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Legal Studies in English

language

Assistant Professor

Dr. Fuad Shehab SHYYAB

JADARA UNIVERSITY

2012-2013

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Course Description

Legal terminology is a set of special words, terms and expressions

used in connection with law as one of the branches of social sciences.

The purpose of this course is to provide students with general law

terms as well as with specialized legal terminology.

This course aims at help students to achieve and demonstrate a

major legal terminology and to learn these skills: listening, reading,

writing and speaking. So, students have to enhance their abilities of

learning legal terminology and to contextualize the terms in order to

know how lawyers, judges, and others use them.

Specifically, this course designed to educate students to be familiar

with the basic terminology of the legal profession and to understand

and communicate with legal language.

Finally, this course will mainly help lawyers (policemen, judges,

etc.) and law students, whom involved in studying these branches of

law, to obtain a good background needed to prepare all the documents

used in a lawsuit.

Course Outline

This course is organized as follows: Part one concentrates on the

classification of law whereas Part two is concerned with the major legal

systems in contemporary world. Finally, the last part goes on dealing

with the Jordanian legal system.

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Learning Outcomes

After completing the course, students have to develop an

awareness of the legal vocabulary and explain fundamental legal

concepts, procedures, terminology, and current issues in law.

Students who successfully complete this course will be able to spell

and pronounce, as well as define and understand, legal terms through

practical application. They will learn the terminology and definitions,

synonyms, pronunciation and usage in the different areas of law.

The student will also be able to present key legal English

terminology in short reading passages.

Therefore, by the end of this course, students should be able to:

recognize the different areas of law, understand the usage of legal terms

in legal documents, and use correct legal terms in verbal and written

communications.

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Contents

INTRODUCTION: CONCEPT OF LAW

PART ONE : CLASSIFICATION OF LAW

Chapter 1 : Public law

Section 1 : Public international law

Section 2 : Constitutional law

Section 3 : Administrative law

Section 4 : Financial law

Section 5 : Penal law or Criminal law

Section 6 : The law of criminal procedures

Chapter 2 : Private law

Section 1 : Civil law

Subsection 1 : Law of contract

A) Definition of contract

B) Formation of contract

C) Some nominated contracts

D) Breach of contract and discharge

E) Contractual liability

Subsection 2 : Tort law

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Section 2 : The law of civil procedures

Section 3 : Labor law

Section 4 : Commercial law

Subsection 1: The traders

Subsection 2 : Maritime law

Subsection 2 : Air law

Subsection 4 : Company law

Paragraph 1: The notion of partnership and company

Paragraph 2: The legal personality

Paragraph 3: Important terms of company law

Paragraph 4: The companies in Jordanian law

PART TWO : THE MAJOR LEGAL SYSTEMS IN CONTEMPORARY

WORLD

Chapter 1: The civil law system

Chapter 2 The common law system and equity

Chapter 3 The communist law system

Chapter 4 The Islamic law system

PART THREE : JORDANIAN LEGAL SYSTEM

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INTRODUCTION : CONCEPT OF LAW

What is law?

A definition: law is the system of control (i.e. a set of rules) through

which society operates. Law declares how we must behave and consists of

those rules which are enforced through the legal system (particularly the

courts): citizens must obey or suffer a penalty. Nevertheless, the system is

more complex in reality as the ‘rules’ are affected by social, economic,

political and international considerations. And, there are differences between

law and justice, and law and morality, and between law as an idea and law as

a legal system.

Law is a system of rules and guidelines which are enforced through

social institutions to govern behavior. Laws are made by governments,

specifically by their legislatures. The formation of laws themselves may be

influenced by a constitution (written or unwritten) and the rights encoded

therein. The law shapes politics, economics and society in countless ways and

serves as a social mediator of relations between people.

Law also raises important and complex issues concerning equality,

fairness, and justice. "In its majestic equality", said the author Anatole France

in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the

streets and steal loaves of bread." Writing in 350 BC, the Greek philosopher

Aristotle declared, "The rule of law is better than the rule of any individual.

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Part one : Classification of law

There are four different classifications of law.

1. Substantive laws ver-sus. Procedure laws- Substantive law is the

substance that makes up a law. It is the meaning of a law that explains what

you can and cannot do. For example the law states that you cannot murder

another human being unless you were in self defense, you were under duress

or if you were drugged by another person. Unlike substantive law, procedure

laws are just the steps that must take place when filing a lawsuit against

another party.

2. Public law vs. Private Law- Public law simply means that the

government is involved. Public law is any law that has to do with the

constitution and the public. This type of law normally involves a criminal suit

were the government is prosecuting a citizens for a crime they allegedly

committed. Private laws are laws that do not involve the government, and are

laws that allow one private entity to sue another private entity in a civil

lawsuit.

3. Criminal law vs. Civil Law- Criminal law was created to protect the

public from the government or from themselves. Criminal laws were created

so that the government could not prosecute individuals without due process

and so that the public could protect themselves from each other. Civil law are

cases where one or both parties are looking for compensation instead of jail

time.

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4. Common law vs. Civil law countries- Common law countries

prosecute the concept of "Stare Decisis" meaning, let the decision stand.

This means that these countries such as the United States of America

make decisions based on precedent. Unlike common law countries, civil

law countries do not rely on precedent but instead prosecute lawsuits

on a case to case basis without looking at how past cases had been

decided.

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Chapter 1 : public law

Section 1 : Public international law

The public international law is a body of legal rules that organize

the relationships among states and determine the rights and duties of

each at time of peace or of war.

This branch of law deals with such matters as the formation and

recognition of states, acquisition of territories, war, the law of sea and

space, treaties, treatment of aliens, human rights, international crimes,

pacific and judicial settlement of disputes and the legal responsibility of

states in their conduct with each other.

