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Sections of the Right
(In accordance with the Civil procedure Law No. 5 of 1985 and its amendments)
The UAE Civil Transaction Law has divided the right into three sections: the personal right, right in rem, moral right, as stated in article 107 of this law: ” Rights are personal, real or moral”.
First: The personal right:
– Article 108 of the aforementioned Law defines the personal right as: A personal right is a legal bond between a creditor and debtor where the former asks the latter to transfer a real right, or the performance or forbearance of an act.” We understand from this definition that there is a legal relationship between two persons, one of which is including the personal right and the obligation to the other. The personal right and the obligation are coincident concepts, since each individual’s personal right must be met by an obligation on the other party.
– For example; The relationship between the buyer and the seller, the seller has a personal right over the buyer to pay the price, and the buyer has a personal right on the seller to receive the purchased commodity, and on the other hand, it is the buyer`s obligation to pay the price of the commodity and the seller’s obligation is to deliver it.
Another Example; the merchant’s obligation is not to open a store near another store. It is a personal right of the first to oblige the latter not to open the store.
Also the injured person has a personal right to sue the insured company of the vehicle which caused the accident.
As well as the obligation of the employee not to work for another employer, as the employer has a personal right to oblige the employee not to work for another employer.
– As we can see from the aforementioned examples that the power granted by the personal right to its holder is presented in his ability to oblige the other party to transfer a real right or the performance or forbearance of an act., as states in Article 108 of the Law.
Second: Right in rem:
The first paragraph of Article 109 of the Law defines the right in rem as follows: ” A real right is a direct authority over a specific thing given by the Law to a specific person”
Accordingly, the real right is the direct authority of the person who holds this right over something related to him. The holder has the right to use it directly without the need of the intervention of another person to enable him to use his right. There is no mediator between the ownership of someone to a house for example, it grants the owner the right in the possibility of selling or trading or lending or even demolished the house, there is no mediator between the house and its owner.
The real right shall be either original or subsidiary, according to the second paragraph of Article 109, which states; “The real right may be principal or accessory.
A- The Principal Real Right;
The principal real rights are characterized by its independent existence as they do not belong to/or relate to any other right. Article 110 determined the original rights in the first paragraph as follows: “Principal real rights are ownership, disposal, usufruct, use, housing, Al Musataha, the servitude/ Al Wakf and all what is so considered by law”
Accordingly Article No. 110 classified the principal real rights to certain types and we will explain each type;
The ownership right; is one of the most important real right as his holder has the right in using the property and the disposition thereof. For example the owner of the house has a real right on his home, which is a sententious and permanent right which shall not be barred by lapse of time.
As states in Article 1133: ” the ownership right is the power given to the owner to freely dispose, use and enjoy of his property” .
This means that the owner has the right in the material and legal disposal of the subject right in his best interest.
The usufruct: As identified in Article No. 1333: ” Usufruct is right in rem given to the usufructuary in order to use a real estate owned by another and exploit it as long as it remains as it is “
Thus, the right of usufruct is a right in rem ( real right) that belongs to property owned by others, whether real estate or movable, entitling its owner the right to use or exploit that property for a specified period. This right ends with the death of the beneficiary or the expiry of the fixed period.
The beneficiary shall be obliged to preserve the property and return it to its owner at the end of the usufruct.
The right of use: To use the object as it is prepared for him expect for fruits, such as housing and riding animals.
The right of Housing: The right of use which is prescribed for the real estates and buildings.
The right of Al Musataha; As states in Article No. 1353 as follows; “Al Musataha is a right in rem which grants its owner the right to construct a building or to plant on a land belongs to a third party”.
The servitude: identified by Article No. 1362 as follows; “Servitude is a right which limits the enjoyment of a property for the benefit of another property belonging to another owner”
However Al Wakf has its own law as states in Article No. 1361: ” Al Wakf shall be subject to the provisions enacted by a special law”.
The Accessory Rights;
The accessory rights do not exist independently, however they follow another right to which they are bound as its guarantors, and the right which follows the Accessory right is always a personal right, one of the most important types of the Accessory rights is the mortgage, which is right in rem because the holder of the right of Mortgage has direct authority over the mortgaged property and it is subsidiary as it can not exist independently since the right to Mortgage can only arise if there is a debt to be secured, where the mortgage follows the debt`s authority or it follows the personal right of which the creditor has over the debtor and is associated with it, therefore it is considered an Accessory right which follows the personal rights. As states in Article No. 110:” the Accessory rights are insurance mortgage, the pledge and privilege “
Accordingly the aforementioned text identified the Accessory rights as follows;
The Insurance Mortgage: as states in Article No. 1399 :” The insurance mortgage is a contract by which a creditor acquires, over an immovable property allocated for the payment of his debt, a real right by which he obtains preference over ordinary creditors and creditors following him in rank, for the repayment of his claim out of the price of such property, no matter into whose hands it has passed”.
Consequently, the mortgage is an official contract between the debtor who mortgaged his property and the mortgagee, whether or not the landlord is the owner of the property. As a result, the mortgagee has a right in rem over the property to secure his debt. The creditor has the advantage of fulfilling his right from the debtor not before the creditors of the owner of the property, but also the other creditors who have other right in rem over the property whether secured creditors / concessionaires.
The pledge as states in Article 1448 :” Pledge is a contract constituting a right to retain a property in the hands of the creditor, or a third party holder, as security of a right that can be recovered from it, in full or in part, in preference to all other creditors” .
The pledge differs from the insurance mortgage that the ownership and possession of the mortgaged remains in the hands of the owner (the debtor) in the case of the insurance mortgage, while the possession is transferred to the creditor in the pledge contract, and the insurance mortgage right is granted only to the real estate, Real estate and movables such as jewelry others.
As states Article 1504: ” A privilege is a real accessory right of preference granted by law to the creditor enabling him to collect his right by reason of its description”
The privilege is a priority recognized by the law and the privilege is granting the creditor the right to follow the money in any hand and the implementation thereon, as well as the right to progress in the fulfillment of his debt of the insured money before other ordinary creditors, and it is characterized by the discretion of the legislator, where the legislator grants a privilege to a particular debt, he considers the nature of this debt, the worthy and the priority that the allows the creditor to be able to fulfill before other creditors, even the insurers. The law in its assessment of the debt is based on various considerations such as public interest (funds due to the public treasury) and humanitarian consideration.
Third: The Moral rights
The moral right is the person’s authority over his intellectual, literary or artistic product, or his scientific invention, so that he can keep the proportions of this product to himself and monopolize the financial benefit that may result from it.
For example; the rights of the writers to their literary works and the rights of scientists to their scientific inventions.
The moral right is similar to the right of property as a right, the only different is that the moral right is applied to a moral thing. As states in Article 111 in the first paragraph: ” Moral rights are those exercised over intangible things “
The writer’s ownership does not apply on the book, but on the ideas contained in this book, it applied on the moral things which are not recognized by the physical sense.