Abstract
The rules of the civil law governing the suspension, frustration and termination of the civil contracts, are both in the U.A.R. and Sudan, generally applicable to the contract of employment. However, the peculiar nature of this contract, especially as concerns the worker, occasioned the legislator’s interference in both countries, so as to provide some rules better suited to the contract. But these rules cannot be fully appreciated, without reference to the relevant rules of the civil law.
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References
These two topics are discussed together, because as we shall presently see, they are well connected, under the general law.
Vide section 14(c) of the Tunisian Labour Code, section 443 of the Majallah, section 1148 of the French Civil Code, and section 1639 W of the Netherland Civil Code.
Vide El-Areef, p. 315. Vide footnote 7, infra.
Cairo Court of Appeal in appeal No. 474 of 1957 (in El-Hawwari, p. 193); cf. Murad, p. 389.
Vide Cairo Labour Court in case No. 140 of 1960 (Ibid., p. 258); vide also Badawi, K.M., p. 277; Sabbour, pp. 361 and 519; Habeeb, p. 428; Rashed and Hashem, p. 177; and Faheem, p. 114. Zaki, pp. 333-4, adds, however, that the contract will be frustrated, if time is of the essence of the contract.
Cheshire and Fifoot, p. 462; vide also in pp. 462-9 thereof, the historical development of the doctrine of frustration of the contract, from the old theory of the ‘implied term’ to the now more favoured theory of the ‘just solution’; and note therein the cases of Paradine v. Jane (1647), Aleyn, 26; Taylor v. Caldwell (1863), 38. & S. 826; and Davis Contractors Ltd. v. Fareham U.D.C. (1956) A.C. 696, which help to clarify the said development. Vide also Cooper, pp. 50-1; Diamond, p. 215; I.S.D.L., Vol. 4, 1929, pp. 5-6; and Barwell and Kar, pp. 117 and 442.
The term ‘act of God’ was interpreted in Nugent v. Smith (1876) I C.P.D. 423, to mean the elementary forces of nature, which are not connected with the agency of man, like floods and earthquakes. These also fall under the French term force majeure. on the other hand, the unforeseen occurrances of a different order, like a declaration of war or a rebellion, which are connected with man, are classified under vis major. the French term force majeure, covers such occurrances: vide Matsoukis v. Priestman & Co. (1915) I K.B. 681, where it was held that the French term force majeure, was a purely continental notion, and was wider than each of the act of God and the vis major, in England.
In Nordman v. Rayner and Sturges (1916), 33 T.L.R. 87, it was held that the contract of an Alsatian was not frustrated, by his internment for one month, on account of his French sympathies.
Vide Cairo Court of Cassation in case No. 1326 of 1955 (in Habeeb, p. 432); vide also El-Areef, p. 319; Murad, p. 390; and Sabbour, p. 349. Vide I.L.R., Vol. 79, 1959, p. 635, for the similar position in France.
Section 161 of the U.A.R. Civil Code provides that, “if in bilateral contracts the corresponding obligations are due either party may refrain from carrying out his obligations if the other party does not carry out his own obligations”-Exceptio non ad impleti contractus.
Vide the section quoted and discussed in Section II of Chapter V, supra. As the paid sick leave by virtue of this section, is limited to 180 days in any one year, the extra 20 days necessary to make up the two hundred days mentioned in section 81(1), would presumably be leave without pay. This means that the contract, during these twenty days, is suspended, both by implication from section 81(1), and by virtue of the rules of the general law.
This is supported by section 81 (4) of the Labour Code, which guarantees for the worker, whose contract is frustrated by the operation of section 81(1), the termination gratuity ordinarily payable by the employer, by virtue of section 73 (vide Section I of Chapter VII, infra). If the legislator thus guarantees the payment of wages to the worker during his sickness, and of the gratuity on the frustration of the contract, there is no room left for the contention that the contract is suspended, during the worker’s sickness.
Section 697(2) of the U.A.R. Civil Code gives to the special laws, presumably meaning the labour laws in the first instance, an overriding effect over the Civil Code provisions, re dissolution of the contract by force majeure (vide the section quoted in part F of this Section of the present Chapter, infra).
It is clear that the 180 consecutive days do not have to fall within one year. Sections 14 and 59 of the Saudi Regulations, and 59 of the Kuwaiti Labour Code, respectively, contain provisions somewhat similar to section 81(1) of the U.A.R. Section 81 (2 & 3) of the U.A.R., provides for the proof of the disability or the sickness of the worker, as follows: “The disability or the sickness shall be proved by a medical certificate provided that the employer may have the worker examined by another doctor, and if the two differ either party may request the Labour Office to refer the matter to a medical arbitration board for whose establishment and the procedure of referring disputes thereto and the assessment of fees an order from the Minister of Labour in agreement with the Ministers of Justice and Health shall be issued. “The Labour Office concerned shall on the receipt of the medical arbitration decision communicate it fortwith to the worker and the employer both of whom shall carry out any obligations resulting from the decision, which shall be final.”
Only the Saudi Regulations (section 14) contain a similar provision.
Vide Cairo Court of Cassation in case No. 1486 of 1959 (in El-Fakahani, Book I, Vol. III, p. 413): “The contract is frustrated by the force of law (de plein droit)... without the need for the employer to take any further step”; vide also the Cairo Court of Appeal in appeal No. 1021 of 1955 (Ibid., p. 409); the Cairo Labour Court in case No. 3620 of 1959 (in El-Hawwari, p. 201); and vide Sabbour, pp. 350-1; Butros and Rajab, pp. 381 and 421; and El-Fakahani, 1959 Supplement, p. 315. of the contrary view which, it is submitted, is wrong, are the High Court of Appeal in appeal No. 74 of 1958 (in Zaki, p. 342); and Cairo Court of Cassation in case no. 1162 of 1957 (in E.-Fakahani, Book I, Vol. III, p. 408); vide also Badawi, K.M., p. 426; Zaki pp. 342 and 344; and Faheem, p. 123. Rashed and Kashem, p. 300, advocate this view; but they advocate the contrary view without explanation in p. 303. Habeeb does the same, in pp. 433 and 482, respectively; and so does Murad, in pp. 390 and 392, respectively.
Vide Cairo Court of Cassation in case No. 1205 of 1955 (in El-Fakahani, Book I, Vol. III, p. 410); vide also El-Areef, p. 303.
Vide Sabbour, p. 351, who is of the same opinion.
The employer is, however, not precluded from dismissing the worker for a justifiable cause, during the latter’s sickness, as he is entitled to do by virtue of section 76 of the Labour Code (vide Section II of the present Chapter, infra)’, vide Murad, p. 391.
Vide Murad, p. 392, who is of the same opinion.
Vide Cuckson v. Stones, 1 Ell & Ell. 248; vide also Macdonell, pp. 215-6; Halsbury, Vol. 25, p. 487; and Barwell and Kar, pp. 252-3.
Vide the section quoted and discussed, in Section II of Chapter V, supra.
Vide Storey v. Fulham Steel Works Co. (1907), 24 T.L.R. 89; and Robinson v. Davidson (1871), L.R. 6 Exch. 269-cf. with Bettini v. Gye (1876), I Q.B.D. 183; vide also Batt, p. 71; Cooper, pp. 48-9; Cheshire and Fifoot, p. 470; Samuels, p. 13; and Halsbury, Vol. 25, pp. 477 and 487.
Vide the section quoted in part F of this Section of the present Chapter, infra.
Vide Orman v. Saville Sportswear Ltd. (1960), 3 A.E.R., p. 105.
Vide the section quoted in Section II of the present Chapter, infra.
El-Areef, p. 319. This can also be deduced by analogy, from section 697(1) of the Civil Code, which precludes the frustration of the contract by the employer’s death, unless his personal qualities were taken into consideration, at the time of making the contract (vide the section quoted in part F of this Section of the present Chapter, infra).
This can also be deduced by analogy, from section 12 of the Sudan Ordinance, which deems the contract terminated by the employer’s death.
Vide the section quoted in part A of this Section of the present Chapter, supra.
Vide section 159 of the Civil Code, in this Section of the present Chapter, supra.
El-Fakahani, 1959 Supplement, p. 316; Rashed and Hashem, p. 306; Badawi, Z., Vol. I, p. 90; and Naguib and Bakr, p. 183, are of the same opinion. It is difficult to appreciate the reference in section 81(1), to industrial compensation. This compensation is prescribed in section 28 of the Social Insurance Law No. 92 of 1959. There is nothing in this Law, which concerns the subsistence of the contract, before the industrial disability is ascertained: vide Zaki, p. 346; and Butros and Rajab, p. 422.
Vide Cairo Court of Cassation in case No. 3097 of 1953 (in Badawi, K.M., p. 428) vide also El-Areef, pp. 401 and 410; Murad, p. 390; El-Fakahani, 1959 Supplement, p. 317; Badawi, K.M., p. 423; Rashed and Hashem, p. 298; Badawi, Z., Vol. I, p. 90; Butros and Rajab, p. 419; and Naguib and Bakr, p. 193.
Vide Murad, p. 390. Sabbour, p. 521, maintains otherwise, though with some hesitation, as he adds that the worker’s smaller output due to old age, should justify the termination of his contract by notice (vide Section II, B of the present Chapter, infra, for the justification of the termination of the contract).
Murad, p. 390, maintains otherwise, without any justification.
P. 190; vide also Harmer v. Cornelius, 5 C.B.N.S. 236; and Warburton v. Co-operative Wholesale Society (1917), 1 K. B. 663 quoted by him as authorities.
The only other Arab Labour Code which contains a similar provision, is the Iraqi Labour Code (section 46).