Public international law has three principal sources: international

treaties, international custom and general principles of law.

Section 2 : Constitutional law

This branch of law defines the form of the state, the system of

government, the organizational structure of government (the powers)

and the relation among these powers which include the legislative, the

executive and the judiciary.

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It, also, illustrates the interpretation of the constitution, emergency

powers, constitutional amendments, etc. In addition, it defines the

rights and duties of citizens and guarantees various freedoms,

including those of worship, opinion and association.

Section 3 : Administrative law

Administrative law is considered a branch of public law. This

branch is the body of law that governs the activities of administrative

agencies of government. Government agency action can include

rulemaking1, adjudication or the enforcement of a specific regulatory

agenda.

This branch defines the powers of an executive nature that are

conferred by legislation on government ministers, public and local

authorities.

Section 4 : Financial law

The term financial law refers to a body of legal rules that govern

public funds of the state, its various revenues, such as taxes, dues, loans

and the ways of collecting any spending such funds. In short, the rules

which organize the budget and the taxes.

1 rule-making refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.

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The subjects of financial law are the budget, the taxes, public loans,

the revenues of the state and the expenses.

Section 5 : Penal law or Criminal law

Criminal law is the body of legal rules which defines the crimes

and imposes penalties or the type of punishment on them. It commands

abstention from certain acts and threatens punishment. It covers the

whole range of criminal offences from minor contraventions to

misdemeanors and felonies.

A crime is an act or omission which is prohibited by criminal law.

It is a wrong against all of society, not merely against the individual

victim alone.

Crime's elements

A fundamental principle of Criminal Law is that a crime consists of

both a mental and a physical element. The mental element is the Mens

rea2, which means a person's awareness of the fact that his or her

conduct is criminal, and the physical element or actus reus which means

the act itself.

2 Latin for a guilty mind, or criminal intent in committing the act.

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In other words, an act alone could not create criminal liability

unless it was accompanied by a guilty state of mind.

"The act does not make a person guilty unless the mind is also

guilty". Thus, in jurisdictions with due process, there must be an actus

reus accompanied by some level of mens rea to constitute the crime with

which the defendant is charged. As a general rule, criminal liability

does not attach to a person who acted with the absence of mental fault3.

In civil law, it is usually not necessary to prove a subjective mental

element to establish liability for breach of contract or tort, for example.

However, if a tort is intentionally committed or a contract is

intentionally breached, such intent may increase the scope of liability as

well as the measure of damages payable to the plaintiff.

Therefore, mens rea refers to the mental element of the offence that

accompanies the actus reus. In some jurisdictions, the terms mens rea and

actus reus have been replaced by alternative terminology. In Australia,

for example, the elements of the federal offences are now designated as

"fault elements" or "mental elements" (mens rea) and "physical elements"

or "external elements" (actus reus). This terminology was adopted to

3 The exception is strict liability crimes.

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replace the obscurity of the Latin terms with simple and accurate

phrasing.

Actus reus : The voluntary and wrongful act or omission that

constitutes the physical components of a crime. Because a person cannot

be punished for bad thoughts alone, there can be no criminal liability

without actus reus.

Sometimes called the external element or the objective element of a

crime, is the Latin term for the "guilty act" which, when proved beyond

a reasonable doubt in combination with the mens rea, "guilty mind"

Hence, the general test of guilt is one that requires proof of fault,

culpability or blameworthiness both in behaviour and mind.

Jordanian criminal law

The criminal code adopted in 1956, which had been amended

many times, contained the bulk of the country's criminal law. In

addition, certain codified civil statutes also prescribed penalties for acts

such as libel, adultery, and publication of material endangering the

security of the kingdom.

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Individuals could not be punished except for acts made criminal

by virtue of penalties prescribed by law. Other than where specified, a

person also could not be punished for committing a criminal act in the

absence of criminal responsibility or intent, both of which were defined

by the code. As a safeguard of personal liberty, the government had the

burden of proving both the defendant's commission of the act and the

admissible intent of the defendant before guilt could be established.

The criminal code, in traditional French form, divided criminal

offenses into three categories according to the severity of the applicable

punishments. In English common law these categories equated roughly

to felonies, misdemeanors, and minor violations. Punishments for

felonies ranged from death by hanging to imprisonment for periods

ranging from three years to life. Punishments for misdemeanors

included imprisonment for periods ranging from three weeks to three

years and a variety of fines. Minor violations could be punished by

imprisonment for less than three weeks, small fines, or reprimands by

the court.

In cases involving misdemeanors or minor violations, a judge also

could invoke preventive measures including detention for psychiatric

examination, forfeiture of material goods, or closure of a place of

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business. The criminal code provided for minimum penalties for all

major infractions rather than relying on the discretion of the courts.

The death penalty was authorized for murder, arson of an

inhabited building, assassination of the king (or attempts on his life),

and a broad range of serious crimes defined as threats to the security of

the state. These latter offenses included acts such as treason, espionage

on behalf of an unfriendly foreign power, and armed insurrection.

Imprisonment for life was imposed for such felonies as lesser

crimes against national security, homicide during commission of a

misdemeanor or that resulted from torture, and the more serious forms

of theft. Shorter imprisonment was prescribed for these same offenses if

mitigating circumstances warranted. Such punishment also was

authorized for terrorist activity, membership in subversive

organizations, counterfeiting, forgery of official documents, and

abduction.

Misdemeanors included such offenses as gambling in public

places, bribery, perjury, simple forgery, slander, embezzlement, assault

and battery, and disturbing the peace. The influence of sharia was still

evident in the imposition of prison sentences for desertion of a child,

abortion, marrying a girl under the age of sixteen, openly ridiculing the

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Prophet Muhammad, and breaking the fast of Ramadan. Sharia also

was important in the criteria for justifiable homicide. No penalty was

imposed for the immediate killing of someone who defiled a person's or

a family's honor.

