Things and Property in the Civil Transactions Law and in the Egyptian Civil Code

A right is defined as a power in a person which the law recognises and undertakes to protect. It is a legal bond by which the law confers on a person the exclusive command of a thing, or the exclusive entitlement to a particular performance from another. Among its kinds is the patrimonial right, which divides into the real right and the personal right. The real right bears upon a determinate thing, creating a direct relation between the holder of the right and the thing that is its object — as with ownership and usufruct. The personal right is a legal bond creating a personal obligation in the debtor's patrimony toward the creditor. It is a relation between two persons, one creditor and one debtor, and the relationship between them is indirect: the creditor cannot command the thing save through the debtor.

Since the personal right is a relation of obligation between creditor and debtor, its object is not the thing but the performance of the act. The object of the real right, by contrast, is the thing capable of being the object of patrimonial rights, whether material or incorporeal.

Given the importance personal and real rights hold in the civil codes, they are treated separately; and among the matters worth examining is the distinction between a thing and property, for things and property differ in the eyes of the law. Property, in the usage of the law, is a right of patrimonial value, whatever that right may be — real, personal, or a right of literary, artistic or industrial ownership. The Court of Cassation has held that property, in the usage of the law, is everything of appraisable value and useful to a person, capable of being complied with his exclusion of others; and that property may be a material thing, such as objects apprehended by the senses, or an incorporeal thing, such as rights grasped only by conception. (Cassation, 31 January 1946.)

It should be noted that although the Saudi legislator in the Civil Transactions Law follows the same path as the codifier in the Egyptian Civil Code in distinguishing the thing from property — showing that a thing is not property, and is no more than the object of patrimonial rights, provided it is not outside commerce by its nature or by operation of law — the Civil Transactions Law adds a new provision on the definition of property, providing in Article 20 that "property is everything having a material value recognized in dealings, whether a corporeal thing, a benefit, or a right".

The thing, by contrast, is the object of that right: what is fit to be the object of patrimonial rights, and so fit to be dealt in, whether by its nature or by operation of law. The first paragraph of Article 81 of the Egyptian Civil Code provides that "everything not outside commerce by its nature or by operation of law is fit to be the object of patrimonial rights". Article 19 of the Civil Transactions Law provides to the same effect.

There are accordingly excluded from the things fit to be the object of patrimonial rights, in the view of the Egyptian Civil Code and the Civil Transactions Law:

One: what is outside commerce by its nature. The explanatory memorandum to the preliminary draft of the Egyptian Civil Code describes these as things whose possession all may enjoy without the enjoyment of some barring the enjoyment of others — air, sunlight and running water. The Civil Code accordingly describes them as things of which no one can take exclusive possession.

Two: what is outside commerce by operation of law. The law does not permit such things to be the object of patrimonial rights. The explanatory memorandum to the preliminary draft of the Egyptian Civil Code describes these as things the law declares generally not to be dealt in, such as hashish and opium, and things falling within public property. This description is not altered by the permitting of a particular kind of dealing in them, such as the sale of hashish and opium for medical purposes. The Egyptian Court of Cassation has accordingly explained that what the legislator intended by Article 81 of the Civil Code, in providing that public property is outside commerce by operation of law, is that such property may not be disposed of, attached, or acquired by prescription. (Hearing of 12 December 1967.)

Islamic jurisprudence too has treated things outside the sphere of commerce. In the Hanafi view, the sale of what is not property of appraisable value in itself is defective, and the sale of common pasture is defective, on the authority of the saying of the Prophet, peace be upon him, that people are partners in three things: water, pasture and fire. The Mejelle (Article 127) provides that property of appraisable value is used in two senses: first, what it is permitted to benefit from; and second, property that has been appropriated. Fish in the sea are not of appraisable value; once caught, they become so by appropriation. The Hanbalis comply with the same sense, laying down that the sale of things held in common, such as great rivers, is invalid, since anyone may take from them and own what he takes. Like the water of rivers are the minerals running through properties, such as bitumen and thorn; these, however, are owned by appropriation, so that whoever appropriates any of them owns it.

The classes of things

In principle things are material, that is, they occupy a perceptible physical space — land, buildings, vehicles, livestock, crops and foodstuffs. With the advance of humanity and the flourishing and diversification of production, however, people came to need the ordering of incorporeal things such as intellectual property rights. The Civil Code and the Civil Transactions Law accordingly provide that rights bearing upon incorporeal things are governed by the statutory texts particular to them. Each has likewise set out several classifications of material things: into immovable and movable, fungible and non-fungible, and consumable and non-consumable.

a. Immovable and movable.

An immovable is anything fixed in its place which cannot be moved from it without damage or change to its form; everything else is a movable. A movable which its owner places in an immovable belonging to him, appropriated permanently to the service or exploitation of that immovable, is treated as an immovable by destination, even where it is not permanently attached to it. (Article 22 of the Civil Transactions Law.)

It follows from this text that the test distinguishing immovable from movable turns on the nature of the thing. The immovable is the thing fixed and settled in its place, so that it cannot be moved from one place to another unless demolished or uprooted, and so cannot be moved without damage. The Saudi legislator in the Civil Transactions Law follows the same path as the Egyptian Civil Code in not defining the movable, contenting himself with providing that everything other than an immovable is a movable. By converse implication, then, a movable is anything that can be moved from one place to another without damage, being a thing neither settled nor fixed in its place.

b. Fungible and non-fungible things.

Fungible things are those whose units correspond, or are so close that one may stand in place of another in performance without a difference recognized by custom. Non-fungible things are those whose units differ in their qualities or in their value to a degree recognized by custom, or of which like specimens are rarely found in circulation. (Article 21 of the Civil Transactions Law.)

A non-fungible thing is one determined in itself, in whose place no other thing can stand in performance. A fungible thing is one for which another may stand in the discharge of a debt. It is called fungible in relation to another thing: it is not fungible in itself, but by comparison with its like. A fungible thing is ordinarily marked by two features. First, it is not fungible in itself but by comparison with another like it. Second, it is ordinarily assessed by number, measure, weight or dimension, its units not differing to any recognized degree, so that one may stand in place of another in performance.

c. Consumable and non-consumable things.

Consumable things are those whose use, according to the purpose for which they are appointed, is confined to their consumption or expenditure; and everything set out in shops for sale is treated as consumable. (Article 23 of the Civil Transactions Law.) The importance of distinguishing consumable from non-consumable things appears in several respects, among them:

1. There are contracts which affectly upon non-consumable things, such as the loan for use.
2. Usufruct is a real right entitling its holder to enjoy a thing belonging to another, on condition that he return it at the end of the enjoyment. The thing enjoyed is therefore non-consumable, since it is returned in specie after being used for a fixed period. Where usufruct bears upon a consumable thing, the usufructuary returns not the thing itself but its like; and the nature of the enjoyment thereby changes into quasi-usufruct.