Vide Alexandria Court of Cassation in case No. 999 of 1950 (in Badawi, K.M., p. 262); vide also El-Areef, p. 392; El-Fakahani, 1959 Supplement, p. 188; Badawi, K.M., p. 253; Rashed and Hashem, pp. 129-30 and 137; and Naguib and Bakr, p. 115. Strikes will be discussed later. Misdemeanours “within the scope of work” mean those committed either during working hours or at the place of work: vide Badawi, K.M., p. 253; El-Fakahani, 1959 Supplement, pp. 187-8; and Rashed and Hashem p. 128.
El-Fakahani, 1959 Supplement, p. 188; and Rashed and Hashem, p. 129, are of the same opinion. Naguib and Bakr, pp. 117-8, say the same thing, but they contradict themselves in p. 116.
Vide Alexandria Court of Cassation in case No. 331 of 1950 (in Faheem, p. 108); vide also Butros and Rajab, p. 362; and Rashed and Hashem, pp. 130 and 132. Vide section 161 of the Civil Code; vide also El-Areef, p. 152.
Rashed and Hashem, p. 132; and Naguib and Bakr, p. 115, are of the same opinion.
Vide El-Areef, p. 394; Rashed and Hashem, p. 134; Habeeb, pp. 516 and 633; and Naguib and Bakr, p. 120. the contrivance of the employer or his authorized agent presupposes his mala fides: vide Abdeen District Court in case No. 2288 of 1949 (in Rashed and Hashem, p. 133); Cairo Labour Court in case No. 1687 of 1959 (in El-Hawwari, p. 173); and Cairo Court of Cassation in case No. 1462 of 1957 (Ibid., p. 171); vide also Rashed and Hashem, pp. 135-6; and Naguib and Bakr, p. 120. El-Areef, p, 394; and Badawi, K.M., p. 254, add that the contrivance cannot be ascertained, unless the Court judgement is final.
Vide Cairo Court of Cassation in case No. 17 of 1959 (in El-Hawwari, p. 170); and vide Section II, B, of the present Chapter, infra, for the justification of termination of the contract.
Section 76 of the Labour Code (in Section II of the present Chapter, infra), entitles the employer to justifiably terminate the contract, for the commission of any crime or of a misdemeanour involving dishonour, or for unauthorized absences. So it can be concluded that the contract is not thereby automatically frustrated. Vide also Alexandria Court of Cassation in case No. 331 of 1950 (in Faheem, p. 108); Alexandria Court of Appeal in appeal No. 143 of 1954 (in El-Fakahani, Book I, Vol. III, p. 557); and Cairo Court of Cassation in case No. 140 of 1957 (Ibid., p. 556); and vide El-Areef, p. 392; Sabbour, p. 525; El-Fakahani, 1959 Supplement, pp. 192-3; Faheem, pp. 107-8; Butros and Rajab, pp. 362-3; Rashed and Hashem, p. 130; and Naguib and Bakr, p. 117. Cairo Court of Cassation in case No. 991 of 1956 (in Sabbour, p. 521); and Cairo Labour Court in case No. 1912 of 1958 (in El-Hawwari, p. 195), decided that the contracts were frustrated, by the worker’s detention for political reasons, and by the worker’s imprisonment for over three months, respectively. It is submitted that these two decisions are wrong.
Vide Cairo Court of Appeal in appeal No. 110 of 1959 (in El-Hawwari, p. 195). the last mentioned case in the preceding footnote, considered imprisonment to be force majeure under the general law, and wrongly identified it with the frustrating force majeure, mentioned in section 81(1) of the Labour Code (vide Section I, A, of the present Chapter, supra).
Vide Section I of Chapter I, supra.
Vide section 6 of the Officials Discipline Ordinance, which mentions these offences.
Vide the English case of Nordman v. Rayner and Sturges (1916), 33 T.L.R. 87, where the internment of the plaintiff for one month, was held not to end the contract; but presumably the contract was suspended during that month.
Section (34(1) provides that, “if proceedings axe instituted against an official he shall not, unless the Council of Ministers so directs, be brought before a Board of Discipline on any grounds involved in the criminal charge while the criminal proceedings are still pending.”
Vide Section II, B, of the present Chapter, infra, for the rightful termination of the contract.
Vide Unger v. Preston Corporation (1942) I A.E.R. 200, where nine months’ internment was held to frustrate the contract. Comparison of this case with Nordman’s case mentioned in footnote 47, supra, shows how every case is decided according to its own circumstances.
The authority concerned is the Labour Office, within whose jurisdiction the place of work is situated (vide Order 134 of 1959).
Cf. section 8 of the Tunisian Labour Code, which is the only other Arab Labour Code containing such a provision; cf. also section 25 of Book I of the French Labour Code.
This Law repealed Law No. 226 of 1951.
This Law repealed Law No. 510 of 1953.
El-Areef, p. 180; and Faheem, pp. 115-6, are of the same opinion. Rashed and Hashem, p. 290; and Habeeb, p. 438; wrongly consider that the limited contract is frustrated by a force majeure, in these circumstances.
This is the effect of the amendment of Law 505 of 1955, by Law 149 of 1960.
Murad, p. 393, is of the same opinion; but Habeeb, p. 613, is of the contrary opinion, without reasoning.
Vide Rashed and Hashem, pp. 289-90.
Under the English Common Law, the call to military service, frustrates the contract: vide Marshall v. Glanville (1917) 2 K.B. 97. the statutory right of the worker to reinstatement, by virtue of the Reinstatement in Civil Employment Act of 1944 (as later on embodied in the National Service Act of 1948), “is independent of a contract of service,” and is not permanent (vide Cooper, pp. 311 and 312). Cf. section 1639 H(3) of the Netherlands Civil Code, as amended in 1953.
Vide the section quoted in part C. of this Section of the present Chapter, supra.
Vide Butros and Rajab, p. 340; Habeeb, pp. 472-3; and Sabbour, p. 373.
In order to ascertain whether a strike is lawful or not, reference should be made to Book V of the Labour Code, concerning conciliation and arbitration in labour disputes, to the wartime order No. 75 of 1940 (kept effective by Decree Law No. 102 of 1945), and to section 374 of the Penal Code, concerning the leaving or stoppage of work, which fulfils a public need.
Vide Cairo Court of Arbitration in dispute No. 128 of 1954 (in Butros and Rajab, p. 340); and vide El-Areef, p. 298; Butros and Rajab, p. 343; Habeeb, p. 471; Sabbour, p. 373; Badawi, K.M., p. 387; and Rashed and Hashem, p. 262. on the other hand, Badawi, K.M., pp. 387-8; and Rashed and Hashem, pp. 262-3, maintain that a lawful strike should entitle the employer to terminate the contract of a limited duration, as he is entitled to do with this and the unlimited contract, when the worker goes on an unlawful strike. the reasoning behind their contention, is that the worker bound by a limited contract, “should be taken to have renounced striking during the contracted period; so if he joins the strikers, he violates his contractual obligations” (Badawi). Sabbour, p. 373; Butros and Rajab, p. 340; and Habeeb, p. 472, are of the contrary opinion, because striking lawfully is a legal right for the worker, which he cannot renounce. It is submitted that there is nothing to preclude the worker from agreeing not to strike. But the mere entry by the worker into a limited contract, does not amount to his renunciation of the right to strike. the limitation of the contract is only relevant to the manner of termination of the contract.
Vide the Trade Disputes Act of 16 February 1960 (in the Laws of the Sudan, Title XXII, Sub-Title 7), and particularly section 16 thereof, for the determination of the legality of a strike. Vide the Canadian Supreme Court decision on 25 June 1962 (in I.L.R., Vol. 87, 1963, p. 229).
Vide the Indian case of East Indian Railway Co. & anr. v. Shewbex Roy Ghanshyamdas (1925) 32 C.W.N. 805.
Vide the section quoted in footnote 10 to Chapter I, supra.
Section 209(2) provides that “the employer shall not stop the work either wholly or in part unless he is compelled to do so by serious reasons and after he secures the consent of the Minister of Labour to whom he should apply by registered letter, and the Minister shall decide thereon within thirty days after the receipt thereof, provided that if the said period of time expires (without the Minister’s decision), the employer may stop the work.” Vide also section 374 of the Penal Code, which prohibits any stoppage in certain employment essential to the public. Vide section 21 of the Tunisian Labour Code.
Vide Browning & ors. v. Crumlin Valley Collieries Ltd. (1926) I K.B. 522.
Vide Barwell and Kar, p. 339; Batt, p. 193; and Smith, p. 70.
A trade dispute “means a dispute between employers and workers, or between employers and employers or between workers and workers which is connected with the employment or non-employment or with the terms of employment or with the conditions of labour of the same employers and workers.”
Section 16 prohibits a lock-out before negotation, or while conciliation or arbitration procedures are taking place, in accordance with the Act.
Section 923 of the Iraqi Civil Code contains similar provisions.
Vide the section quoted in part A of this Section of the present Chapter, supra. Vide also footnote 14, supra, section 14(c) of the Tunisian Labour Code, and section 1639 L of the Netherlands Civil Code.
Vide Cairo Court of Cassation in case No. 780 of 1953; and the Alexandria Court of Appeal in appeal No. 305 of 1955 (both in Habeeb, p. 444).
Section 17(a) of the Bahraini Labour Code contains similar provisions; cf. section 13(1, b) of the Adenese Ordinance.
Vide Farron v. Wilson, L.R. 4C.P. 744; and Davidson v. Reeves (1892), 8 T.L.R. 391; vide also Diamond, p. 217; Macdonell, p. 235; and Smith, pp. 140-1.