Minor violations covered by the code included traffic violations,

seeking redress for a crime without recourse to civil authorities, public

drunkenness, and violations of administrative regulations such as

licensing and safe housing requirements. These infractions were

punishable with or without proven intent. Most minor violations

resulted in fines being assessed against the offender.

Section 6 : The law of criminal procedures

Criminal procedure law is a group of legal rules that indicate the

procedures that must be taken from the time of the commitment of a

crime till the time of inflicting punishment on the wrongdoer.

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Chapter 1 : Private law

Section 1 : Civil law

Civil law, as opposed to criminal law, is the branch of law dealing

with disputes between individuals or organizations, in which

compensation may be awarded to the victim. For instance, if a car crash,

victim claims damages against the driver for loss or injury sustained in

an accident, this will be a civil law case. Also, the law relating to civil

wrongs and quasi-contract is part of the civil law.

The objectives of civil law are different from other types of law. In

civil law there is the attempt to right a wrong, honor an agreement, or

settle a dispute. If there is a victim, they get compensation and the

person, who is the cause of the wrong, pays, this being a civilized form

of revenge.

There are two major branches of civil law: contract law and tort

law. The law of contract and the law of tort are both concerned with

rights and obligations under the civil law. The main difference is that in

contract the obligations are created by agreement between the parties

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and owed by one party to another, whereas in tort the obligations are,

in general, owed to the whole world. In contract, the obligations are

fixed by the terms of the agreement between the parties; in tort, the

obligations are fixed by the law. The main similarity between contract

and tort is that the usual remedy is an action of damages.

A breach of contract may also constitute a tort, either against the

other contracting party or against a third party.

Subsection 1: Law of contract

A) Definition of contract

B) Formation of contract

C) Some nominated contracts

D) Breach of contract and discharge

E) Contractual liability

A) Definition of contract

A contract is an agreement by which one or several persons bind

themselves, towards one or several others, to transfer, to do or not to do

something4. A contract is created, subject to any special formalities that

4 Article 1101 of French civil code

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may be required by law for its conclusion, from the moment that two

persons have exchanged two concordant intentions5.

In its simplest terms, a contract is any agreement that is

enforceable in a court of law6.

B) Formation of contract

There are four essential requisites for the validity of an agreement.

The first is the consent of the party who binds himself. More

clearly, the first element is the Mutual Consent which means exactly a

"Meeting of the Minds". The parties to the contract have a mutual

understanding of what the contract covers. For example, in a contract

for the sale of a "mustang", the buyer thinks he will obtain a car and the

seller believes he is contracting to sell a horse, there is no meeting of the

minds and the contract will likely be held unenforceable. Also, there is

no valid consent, where the consent was given only by error, or where it

was extorted by duress or abused by deception.

The second element is the capacity to contract. Any person may

enter into a contract, unless he has been declared incapable of it by law7.

5 Article 89 of Egyptian civil code 6 H.-A. TARAWNEH, LEGAL TERMINOLOGY, Amman, Dar Wael, 2003, p. 82. 7 Article 1123 of French civil code, article 116 of Jordanian civil code

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The third element is a definite object which forms the subject-

matter of the undertaking. "For a contract to be valid its object must

meet certain requisites. These include the existence of the thing or

feasibility of the performance at the contract formation stage, certain

qualities of the object, ie it must be in commerce, it must be appropriate

to law and society, it must be in existence, and the performance must be

legally possible, certain or ascertainable".

The fourth element is a lawful cause in the obligation. "The cause

in civil law constitutes the determinative reason or motive of the

contract and is considered a necessary element for the existence of a

contract in most jurisdictions.

The notion of cause in civil law theory does not denote a causal

connection but rather the purpose which the parties have in mind when

they enter into the contract. This purpose, however, is not the personal,

and probably unique, motive which each party may have to pursue a

certain specific transaction, but rather it is the general objective and

standardized motive which any party has for each contractual type.

Thus, in any purchase of real property the cause for the purchaser is the

seller’s delivery of title in the real estate in question"8.

8 Julian HERMIDA, Convergence of civil law and common law contracts in the space field: http://www.julianhermida.com/dossier/dossierpubhk.pdf

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C) Some nominated contracts

Nominated contracts are those contracts that have been named in

the civil code and that are thus generally regulated whereas innominate

contracts or contracts without title are those which have not received an

express treatment in the civil code or in another statute.

The existence of nominated contracts derives from the Roman law

need to name the contract when an action was filed. In modern civil law

this classification has become obsolete and it entails no consequences at

all, especially when most civil codes contain a general principle

establishing that a contract is to be analysed and considered depending

on its actual terms and regardless of the name that the parties gave to it.

► A sale is an agreement by which one person binds himself to

deliver a thing, and another to pay for it9. According to article 465 of

Jordanian civil code the sale is the transfer of ownership of property or

financial right for consideration10.

► The gift is the bestowal without consideration of ownership of

property or property right upon another person during the lifetime of

the owner11.

9 Article 1582 of French civil Code

عوض لقاء مالي حق او مال تمليك القانون المدني األردني البيع من 465 المادةحسب 11 Article 557 of the Jordanian civil code.

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► An exchange is a contract by which the parties give to each

other one thing for another12.

► Contracts of hiring : There are two kinds of contracts of hiring :

One for things, And one for work13. The hiring of things is a contract

by which one of the parties binds himself to have the other enjoy a thing

during a certain time, and at a charge of a certain price which the latter

binds himself to pay him14.The hiring of houses and movables is called

a lease for rent15.

► The hiring of work is a contract by which one of the parties

binds himself to do something for the other, at a charge of a price

agreed between them16.

