwab al-Nikah

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Rules of Dower (Ahkam mahr)
Dower means the amount of consideration that is

paid by the husband to the wife after Marriage
(nikah) with her.
Dower is one of the conditions of validity of nikah.
This is the view of the Ahnaf. Non payment of
dower is against the Qur'anic verses. Its wujub is
proved by the Holy Qur’an and Sunnah. Allah
Almighty says: “And give the women (on marriage)
their dower as an obligation”. Al-Quran 4:4.
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Kinds of Dower according to quantity
1. Agreed upon Dower (Mahr Musamma) Mahr Musamma is that dower on which both
the parties have agreed upon as fixed between them. If it is cash then it will be the
local coin and if it is ornament or property then it must be specified. The payment of
dower becomes obligatory at the time of nikah or after the nikah
2. The Minimum Dower (Mahr Adna) In this kind of dower no quantity is fixed. If man
is rich he may give piles of wealth. However many ahadith are available giving the
minimum limit of dower amount.
According to a report of Imam Bukhari the Messenger of Allah said to a person: enter
into a marriage (nikah), contract even if for a consideration of a dower of an iron
finger ring
According to a report of Imam Muslim, the dower of the wives of the Messenger of
Allah had been 12.5 Auqiyah. Abu Hurayrah reported that during the period of the
Messenger of Allah the quantity of dower fixed was 10 Auqiyah. In the modern
period the market value of ten auqiya can be known very conveniently.

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(3) The like dower (Mahr Mithl) Mahr Mithl is
that quantity which is fixed for other females
as their dower in the family of the woman.
Need to do so is felt where at the time of

contract of marriage (nikah) nothing was
settled between the parties about the dower or
the payment of dower was settled but amount
of dower was not fixed or determined by the
parties for any reason whatsoever.
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Kinds of Dower (Mahr) with regard to the period
With regard to the period when the dower is to be paid

by the husband to the wife there are two kinds of
dower.
(1) Prompt dower (mahr muàjjal): It is that dower
regarding the payment of which parties have agreed
that it shall be paid promptly.
(2) Deferred dower (mahr mu'ajjal): It is that dower

regarding which there had been agreement between the
parties that it shall be paid after some period
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Addition or reduction in the quantity of settled dower
Both the husband and the wife have the right to add or reduce
the settled amount or quantity of dower by mutual consent.
Where a husband intends to increase the amount agreed to by
him to be paid as dower amount, he has the right to do so.
Likewise, where a wife intends to reduce the amount payable
to him as dower amount she has the right to do so.
She has the right even to forego the whole quantity of her
dower.
The Holy Qur’an says:
(But if they, of their own good pleasure, remit any part of it to you take it and enjoy it
with right good cheer) Al-Quran 4:4

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There are three circumstances which make the payment of dower
obligatory:
(1) When after entering into the contract of marriage (nikah) the
spouses (zaujayn) had cohabited it becomes obligatory upon the
husband to make full payment of the dower amount.
(2) (2) When after entering into contract of marriage (nikah) the
husband died. The widow shall get her dower amount before the
distribution of the estate left behind by the deceased husband.
It is not necessary that the spouses had cohabited before the death
of the husband. To distribute the estate of the deceased husband
before making payment of the dower debt to the widow is not
permissible.

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(3) According to Imam Abu Hanifa and Imam Ahmad bin
Hanbal, payment of dower become certain where the
spouses (zaujayn) had full privacy and isolation without any
apprehension of arrival in their apartment of anyone else.
It is called valid retirement (Khalwat Sahihah). In such a

circumstance other persons do not know about
cohabitation.
However, if the door is closed in such a manner that

coming or going in the private room is possible then such
a situation is not called Valid retirement (Khalwat Sahihah)

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Dropping of Dower (Suqut Mahr)
Dropping of dower means the appearance of such circumstances due to which the dower
does not remain the right of the woman.
Those are five situations, namely,-
1. Repudiation of faith of Islam by the woman.
(2) Both the spouses (zaujayn) become defectors.
(3) Both the spouses (zaujayn) were non Muslims. The husband embraced Islam. The wife
did not do so. She shall lose her right to receive the dower
.(4) Where a guardian (wali) had contracted the marriage (nikah) of a minor or mad male
person and he on attainment of his age of puberty or becoming of sound mind person
denounces the contract of marriage (nikah).
(5) Where a guardian (wali) had contracted the marriage (nikah) of a minor or mad female
person and she on attainment of her age of puberty or becoming of sound mind person
denounces the contract of marriage (nikah

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Dropping of half of the amount of Dower (Suqut Nisf mahr)
Where a wife is immediately after the contract of marriage

(nikah) and without cohabitation is divorced, she becomes
entitled to half of the settled dower.
In case the dower was not settled at the time of contract of

marriage (nikah) and she was divorced without
cohabitation, she becomes entitled to receive some benefit
of graceful departure (mutàh) which means a few
garments, and a few articles of adornment according to the
local custom and usage

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Divorce and its related issues
In case of disunity and dissent between the

spouses (zaujayn) the Shariàh has prescribed
a reasonable way for the separation between
them so that the spouses (zaujayn) may
determine for themselves new ways on the
changed circumstances.
This way is called "divorce" (talaq).

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Definition of "divorce" (talaq) Literally, the word
"divorce" (talaq) means to abandon a thing or get rid of
a thing. When an animal tied with a string is untied it is
called talaq.
If the tied with a string she camel is untied, the Arabs
mention this state as: “talaqa al-naqata talaqan”
(The she-camel has been released).
Imam Sarakhsi has used the words "Izalatu'l-qayd"

(release from confinement) to convey the meaning of
the word "divorce" (talaq)
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If by keeping in view the definitions given by
different schools an exhaustive definition of the
word "divorce" (talaq) which may also be
harmonious with the modern legal language is
given then it would be like this:
Divorce means the dissolution of marital

relationship between the spouses (zaujayn)
personally or through an agent or a deputy or a
delegatee , with specific words or allegorically,
immediately or consequently
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According to divorce in Somali family law of No 8 of 1975
According Article 35, Divorce is divided in to two parts
1—A divorce that has not concluded and a divorce that has concluded
The divorce that has not concluded cannot stop the partner’s relationship of marriage
until the period of 90 days expires.
The ended divorce concludes the marriage relationship as soon as it happens, (tallaaq)
Article 36 Ways of divorce

The man is the one who can divorce the woman when allowed the court that has a
jurisdiction to do that but after disposal matter to a negotiation council of the matter.
If the negotiation council could not solve to reunite the couple, they must address in a
written form to the family court wit in 60 days
Article 37 Reunification of the couple

The unconcluded divorce cannot stop the couple relationship, the couple can reunite
before the expiration of the period of 90 days.