Vide Hall v. Wright (1859) E.B. & E. 746; vide also Cheshire and Fifoot, p. 470; Diamond, pp. 216-7; Cooper, p. 47; and Barwell and Kar, pp. 61-2.
Authorisation of the closing down should be secured, as provided in section 209(2) of the Labour Code (vide footnote 67, supra).
Vide section 85 quoted in footnote 69 to Chapter II, supra.
El-Areef, pp. 318-9; Rashed and Hashem, p. 323; Faheem, p. 119; El-Fakahani, 1959 Supplement, p. 327; Murad, pp. 395-6; and Sabbour, p. 421, are of the same opinion.
Vide the French decision of Trib. Civ. de Rouen of 10 June 1929, Gaz. du Palais, 1929, 2,445 (in I.S.D.L., Vol. 5, 1930, pp. 81-2), in which it was held that the employer’s bankruptcy does not constitute a frustrating force majeure, because it is “due to his own fault and negligence”; vide also El-Areef, p. 319. El-Fakahani, 1959 Supplement, p. 327, maintains without reasoning, that the contract is not frustrated by the employer’s bankruptcy even if it be caused by a, force majeure. It is submitted that he is wrong.
Vide El-Areef, p. 401; Faheem, p. 119; and vide Sabbour, pp. 428-9.
Vide the French decision in Comptoir d’excompte et autres v. Duboisset (1937), D.H. 1937, p. 330 (in I.S.D.L., Vol. 13, 1939, p. 99), in which it was held that the winding up of an employer’s business cannot be assimilated to a case of force majeure. Vide footnote 80, supra, for the wrong view of El-Fakahani, which he also maintains, in the case of winding up.
Section 528 of the Civil Code provides that “the partnership shall be dissolved by the death of one of the partners or by a judicial attachment on him or by his bankruptcy.” Section 529 thereof provides for the dissolution of the partnership, by the withdrawal of one of the partners, or by the agreement of the partners.
Vide section 528 of the Civil Code.
Section 17(a) of the Bahraini Labour Code contains similar provisions.
Batt, p. 86; vide also Diamond, p. 204; Cooper, p. 48; and Samuels, p. 17.
Halsbury, Vol. 25, p. 484; vide also Cooper, p. 48; deduce from Diamond, p. 203; Samuels, p. 17; Batt, p. 86; and Smith, p. 136.
Vide Cooper, pp. 47; Diamond, p. 204-5; Batt, pp. 79-81; and Halsbury, Vol. 25, pp. 483-4.
For the effect of the employer’s bankruptcy, vide Batt, p. 83; Diamond, pp. 203 and 218-9; Cooper, p. 48; Smith, p. 136; Halsbury, Vol. 25, p. 484; and Clark, p. 32. For the effect of the closing down of the establishment, vide Diamond, p. 214.
Vide Section III of Chapter II, supra, re duration of the contract.
Vide section 148 of the U.A.R. Civil Code. For Sudan, vide Cheshire and Fifoot, p. 442 et seq.
Vide section 157 of the U.A.R. Civil Code. For Sudan, vide Cheshire and Fifoot, p. 488 et seq.
Vide section 147 of the U.A.R. Civil Code. For Sudan, vide Cheshire and Fifoot, p. 452 et seq.
Vide Ryan v. Jenkinson (1835) 25 L. J.Q.B. II; and Re African Association, Ltd., and Allen, (1910) I K.B. 396; and vide the Indian cases of Nagpur Electric Light & Power Co. Ltd. v. Anand, I.L.R. 1944 Nag. 66; and Sundaresan V.C.O. & Berar, A.I.R., 1946 Nag. 273; vide also Diamond, pp. 179-80; Cooper, p. 53; Samuels, pp. 10-11; Smith, p. 44; and Halsbury, Vol. 25, p. 488. the implication of the said term by the English Common Law, has been necessitated by the same motive, which necessitated the departure in the U.A.R., from the rules of the general law; “... its primary object,” says Diamond (pp. 179-80), “is to enable the servant to obtain similar employment elsewhere, or the master to obtain a servant” (vide footnote 105, infra, and the related text).
Vide Batt, p. 60 et seq., and pp. 189-90 and 197-8; vide also Spain v. Arnott (1817), 2 Stark. 256.
Vide similar provisions in section 915(1) of the Iraqi Civil Code, and section 14 of the Tunisian Labour Code; vide also section 1639 F of the Netherlands Civil Code, as amended in 1953.
Vide similar provisions in section 916(1) of the Iraqi Civil Code, and section 14 of the Tunisian Labour Code.
Vide Sabbour, p. 328
Vide footnotes 24 and 39 to Chapter II, supra.
Vide section 11 in footnote 71 to Chapter II, supra, and section 10(1) in this Chapter, infra.
Vide Diamond, p. 214.
Vide Langeton v. Carleton (1873), 9 Ex. 57; and vide footnote 39 to Chapter II, supra.
Vide similar provisions, in section 917 of the Iraqi Civil Code.
Cf. the provisions, in sections 95(1), 54, 18, 16, 13 & 50, 15(1 & 2) and 14, of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese, Libyan and Tunisian Labour Codes, respectively, and in section 12 of the Saudi Regulations; vide also sections 347 of the Swiss Code de Obligations, and 1639 G of the Netherlands Civil Code. Section 16 of the Jordanian Labour Code contains a peculiar pre-condition to the exercise of the right of termination by notice, viz. the passing in service of six and three months, by the monthly paid and other workers, respectively. Section 23 of Book I of the French Labour Code (as amended by an Act dated 19 February 1958-vide I. & L., Vol. 20, 1958, pp. 272-3), contains such peculiar pre-condition. Section 15(1) of the Libyan Labour Code, makes the notice of termination equal in length, to the pay-periods of the wages; vide in this respect, sections 1639 I, J and K of the Netherlands Civil Code. Vide the Labour Survey of North Africa, p. 211, for the provisions in Algeria and Morocco.
Vide Cairo Labour Court in case No. 5282 of 1959 (in El-Hawwari, p. 187); vide also Murad, p. 403; Rashed and Hashem, pp. 159 and 191; and Sabbour, p. 328-So the notice provision is for the benefit of both parties: vide El-Areef, p. 335; Murad, p. 403; Rashed and Hashem, p. 167; Butros and Rajab, p. 381; Habeeb, p. 477; and El-Fakahani, Book I, Vol. I, p. 642. An agreement to partially or totally relieve the worker of the notice or of the payment in lieu, is valid by virtue of section 6 of the Labour Code (vide Section V of Chapter II, supra), because such agreement affords to him more favourable treatment than that of the Labour Code. But an agreement to so relieve the employer is invalid by virtue of the same section. An agreement to provide for a notice longer than that prescribed in section 72, would presumably be invalid, for it is less favourable to the worker, when he wants to terminate the contract; vide, however, Cairo Court of Appeal in appeal No. 625 of 1955 (in El-Fakahani, Book I, Vol. I, p. 647), where it was presumed that the longer notice was favourable to the worker and was valid. It is submitted that this decision is wrong. Vide sections 917(2), 918(3) and 920 of the Iraqi Civil Code.
Vide Cairo Labour Court in case No. 2966 of 1953 (in El-Fakahani, Book I, Vol. I, p. 641); and vide Butros and Rajab, p. 380; Badawi, Z., Vol. I, p. 86; and Naguib and Bakr, p. 133; vide also section 90 of the Civil Code. Murad, p. 404, merely states that an oral notice is not sufficient. El-Fakahani, 1959 Supplement, pp. 214-5, shows that he does not appreciate the problem involved, by dismissing it as non-existing, in view of the provisions of section 72, re writing.
The only decision found by the writer on the question, is the old decision of the Mixed Courts, decided on 8 December 1948 (in El-Areef, p. 338 footnote 2). the decision answered the question in the affirmative; and El-Areef supports this answer, without reasoning.
Vide the French decision in Bonniéres et Colombes v. Viguier (1937), Gaz. du Palais, 1937, I, p. 387 (in I.S.D.L., Vol. 13, 1939, p. 123); and vide I. & L., Vol. 4m 1950, p. 296. Sections 52 and 52(3) of the Qatari and Lebanese Labour Codes, respectively, expressly provide as is submitted above.
Vide the section quoted in Section I, A, of this Chapter, supra. Sections 14 of the Saudi Regulations, and 96 and 52(3) of the Iraqi and Lebanese Labour Codes, respectively, expressly provide to the same effect; and so does section 1639 H of the Netherlands Civil Code, provided that the duration of the sickness should be less than two years.
Vide Cairo Labour Court in case No. 1103 of 1956 (in El-Fakahani, Book I, Volume I, p. 646); and Alexandria Court of Appeal in appeal No. 167 of 1957 (in Habeeb, p. 483); vide also Murad, p. 407; El-Areef, p. 335; Badawi, K.M., p. 286; Butros and Rajab, p. 132; and Rashed and Hashem, p. 161. Vide the two French decisions in Dumont v. L’Ami du Peuple (1932), Dalloz Hebdom, 1933, p. 79; and Manufacture Lyonnaise de Chaussures du Sud-Est v. Mrs. Brunet (1927), Gaz. du Palais, 1927, 2, 395 (both in I.S. D.L., Vol 9, 1935, p. 81, and Vol. 3, 1928, p. 102, respectively). If the employer agrees to grant some time-off to the worker, during the notice period, so as to enable him to look for another job, or if there is an effective custom which sanctions the granting of such time-off, the worker will not be paid wages therefor, unless the employer agrees to pay or the custom prescribes payment (vide El-Areef, p. 340; and Zaki, pp. 383-4). Section 959 of the Draft Civil Code of 1948, expressly provided for the said time-off, to the tone of nine hours per week. But the section was not adopted, though the Mixed Courts had already adopted the French Usage des deux heures (vide Habeeb, p. 483; vide also El-Areef, p. 340; and Zaki, pp. 383-4). Section 143 of Law 279 of 1946 in Syria, which was supplemented by the U.A.R. Labour Code, also contained a similar express provision. the non-adoption of this provision in the Labour Code, is without justification. Sections 19(b) and 51, of the Qatari and Lebanese Labour Codes, respectively, provide for the said time-off; and vide Labour Survey of North Africa, p. 211, for similar provisions in Tunisia and Morocco. Vide I.L.R., Vol. 80, 1959, p. 270. for the provisions in Germany; vide also I.L.R., Vol. 32, 1936, p. 195. the LL.O.’s Report No. V(l) of 1963, provides for the said time-off, in the Proposed Recommendation Concerning Termination of the Contract A t the Initiative of the Employer.