According the article 658 of Jordanian civil code the lease is the

bestowal by the lessor upon the lessee of an intended usufruct of the

leased thing for a specified period of time for a certain consideration.

► The Partnership According to article 582 of Jordanian civil code

the partnership is a contract by virtue of which two or more persons

each undertakes to contribute in a financial project by providing his

12 Article 1702 of French civil Code 13 Article 1708 of French civil Code 14 Article 1709 of French civil Code 15 Article 1711 of French civil Code 16 Article 1710 of French civil Code

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share of property or work in order to exploit that project and share the

loss or profit that results there from17.

D) Breach of contract and discharge

One party cannot, by his wrongful act, bring a contract to an end

without the consent of the other. Breach of contract means a failing to

perform any term of a contract, written or oral, without a legitimate

legal excuse. This may include not completing a job, not paying in full

or on time, failure to deliver all the goods or any act which shows the

party will not complete the work ("anticipatory breach.").

Breach of contract is one of the most common causes of law suits

for damages and/or court-ordered "specific performance" of the

contract.

A breach of contract occurs where a party to a contract fails to

perform, precisely and exactly, his obligations under the contract.

Discharge of contract18 : first, Discharge can occur by

performance. The general rule is that a party is not discharged unless

and until he has entirely performed his contractual obligation. But the

Discharge can occurs by agreement: it is open to contracting parties to

المشروع ذلك الستثمار عمل من او مال من حصته بتقديم مالي مشروع في منهم كل يساهم بان اكثر او شخصان بمقتضاه يلتزم عقد الشركة

.خسارة او ربح من عنه ينشأ قد ما واقتسام18 W. T. MAJOR, BASIC ENGLISH LAW, M. MACMILLAN, second edition, 1990, p. 179.

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enter into a subsequent agreement to bring about the discharge of the

original contract. Also, Discharge can occur by frustration. If so, the

frustrating event brings the contract to an end forthwith automatically.

Both parties are, from that moment, discharged from any future

obligation to perform. Contractual obligations which occrued before the

occurrence of the frustrating event, however, are not affected and

remain binding19.

E) Contractual liability

Contractual liability is defined as liability that does not arise by

way of negligence, but when a contracting party fails to perform his

obligations assumed under the terms of a contract. Otherwise known as

a breach of contract, contractual liability exists when there is a contract

that voluntarily binds parties together.

It's basically result from a promise that may be upheld in court. For

example, say you agree to build someone a deck for $ 600 and collect $

300 as a retainer prior to starting the job. In the meantime, a higher

paying project comes along and you never show up to put on the deck.

The other party can take you to court and collect the original $300 that

19 W. T. MAJOR, BASIC ENGLISH LAW, M. MACMILLAN, second edition, 1990, p. 184.

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they paid you. You were in breach of contract and therefore they had a

justified contractual liability claim.

Subsection 2 : Law of tort

● The word tort comes from the Latin term torquere, which means

"twisted or wrong."

● A body of rights, obligations, and remedies that is applied by

courts in civil proceedings to provide relief for persons who have

suffered harm from the wrongful acts of others. The person who

sustains injury or suffers pecuniary damage as the result of tortious

conduct is known as the plaintiff, and the person who is responsible for

inflicting the injury and incurs liability for the damage is known as the

defendant or tortfeasor.

● Three elements must be established in every tort action.

First, the plaintiff must establish that the defendant was under a

legal duty to act in a particular fashion.

Second, the plaintiff must demonstrate that the defendant

breached this duty by failing to conform his or her behavior

accordingly.

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Third, the plaintiff must prove that he suffered injury or loss as a

direct result of the defendant's breach.

● Unlike actions for breach of contract, tort actions are not

dependent upon an agreement between the parties to a lawsuit. Unlike

criminal prosecutions, which are brought by the government, tort

actions are brought by private citizens. Remedies for tortious acts

include money damages and injunctions (court orders compelling or

forbidding particular conduct). Tortfeasors are subject to neither fine

nor incarceration in civil court.

● The law of torts serves four objectives. First, it seeks to

compensate victims for injuries suffered by the culpable action or

inaction of others. Second, it seeks to shift the cost of such injuries to

the person or persons who are legally responsible for inflicting them.

Third, it seeks to discourage injurious, careless, and risky behavior in

the future. Fourth, it seeks to vindicate legal rights and interests that

have been compromised, diminished, or emasculated. In theory these

objectives are served when tort liability is imposed on tortfeasors for

intentional wrongdoing, Negligence, and ultra hazardous activities.

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Section 2 : The law of civil procedures

A body of rules that deals with the judiciary organization in terms

of the formation of courts and litigation, judges and their assistants and

the rules of jurisdiction.

This branch of law determines how litigation and recourse to

justice and proceeding of litigation before courts until pronouncing a

decree that settle conflict, and defines the ways of appeal that decision

like (Appeal and intercept, re-trial and cassation).

Section 3 : Law of evidence

This law contains the rules that determine the acceptable means by

which the facts can be proved in the court. It is the law that comprises

all the rules governing the presentation of facts and proof in

proceedings before the court, including in particular the rules

governing the admissibility of evidence and the exclusionary rules.

Section 4: Labor law

Labour law embodies the legal rules regulating labour relations

among workers and employer.

Workers are the people who work under the direction and control

of another (the employer).

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Employers: the people who engage others (the workers) to work

under their direction and control in return for a salary.

The relationship between a worker and an employer is governed

by the express and implied terms of the contract and by statutory rules

that the contract cannot exclude.

Section 5: Private international law

It is a part of the national law of every country that establishes

cases involving a foreign element. Sometimes, national courts decide

whether or not they have jurisdiction to hear the case and whether or

not to recognize a foreign judgment.

