فَلسَفة انـقِضاء الحِقـوق وعودتِـها في القانـون المدنـي ((دراسـة مقارنــة))

philosophy expiration Rights And her return of Civil Law "A comparative study "

Abstract

There is no escape from saying that it is one of the postulates in civil law, which was stipulated by the legislator and agreed upon by jurisprudence and judiciary, so that it has become a general rule that cannot be denied at all, which is that if a right or obligation is decided to expire due to the availability of its reason, then it expires permanently and there is no return to it after that, so it ends. The rights and obligations of the parties to the relationship, and then their situation reaches what they were before the contract, such that their contract is considered as if it had not occurred between them to begin with. However, the philosophy of the legislator sometimes goes otherwise, as he decides in some cases to return to the same right or The obligation that lapsed previously, so that the legal relationship returns to what it was like before the expiration event occurred, so the rights and obligations of both parties to this relationship return.
In this context, many pivotal questions emerged that the researcher tried to answer in the body and folds of the research, the most important of which is an explanation of the subjectivity of this term; Because examining this determines its dimensions, it has become clear to us that the return of rights and obligations has a distinct legal status, according to which the parties to the legal relationship are returned to a certain position when the reasons and restrictions for this return are available… Therefore, this return has restrictions, or rather certain conditions, and when they are fulfilled, the relationship is restored.
Again, just as this return is limited to a specific scope that revolves around it, the right or obligation must return to the same persons and subject. The right must return to a place without any addition and without this return leading to the entry of a foreign element into it. Otherwise, we will not be faced with a return of a right. Certain or commitment, but we may be facing another legal situation. It is worth noting that the right may require the need to return it, but the latter has collided with an obstacle that makes it impossible to return, such as waiver, for example. In addition, the right may return to the source according to which it was created at first glance, and it may be created by another source depending on the nature of this right or obligation, on the one hand, and on the other hand. Another is that the extinction and return of rights has a legal basis, whether for expiration or return, and there is complementarity and differentiation between the rules of the principles of jurisprudence and the extinction of rights and their return in civil law to the extent that some jurists consider these rules to be a legal basis for the extinction and return of rights in civil law.
The return of rights and obligations entails legal consequences, whether for the persons of this relationship including the creditor and debtor and their public and private successors. These effects may extend to third parties, especially if the latter has good intentions, then the right returns, but this return must not affect the rights acquired by this third party during the course of the contract. The period of expiry of the right and its return, or this return may be related to the subject of this return, as the right must return to its place with its guarantees, defenses, descriptions, and guarantees, whether in kind or personal, and this return is proven by all methods of proof and according to the nature of the obligation, and liability may arise in the event of a breach of this return and may The nature of this liability varies according to the character of the party from whom the breach occurred.
It may be a contractual or tortious liability. The extinction and return of rights have many applications scattered across the various sections and chapters of civil law. From this standpoint, we decided to collect these applications under a specific umbrella, through which a general theory of the extinction of rights can be developed. And its return in civil law, through which we explain the legislator’s philosophy in this regard