Vide similar provisions in section 918(1) of the Iraqi Civil Code.
Vide similar provisions, in sections 54, 16, 13 and 53, and 15(3), of the Kuwaiti, Jordanian, Lebanese and Libyan Labour Codes, respectively, and in section 12 of the Saudi Regulations. Section 19 of the Qatari Labour Code gives the choice to pay in lieu of the notice, only to the employer. Section 95(2) of the Iraqi Labour Code provides to the same effect; but section 95(4) penalizes the worker, who does not serve the notice, by the loss of “half of all the sums due to the worker under the provisions of this law.” This peculiar penalty has no counterpart in the other Arab Labour Codes. Vide I.L.R., Vol. 79, 1959, p. 631, for the law in France.
Vide Murad, p. 405; Badawi, K.M., p. 282; El-Areef, pp. 333 and 339; Rashed and Hashem, p. 171; and Habeeb, p. 479.
Vide the French case of Romestant v. Pical (1936), Gaz. du Palais, 1937, 1, 142 (in I.S.D.L., Vol. 12, 1938, p. 152), in which it was held that a worker dismissed without notice, can insist on the payment in lieu of the notice, and can refuse to go back to work, because the employer cannot alone re-establish the legal relationship, which he has broken.
Vide section 221 of the Civil Code. Before the enactment of the Civil Code (section 695), the Mixed Courts used to apply the rules of the general alw, to the payment in lieu of the notice: vide a relevant decision on 18 May 1938 (in Habeeb, p. 480). the departure from these rules, was justified by “the compensation also connoting a penalty” (vide the Explanatory Note to section 961(1) of the Draft Civil Code, which was enacted as section 695(1) of the Civil Code); vide also I.L.R., Vol. 32, 1936, p. 204; and I.L.O. Report VII(l) of 1962, pp. 27-8.
Vide Section I of Chapter IV, supra, for the definition and components of wages.
Vide Cairo Court of Cassation in case No. 1770 of 1953 (in El-Fakahani, Book I, Vol. I, p. 644); the writers who advocate the same view, are Murad, p. 388; El-Areef, pp. 315, 334 and 400; El-Fakahani, 1959 Supplement, p. 214; Husseini and Hawwari, p. 335; and Sabbour, p. 324 (though only impliedly). Habeeb, p. 481, advocates the same view; but is against it in p. 420.
Vide the section quoted in Section V of Chapter II, supra’, vide also Article 12 of the I.L.O. Convention No. 64 of 1939.
El-Areef, p. 411, says that an agreement to terminate an unlimited contract, “actually amounts to the transformation of the contract into a limited contract”; Rashed and Hashem, p. 184, support this view. It is submitted that this indirect justification by him, of the worker’s non-entitlement to notice or payment in lieu, is not legally warranted.
Section 2 of the Sudan Ordinance defines ‘continuous service,’ as “continuous service with the same employer...”
Vide similar provisions, in section 12(a) of the Bahraini Labour Code. In Aden section 12(1) of the Adenese Ordinance makes the termination by notice, subject to the consent of the authorized officer. This is in line with Article 12(3) of the I.L.O. Convention No. 64 of 1939.
Vide Latchford Premier Cinema v. Ennion (1931) 2Ch. 409; vide also Samuels, p. 11; Batt, p. 59; and Barwell and Kar, p. 358.
Vide Yardley v. Laws (1957), Current Law Yearbook No. 1260, quoted by O. Kahn-Freund, in p. 274 of the British Legal Papers.
Vide Cooper, p. 49; and Samuels, p. 12.
It is submitted that the law in Sudan, would treat any time-off which the worker takes during the notice period, in order to look for other work, as the law in the U. A.R. treats it (vide footnote 110, supra).
Section 12(b) of the Bahraini Labour Code is similar to section 72(2) of the U.A.R.
Vide Konski v. Peet (1915) I Ch. 530.
Batt, p. 198; and vide p. 191 thereof.
Vide the Sudan case of El-Sayed El-Hag El-Dosh v. President, Ahlia Intermediate School (1958), AC-Revision-164-58 (in the S.L. J.R., 1958, p. 75); vide also the two English decisions in Brace v. Colder (1895) 2 Q.B. 253; and Reid v. Explosives Co., 19 Q.B.D. 264; and vide Macdonell, p. 191; Smith, pp. 122-3; and Barwell and Kar, p. 410.
Diamond, p. 173, footnote 45.
Vide the section quoted in Section V of Chapter II, supra.
Vide Chapter VII, infra.
Cf. some similar provisions, in sections 56(b), 20(4), 74(4) and 18(e), of the Kuwaiti, Qatari, Lebanese and Libyan Labour Codes, respectively; vide also section 1639 P (10, 11 and 12) of the Netherlands Civil Code; and vide I.L.R., Vol. 79, 1959. p. 633, for the position in France. Section 14(b) of the Tunisian Labour Code entitles either party to summarily determine the contract, for a “grave mistake,” meaning, it is submitted, an important reason; vide I.L.R., Vol. 80, 1959, pp. 267-8, for the similarity with Germany, in this respect. Section 963 of the U.A.R. Draft Civil Code expressly provided for such power of termination, for both the employer and the worker (when the employer fails to carry out his obligations); but the section was not adopted. the employer’s power of termination, by virtue of section 76, is exercisable, not only when the contract is unlimited, but also when it is limited. the rules of the general law (section 157 of the Civil Code), are equally applicable to both contracts; and the labour legislator should not be taken to have differentiated between them in section 76, whereas he does not so differentiate in section 77 (to be presently quoted); Sabbour, pp. 369-70; Zaki, p. 354; Badawi, Z., Vol. I, p. 95; El-Areef, p. 327 (though only impliedly); and Rashed and Hashem, p. 207, are of the same opinion.
Cf. some similar provisions, in sections 98(c, d and e), 58(a), 21(1), 18(b and c), 75(2), 20(b) and 14(b), of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and in section 17(b) of the Saudi Regulations; vide also section 1639 Q (3-8) of the Netherlands Civil Code; and vide for the position in France, the French case of Vauvrecy v. Marsil (1925), Gaz. du Palais, 1925, 2, 729 (in I.S.D.L., Vol. 1, 1926, pp. 97-8).
Vide footnote 93, supra.
Vide Cairo Court of Cassation in case No. 415 of 1955 (in Habeeb, p. 447); vide also El-Areef, p. 322; Murad, p. 396; Sabbour, pp. 392-3; El-Fakahani, 1959 Supplement p. 290; Badawi, K.M., p. 278; Zaki, p. 353; Butros and Rajab, p. 414; and Rashed and Hashem, p. 255.
Rashed and Hashem, pp. 246 and 248, are of the same opinion.
Badawi, K.M., p. 411; and Sabbour, p. 399. Rashed and Hashem, p. 285, maintain the contrary opinion, without any reasoning.
Vide Cairo Labour Court in case No. 1541 of 1959 (in El-Hawwari, p. 216).
Vide Cairo Court of Appeal in appeal No. 1206 of 1959 (in El-Hawwari, p. 237).
Vide similar provisions in sections 13(a) of the Bahraini Labour Code, and 7 of the Adenese Ordinance.
P. 185; vide also Neyger v. London Passenger Transport Board (1935) L.J.N.C.C.R.; 46; Harvey v. Crampain Fishing Co. Ltd., (1934), L.J.N. C.C.R., 405; Boston Fishing Co, v. Ansell (1888), 39 CD. 339; The Marina (1881), 50 L.J.P. 33; Lomax v. Arding (1855). 10 Ex. 734; Spotswood v. Burrow (1850), 5 Exch. 110; Baillie v. Kell (1838), 6 Scott, 739; Spain v. Arnot (1817), 2 Stark., 256; and the Indian case of K.R.V. Alagappa Chettiar v. Sundaram Annuvi & ors., 49 M.L.J. 516 (quoted by Barwell and Kar, p. 381); and vide Cooper, pp. 62 and 63; Samuels, p. 13; Smith, p. 80; Macdonell, p. 209; and Halsbury, Vol. 25, p. 485.
Batt, p. 60; vide also Clouston & Co. Ltd. v. Corry (1906) A.C. 122; and vide Halsbury, Vol. 25, p. 516.
Vide Diamond, p. 193, and p. 185; vide also The Castilla (1822), I Hag. Adm. 59; and vide Batt, p. 186; Cooper, p. 79; and Halsbury, Vol. 25, p. 488.
Vide the Sudanese case of Vassili Bamboulis v. Osman Abdulla (1960), KHC-Revision-167-1960 (in the S.L.J..R, 1960, p. 168); vide also the English decision in Gould v. Webb, 4 E. & B. 236.