Section 6: Commercial law

The term commercial law describes a wide body of laws that

govern business transactions. It can also be defined as a body of rules

that apply on traders and commercial acts. Traders are those who carry

out commercial instruments and who make this their usual profession20.

Under the Article 1 paragraph 2 of the Jordanian Trade code, this law

contains on one hand, the rules that must be applied to commercial acts

regardless of the quality of the person making them and on the other

20 Article L.121-1 of French commercial code

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hand, the rules governing those who practice business acts as a regular

profession.

Afterwards, according to Article 6 of Jordanian commercial code

"The following acts are considered, by the virtue of its nature, acts of

overland trade

1. All purchases of goods (commodities) and other chattels (material

movables) in order to sell it with profit, either in kind or after having

worked and manufactured it;

2. All purchases of these chattels with intent to hire them or lease

the same with intention of sub-leasing them.

3. The sale, rent or sub-leasing of these purchased or leased

properties in the manner prescribed in the foregoing

4. Money-changing activities, financial dealings and all public or

private banking transactions.

5. Supply of materials

6. Manufacturing activities even if these activities were associated

with an agricultural investment unless the transforming of material is

done through simple manual work

7. Land, air and water surface transport (carriage by land and sea)

8. Commission agency and Brokerage

9. Insurance in all types.

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10. Public sites and exhibitions

11. Printing activities (publishing obligation).

12. Public Storage (Public Warehousing)

13. Mining and oil extraction

14. Real Estate activities

15. The purchase of real estate with intent to resell with profit

16. Works or services agency (Agencies providing services)

Also, under the paragraph 2 of this article other acts, by virtue of

their inherent nature can be considered as acts of overland trade if their

qualities and objectives were similar to the previous acts mentioned in

paragraph 1. In other words, activities which may be deemed to be

analogous to the activities herein mentioned in the above paragraph 1,

due to the similarity of their qualities and objectives shall be considered

as commercial activities.

In accordance with the article 7 of the same code, the law also

deems commercial instruments to be

a) all construction undertakings and all purchases of ships,

intended for inland and foreign-going navigation, in order to its

commercially investment or its sale, and all sales of such ships;

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b) All sea shipments, and all purchases and sales of ship’s

tackle such as cordage, sails and foodstuffs;

c) the freighting (chartering) or the transport commitment on

ships and bottomry loans;

d) All contracts relating to maritime trade such as crew wages

and rents and all engagements of seamen for the service of

commercial ships.

Distinction between civil acts and commercial acts:

Strictly speaking, article 6 from J. Commercial Code does not give

a concept of the acts of commerce. In fact, for a long time there has been

no evidence of the dogmatic nature of a pure "act of commerce." So, the

problem arises precisely in respect to acts that are presumed to be

commercial but are not included in the Commercial Code.

To distinguish commercial acts from other acts, some authors rely

on objective criterions because, by principle, it is affirmed that the Code

regulates the acts of commerce "whether or not those who execute them

are merchants.

The doctrine has identified several theories to find the criterion of

commercial acts, the criterion that distinguish commercial acts from

other acts, essentially from civil acts:

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The theory of speculation: The commercial character of a juridical

act resides, for some jurists, in the profit-making purpose. So,

commercial transactions are the activities which are carried on by any

person intentionally to speculate to make profit even though he is not a

trader. In other words, the speculative activities carried out by a person

(though not a trader) with the intent of realizing profit, shall be

considered as a commercial activities.

Theory of circulation: This theory is based on the effects of

juridical act. If the juridical act leads to the circulation of goods and

money, it will be considered as a commercial act.

Theory of profession: certain activities shall be considered as

commercial activities, if it has been practiced within the framework of a

profession, and precisely the person, who engaged in the act, must

possess the quality of trader. In other words, the characterization of an

act as being commercial was made to depend fundamentally on the

persons who engaged in the act. But this principle was advanced with

some reservations, because the Code itself acknowledged the possibility

that an act could be considered commercial even when some of the

interested parties did not possess the requisite "merchant quality."

33

Theory of enterprise: in this theory, the activity must be exercised

as a profession and also as part of a commercial project.

Moreover, it is interesting that the distinction between civil and

commercial acts is important for several reasons. For example, with

regard to traders, commercial instruments may be proven by any means

unless the law specifies otherwise.

Subsection 1: The traders

Shall be deemed a trader:-

1. Every person who works in his own name and for his own

account in commercial activities and has the proper qualification when

taking on such activities as his occupation.

2. Every company which undertakes a commercial activity or has

adopted one of the legal forms stipulated by the Commercial

Companies Law, even if such an activity whereof civil nature.

Moreover, any person who announces to the public, by any

means, about business premises established by him for commerce, shall

be deemed a trader even if he does not take on trade as his normal

profession. The capacity of trader shall be established in respect of any

person who practices commerce under a pseudonym or under the cover

34

of another person's name. The person whose name is apparent shall

also be established to have the capacity of trader.

Subsection 2 : Maritime law

This branch of law relates to the sea and ships and regulates

shipping articles, maritime insurance contracts, maritime liability,

maritime accidents, the responsibility of the ship owner, the

relationship between the ship owner and the shipmaster and so on.

Subsection 2 : Air law

Air law or aviation law is the body of law directly or indirectly

concerned with civil aviation. Aviation in this context extends to both

heavier-than-air and lighter than air aircraft.

Air-cushion vehicles are not regarded as aircraft by the

International Civil Aviation Organization (ICAO), but the practice of

individual states in this regard is not yet settled.

The earliest legislation in air law was a 1784 decree of the Paris

police forbidding balloon flights without a special permit.