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Number of pronouncements of "divorce" (talaq)
An adult, of sound mind, married person has the right to pronounce

"divorce" (talaq) to his wife during the marital life three times.
For two times the husband has the right to revoke the
pronouncement and can continue the usual marital relationship.
But when he gives the talaq exercising his third time right, then the
spouses (zaujayn) do not remain husband and wife.
The Holy Qur’an says: A divorce is permissible twice, after that the
parties should either hold together on equitable terms, or separate
with kindness, Al-Quran 2:229.

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Kinds of Divorce (talaq)
There are two significant divisions of divorce which have been further sub-
divided.
(1) With regard to its construction Kinds of Divorce (talaq) with regard to its
construction refers to it that we can judge them by the standard of Shariàh.
And after such examining we can declare it as to whether it is in accordance with

the method prescribed by the Messenger of Allah or is deviating from such
method. Such a divorce is further sub-divided into Talaq alSunnah and Talaq al-
Bidàh.
(2) Talaq al-Sunnah The talaq methodology of which has been taught by the
Messenger of Allah himself.
There are two modes of pronouncing this kind of talaq, namely, talaq ahsan and
talaq hasan.
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Talaq al-Bidàh
Talaq is the actual separation between the spouses (zaujayn).

As the Messenger of Allah has prescribed the manner of
performance of a contract of marriage (nikah) so he has
prescribed the manner of giving talaq.
However there is a difference between the nikah and the talaq.
The nikah can be entered into by the consent of both the

parties while the right to divorce lies with the husband alone
and this right he has in every circumstance irrespective of his
exercising it in accordance with the Sunnah or otherwise.
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(a)Talaq Ahan: The most correct way of giving divorce to the wife is called
talaq ahsan.
The way of giving talaq ahsan is that when the state of menstruation of the
wife comes to an end and the husband has not cohabited with her, he may
pronounce one revocable divorce (talaq rajì i.e. a talaq after which the
husband has the right to revoke it) and thus the period of ìddat of the
woman passes and if she was pregnant the delivery takes place.
The advantage of such divorce is that after the expiry of the ìddat period
the same man can remarry the same woman without any impediment.
(b) Talaq Hasan : This mode of giving talaq is also according to the Sunnah.
But it is of lesser rank. A talaq hasan is that a husband does not cohabit
with his wife after she is clear from her menses and gives her talaq. When
she is again clear from her next menses period he pronounces second talaq
and when she is clear from her next menses he pronounces the third talaq.

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A talaq given in a manner not prescribed by the Sunnah is called bidìyy.
One who adopts such manner is sinful. However, the talaq becomes effective.
Talaq bidìyy is also of two kinds.
First kind of Talaq Bidìyy is that which is given at an improper time.
An improper time is the time when a women is undergoing her menses.

There is a hadith concerning such a talaq. Hadrat Àbdullah bin Ùmar
(Allah’s Pleasure be on them) gave talaq to his wife while she was under
going her menses.
The Messenger of Allah on the asking of Hadrat Ùmar (Allah’s Pleasure be

on him) directed to revoke it and said:
"Keep her till she is clean. Then when she again undergoes her menses and
becomes clean, then if you want you may give her talaq or to keep her.
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The second kind of talaq bidìyy is that where
the husband gives or pronounces the talaq in a
single sitting or a single sentence thrice and
ends the marital relation.
For example he says: To you are three divorces

or you are divorced, you are divorced or you
are divorced."

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With regard to effectiveness With regard to effectiveness the
divorce is of three kinds and each such kind has different rules.
These kinds are: talaq rajì, talaq ba'in sughra, and talaq ba'in
kubra.
Talaq rajì,
A talaq rajì refers to a talaq where after giving the talaq the
husband has the right to return to the marital life as before. he
has the right to revoke the divorce pronounced by him.
The process is accomplished by cohabiting with the woman

during the period of ìddat after the first or the second
pronouncement without any remarrying ceremony (tajdid nikah).

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Talaq Ba'in Sughra
When the period of talaq rajì comes to an end, the man
has no right to recall the marital life and the talaq turns into
talaq rajì ba'in. In such circumstance the spouses (zaujayn)
can remarry by mutual consent.
Talaq ba'in kubra

This talaq is also called "talaq mughallaz". The manner of
such talaq is that the husband gives three talaqs to his wife
at one and the same time. After such talaq the man has no
right to revoke it nor can he remarry the same woman till
she marries another person and then that new husband dies
or he divorces that woman.
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Conclusion
It appears that Islamic law of marriage and divorce

is not identical to the man made laws which are
changed by man himself moment after moment. It
is evident that the position of man and woman in
the social set up of the community, is equal in
every respect, but keeping in view the mindset of
both the genders, Islam segregates the rights,
duties and functions of both the gender and then
declares their status with regard to family matters.
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If it is asked that are man and woman equal in Islamic way of
life?
There would not be simple positive or negative way of answer

rather, one must scrutinize, examine and inspect closely and
thoroughly their respective rights, duties and functions. And
then placing a complete picture in front, it may be possible to
answer the above question. In other societies of the world,
the state of affairs is not in concurrence to Islamic way of life.
Those other societies always try to claim that man and

woman are equal in every respect which is not a natural
phenomenon.
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Chapter eight
Islamic law of succession

General Principles on Islamic Succession

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Succession is known as mirath or irth or faraid. The
fixed shares of inheritance allocated to the various
relatives (legal heirs) by the Qur’an and Sunnah.
The legal heir is a term that is properly applied only to

those relatives, upon whom property devolves, after
the decease of its owner, by operation of law.
The estate contains of all property that the deceased

has owned, whether his ownership is of the substance
or corpus of a thing, moveable and immovable, realty
or personally.
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The importance of succession
There is a statement attributed to the Prophet S.A.W to the

extent that the law of inheritance is said to constitute half the
sum of ‘ilm (knowledge).
It is also reported by Ibn Mas’ud that the Prophet has said:

“Learn (Study) the knowledge of succession and teach it
because I shall be taken away (die), and so is the knowledge.
Therefore, the nonsense will emerge until a conflict of two

persons happens over the succession, yet there is not any
person available to solve their problems”.
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Succession during the pre-Islamic period •
In the tribal society of pre-Islamic Arabia, the system of

inheritance was designed to: - keep property (wealth)
within the individual tribe, to maintain its strength as a
fighting force, to preserve the relation between the
tribes, to kill the enemy and to be proud of the tribe.
The tribe was male-controlled.