Cf. some similar provisions, in sections 20(1), 17(c), 18(a) and 14(b), of the Qatari, Jordanian, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and section 16(a) of the Saudi Regulations; vide also section 1639 P (1 and 2) of the Netherlands Civil Code. Section 74 (1) of the Lebanese Labour Code grants the power of summary determination to the employer, only when the worker tenders a false statement as to his nationality.
Cf. some similar provisions, in sections 98(a), 21(3), 18(a), 75(1), 20(a) and 14(b), of the Iraqi, Qatari, Jordanian, Lebanese, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and in section 17(a) of the Saudi Regulations (this section limits the worker’s exercise of this power to one month, after the making of the contract; the provision seems to have been copied from section 31 of Law No. 41 of 1944 of the U.A.R.).
Section 125 of the U.A.R. Civil Code provides: “The contract may be avoided for misrepresentation if the devices employed by either of the contracting parties or his representative, are of such gravity that the other party would not have entered the contract without them. “Such misrepresentation is constituted by the wilful silence in respect of any fact or circumstance which would have precluded the deceived party from entering the contract had he known of it.” Vide Rashed and Hashem, p. 283; and Habeeb, p. 468. In the U.A.R. opinion leans in favour of considering the summary determination of the contract by the employer, on any of the grounds mentioned in section 76, as no more than an application of the ground mentioned in section 76(6), and by the worker on any of the grounds mentioned in section 77, as no more than an application of the ground mentioned in section 77(2): vide El-Areef, pp. 397, 398 and 414; Zaki, p. 360; Rashed and Hashem, pp. 244, 254 and 280; and El-Fakahani, 1959 Supplement, p. 298-Vide I.L.O. Report VII(l), 1962, p. 63: “In view of the gravity of a dismissal for serious misconduct, regula-tions frequently provide for additional safeguards to the worker, including, for example, a detailed definition of instances to be considered as serious misconduct”; vide also I.L.R., Vol. 79, 1959, p. 633. However, it is submitted that the correctness of the abovementioned opinion in the U.A.R, does not extend to the dismissal by virtue of subsection 76(1), because the misrepresentation occurs before the contract is made, or to the dismissal by virtue of 76(2), re probation, because the dismissal thereunder, does not really amount to the non-carrying out by the worker, of his essential contractual duties.
Vide El-Fakahani, 1959 Supplement, p. 273.
Vide Murad, pp. 374 and 398; El-Fakahani, 1959 Supplement, p. 301; and Naguib and Bakr, pp. 164-5.
Vide Cairo Court of Cassation in cases Nos. 287 of 1954 and 324 of 1956 (in El-Fakahani, Book I, Vol. I, pp. 162 and 161, respectively); vide also Butros and Rajab, p. 401; and Naguib and Bakr, p. 165.
Vide Cairo Court of Appeal in appeal No. 801 of 1955 (in El-Fakahani, Book I, Vol. I, p. 160), in which it was held that a false testimonial by the worker, as to the number of his children, with the result that the employer had to pay a bigger family allowance, was a testimonial covered by section 76(1); vide also El-Fakahani, 1959 Supplement, pp. 274-5.
P. 90.
Willes, J., in Harmer V. Cornelius (1858), 5 C.B. (N.S.) 236; and vide Diamond, p. 190; Cooper, p. 77; Samuels, p. 11; Macdonell, p. 214; and Halsbury, Vol. 25, p. 486; vide also the Indian case of Ramaswamy A iyar v. Madras Times Printing & Publishing Co. Ltd., A.I.R., 1918, Mad., 1257 (quoted by Barwell and Kar, p. 76); and vide Clark, pp. 3 and 27.
2 Stark 256, N.P.
Vide Woodley v. Metropolitan Railways (1877), 2 Ex. D. 384.
Vide Cheshire and Fifoot, p. 212 et seq.
Ibidem, p. 230.
Vide Halsbury, Vol. 25, p. 485.
The Arabic word used in the section, is not limited to assault in the legal sense. It covers the legal as well as any other assault, which falls under the common sense of the word.
The word supervisor was defined by the Court, as the person “who can supervise and guide a number of workers”: Alexandria Court of Cassation in case No. 1504 of 1958 (in El-Hawwari, p. 262); and vide Cairo Court of Cassation (Commercial) in case No. 1582 of 1951 (in Murad, p. 378). the supervisor does not have to be the direct supervisor of the worker.
Cf. similar provisions, in sections 56(f), 20(8), 17(a), 74(7), 18(i) and 14(b), of the Kuwaiti, Qatari, Jordanian, Lebanese, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and section 16(i) of the Saudi Regulations; vide also section 1639 P (5) of the Netherlands Civil Code; and vide I.L.R., Vol. 79, 1959, p. 633, and Vol. 80, 1959, p. 268, for the position of the law in France and Germany, respectively.
Cf. similar provisions, in sections 58(b), 21(2), 18(d), 75(4), 20(d) and 14(b) of the Kuwaiti, Qatari, Jordanian, Lebanese, Libyan, and Tunisian (only by deduction) Labour Codes, respectively; and vide section 1639 Q (1) of the Netherlands Civil Code. Similar grounds lie behind the summary determination powers, to be presently mentioned.
Cairo Court of Cassation in case No. 3447 of 1953 (in Habeeb, p. 463); vide also Alexandria Court of Appeal in appeal No. 74 of 1955 (in Ibidem, pp. 363-4); and Cairo Court of Cassation in case No. 1253 of 1959 (in El-Hawwari, p. 272).
Badawi, Z., Vol. 1, pp. 102-3, maintains that the gravity of the assault depends on whether it constitutes a punishable criminal offence or not. It is submitted that he is wrong, because a grave assault may otherwise be committed: vide Alexandria Court of appeal in appeal No. 140 of 1954 (in Habeeb, p. 466), where it was held that the worker committed a grave assault, when he snatched the papers from the supervisor, during a disciplinary trial and tore them to pieces; vide also the Alexandria Court of Cassation in case No. 1504 of 1958 (in El-Hawwari, p. 262), and vide Sabbour, p. 388; Zaki, p. 361; and Naguib and Bakr, p. 175.
Vide Cairo Court of Cassation in case No. 1657 of 1954; and the Alexandria Court of Appeal in appeal No. 148 of 1956 (both in Habeeb, pp. 466 and 465, respectively); vide also Rashed and Hashem, p. 276; and Naguib and Bakr, p. 174; and vide Cairo Court of Cassation in case No. 1709 of 1957; and Cairo Court of Appeal in appeal No. 41 of 1959, and cf. them with Cairo Court of Cassation in case No. 1165 of 1959 (all three in El-Hawwari, pp. 267, 268 and 269, respectively). Section 41(4) of Law 317 of 1952, which is the predecessor of section 77(4) of the Labour Code, stipulated for the physical assault on the worker.
Vide Cairo Court of Cassation in cases Nos. 271 af 1954 and 1716 of 1955 (both in Habeeb, pp. 466 and 463, respectively); and Alexandria Court of Cassation in case No. 1504 of 1958 (in El-Hawwari, p. 262); vide also Murad, p. 378; El-Areef, p. 399; Badawi, K.M., p. 405; Sabbour, pp. 388-9; and Rashed and Hashem, p. 276.
Vide Alexandria Court of Cassation in case No. 1504 of 1958; and Cairo Labour Court in case No. 5131 of 1959 (both in El-Hawwari, pp. 265 and 266, respectively).
Vide Cairo District Court (Commercial) in case No. 1017 of 1950 (in Rashed and Hashem, p. 277); and Cairo Court of Cassation in case No. 1151 of 1959 (in El-Hawwari, p. 265); vide also Murad, p. 378; Badawi, K.M., pp. 397 and 405; Zaki, p. 361; Sabbour, p. 389; Butros and Rajab, p. 349; Rashed and Hashem, p. 276; and Naguib and Bakr, p. 175. El-Fakahani, 1959 Supplement, p. 289; and Sabbour, p. 389, correctly add that the worker’s assault should not exceed the right of self-defence.
Vide the more elaborate provisions in sections 13a and 7, of the Bahraini Labour Code and the Adenese Ordinance, respectively.
Diamond, p. 188.
Idem.
Vide Smith v. Allen (1862), 3 F. & F. 157 N.P.; and vide Smith, p. 83; and Barwell and Kar, p. 383.
Cf. some similar provisions, in sections 97(a, c and e), 56(b), 20(3), 17(e), 18(c) and 14(b), of the Iraqi, Kuwaiti (only by deduction), Qatari, Jordanian, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and section 16(d) of the Saudi Regulations, which in addition, prescribes the service of a notice of the worker’s breach of the safety regulations, on the Government authorities; vide also section 1639 P (8) of the Netherlands Civil Code; and vide I.L.R., Vol. 79, 1959, p. 633, for the similar position in France. Vide section 109 of the Labour Code, which precludes the worker, under the pain of penalty, from wilfully or negligently violating the safety rules or damaging the safety equipment.
Cf. similar provisions, in sections 98(d) and 20(1, e) of the Iraqi and Libyan Labour Codes, respectively, and section 17(e) of the Saudi Regulations. Sections 58(c), 21(1), 75(2) and 14(b) of the Kuwaiti, Qatari, Lebanese and Tunisian Labour Codes, respectively, give ground to the power of summary determination by deduction. Vide also section 1639 Q (9) of the Netherlands Civil Code. Vide section 108 of the Labour Code, which obliges the employer to provide the worker with free protection from the risks at work.
Cairo Labour Court in case No. 5574 of 1954 (in Butros and Rajab, p. 389); vide also El-Areef, p. 398; and Badawi, K.M., p. 386, who hold the same opinion, though without reasoning.