Because of the essentially international character of aviation, a

large part of air law is either international law or international uniform

law

35

Subsection 4 : Company law

Paragraph 1 : the notion of partnership and company

According to article 582 of Jordanian civil code21 the partnership is

a contract by virtue of which two or more persons each undertakes to

contribute in a financial project by providing his share of property or

work in order to exploit that project and share the loss or profit that

results there from22.

Because a partnership is a contract, it shall satisfy the four essential

requisites for the validity of any agreement: the Mutual Consent of the

parties who binds themselves, the capacity to contract, a definite object

which forms the subject-matter of the undertaking. Also, every

partnership (firm) must have lawful objects and be formed in the

common interest of the members23. At last, every partnership must have

a lawful cause in the obligation.

21 See the article 1832 of French civil code which define a firm : "A firm is established by two or several persons which agree by a contract to appropriate property or their industry for a common venture with a view to sharing the benefit or profiting from the saving which may result therefrom. It may be established, in the cases provided for by statute, through an act of will of one person alone. The members bind themselves to contribute to losses.

المشروع ذلك الستثمار عمل من او مال من حصته بتقديم مالي مشروع في منهم كل يساهم بان اكثر او شخصان بمقتضاه يلتزم عقد الشركة .خسارة او ربح من عنه ينشأ قد ما واقتسام

23 Article 1833 of French civil code.

36

Moreover, a partnership shall satisfy some specific requisites.

The first requisite is the contributions of each member which form

the capital of the partnership or company. This capital shall be in

money or in that which is legally considered to be money and is used in

dealing and if it shall not be in money its value shall be estimated24.

The second requisite is the participation in the results of the

company, and it means exactly Distribution of profits and losses : the

associates should have the right to share the benefit or profiting from

the saving which may result therefrom. In return, if the company is in a

loss position, the members bind themselves to contribute to losses.

Thus, the members, where necessary, have a commitment to share in

losses.

Also, the rights of each member in the capital of the firm are in

proportion to his contribution at the time of the formation of the firm or

in the course of its existence25. So, the section 587 of Jordanian civil code

provides that the profits and losses shall be distributed as stipulated in

the contract. And if the share of every partner in the profits and losses

24 Article 585/1 of the Jordan civil code

25 Article 1843-2 of French civil code.

37

shall not be specified in the contract, distribution thereof shall be

effected according to the share of every partner in the capital.

It is crucial to remember that this element is a necessary element

without which there cannot have a partnership agreement. That is why

the section 590 of Jordanian civil code provides that if it shall be agreed

in the contract that one of the partners shall not benefit from the profits

of the partnership or share in its losses, the partnership contract shall be

void. But, agreement may be made to exempt the partner who does not

contribute other than his work from losses provided that non wages are

decided upon for his work.

The third requisite is the affectio societatis: The "affectio societatis"

may be understood as a special relationship existing among several

people willing to organize a company26. So, in principle, a company is

founded on a spirit of cooperation between shareholders: an intention

to act in partnership. It is useful to say that neither the Jordanian civil

code nor the French Civil Code have made no express mention of the

notion of affectio societatis. But, the jurisprudence and the doctrine in

both countries recognize the affectio societatis as a third element for the

26 Walter Douglas Stuber, Manoel Ignácio Torres Monteiro and Vera Lúcia Pereira Neto, « Brazil:

Limited Liability Companies And The New Brazilian Civil Code»,

http://www.mondaq.com/x/20017/Corporate+Finance/Limited+Liability+Companies+And+The+Ne

w+Brazilian+Civil+Code

38

validity and for the qualification of a company. Some civil codes have

mentioned it in the definition of partnership. For example the section

2186 of the Civil Code of Québec define the contract of partnership as «

a contract by which the parties, in a spirit of cooperation, agree to carry

on an activity, including the operation of an enterprise, to contribute

thereto by combining property, knowledge or activities and to share

any resulting pecuniary profits ».

Paragraph 2: Legal personality27

In the basic model of the market economy, expounded in any

introductory textbook of economics, the relationship between persons

and things is simple and clear. Persons are subjects of property right,

and things are objects of property right. Persons own things, and things

are owned by persons. There is an absolute divide between persons and

things. If persons own persons, we are back to the slave economy of the

ancient past. If things own persons, we are perhaps trapped in the

world of a science-fiction story. Indeed, it is because persons and things

are strictly opposed as subjects and objects of property right that it is

possible for two persons to exchange the things they own in a market.

27 Katsuhito Iwai, PERSONS, THINGS AND CORPORATIONS: THE CORPORATE

PERSONALITY CONTROVERSY AND COMPARATIVE CORPORATE GOVERNANCE, American Journal of Comparative Law, Fall 1999, Vol. 47, No. 4, pp.583-632.

39

«Capitalistic firms are founded on this simple relationship between

persons and things. In the case of the traditional single-proprietorship

firm, a man of means invested his capital in production facilities,

operated a production line, and sold products to markets in order to

earn profits. (He usually employed workers and clerks and often hired

managers). The individual capitalist was the subject of property right,

whereas the facilities, inventories, products and other tangible and

intangible assets were all the objects of property right. They were

directly opposed as a person and things».

«Capitalism is for expansion. In order to meet the ever-expanding

need for capital as well as to diversify the associated risks, capitalism

has developed various forms of business partnership since time

immemorial».

Of course, the transition from the individual proprietorship to the

partnership in itself changes nothing of the basic relationship between

persons and things. Instead of a single person owning facilities,

inventories, products and other assets, we now have a group of persons

jointly owning these things. An ownership is an ownership, be it a sole

ownership or a joint ownership. And yet, as we shall see, mere

quantitative differences may beyond a certain point pass into

qualitative changes.