The maternal or uterine relationship lies outside the
structure of tribal ties and responsibilities. Female and
non agnate (cognate) relatives are excluded.
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There are three grounds for inheritance (pre Islamic
period):
1. The ability to carry arms (to fight): though he is a
male but still a child, or too old and weak, he is to
be excluded from succession.
2. Treaty i.e. an oath to fight and corporate

together in peace and war, individually or between
tribes.
3. Adoption
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Succession in the Islamic perspective •
Reformation by Islamic law of Succession
1. Inheritance based on blood relationship and
marriage
2. Both man and woman can inherit. The

introduction of 2:1 ratio
3. Parents and children will surely get their

portion
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The case of Sa`d al-Rabi’
The wife of Sa’d b. al-Rabi’ came to the
Prophet with her two daughters and said:
“O Prophet, these are the daughters of Sa’d b.
al-Rabi’.
Their father died a martyr’s death beside you
in a battle. But their uncle has taken Sa’d estate
and they cannot marry unless they have
property”

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After this, the verse of inheritance was revealed and
the Prophet told the uncle:
“Give the two daughters of Sa’d 2/3 of the estate,
give their mother 1/8 and keep the remainder
yourself.
Sa’d’s case implies the control of rights by the male
agnate relative/asabah to the exclusion of female
relative- reformed under Islamic law of succession.
Authorities on Succession
• Al-Quran- Al-Nisaa’(4) : 7,10,11,12,176
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“Allah (thus) directs you as regards your children's (Inheritance): to the
male, a portion equal to that of two females: if only daughters, two or
more, their share is two-thirds of the inheritance; if only one, Her share
is a half.
For parents, a sixth share of the inheritance to each, if the deceased left
children; if no children, and the parents are the (only) heirs, the mother
has a third; if the deceased left brothers (or sisters) the mother has a
sixth.
(The distribution in all cases is) after the payment of debts. You do not
know whether your parents or your children are nearest to you in benefit.
These are settled portions ordained by Allah. and Allah is All-knowing,

All-wise.”

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In what your wives leave, your share is a half, if they
leave no child; but if they leave a child, ye get a fourth;
after payment of debts.
In what you leave, their share is a fourth, if you leave no

child; but if you leave a child, they get an eighth; after
payment of legacies and debts.
If the man or woman whose inheritance is in question,

has left neither ascendants nor descendants, but has
left a brother or a sister, each one of the two gets a
sixth; but if more than two, they share in a third;
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Sunnah-
-“Give the portion of the inheritance to the
Qur’anic heirs, and whatever left should be
exhausted by the nearest male agnate
kindred”.

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Pillars of Succession
 Praepositus/steward or bailiff of an estate
 legal heir
 Estate
Condition of succession
Death, survival and Free from any impediments
The death/decease of praepositus - The death of the

praepositus must be determined whether in actual death, or
by judicial declaration or by presumption of death (e.g.
missing) - 7 years for estate administration - 4 years for
marriage dissolution - Special case- eg MH 370
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After 327 days since Malaysian Airlines Flight 370
disappearance, Malaysian government on 28 January
2015 has officially declared the loss of MH370 during a
flight from Kuala Lumpur to Beijing as an accident and all
of its 239 passengers and crew were ‘presumed dead’.
• In Re Inquest into the Death of Lim Chin Aik, Deceased

[2014] 1 CLJ 136, Lim is believed dead and his body
buried at least 40m or 13 storeys underground after his
car was hit by a lightning arrestor that snapped and fell
off the 21-storey Menara Umno during a freak storm on
June 13.

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Survival of legal heirs –
The legal heirs/warith should be alive at the
time of the deceased’s death (even for just 1
minuteshould be determined) - Issue on
uncertainty of death
Free from any impediments , example Killing,

different of religion etc

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Impediments to inheritance
free from Slavery
Free from Homicide (qatl)
General principle: a killer does not inherit from his

victim.
Reason (expressed by al-Ramli of the Shafi’i school);

“The public interest requires that the killer be debarred
from inheritance since, if he did inherit, killing would
accelerate inheritance and lead to universal chaos”.

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Jurists unanimously agreed that for deliberate/intentional
killing, the killer is barred from inheritance. The intention
will be determined based on the type of weapon used. •
E.g. the use of knife, sharp object that can cause death.
Cases: • Amanah Raya Bhd v. Muhamad Suhaimi bin

Abdul Aziz & Ors [2009] 2
ShLR 68 PP v. Muhamad Suhaimi Abdul Aziz [2005] 2

CLJ 826 
PP v. Muhamad Suhaimi Abdul Aziz [2002] 2 CLJ 209

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Difference of religion
General principle – Non-Muslim does not
inherit from his Muslim and viceversa.
-However, difference of religion is not a bar to
taking a wasiyyah.
The majority of schools, difference of religion
may cause a bar and cannot be removed by any
subsequent events, whenever the difference of
religion exists at the moment the succession
opens i.e. the time when the praepositus dies.
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Cases • Majlis Agama Islam Wilayah
Persekutuan lwn. Lim Ee Seng dan Satu lagi
[2000] 2 CLJ 597. • Re Timah bt Abdullah
[1941] MLJ 51 • Dalam Perkara permohonan
Perisytiharan Status Agama Si Mati Nyonya binti
Tahir (2006) 20 JH 221

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Who are the legal heirs? (Causes of succession)
1) Persons who are related to the deceased by
blood relationship (nasab)
2) Spouse (husband/wives)- marital
relationship
3) Empowerment of slavery – no more relevant
4) Baitulmal

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deceased by blood relationship (nasab)
 Brother
 Sister
 Father
 Mother
 Son
 Daughter
Non-legal heir:
 Illegitimate child –
 Step child/father/mother
 Adopted child/father/mother

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The marital relation.
• A spouse relict in succession law is one whose marriage is valid and existing, actually or
constructively at the time of the decease.
The marriage must be a valid marriage according to Islamic law.
Existing – subsistence of the marriage at the time of the decease. -Mutual rights of
inheritance between spouses cease as soon as the marriage is terminated.
However, a marriage is deemed to be in existence constructively inter alia for succession,

for as long as the wife remains in her ‘iddah (waiting period).
Therefore, the nature of the divorce is vital.

 Revocable (raj’i) – rights of inheritance continue to exist during iddah
 Irrevocable (baìn)- rights of inheritance cease immediately and do not persist during
the ‘iddah, with the exception of ba’in during death sickness (marad-almawt).
Forms of ba’in:- -Mutual consent (khul’) -Judicial decree (faskh) -Triple talaq

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Enfranchisement of slavery (wala’)
The master who has freed the slave may inherit

the slave’s property. -The kinship is obtained
upon the freedom of the slave - No more
relevant in light of current situation
Baitulmal
According to Shafi’e, the baitulmal must be
properly administered, no corruption.
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Estates
All types of properties left by the praepositus.
This includes: Property acquired by the
deceased during his lifetime via. Sale and
purchase, inheritance, Hibah, wassiyyah, etc.
Debts due to the deceased Shares Tabung

Haji, Takaful. Issue on nomination
Conventional insurance

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fatwa on nomination
Nominees of the funds in the Employees Provident

Fund, post office savings bank, insurance and co-
operative societies are in the positions of a persons
who carry out the will of the deceased or the testator.
They can receive money of the deceased from the

sources stated to be divided among the persons
entitled to them under the Islamic law of inheritance.
• Nominee = trustee •
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Nominee is the beneficiary.
• If the person nominated by a policy owner is
other than his spouse, child or parent, such
person shall receive the policy moneys payable
on the death of the policy owner as an
executor and not solely as a beneficiary and
any payment to the nominee shall form part of
the estate of the deceased policy owner.

