The Injunctions in the Egyptian Law8 Jun 2020 1537 Views
The injunction is a court order by which an individual is required to perform, or is restrained from performing, a particular act. A writ framed according to the circumstances of the individual case.
An injunction command is an act that the court regards as essential to justice, or it prohibits an act that is deemed to be contrary to good conscience. It is an extraordinary remedy, reserved for special circumstances in which the temporary preservation of the status quo is necessary.
Courts exercise their power to issue judicial orders, and only when necessary. A court order is usually issued only in cases where it leads to irreparable harm to an individual’s rights.
It shall be clear to the court that if normal litigation procedures are followed in this case, this may result in an irreversible injury to the party requesting the injunction.
An injury is considered irreparable when it cannot be adequately compensated by awarding compensation. However, the material damage does not have to be significant, and therefore, the court can refuse to grant the injunction, as the loss of profits alone is not sufficient to prove an injury that cannot be repaired.
Therefore, according to the Egyptian Civil and Commercial Procedures Law, there are 3 types of injunction:
- Temporary injunction;
- Performance injunction;
- Provisional seizure.
The first injunction type is the Temporary injunction: these are the orders issued by the judges of the temporary orders based on the requests submitted to them by the concerned parties, and these orders are issued in the absence of litigants and without causing, i.e. temporary orders are aimed at preserving the rights where fear of expiry with the passage of time exists, and this is done by the judge’s endorsement of the request submitted to him and ordering his decision without conducting pleadings or submitting memorandums from the parties.
As per Article 194 of the Egyptian Civil and Commercial Procedures Law: “In cases where the law stipulates that the opponent has the right to issue an order, he submits a petition with his request to the judge of temporal matters in the competent court or to the president of the panel that handles the lawsuit…”.
Moreover, it is important to mention that issuing the Temporary injunctions is limited to the cases which are mentioned in the different Egyptian Legislations, as for an example, Paragraph 2 Article 1 from the Law N.1 of the year 2000: “… The judge of the temporary matters in the Court of First Instance, exclusively, is competent to issue an order on a petition in the following personal status matters:
- Appeals against the documenter refraining from documenting the marriage contract or not giving a proven certificate of failure, whether to the Egyptians or foreigners.
- Extend the date of the estate inventory to the extent necessary to complete the inventory, if the applicable law has set a date for it.
- Issuing the precautionary measures for the legacies that do not include lacking capacity persons, incapable persons, or lost in the inheritors list.
- Issuing permission for the Public Prosecution to transfer money, securities, documents, jewelry, and other items that are owned by lacking capacity persons, incapable persons, or lost to a bank treasury or to a safe place.
- Disputes about traveling abroad after hearing the statements of concerned parties.”.
The second type is Performance injunction.
Performance injunction can be defined as per Article No. 201 from the Egyptian Civil and Commercial Procedures Law: ” As an exception to the general rules for filing lawsuits, the provisions mentioned in the following articles shall be followed if the creditor’s right is fixed in writing and its time has come and what is claimed is a debt of money of a certain amount or a specific movable itself or its type and amount…”.
Accordingly, in order to issue a Performance injunction, the debt shall meet the following conditions:
1-Fixed in writing;
2-Movable or money amount; and
3-The date of payment has come.
The Third type is Provisional seizure.
The Provisional seizure is to place the debtor’s property and money under the judiciary’s control to prevent the debtor from disposing of it, that may harm the right of the creditor who is requesting issuing a provisional seizure order.
The creditor – who is requesting issuing a provisional seizure order – is not required to hold an executive deed/court judgment to ask the court to issue the provisional seizure order, as in every case it is feared that the creditor will lose to ensure his right, Provisional seizure shall be applied.
According to Article No. 316 from the Egyptian Civil and Commercial Procedures Law: “The creditor may sign a provisional seizure on moveable debts in the following cases: …2- In every case where the creditor is feared to lose his right.”
Furthermore, as mentioned in Article 319 from the aforementioned law: “Provisional seizure shall not be applied unless it was necessary to cover the debt which is present and the date of payment has come. If the creditor does not have an executive deed or ruling that is not enforceable, or if his debt is not of a specified amount, then the attachment is not signed except by order of the execution judge authorizing the attachment and the debt of the barrier is estimated temporarily…”.
Therefore, in order to issue Provisional seizure, the debt shall be
3-The date of paying the debt has come; and
4-The creditor is feared to lose his right and submitting the supporting documents.