40

In the case of a partnership firm, however, every partner has an

equal right and an equal duty to any contract it maintains. Whenever

there is a withdrawal or a death of an old partner or an admission of a

new partner, each contract has to be rewritten or at least the signatures

of the partners have to be updated. To write a contract and to sign and

seal it require toil and labor. If the number of partners is small, it may

be possible to save these transaction costs by including provisions for

such contingencies in each contract. But, as the size of the partnership

gets larger and the entering and leaving of partners is expected to be

much more frequent, it would soon become impossible to prepare for

all the possible contingencies in advance. This would render the

contract necessarily incomplete and its future execution necessarily

costly and uncertain. Outside parties would easily be discouraged from

entering into contractual relations with the partnership firm.

The corporation is a legal solution to this problem and exactly it is

the legal personality that holds the key to the problem. For it is the legal

personality that enables a business corporation to own real assets under

its own name, separate and distinct from those of the constituting

shareholders. This allows outside parties to enter into contracts directly

with a business corporation itself in exactly the same way as they enter

into contracts with the owner of a single-proprietorship firm. Hence, the

41

complex net-work of contractual relations is greatly simplified, leading

to a large reduction of transaction costs for all participants. Moreover,

the independence of the legal personality enables a business

corporation to outlast the lives of individual shareholders as long as the

shares are handed from individuals to individuals without interruption.

This shields the contracting third parties from the vagaries of the death,

withdrawal or entry of its individual shareholders, and removes some

of the third parties’ hesitation in maintaining contractual relations with

it.

The corporation is understood here primarily as a legal device

which simplifies and stabilizes the complicated web of contractual

relationships that an association of shareholders has to have with a

multitude of outside parties. Its legal personality endows the

corporation with the legal capacity to interpose itself between

shareholders and outside parties and to enter into contracts with the

latter on behalf of the former. But I have tried not to make any reference

to the possible advantages of the corporation over the partnership in

regard to the way shareholders organize themselves internally.

A business corporation is able to act as an independent owner of

its own property capable of making a contractual relation directly with

others, not because the inside shareholders will it to be so, but because,

42

and in so far as, the outside parties recognize it to be so. Such social

recognition is indispensable, and the law formalizes and reinforces this

social recognition in the form of legal personality.

After all, the Latin persona, from which the English word ‘person’ is

derived, meant originally an actor’s mask.18 Each persona incarnated a

role in a drama, and the spectator recognized the role of each actor by

the persona he wore. It is not to express his inner self through it but to

act out the role incarnated by it that an actor wore a persona on his face.

It should be noted that the corporation is described here not as a

‘nexus of contracts’ but as a full-fledged subject of property ownership.

In order for a corporation to serve as one of the parties of a contractual

relation, it has to be recognized by others as the holder of the ultimate

rights over some real assets and as the bearer of the ultimate duties

associated with their use, independently of its constituent members. A

mere nexus of contracts can never enter into a contractual relationship

even as a legal fiction, simply because it cannot locate the ultimate

subject of rights and duties when an event not specified in the contracts

takes place.

After which, the corporation has been introduced into the legal

system as a device to simplify the external relations of a group of

43

investors. But, this simplifying device also has the effect of complicating

the internal ownership structure of a business firm.

To be legal person is to be the subject of right and duties. To confer

legal right or to impose legal duties, therefore, is to confer legal

personality. Among definition to be found in discussions of the subject,

perhaps the most satisfactory is that legal personality is the capacity for

legal relations28.

The law speaks of a business corporation as a ‘legal person,’ as a

subject of rights and duties capable of owning real property, entering

into contracts, and suing and being sued in its own name.

Paragraph 3: Important terms of company law

● Business ( المؤسسة التجارية)

A business (also known as company, enterprise or firm) is an

organization involved in the trade of goods, services, or both to

consumers. In others words, the activity of providing goods and

services involving financial and commercial and industrial aspects. A

business is a legally recognized organization designed to provide goods

28 Corbin, legal analysis and terminology (1919), 29 YALE LAW JOURNAL 163.

44

or services, or both, to consumers, businesses and governmental

entities. Businesses are predominant in capitalist economies.

There are several forms of business ownership

● Sole proprietorship (المتجر):

A Sole proprietorship is a business owned by one person for-profit.

The owner may operate the business alone or may employ others. The

owner of the business has unlimited liability for the debts incurred by

the business. Legally, a sole proprietorship has no separate existence

from its owner. Income and losses are taxed on the individual's

personal income tax return.

The sole proprietorship is the simplest business form under which

one can operate a business. The sole proprietorship is not a legal entity.

It simply refers to a person who owns the business and is personally

responsible for its debts.

The sole proprietorship is a popular business form due to its

simplicity, ease of setup, and nominal cost. A sole proprietor need only

register his or her name and secure local licenses, and the sole

proprietor is ready for business.

45

A distinct disadvantage, however, is that the owner of a sole

proprietorship remains personally liable for all the business's debts. So,

if a sole proprietor business runs into financial trouble, creditors can

bring lawsuits against the business owner. If such suits are successful,

the owner will have to pay the business debts with his or her own

money.

● Partnership ( الشركة)

A partnership is a business owned by two or more people. In most

forms of partnerships, each partner has unlimited liability for the debts

incurred by the business29.

● Corporation

A corporation is a limited liability business that has a separate

legal personality from its members.

A corporation has a legal existence (and rights and duties) separate

from those of the individual persons who form it from time to time. So,

for example, third parties enter into contracts with the corporation and

not with the individual directors or members. The corporation also has

29 En English law, a partnership is defined, with misleading simplicity, in s 1(1) of the Partnership Act 1890 as ‘the relation which subsists between persons carrying on a business in common with a view of profit.

46

its own liabilities and assets which are distinct from those of the

directors or members

The basic legal characteristics of the business corporation are: legal

personality, limited liability, transferable shares, delegated

management under a board structure, and investor ownership30.