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Fatwa on Conventional insurance •
Non-shariah compliance • Only the premium

paid by the policy owner is inheritable. The
balance of the insurance benefit is to be given
to Baitulmal or donated to those in need of
help e.g.fakir/miskin •
If the legal heirs of the deceased fall under the
category of fakir/miskin, they are allowed to
take the benefit accordingly.
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Non-estate
Property disposed of via
• Sale, hibah and waqaf
• Trust property
• Pension
• Copied donation upon death

• Ex-gratia (exception to ex-gratia paid to exjudges)
• Joint account (subject to the fulfillment of
rukunrukun hibah)
• Part of the estate claimed as jointly acquired property

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Rights Associated to Inheritance
• Death
• Burial preparation
• Wassiyyah
• Settlement of debts
• Distribution

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Burial preparation 
consists of all expenses required to provide for
ceremonious bath, dress for the grave (kafn),
carrying the deceased to the graveyard and
burial.
 Settlement of debts
Debts to Allah e.g. Hajj, zakat, fidyah etc.
Debts to humans or financial institution e.g.
financial claims, loans, rent etc.
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Execution of Wassiyyah
The wassiyyah must be valid  Not exceeding
1/3 of estate  Not in favor of legal heirs
Notes: A inheritance that exceed 1/3 of the estate

or made in favor of a legal heir may be executed if
the consent of other legal heirs can be obtained.
Distribution of the estate should be according to

Mutual agreement

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WASSIYYAH,
Definition • An iqrar of a person made during his
lifetime with respect to his property or benefit thereof, to
be carried out for the purposes of charity or for any
other purpose permissible by Islamic law, after his death.
The verse of bequests(wassiyyah) •
“It is prescribed, when death approaches any of you, if

He leave any goods that He make a bequest to parents
and next of kin, according to reasonable usage; This is
due from the Allah fearing.” [Al-Baqarah(2) : 180]
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“Those of you who die and leave widows should
bequeath/leave for their widows a year's maintenance …”
[Al-Baqarah(2) : 240]
The verses were generally held to be superseded and

abrogated by the later Qurànic texts which laid down the
rules of inheritance
Hadith:
Abu Imamah reported: I heard the Prophet said: “Allah has
already given to each entitled relative his proper
entitlement. Therefore, no bequest in favor of a legal heir.
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Nonetheless, although the verses of bequests were
generally held to be revoked, the making of a wassiyyah is
still allowed subject to some limitations.
• In fact, it is highly recommended. “It is not right for a
Muslim who has property to leave, that he should pass two
nights without having a written will with him” (Al-Bukhari)
• “…The distribution in all cases is after the payment of
legacies and debts..” (Al-Nisa’(4): 11)
Differences with Hibah

• Wassiyyah – testamentary gift (takes effect after death)
• Hibah – gift inter vivos (during the lifetime of the donor)

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Limitations of wassiyyah
1. No bequest to legal heir • Hadith: Abu Imamah reported: I heard

the Prophet said: “Allah has already given to each entitled relative his
proper entitlement. Therefore, no bequest in favour of a legal heir.
2. The 1/3 rule Hadith: Saàd ibn Abi Waqqas said: The Prophet
came to visit me in my sickness… I said to the Prophet, “O Prophet! I
am wealthy and my only heir is my daughter. Permit me that I make a
will of my entire property.” He said, “No”. I said, “Should I make a will
of two-thirds of my property?” He said, “No”.
I said, “Permit me for a third.” The Prophet replied, “You may make a
will of a third, although this is also too much. To leave after you your
heirs well to do is better than you leave them poor and in want whilst
others meet their needs.”
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Calculation of 1/3
• Shafiì – 1/3 x net estate at the testator’s
death.
• Maliki – 1/3 x net estate at the beneficiary’s
acceptance
• Hanafi – 1/3 x net estate at actual
distribution of property

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Invalidation of wassiyyah
• The testator becomes a person of unsound
mind and dies in that state

• The beneficiary predeceases the testator
• The subject matter is destroyed before the
testator’s death
• The testator revokes the wassiyyah
• The beneficiary has intentionally caused the
death of the testator

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Cases Bequest of more than 1/3
Shaikh Abdul Latif lwn Shaikh Elias Bux (1915)
1 FMSLR 204
Katchi Fatimah lwn Mohamed Ibrahim (1962)
28 MLJ 374
It was held that the 2/3 of the estate is to be
distributed acc. to mutual unless consented by
the other legal heirs.

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Postponement of the execution of wassiyyah •
Abd Rahim lwn Abd Hameed dll (1983) 2 MLJ 78 –
21 years after death, The condition was not valid.
Bequest to legal heir

Siti bt Yatim lwn Mohamed Nor bin Bujal (1928) 6
FMSLR 135
Amanullah bin Hj Ali Hassan lwn Hjh Jamaliah bt
Sheikh Madar (1975) 1 MLJ 30
The will was held to be invalid

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CLASSIFICATION OF LEGAL HEIRS
general classification
• Inner family>asabah ashab al-furud
• Outter family,
Ashab al-furud>primary heirs/secondary heirs /substitute heirs
 Primary>Father • Mother • Husband/Wife • Daughter
 Secondary>Germane sister • Consanguine sister • Uterine sister •

Uterine brother
 Substitute>Grandfather • Grandmother • Grand daughter

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• Asabah> Sababiyah and Nasabiya
 Nasabiyyah>maà al-ghayr/bi al –ghayr/bi al-nafs
The rules of priority

Any member of a higher class excludes any member of a
lower class- Exception: the brothers of the deceased
are not excluded by the grandfather
The nearer in degree to the deceased excludes the more

remote
The stronger of blood-tie excludes the more remote

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ASABAH BI AL-GHAYR (residue by another)
• Son(s) will convert daughter(s)
• Son’s son(s) will convert son’s daughter(s) Relevant
brother(s) will convert relevant sister(s)

• Consanguine brother(s) will convert consanguine
sister(s)
ASABAH MAÀ AL-GHAYR (accompanying residue)

• Daughter or son’s daughter will convert relevant
sister(s)
• Daughter or son’s daughter will convert consanguine
sister(s)
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Ashab Al-furud (Primary Heirs)
In what your wives leave, your share is a half, if they
leave no child; but if they leave a child, ye get a fourth;
after payment of legacies and debts. In what you leave,
their share is a fourth, if you leave no child; but if you
leave a child, they get an eighth; (An-Nisa’:12)
Husband
1/2 • In the absence of any children with him or ex-
husband
1/4 • In the presence of children

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Wife
1/4 • In the absence of the deceased’s children (with
her or ex-wife)
1/8 • In the presence of children

NB. If there are wives, they will share equally.
“Allah (thus) directs you as regards your children's