Vide Cairo Court of Appeal in appeal No. 410 of 1956 (in El-Fakahani, Book I, Vol. I, p. 182); vide also Butros and Rajab, pp. 348 and 403; and Habeeb, p. 454.
Vide section 26 of the Workshop and Factories Regulations of 1 August, 1952 (The Laws of the Sudan, Vol. 8, Title XXII, Sub-Title 5), which prohibits the worker to “wilfully and without reasonable cause do anything likely to endanger himself or others, or wilfully interfere with or misuse any means, appliance or other thing provided for the safety, health or welfare” of the workers; cf. the similar provisions in section 37(b) of the Bahraini Labour Code.
Diamond, p. 188.
Halsbury, Vol. 25, p. 488; vide also Diamond, p. 125; and vide Burton v. Pinkerton (1867), L.R. 2 Ex. 340; and O’Neil v. Armstrong, Mitchell & Co. (1895) 2 Q.B. 418.
Vide Bartonshill Coal Co. v. Reid (1858) 3 Macq. 266; and vide Section I, F, of Chapter III, supra.
Cf., but distinguish the somewhat similar provisions, in sections 97(f), 56 (d and e), 20(6), 17(a), 74(6), 18(9) and 14(b) of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese, Libyan and Tunisian (only by deduction) Labour Codes, respectively, and section 16(h) of the Saudi Regulations (vide also the Royal Decree No. 2629/13/2/18 of 22 June 1956, which gives to the employer the power to summarily dismiss the worker, who is convicted under the Decree, of the offence of striking, incitement of strikes or of demonstrating); vide also section 1639 P (4 and 6) of the Netherlands Civil Code; and vide I.L.R., Vol. 80, 1959, p. 268, for the position of the law in Germany. the reason behind the granting of this power to the employer, is that the misconduct of the worker “violates the moral order in the establishment and deprecates its reputation” (Zaki, p. 359). the worker’s power of summary determination is a counterpart for the employer’s power. This counterpart is necessary, for otherwise the employment relationship will be devoid of one of its essential elements.
Cf. some similar provisions, in sections 98(b), 21(2), 20(c) and 14(b) of the Iraqi, Qatari, Libyan and Tunisian (only by deduction) Labour Codes, respectively; vide also section 1639 Q (2) of the Netherlands Civil Code. Sections 18(d) and 75(3) of the Jordanian and Lebanese Labour Codes, respectively, add the requirement that the act should amount to a criminal offence. the Labour Code does not define family: vide in this respect, footnote 233 to Chapter I, supra; and vide section 222 of the U.A.R. Civil Code.
Zaki, p. 359.
Vide Cairo Court of Cassation in case No. 1954 of 1955 (in Habeeb, p. 459); vide also El-Areef, p. 399; Badawi, K.M., pp. 389 and 390; Sabbour, p. 385; and El-Fakahani, 1959 Supplement, p. 287. Section 40(9) of Law 317 of 1952, the predecessor of section 76(8) of the Labour Code, granted the power of summary determination to the employer, “if the worker commits an immoral act,” in the place of work. the replacement of the commission of the act. by the final conviction thereof, is commendable.
Zaki, pp. 359-60, criticizes the absolute effect of the commission of a crime, by implying that a crime does not always seriously affect the interests of the establishment, Murad, p. 377; Sabbour, pp. 385; Habeeb, p. 461; Rashed and Hashem, p. 274; and Faheem, p. 104, justify the absolute effect of the crime, by its serious public effect.
(1886), 17 Q. B.D. 536.
Vide also Diamond, pp. 188-190; Smith, p. 85; Cooper, p. 76; Samuels, pp. 14-5; and Halsbury, Vol. 25, pp. 485-6.
Cf. some similar provisions, in sections 17(d) and 18(a) of the Jordanian and Libyan Labour Codes, respectively. Sections 97(h), 56(c) and 74(5) of the Iraqi, Kuwaiti and Lebanese Labour Codes, respectively, justify the dismissal of the worker after specified absences, without the prescription of a warning, as in the U.A.R. Dismissal for “a grave mistake,” by virtue of section 14(b) of the Tunisian Labour Code, depends on the length and the circumstances of the absence, in every case. Vide I.L.R., Vol. 79, 1959, p. 633, for the position of the law in France.
Vide Rashed and Hashem, p. 253; El-Fakahani, Book I, Vol. I, p. 99; and El-Areef, p. 398, who submits that the cause should arise from force majeure. Detention in prison was held to be a justifying cause: Cairo Court of Appeal in appeal No. 1334 of 1956; and Cairo Labour Court in case No. 4655 of 1956 (both in El-Fakahani, Book I, Vol. III, pp. 211 and 212, respectively); vide also El-Areef, p. 398; Butros and Rajab, pp. 390 and 430; and El-Fakahani, 1959 Supplement, p. 280.
Vide Alexandria Court of Appeal in appeal No. 227 of 1958 (in El-Fakahani, Book I, Vol. III, p. 207).
Butros and Rajab, p. 405, hold the same view, but without reasoning. Murad, p. 375; and Naguib and Bakr, p. 169, insist on the service of the notice, in the prescribed date, also without reasoning; and as a result, they advocate the renewal of the warning in the prescribed date.
Badawi, K.M., p. 386; Rashed and Hashem, p. 252; and Butros and Rajab, p. 405, hold the same opinion.
Vide Cairo Labour Court in case No. 1541 of 1959 (in El-Hawwari, p. 228); vide also Alexandria Court of Appeal in appeal No. 116 of 1956 (in El-Fakahani, Book I, Vol. III, p. 212); and vide Rashed and Hashem, p. 252; Habeeb, p. 455; and Naguib and Bakr, p. 169.
Zaki, p. 358; and Naguib and Bakr, p. 169, are of the same opinion.
Vide Cairo Court of Appeal in appeal No. 597 of 1956; Alexandria Court of Cassation in case No. 870 of 1957 (both in El-Fakahani, Book I, Vol. I, pp. 199 and 206, respectively) and Cairo Labour Court in case No. 3280 of 1958 (in El-Hawwari, p. 229).
Vide Cairo Court of Appeal in appeal No. 361 of 1956; and Alexandria Court of Appeal in appeal No. 116 of 1956 (both in Habeeb, p. 454). 199 El-Fakahani, 1959 Supplement, pp. 280-1; Rashed and Hashem, p. 253; and Habeeb, p. 454.
Vide Cairo Court of Appeal in appeal No. 509 of 1954 (in Naguib and Bakr, p. 168); and Alexandria Court of Cassation in case No. 871 of 1957 (in El-Fakahani, Book I, Vol. III, p. 201); vide also Badawi, K.M., p. 386; El-Fakahani, 1959 Supplement, p. 280; Sabbour, p. 381; and Faheem, p. 100.
Butros and Rajab, p. 404; and Habeeb, pp. 456-7, hold such opinion.
Vide Chapter V, supra.
Vide Section I, E of Chapter III, supra, especially footnote 134 thereto, and the related text.
Murad, p. 376; vide also Butros and Rajah, pp. 405-6, who hold the same view.
This Order is the main ground, on which those who advocate the disciplinary dismissal, depend; vide the Order in Section I, F, of Chapter III, supra.
Section 20 of the Sudan Ordinance (vide Section III, E, iv, of Chapter IV, supra), concerns deductions for absences, and not the termination of the contract.
Samuels, p. 14.
Vide Halsbury, Vol. 25, p. 464.
Barwell and Kar, p. 367.
Macdonell, p. 209; vide Fillieul v. Armstrong (1837) 7 A. & E., 557; and the Indian case of Ahatra Serampore Cooperative Credit Society v. Becharam Sarkar & ors., A.I.R., 1938, Cal. 829.
Vide similar provisions, in sections 20(2) and 18(b) of the Qatari and Libyan Labour Codes, respectively. Sections 16(c) of the Saudi Regulations prescribes in addition, that the wrongful act should be committed with intent. Section 74(3) of the Lebanese Labour Code prescribes that the act schould onstitute a criminal offence, and the worker should be convicted thereof. Section 97(b) of the Iraqi Labour Code prescribes the service of the warning upon the worker, before the dismissal power can be used. Sections 56(a) and 17(b) of the Kuwaiti and Jordanian Labour Codes, respectively, grant the power of summary dismissal, without the requirement of the warning. Dismissal for “a grave mistake,” by virtue of section 14(b) of the Tunisian Labour Code, should be according to the circumstances of every case. Section 1639 P (7) of the Netherlands Civil Code, is similar to the Iraqi provision. Vide I.L.R., Vol. 80, 1959, p. 268, for the position of the law in Germany.
Vide Cairo Court of Appeal in appeal No. 1254 of 1960 (in El-Hawwari, p. 221); vide also El-Areef, p. 397; Sabbour, p. 377; El-Fakahani, 1959 Supplement, p. 275; Butros and Rajab, p. 402; Rashed and Hashem, p. 248; and Habeeb, p. 452.
Vide the High Court of Appeal in (an unnumbered) appeal decided on 9 April 1953 (in Sabbour, p. 378); and Cairo Court of Cassation in (an unnumbered) case decided on 10 October 1954 (in Badawi, K.M., p. 396); vide also Zaki, p. 356; Butros and Rajab, p. 402; Habeeb, p. 453; Rashed and Hashem, p. 249; Badawi, K.M., p. 385; and Sabbour, p. 378. Murad, p. 375; El-Areef, pp. 397-8; and El-Fakahani, 1959 Supplement, p. 276, maintain otherwise. the reason behind the dividion of opinion, is the prescription in section 76(3), of the notification to the authorties concerned. the last three mentioned writers interpret this to mean the Police authorities; but the other writers correctly maintain that not every act notified evento the Police, should constitute a criminal offence
Vide the High Court of Appeal in the appeal, mentioned in the preceding footnote and vide Cairo Court of Appeal in appeal No. 1279 of 1959 (in El-Hawwari, p. 220); vide also Badawi, K.M., p. 395.