(Inheritance): to the male, a portion equal to that of two
females: if only daughters, two or more, their share is
two-thirds of the inheritance; if only one, Her share is a
half. (An-Nisa’:11)
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Daughter • 1/2 – Alone, in the absence of son
• 2/3 – 2 or more, in the absence of son
• Asabah bi al-ghayr – In the presence of her male

counterpart (2:1 shall apply)
For parents, a sixth share of the inheritance to each, if

the deceased left children; if no children, and the
parents are the (only) heirs, the mother has a third; if
the deceased left brothers (or sisters) the mother has a
sixth… these are settled portions ordained by Allah.
and Allah is All-knowing, All-wise.” (An-Nisa’:11)
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Father • 1/6 – In the presence of any male children
• 1/6 + Residue – In the presence of any female
children
• Residue – In the absence of any offspring at all.
Mother
1/6 • In the presence of any children; or • In the
presence of 2 or more brothers/sisters
(germane/cons./ uterine)
1/3 • In the absence of any children; or • In the
presence of only 1 brother or sister
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The case of Ùmariyyatan • Based on two
cases that were decided by Khalifah Umar r.a.
• Applicable when the surviving legal heirs
consists of only father, mother & husband/wife
of the deceased
• In such a case, the mother will take 1/3 from
residue and not 1/3 from the whole estate.

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Chapter nine
Commercial law

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Contract OF SALE
Contents
Section 1 - The definition and essentials of the
contract
Section 2 - The legal effect of the contract:
ownership, risk and benefit
Section 3 - Seller's Duties and Buyer's Remedies
Section 4 - Buyer's Duties and Seller's Remedies
Section 5 - Sales regulated by Statute

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Definition
According to Kerr, a contract of sale is formed when parties who
have the requisite intention agree together or appear to agree that
the one, called the seller or the vendor, will make something, called
the thing sold or the res vendita or merx, available to the other,
called the buyer or the purchaser, in return for the payment of a
price the contract is a sale.
This definition takes its roots, and has remained virtually the same,
from Treasurer-General v Lippert (1883) 2 SC 172, where the full
board of the Judicial Committee of the Privy Council cited with
approval De Villier’s J statement that:
‘A sale is a contract in which one person (the seller or the vendor)
promises to deliver a thing to another (the buyer or emptor), the
latter agreeing to pay a certain price
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Essentials of a Contract of Sale
From the definitions set out above, it is clear
there must be agreement on certain essential
elements for a contract of sale to be valid.
However, do not forget about the general

elements of a contract that you learnt about in
your first year which would still need to be
complied with.

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What are the general elements of a contract?
The 3 essentials of the contract of sale are
An agreement (consensus ad idem);
A thing sold (merx); and
A price (pretium), with a view to exchanging
the thing for the price.
If these exist, there is a sale. Neither delivery
nor payment is necessary to the creation of the
contract, for they both fall within the category
of its performance.
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Agreement
The general principles that you learnt in your course on
contract apply here, inter alia, the agreement must not
be tainted by mistake, misrepresentation, duress or
undue influence and the parties must act with the
intention of contracting a sale.
For a contract to ‘qualify’ as a contract of sale, the law

requires that two key features exist in the contract.
These are
agreement as to the thing sold and
agreement as to the price to be paid for the thing
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The thing sold
The thing sold is also known as the res vendita or the merx.
Generally, nearly anything may be sold. The thing to be sold may be
movable or immovable, corporeal or incorporeal, provided that the
thing sold is capable of being sold in commerce (ie. intra
commercium). An example of an incorporeal merx that can be
subject to a valid contract of sale is a servitude or a patent. In
Theron Ltd (in liquidation) v Gross 1929 CPD 345, the liquidators of
a company were able to sell the outstanding book debts of a
company.
The general requirement is that the thing sold must be:

definite or ascertainable and not vague at the time of the conclusion
of the contract; and
existing at the time of the contract, or having potential existence.
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When is the thing (merx) ‘definite’?
It can be said that the thing (merx) is definite:
when it is mentioned by name in the agreement, for example, ‘erf
1390, Somerset Heights, Grahamstown’ or ‘the horse, Morning
Star’
When it is clear that the parties were in agreement about the
thing being sold.
When is the merx ‘ascertainable’?
This question usually arises in the case of a generic sale (a sale of
a quantity of a particular type of thing). In these circumstances
merx is not definite, but ascertainable, since the number, weight
and measure is mentioned together with the type of thing, for
example, ‘ten thousand bricks’, ‘one thousand kilograms of horse
manure’ or ‘three thousand litres of petrol’.
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Existence of the thing
What does ‘potential existence’ mean in the
context of the thing sold?
The general requirement is that the thing sold
must exist at the time of the contract or have a
potential existence.
Most things that are sold must be in existence
at the time of the sale. :

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Things which cannot be sold in our law include the following:
Things which cannot exist and
Things which have ceased to exist at the time of sale.
An example of a ‘non-existent merx’ can be found in the case

of Scrutton v Ehrlich & Co 1908 TS 300. In this matter,
searching rights where sold by S to E on the assumption that
such rights existed at the time of sale. Both parties did not
know that the original grant of the prospecting rights to S was
in fact invalid.
The court held that the sale was void on the basis that there
were no prospecting rights in existence at the time of the sale.

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The Price
The general rule on agreement
‘It is a general rule of our law that there can be no
valid contract of sale unless the parties have
agreed, expressly or by implication, upon a
purchase price.
They may do so by fixing the amount of the price
in their contract or they may agree on some
external standard by the application whereof it
will be possible to determine the price without
further reference to them.’
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Agreement as to price of the thing sold is thus an
essential requirement for a contract of sale to be
valid.
According to Mackeurtan, identifies the following
essentials in connection with price. The price must
be:
Serious;
Fixed, or capable of ascertainment; and
Must sound in current money.
Let us look at each of these essentials in more
detail:
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Serious’
The requirement that the price is serious means that the price must
not be nominal or unreal but bear appreciable relation to the value of
the article.
This does not mean that buyer or seller cannot make the best bargain
he or she can, but simply means that it should be a real price which
the seller must intend to exact, and the buyer intends to pay.
Importantly, the transaction must not be a donation disguised as a
sale, or be disguised to avoid or reduce the payment of VAT.
Although it is a question of fact, courts have held that a price is not
serious or real where it bears absolutely no relation to the thing sold.
Sea the case of CIR v Saner 1927 TPD 162 as a good example of
circumstances where the seller had no intention of exacting the so-
called price.

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Must sound in current money’
The requirement that the price must sound in current
money means that the price must consist in valid
currency. If the sale is not in money, there will be no
contract of sale, but possibly a contract of exchange.
Where the price consists partly of money and partly of
goods, the nature of the contract will depend on the
intention of the parties. If the intention of the parties is
uncertain, the contract will be regarded as one of sale if
the monetary price is the main consideration. If the sale
of the monetary price is the same as that of the other
consideration, it is assumed that the contract is one of
sale
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The legal effects of the contract
Passing of Ownership
In most contracts of sale, the purchaser acquires ownership of the
merx upon execution of the contract of sale. However, it is
important to remember that the seller’s ownership of the merx is
not a requisite of a contract of sale. Thus, the sale of a thing not
owned by the buyer can be the subject of a valid contract of sale.
In this case, the seller does not undertake to make the buyer the
owner of the article but undertakes to give him vacant possession.
The issue of ownership, however, is an important incidence of a
sale even though a contract of sale does not automatically result in
ownership being transferred to the buyer.
This is due to the fact that ownership does in fact pass in most
contracts of sale

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To transfer ownership, certain formalities are required,
depending on whether the thing is movable or immovable.
These formalities are dealt with in the law of property
Immovable property
In the case of immovable property, delivery is not
possible.
Immovable are transferred by way of registration in a
Deeds Office (the position is regulated by the Deeds
Registries Act 47 of 1937).
In other words, registration constitutes delivery in the case
of immovable, and ownership passes whether the price
has been paid or not

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Incorporeal
Ownership in incorporeal (things without a physical existence;
eg debts) is transferred by means of cession in the case of
movables (Cession is a special form of contract whereby personal
rights in intangible things are transferred by means of agreement.
Where the incorporeal constitute immovable property, eg

bonds/oaths, they must be registered in the relevant deeds office.
Movable property
Ownership in movable property is transferred
upon delivery of the res, coupled with
either payment of the purchase price, the provision of security, or
the giving of credit. Let us now discuss (1) and (2) respectively.
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The seller’s duties and the buyer’s remedies
Each party to a contract of sale is bound by those obligations which he or she has
expressly or impliedly undertaken. Apart from these obligations, the law may also
impose certain obligations on the parties to a contract of sale. These obligations
apply to any contract of sale unless the parties have expressly or impliedly
excluded them from the contract.
The seller is obliged to take care of the res vendita until the thing is made available.
Even though the buyer bears the risk of accidental loss once sale is perfecta, the
seller still has a responsibility for the thing sold. The general rule is that the seller
must take care of the res vendita from the date of completion of the sale until it is
made available to the buyer or delivery is affected.
This means that seller will be liable for any damage caused by his fraud or
negligence, but not for accidental damage caused independently of any negligence
on his/her part.
Read this caseFrumer v Maitland 1954 (3) SA 840 (A) at 845,

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The buyer’s remedy
where the seller has failed to take care of the thing sold
Where the seller has not taken due care, the remedies available depend on whether
the goods are specified or unascertained.
Specific goods: In the case of specific goods, where the damage is material, the
buyer is entitled to refuse to accept delivery of the goods and to repudiate the
contract, claim damages, and a refund of the price if paid.
In other words, he is entitled to treat the situation as he would non-delivery of the
thing. Where the damage is not material, the buyer must accept the delivery of the
goods, and then claim damages.
See the quote from Frumer’s case above.
Unascertained goods: Where the sale is of unascertained goods, the buyer may
reject the goods and once again treat the seller as if there had been no delivery at all
(whether the breach is major or not), provided the damage is not trifling.
But where the purchaser accepts the res vendita, but claims damages, the damages
will be estimated on the basis of the difference between the value of the sound
goods and the value of the damaged good delivered.
The buyer may also claim any wasted necessary expenditure.

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Remedies to the purchaser
The buyer’s remedy where the seller has failed to make
the thing sold available
If the seller fails to make the thing sold available in any
of the senses described above, these are clearly
breaches of contract for which the buyer's remedies
are contractual.
We do not have time to investigate the intricacies of
the remedies in such a short course.
Therefore, a brief summary will be given here, and
which really constitutes revision of Commercial Law or
Contractual Remedies
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Specific performance.
The buyer has a right to demand the thing sold to him (subject, of
course, to the court's discretion to refuse it). The remedy is available
to a buyer who rejects the tender of goods as being inappropriate. As
we have seen, a buyer who has received less than what he contracted
to receive, may prefer to accept what was tendered, but sue for the
balance to be produced. See Cedarmount case above.
Cancellation of the contract. Failure to make the goods available in a
contract of sale is a major breach, and entitles the buyer to cancel the
contract.
Awards of a damage
If the seller fails to make the goods available, damages may be
awarded (with or without cancellation, depending on the
circumstances and type of breach) according to the general principles
of contract
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CONTRACT OF LEASE
- Introduction
The obligations of the lessor and remedies
available
The obligations of the lessee and remedies
available
The legal position of the lessee
Termination of a lease agreement
Renewal of a lease

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by the lessor’
The lessor need not necessarily be the owner.
He or she could for example be leasing the
property from the owner and sub-leasing to
another.
The lessee therefore cannot attack the contract
on the basis of the lessor's lack of title if the
latter has delivered and continues to deliver
the use and enjoyment of the property.

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‘temporary’
It is a requirement of a contract of lease that the
lessee’s use and enjoyment of the thing let is to be
temporary.
This does not mean that a contract in which one
grants the use and enjoyment of a thing to another in
perpetuity (i.e. forever) is invalid, but it is not a
contract of lease.
This requirement is fulfilled if the contract of lease is
entered into for an indefinite period or until the
occurrence of an event that is bound to occur,
although the time for its occurrence is unknown.
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‘Sum of money’
Obligation of the lessee
An essential term of the contract of lease is an undertaking by the
lessee to pay a sum of money i.e. an undertaking to pay rent.
In Neebe v Registrar of Mining Rights 1902 TS 65 at 86 Wessels J
defined ‘rental’ as ‘the “quid pro quo” promised by the lessee for
the use of the article let.’
There cannot be a valid lease unless the parties agree on rent.
The rule here is that the rent must consist of an agreed amount of
money. In Jordaan NO and Another v Verwey 2002 (1) SA 643 (E),
the court considered whether our law still required that rent had
to be in the form of money. The court held that this requirement
is still part of our law and is one of the factors that distinguish a
lease agreement from other agreements.
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Certainty regarding amount of rent?
It follows from general contractual principles that for a contract