El-Areef, p. 398; and Rashed and Hashem, p. 250, hold the same opinion.
Badawi, K.M., p. 385; and Butros and Rajab, p. 402, hold the same opinion.
Vide section 54 quoted and discussed, in Section I, C, iii, of Chapter III, supra’, vide also Cairo Labour Court in case No. 42 of 1960 (in El-Hawwari, p. 222); and vide Sabbour, pp. 378-9.
Vide Alexandria Court of Cassation in case No. 1753 of 1957 (in El-Hawwari, p. 223)
Vide Basier v. London and County Printing Works (1899), 1 Q.B. 901. Every case is decided according to its own circumstances: vide Horton v. McMurtry, 5 H. & N. 667; vide also Batt, pp. 62 and 157; Smith, pp. 84 and 88; and Barwell and Kar, p. 374.
However, the English Law justifies the dismissal, if the serious loss results to the colleagues of the worker: vide Baster’s case in the preceding footnote. In view of the lack of the mention of such loss, in section 10(2) of the Sudan Ordinance, this part of the English Law should not be applicable in Sudan, and the same should be true in the U.A.R.
This is in line with the position under the English Common Law: vide Gould v. Webb, 4 E. & B. 933.
Vide similar provisions, in sections 20(5) and 18(f) of the Qatari and Libyan Labour Code, respectively. Section 97(g) of the Iraqi Labour Code speaks of the employer’s, instead of the establishment’s secrets... cf. section 1639 P (9) of the Netherlands Civil Code. Sections 16(g) of the Saudi Regulations, and 17(f) of the Jordanian Labour Code, speak of the secrets of the work. Section 14(b) of the Tunisian Labour Code, which speaks of “a grave mistake,” permits dismissal for the disclosure of the employer’s or the establishment’s secrets, according to the circumstances of the case. Vide I.L.R., Vol. 80, 1959, p. 268, for the position of the law in Germany.
Vide Section I, C, iv, of Chapter III, supra.
Zaki, p. 359, holds the same opinion: vide footnote 149, supra.
Vide Cairo Court of Cassation in case No. 1713 of 1957 (in El-Hawwari, p. 257); cf. with a decision of the same Court in case No. 2548 of 1953 (in Habeeb, p. 459), in which it was held that the unauthorised taking by the worker of the employer’s accounting books to the tax authorities, so as to substantiate his information of tax racketeering by the employer, constituted a disclosure of his employer’s secrets, justifying his summary dismissal; vide also El-Fakahani, 1959 Supplement, pp. 285-6.
Vide Batt, p. 63.
Ibid., p. 160.
Cf. similar provisions, in sections 97(d), 20(7) and 18(h) of the Iraqi, Qatari and Libyan Labour Codes, respectively. the Kuwaiti and Jordanian Labour Codes and the Saudi Regulations do not contain relevant provisions; nor does the Lebanese Labour Code, though section 65 thereof prohibits the entry of narcotics and any person affected by narcotics, into the place of work. Drunkenness or intoxication by narcotics, may constitute the “grave mistake,” which justifies dismissal by virtue of section 14(b) of the Tunisian Labour Code. Section 1639 P (3) of the Netherlands Civil Code justifies the worker’s summary dismissal, “if he indulges, despite warning, in drunkenness or other dissolute conduct.” Vide I.L.R., Vol. 79, 1959, p. 633, for the position of the law in France.
Vide El-Fakahani, 1959 Supplement, p. 288; Sabbour, p. 387; Butros and Rajab, pp. 349 and 411; Zaki, p. 360; and Habeeb, p. 462, who are of the same opinion.
Vide Smith, p. 84; and Batt, p. 65.
(1906) A.C. 122.
Vide also Wise v. Wilson, 1. C. & K. 662; Speak v. Phillips (1839) 5M.&M, 279; and Hands v. Simpson (1928), 44 T.L.R. 295.
Section 95(7) of the Iraqi Labour Code entitles the employer and the worker to terminate the contract without notice, during the fifteen days following the date of making the contract (vide the Labour Survey of North Africa, pp. 211-2, for some similarity with the law in Morocco). This is without reference to section 25(1) of the Code, which prescribes that the period of probation should not exceed three months. Section 17 of the Kuwaiti Labour Code, which limits the period of probation to one hundred days, entitles the employer alone to summarily determine the contract, before the expiry of these hundred days. Section 16(b) of the Saudi Regulations entitles only the employer to summarily determine the contract, during the three months following the making of the contract (which are impliedly the probation period), only if the employer is dissatisfied with the performance of the worker. Section 74(2) of the Lebanese Labour Code is similar to the Saudi Arabian provision. None of the other Arab Labour Codes contains a relevant provision. Section 1639 N of the Netherlands Civil Code grants the employer and the worker the power to summarily determine the contract; and section 502 of the Majallah does the same.
Vide Cairo Court of Cassation in case No. 1713 of 1957 (in El-Hawwari, p. 219); vide also El-Areef, p. 417; Sabbour, p. 117; Butros and Rajab, p. 34; and Habeeb, pp. 265 and 266-7. Those who advocate the contrary view, with no more justification than that of equity, in spite of the express provision in section 76(2), are Badawi, K.M., p. 88; Rashed and Hashem, p. 14; and Faheem, p. 24; vide also Cairo Labour Court incase No. 5979 of 1955; Cairo Court of Cassation in case No. 1317 of 1956; and Cairo Court of Appeal in appeal No. 215 of 1957 (in El-Fakahani, Book I, Vol. I, pp. 296, 302 and 293, respectively). Section 939 of the Draft Civil Code granted the power of summary termination of the contract to the employer and the worker; but the section was not adopted.
Vide Cairo Labour Court in case No. 6565 of 1955 (in El-Fakahani, Book I, Vol. I, p. 287); Cairo Court of Cassation in case No. 70 of 1955 (in Badawi, K.M., p. 394); Alexandria Court of Cassation in case No. 952 of 1955; and Cairo Court of Appeal in appeal No. 215 of 1957 (both in Habeeb, p. 268); and Cairo Court of Cassation in case No. 35 of 1958 (in El-Hawwari, p. 72); vide also Murad, p. 251; Badawi, K.M., p. 89; El-Fakahani, Book I, Vol. I, pp. 306-10; Butros and Rajab, p. 36; Habeeb, p. 268; and Naguib and Bakr, p. 75. Vide Section II, B, of this Chapter, infra, for the justification of the termination of the contract.
Vide the Indian case of Wechsler v. Johnston & Hoffman (1928), Cale, suit 455, mentioned by Barwell and Kar, p. 66.
For the U.A.R., vide Alexandria Court of Cassation in cases Nos. 471 and 1802 of 1949 (both in Rashed and Hashem, p. 244-It is interesting to note that these writers, in citing these cases, forget that they advocate the view that the worker’s dismissal in accordance with section 76 of the Labour Code, should be a disciplinary dismissal. If it is, the time within which the dismissal should take place, is fifteen days after the discovery of the cause of dismissal-vide footnote 134 to Chapter III, supra); vide also the Alexandria Court of Appeal in appeal No. 428 of 1959 (in El-Hawwari, p. 239); and vide El-Fakahani, Book I, Vol. I, p. 95; and Rashed and Hashem, p. 283. For Sudan, vide Phillips v. Foxall (1872), L.R., 7 Q.B. 666: Horton v. McMurtry (1960), 5 H. & N. 667; and Federal Supply and Cold Storage of South Africa v. Angehrn, 103 L.T., 150; vide also Diamond, p. 188; Cooper, p. 78; and Smith, p. 80; and vide I.L.O. Report VII (1), 1962, p. 39, and paragraphs 12(3 & 4) of the Proposed Recommendation Concerning Termination At the Initiative of the Employer, in Report V(l), 1963, p. 36.
Vide section 696(1) of the U.A.R. Civil Code (in footnote 258, infra), which entitles the worker to compensation for the unjustifiable termination of the contract, even though he be the terminating party, if it is the employer’s conduct which obliged him to terminate the contract. This compensation does not include the payment in lieu of the notice of termination (vide Badawi, K.M., pp. 286-7; and Butros and Rajab, p. 412, who maintain otherwise). Vide Cairo District Court (Commercial) in case No. 21 of 1949 (in Rashed and Hashem, p. 281); the Cairo Court of Cassation in case No. 415 of 1953 (in Ibid., p. 410); and the same Court in case No. 473 of 1954 (in El-Fakahani, Book I, Vol. I, p. 644); and El-Geeza Court of Cassation in case No. 229 of 1958 (in El-Hawwari, p. 347); vide also El-Areef, pp. 324 and 408-9; El-Fakahani, 1959 Supplement, p. 214; and Naguib and Bakr, p. 161.
Vide identical provisions in section 918(2) of the Iraqi Civil Code. Cf. some similar provisions, in section 1639 S of the Netherlands Civil Code. Before the enactment of section 695(2) of the U.A.R., and even before the enactment of section 22 of Law 41 of 1944 (vide the Introduction, supra), the Mixed Courts, following in the steps of the French Law, developed the doctrine of justification of termination on the grounds of equity (vide Murad, p. 428; Sabbour, p. 336; and Rashed and Hashem, pp. 179 and 191-2).
Section 72 prescribes the notice necessary for the termination of the unlimited contract (vide the section quoted in Section I, 2, of this Chapter, supra). Section 73 prescribes the payment of the termination gratuity (vide Chapter VII, infra).