of lease to be valid, there must be certainty about the amount
of rent that is payable.
The certainty that is required of the rent in a contract of lease is
similar to the certainty required of price in the law of sale. If the
rent can be rendered certain (ie. is it ascertainable?), this
requirement is fulfilled. This means that while parties normally
agree on the amount of money to be paid as rent, they can also
create a valid lease by agreeing to a method or formula by
which the amount of rent is to be determined (for example,
‘what the previous lessee paid plus 10%’). They may even agree
that the rent is to be determined by a specified third person
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The lessor’s obligations in a contract of lease
and remedies available
There are three main residual obligations of the
lessor to a contract of lease. These are:
The obligation to deliver the thing let to the
lessee on the due date free from impediments
and in a fit condition for the purpose leased.
The obligation to ensure the lessee’s
undisturbed use and enjoyment of the thing let.
The obligation to pay the rates and taxes.
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The thing let’
The thing that the lessor must deliver to the lessee is the
thing they agreed upon. This statement may seem self-
evident but parties often dispute the subject-matter of the
lease, particularly as regards to what ‘additional’ things or
facilities are necessary for the proper
enjoyment of the property.
The question arises as to what ‘additional’ things or
facilities are necessary for proper enjoyment of the thing
let.
Voet tells us that the lessor is bound to make available ‘all
those things without which one cannot have convenient
use’.
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Remedies
Should the lessor fail to deliver or maintain the thing
as set out above, the lessee is entitled to the normal
remedies for breach of contract. These normal
remedies can be summarized as follows:
A claim for specific performance;
Cancellation / Rescission of the contract; and
Damages In addition, the lessee can
Claim a reduction in rent
Repair the property him/herself and charge the lessor
Damages
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Obligations of the lessee and remedies available
The obligations of the lessee are
To pay rent;
To take proper care of the property and use it only for the purpose for
which it was let; and
To restore the property on termination of the lease in the same good
order and condition as it was when it was received.
In addition, the lessee will be bound by all those obligations expressly
or impliedly binding him in the contract; for example, to maintain the
leased premises, to put up fences, to renovate, to carry on a particular
trade or to refrain from doing so.
It is important to note at this stage that it is incorrect to refer to the
lessee’s obligations as ‘residual obligations’ or ‘obligations imposed by
law’. This is because the obligations of the lessee involve the essential
aspects of a contract of lease (see definition and essentials above).

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The Contract of Carriage and transportations
Internationally and domestically
By land
By sea and
By Air

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Parties to a Contract of Carriage
The Carrier
The party who transports the goods and passengers is known as the carrier. A public
carrier is someone who transports goods (or persons) as a business. A private carrier
only transports goods as an isolated or casual act either for payment or for free. We
will look at the types of common law carriers in more detail at para 3.2.1 below.
The Consignor
A consignor is the party to the contract who arranges for the transportation of the
goods
The Consignee
Sometimes there is another party to the contract of carriage known as the consignee.
The consignee is usually the person nominated by the consignor to take delivery of the
goods. The consignee is often an agent of the consignor. The same person can act as
both consignor and consignee. In this case, the consignor does not need to nominate
a separate person as a consignee.

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Elements of the Contract of Carriage
The contract of carriage at common law is complete
when the parties have agreed on:
the goods or persons (or both) to be carried or
conveyed,
(ii) the two points between which the carriage is to take

place, and
(iii) the freight (i.e. the remuneration for goods) or fare

to be paid for the service (if the contract is not
gratuitous).
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Agreement on the method of carriage (road, rail, ship, or air)
is not necessarily an essential element unless expressly or
impliedly material to one or other of the parties.
For example, if I undertake merely to transport Fred's goods
to East London from Grahamstown by the end of the week I
am entitled to choose the method. I might use my own car or
a courier. If I choose the latter there would be two carriage
contracts, one between Fred and me and the other between
me and the courier.
Similarly agreement as to the time for delivery will not always
be an essential unless it is material to one of the parties. If
delivery appears to the consignor to be unduly slow she has
the remedy of placing the carrier in mora (see below).

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A passenger or consignor is naturally bound by these
regulations or terms if he or she actually consents to them.
Consent on the part of the passenger or consignor will be
presumed in the following instances: 
Where the passenger or consignor actually signs a contract
of carriage which refers to the terms, even if he or she does
not know what the terms are, provided he or she had
reasonable facilities for acquainting him/herself with the
contents of the regulations. 
In the case of a ticket containing a reference to the terms,
and the passenger knew, or ought reasonably to have known
that the reference related to the terms of the contract

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The obligations of the consignor
The obligations set out below are those obligations that follow
from the nature of the contract.
These are often set out expressly in the contract or can be
implied from it.
Do not forget that there may be other express or implied
contractual obligations, which are particular to a contract, for
example, the method of packing and time and place of delivery.
The obligations of the consignor can be summarised as follows: 
to deliver the goods to the carrier; 
to accept delivery at destination; and 
to pay the agreed or proper freight

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The obligations of the carrier
The carrier is also bound by lasting as well as agreed obligations. The duty to
deliver at a particular destination and at a particular time would usually be
agreed upon. The main residual obligation of the carrier is to carry the goods
with due care for their safety and without due delay.
It is important to note that the first of a succession of carriers is liable for the
safe carriage in respect of the entire journey unless he limits his liability by
contract or unless he is the agent for the second and successive carriers.
We shall be examining this duty in relation to the different types of carrier as

the nature and degree of liability which the carrier attracts under this
obligation is dependant on the type of carrier he or she is and what he or she is
It is important to note that the liability in terms of carriage of persons is
identical for all carriers, irrespective of which type of carrier they are,

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Commencement, termination and limitation of
liability
Scope of liability of carrier when transporting

goods
As mentioned above the nature and extent of

liability of the carrier for loss or damage to
goods depends on whether the carrier is a
private or a public carrier.
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Commencement of Liability
The liability of the carrier commences as soon
as the goods are delivered to him/her or, if the
carrier is already in possession of the goods in
another capacity, as soon as he holds them in
terms of a carriage contract.
It is important to note that the mere conclusion
of a contract of carriage does not give rise to
liability

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Termination of Liability
The liability of a carrier terminates once the
goods are brought to the agreed destination
and delivered.
Delivery in this sense means to give into the
hands of the consignee (or his or her agent).
Delivery can be actual or constructive.

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Avoidance of Liability
Under the common law, parties to a contract of carriage may modify or
avoid the absolute liability.
Any such contract and its exclusionary clauses are strictly construed and
have to be drawn with care in order to be effective in avoiding liability.
Unless liability for negligence is clearly excluded, the carrier will remain
liable for damage occasioned by the negligence of himself or his servants
(NB – a carrier cannot contract out of liability for gross negligence – for
example, a carrier cannot contract out of liability for theft committed by
himself).
The clause avoiding liability usually reads along the lines of ‘at owner’s
risk’ (for goods) and ‘at own risk’ (for passengers).
The onus lies on the carrier to prove that the clause in the agreement
excludes the specific loss in respect of which damages are being claimed.