This provision was drawn from section 23(5) of Book I of the French Labour Code (vide I.S.D.L., Vol. 4, 1929, p. 84); vide also the French decisions in Cauzier v. Dame Malude (1929), Gaz. du Palais, 1930, 1, 143; Ballot v. Auzémery (1931), Dalloz Hebdom., 1932, p. 90; Bon Marché v. Rongeat (1932), Gaz. du Palais, 1932, 2, 140; and Société Au Bon Marché v. Staudenmeyer (1936), Dalloz Hebdom., 12, 265 (all in I.S.D.L., Vol. 6, 1931, p. 77; Vol. 8, 1934, pp. 104 and 107; and Vol. 12, 1938, p. 149, respectively); and vide I.L.R., Vol. 32, 1936, p. 200; and I.L.O. Report VII(l), 1962, on the Termination of Employment. This was and still is applicable to Algeria. Vide some similar provisions in section 23 of the Tunisian Labour Code, which seems to be the only Arab Labour Code containing such an express provision. A similar provision can be deduced from section 16 of the Libyan Labour Code. Vide I.L.R., Vol. 80, 1959, pp. 274-6, for the more protective provisions in Germany.
These two terms are synonymous: vide the High Court of Appeal in appeal No. 202 of 1958 (in Habeeb, p. 629). Section 67(2) of the Labour Code uses the former term (vide the section quoted in Section I, C, of this Chapter, supra), whereas the latter term is used in section 74.
Cairo Court of Cassation (commercial) in case No. 1225 of 1952 (in Habeeb, p. 486).
Vide also section 163 of the Civil Code, which provides that “every wrong which causes a loss to others binds the person who commits it to pay damages.”
Vide Cairo Court of Cassation in case No. 723 of 1952 (in Rashed and Hashem, p. 360); Cairo Court of Appeal in appeal No. 1388 of 1960 (in El-Hawwari, p. 434); and the Cairo Labour Court in decisions Nos. 193, 195, 196, 198, 1106 and 1378 of 1960 (in Ibid., pp. 437 and 439); vide also Zaki, p. 309; and El-Fakahani, 1959 Supplement, p. 27, where he points out that section 148 of the Civil Code, re the bona fide carrying out of the contractual obligations, and the exercise of the contractual rights (vide footnote 98 to Chapter III, supra), provides a legal ground for the doctrine of justification of the termination of the contract. It is submitted that he is wrong, because the mala fides is not essential to the doctrine of justification (vide Zaki, p. 486; and Naguib and Bakr, p. 142).
Vide Alexandria Labour Court in case No. 57 of 1953 (in Rashed and Hashem, p. 220); and Cairo Labour Court in case No. 1903 of 1954 (in Badawi, K.M., p. 308); vide also Murad, p. 429; Sabbour, pp. 414 and 338; El-Areef, p. 355; Badawi, K.M., p. 303; and Rashed and Hashem, pp. 194, 200 and 208.
Vide the High Court of Appeal in the two appeals Nos. 210 of 1958 and 228 of 1960 (both in El-Hawwari, p. 369); vide also Cairo Labour Court in case No. 2480 of 1953; Cairo Court of Cassation in case No. 55 of 1955; and Alexandria Court of Appeal in appeal No. 167 of 1957 (all three in Habeeb, p. 508); vide also section 224 of the Civil Code.
Section 221 of the Civil Code provides: “If the damages are not fixed in the contract or in a provision of law, the Judge shall assess them, and they shall include the loss which the creditor has inccurred and the gain he has missed provided that they (the loss and the gain) are the natural consequences of the failure to carry out the obligation or of the delay in carrying it out, and the loss shall be considered as a natural consequence if the creditor could not avoid it by the exertion of a reasonable effort. “However, if the obligation is a contractual obligation, the debtor shall not be obliged to pay damages for more than the loss which could have been ordinarily contemplated at the time of making the contract unless he has committed a fraud or a grave mistake.”
Section 170 of the Civil Code provides that “the Judge shall assess the damages for the loss incurred according to the provisions of sections 221 and 222 while taking the circumstances into consideration.”
Vide section 695(2) of the Civil Code; vide also El-Areef, p. 357 (where he says that “the damages should be... equal to the loss,” and not to what could have been contemplated at the time of making the contract); Murad, p. 437; and Rashed and Hashem, p. 203. Zaki, p. 403, says the same thing, though he maintains that the liability is contractual (vide footnote 245, supra).
El-Areef, p. 405, submits to the same effect; vide also Cairo Court of Appeal in appeal No. 1021 of 1959 (in El-Hawwari, p. 373), in which the Court’s considerations were wider than the specification in section 74. Section 962 of the Draft Civil Code, which was copied from section 23 of Book I of the French Labour Code, and which formed the basis of section 695(2) of the Civil Code, expressly provided for the taking into consideration of all the circumstances of the case.
Section 222 of the Civil Code expressly provides to this effect.
Vide Cairo Labour Court in case No. 364 of 1959 (in El-Hawwari, p. 371).
Vide the decisions in which the termination was held unjustifiable, and those in which it was held to be justifiable, in El-Hawwari, p. 281 et seq., and El-Fakahani, Book I, Vol. III, p. 652 et seq. Vide section 19 of the Libyan Labour Code.
Vide the section quoted in Section I, C, ii, of Chapter III, supra.
Vide the section quoted in Section I, C, of this Chapter, supra.
This is section 77, whose provisions were quoted in Section II, A, 3, of this Chapter, supra.
Section 696(1) of the Civil Code provides that “damages may be awarded for the dismissal even though the employer has not ordered it, if he by his conduct and particularly by his unjust treatment or by the violation of the contract terms has driven the worker to be seemingly the terminating party.”
Vide the section quoted and discussed in Section II, A, 3 and 4, of this Chapter, supra.
Section 75 contains extensive provisions intended to provide the worker, who believes that his dismissal is unjustifiable, with a speedy procedure of complaint against the dismissal, and with a temporary compensation payable to him by the employer, until the matter is finally settled in Court (the section was inspired by section 23 of Book I of the French Labour Code; cf. section 1639 T of the Netherlands Civil Code). the discussion of these procedures falls outside the scope of this study.
The section is quoted and discussed in Section I, D, of this Chapter, supra.
The section is quoted and discussed in Section I, A, of this Chapter, supra.
Vide El-Geeza Court of Cassation in case No. 130 of 1956 (in El-Fakahani, Book I, Vol. III, p. 407).
Butros and Rajab, p. 423; and Rashed and Hashem, p. 304, submit to the same effect.
Vide Alexandria Court of Cassation in case No. 1978 of 1957 (in El-Fakahani, Book I, Vol. III, p. 702); vide also Murad, pp. 436 and 430; El-Areef, pp. 357-8 and 426; and Rashed and Hashem, pp. 221-2.
The offence mentioned in section 231, is committed by “the employer or his representative who terminates the contract of the worker or penalises him in order to oblige him to join refrain from joining or withdraw from the trade union or on account of the worker’s carrying out of the union’s work or its lawful resolutions.”
Vide Alexandria Court fo Appeal in appeal No. 326 of 1957 (in El-Fakahani, Book I, Vol. III, p. 698); vide also El-Areef, pp. 355, 404 and 417; Sabbour, pp. 328-9; Zaki, pp. 369, 415 and 427-8; Habeeb, p. 542; Badawi, Z., Vol I.., p. 112; and El-Fakahani, 1959 Supplement, pp. 291 and 226.
Vide Alexandria Court of Cassation in case No. 2031 of 1955; and Cairo Court of Appeal in appeal No. 1159 of 1958 (both in El-Fakahani, Book I, Vol. III, pp. 689 and 700, respectively); vide also Butros and Rajab, p. 383; Naguib and Bakr, pp. 147-8; and Rashed and Hashem, p. 204 (these writers depend on the fact that section 22 of Law 41 of 1944 limited the doctrine of justification to the unlimited contracts expressly, whereas Law 317 of 1952 was silent, thus according to them, evidencing a contrary intention of the legislator).
Vide the section quoted in footnote 248, supra.
Vide section 170 of the Civil Code, in footnote 249, supra.
The social and economic benefits which result to the aggrieved party (especially when he is the worker), from the U.A.R. doctrine of justification, are lacking in Sudan.
Vide Dennis & Sons v. Tunnard Bros, and Moore (1911), 56 Sol. 162; vide also Siddall v. Wallsey Corporation (1932), reported in I.S.D.L., Vol. 8, 1934, p. 28.
P. 203.
Vide the Sudanese case of El-Sayed El-Hag El-Dosh v. President A Mia Shool (1958), AC-Revision-164-58 (in the S.L.J.R., 1958, p. 75).
(1854), 9 Exch. 341; vide also Cheshire and Fifoot, p. 498 et seq.
Thus the two requirements in section 221 of the U.A.R. Civil Code, are in England in the alternative (vide footnote 248, supra).
Vide Clayton v. Oliver (1930) A.C. 209.
Vide Addis v. Gramophone Co. (1909) A.C. 488.
Vide Johnson v. Shrewsbury & Birmingham Railway Co. (1853), 3 De G.M. 914; Rigby v. Connol (1880), 14 Ch.D. 482; and Ryan v. Mutual Tontine Westminister Chambers Association (1893), 1 Ch. 116; vide also Cheshire and Fifoot, p. 515 et seq.’, Diamond, pp. 79 and 210; Clark, pp. 12-3; and Barwell and Kar, p. 61.
Vide R. v. National Arbitration Tribunal, Ex, p. Crowther (1948) 1 K.B., 424.
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Hashem, H.R. (1964). Suspension, Frustration and Termination of the Contract of Employment. In: Arab Contract of Employment. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8836-4_7
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