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Remedies
Remedies of the carrier Once the carrier has
delivered the goods at the agreed time and
place (and performed in accordance with all his
or her obligations), the consignor has an
obligation to pay the freight unless there has
been a contrary agreement between the parties

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The Carriage of Goods by Sea
In 1921, the Maritime Law Committee of the International

Law Association drafted a set of rules (known as the Hague
Rules) at their meeting held at the The Hague. They were
eventually signed by the most important trading nations in
1924 with each State being expected to give the Hague
Rules statutory force with regard to all outward bills of
lading.
A Protocol signed in 1968 repealed the 1924 Act and re-
enacted the Hague Rules together with certain amendments
that had been made at Visby (on the Swedish island of
Gotland) – hence the title: The Hague-Visby Rules
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Applicability of the Rules as incorporated into the Act
As stated in the introduction, the Carriage of Goods by Sea Act

(hereafter ‘COGSA’) applies the Hague-Visby Rules to certain
instances in the carriage of goods by sea under a Bill of Lading
contract. These are: 
Where the goods are shipped from a South African Port, whether or
not the bill of lading incorporates the rules;
When a bill of lading expressly provides that the Rules shall govern
the contract, wherever the port of shipment;
Where a receipt evidencing a contract of carriage of goods by sea
expressly so provides; and / or 
By virtue of the amendment of the rules in the Act, to live animals and
any goods carried on the deck unless the Bill of Lading provides
otherwise
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The duties of the carrier are set out :
requires that the carrier exercise due diligence to
make the ship seaworthy.
Therefore, a carrier will only be in breach where the
ship is unseaworthy if the unseaworthiness is
caused by a want of due diligence.
the duties of the carrier towards the actual cargo as

opposed to the ship itself. It requires the carrier to
properly and carefully load, handle, stow, carry,
keep, care for and discharge the goods carried.
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Carriage by Air
international carriage to which the Carriage by

Air Act applies, or
international carriage to which that Act does
not apply, or
purely domestic carriage, that is performed
wholly within the borders of the Republic

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Just like the carriage of goods by sea, an international
set of rules governs the relationships between
international carriers themselves and passengers
and/or consignors.
Until 19 June 2007, South Africa gave effect to the
Warsaw Convention, as amended by the Hague Protocol.
However, it is important to note that after this date, the
Carriage by Air Amendment Act 15 of 2006 applies a
Convention formally known as the Convention for the
Unification of Certain Rules for International Carriage by
Air, and informally known as the Montreal Convention.

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The Air Waybill / Cargo Receipt
In respect of the carriage of cargo, an air waybill (or
any other means which preserves a record of the
carriage) shall be delivered.
If means other than an air waybill are used (ie.
electronic ticketing), then, if the consignor so
requests, the carrier must deliver to the consignor a
cargo receipt permitting identification of the
consignment and access to information contained in
the record preserved by such other means. Article 5
of the Montreal Convention stipulates that an air
waybill or the cargo receipt shall include
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an indication of the places of departure and
destination;
if the places of departure and destination are
within the territory of a single State Party, one
or more agreed stopping places being within
the territory of another State, an indication of
at least one such stopping place;
an indication of the weight of the consignment

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Rights of the consignor and consignee against
the Carrier
The consignee is entitled, on arrival of the
goods at the destination, to require the carrier
to deliver the goods to him on payment of the
charges due and complying with the condition
of carriage

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Personal Injury
The most important improvement to the system in terms of
personal injury in the course of international carriage is the
imposition of liability without proof of fault up to 100 000
SDRs and thereafter a presumptive liability for an unlimited
amount.
In other words, there is a two tier approach to the principle of
the air carrier’s liability in the event of bodily injury:
 The first tier of strict carrier liability for damages of up to
100 000 SDR’s 
In excess of that amount, a second tier of liability based on the
presumed fault of the carrier, which the latter may avoid only
by proving that it was not at fault (ie. the onus is on the carrier)

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The carrier is liable for damage sustained in the case of death
or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on board
the aircraft or in the course of any of the operations of
embarking or disembarking.’
in order for the carrier to be liable under this head, two
essential requirements must be met in accordance with this
article, namely:
(a) the damages claimed must have been caused by the death
or other bodily injury suffered by, a passenger; and
(b) the death, wounding or other bodily injury must have been
caused by an accident which took place on board of the aircraft
or in the course of any of the operations of embarking or
disembarking
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The carrier is liable for damage sustained in
the event of the destruction or loss of, or
damage to, cargo upon condition only that the
event which caused the damage so sustained
took place during the carriage by air.

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Defenses available to the Carrier
In relation to the carriage of cargo: The carrier is not
liable for loss of or damage to cargo, if that loss or
damage resulted from one or more of the following:
inherent defect or vice of the cargo;
defective packing of that cargo performed by a
person other than the carrier or its servants or
agents;
an act of war or an armed conflict;
an act of a public authority carried out in connection
with the entry, exit or transit of cargo
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This work is for the collector and arranger's rights to
be cited.
Any duplicate or copy without authorization of the
arranger is an offence against copyright laws.
Arranger-Mohamed Abdi Kadiye

Contact: +25621 3323723
Email: mckadiye@hotmail.com
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Private laws

collected and prepared by

8. Family law and Succession

9. And Commercial law

1. Law is an instruction and order consists of any principle which is

collected and prepared by

However one fundamental issue which can be deducted from the

Or It’s “the command of the sovereignty backed by suction and

Or It a set of rules and principles intended to guide conducts in

collected and prepared by

It is to be distinguished from public law, which deals with

In general terms, private law involves interactions between

collected and prepared by

collected and prepared by

One of the parties can compel the other to enter into a legal relationship

collected and prepared by

collected and prepared by

collected and prepared by

However, a short discussion of the civil law and common

collected and prepared by

Legal capacity in general:

Birth and Death

For a natural person, such eligibility occurs automatically at birth(Art

General legal capacity needs to be distinguished from special legal capacity.

collected and prepared by

Legal capacity attaches exclusively to persons. When, in everyday

Legal capacity is acquired at birth, the event with which life

For an individual to have been born he must (following medical

Children, either unborn or yet to be conceived, may be beneficiaries of a will,

It must, however, be observed that a child en ventre sa mere has a

collected and prepared by

(At one time it could be lost by sanction, such

(Art. 32 of the Somali civil code refers the disappearance

These situations are not uncommon, as can daily be

The least serious case is a straightforward disappearance. Here, there is no

What happens if the absentee returns?

collected and prepared by

Such a presumption of the absentee’s death is declared by the court. The

Periods of less than 10 years are provided in special circumstances. Once

Administration of the estate may begin, but an inventory must be completed.

The return of a person previously presumed dead entitles him to repossession of

collected and prepared by

It is important to establish legally where a natural person works and resides

Different relevant places are distinguished and variously denoted.

The concept of domicile combines an objective aspect in the form of economic

It is of necessity (or ‘legal’) when it is imposed

collected and prepared by

Residence also combines objective and

Capacity to exercise rights means capacity to ‘perform acts’ (Art 44 of the

Those who prefer a voluntarist conception of legal relations define this

Legal capacity is acquired at birth, capacity to exercise rights only on

collected and prepared by

Exceptions are made, however, for contracts of employment.

collected and prepared by

However, joint representation is required for acts of disposition,

Actions which tend to preserve the property are acts of management;

It refers to an individual’s inability to form a will or intention. Such

Once this assumption is rebutted and incapacity, whether temporary or

collected and prepared by

collected and prepared by

These forms of legal incapacity are similar to those, respectively, of a minor.

Disqualification can be judicial or legal. Judicial disqualification is obtained via

The duty is fixed by law The duty is fixed by the parties