Corporations are of two main kinds, both of which are likely to be

encountered by caseworkers. The most common corporations are those

where collections of persons are incorporated - corporations aggregate.

However, a corporation can be constituted in a single person - a

corporation sole. Companies incorporated under the Companies Acts

are usually corporations aggregate, but may now also be corporations

sole.

Paragraph 4: The companies In Jordanian law

The Jordanian Civil Code (JCC) which was promulgated in 1976, in

addition to those prescribed by Company Law number 22 of 1997 And

its amendments31, adopted a different classification of companies

similar to that of Islamic Law.

30 John Armour , Henry Hansmann , Reinier Kraakman , The Essential Elements of corporate Law

What is Corporate Law?, Harvard Law School, Discussion Paper No. 643, 7/2009: http://www.law.harvard.edu/programs/olin_center/ 31 Published in the Official Gazette No. 4204 dated 15/5/1997

47

A. The companies prescribed by the Jordanian Civil Code

1. Work Companies (partnership for work): are defined as

companies where two or more partners join together to perform specific

work. In others words, a partnership for work consists of the conclusion

of a partnership with a view to undertaking work. According to article

611 of JoCivilC, the work company is a contract by virtue of which two

or more persons agree to undertake work and be liable for it for the

account of others in consideration of remuneration whether their shares

are equal or otherwise.

2. Persons' Companies: are established when two or more persons

join together to purchase goods on credit based on goodwill and

reputation to sell such goods for a profit.

3. Speculative (Mudharaba) Companies: are defined as those

companies in which a person lends capital to another to carry out

speculative business.

48

B. The companies prescribed by the Jordanian Company Law

In accordance with the article 6 of Jordanian company law, the

companies registered under this Law shall be divided into the following

forms:

1. General Partnership ( التضامن شركة ).

2. Limited Partnership .( (البسيطة التوصية شركة

3. Limited liability company ( املحدودة املسؤولية ذات الشركة ).

4. Limited Partnership in Shares ( باألسهم ةالتوصي شركة ).

5. Private Shareholding Company ( العامة املساهمة شركة ).

6. Public Shareholding Company ( الخاصة املساهمة شركة ).

49

PART TWO : THE MAJOR LEGAL SYSTEMS IN CONTEMPORARY

WORLD

In general, legal systems can be split between civil law and

common law systems. The term "civil law" referring to a legal system

should not be confused with "civil law" as a group of legal subjects

distinct from criminal or public law. A third type of legal system—

accepted by some countries without separation of church and state— is

religious law, based on scriptures.

The specific system that a country is ruled by is often determined

by its history, connections with other countries or its adherence to

international standards.

The conceptual distinctions between Civil Law and Common Law

systems are noteworthy in certain areas, but at the same time, there

appears to be growing agreement that the substantive differences are

becoming increasingly less significant32. However, a basic

understanding of the conceptual and practical differences, as well as

similarities, is very important.

32 INTRO TO CIVIL LAW LEGAL SYSTEMS, INPROL Consolidated Response (09-002), With contributions from William L. Sells, Barry Walsh, Alex Paredes-Penades, and others, http://inprol.org/sites/default/files/publications/2011/cr09002.pdf

50

Chapter 1: The civil law system

Civil law as a legal system is the most widespread system of law

around the world and it is also known as Continental European law. In

this system, the codification is the central source of law and the highest

source, which recognized as authoritative, is the constitution or statute

passed by legislature.

Chapter 2: The common law system and equity33

England is the birthplace of the common law system. Anglo-Saxon

law as a legal system is a body of written rules and customs that were in

place during the Anglo-Saxon period in England, before the Norman

Conquest in 1066. It is often called the common law system which

adopts the concept of "Stare Decisis" or the "doctrine of precedent".

Stare decisis means, on the one hand, decisions by courts are

explicitly acknowledged to be legal sources. In other words, judicial

precedents constitute a separate source of law and have an independent

authority of their own. Also, in this system, equity has not been enacted

by the parliament, but has been developed through the centuries by

judges applying established or customary rules of law to new situation.

33 Dr. ZAID AL-AQAILEH, Legal terminology, (دار الثقافة للنشر والتوزيع), 2005, p. 27-64.

51

On the other hand, decisions by higher courts bind lower courts.

Furthermore, it is interesting to note that the Common law systems

also rely on statutes, passed by the legislature, but may make less of a

systematic attempt to codify their laws than in a "civil law" system.

Indeed, English law finds its roots in the old cases, and remarkably

in the decisions of the chancery court. At the end of the thirteenth

century, the principal courts in England were

1. Many local courts held by feudal lords and others

2. The royal courts known as the courts of the common law.

In general, no action could be commenced in any of the common

law courts until a writ had been issued by the chancellor who was the

head of the king's Secretarial department. The writ was in a form in

which the plaintiff could state his claim in his own words. This created

complexity in procedures and, as a result, many suitors found

themselves with no remedy from the courts.

In such circumstances, and since the king was regarded as holding

the residue of judicial power which was left in his hand, the best way to

obtain relief was then the petition to the king and his council in order

that he might do justice according to the notion of equity.

52

Such petitions were used to be heard and investigated by the

king's council of which the chancellor was an important member. In this

way, the court of chancery gradually comes into existence. This court

was recognized as a court independent of the king's court and was

distinguished from the common law courts.

But, the existence of these distinguished courts caused a dispute

between them and became increasingly bitter during the latter part of

the sixteenth century when chancery and common law judges began to

issue contradictory verdict. This dispute was terminated in 1873 by the

passage of the judicature act, which became effective in 1875. This act

fused the two systems into a single court called the high court of justice.

As a part of the general process to reform the law in the nineteenth

century, the judicature act was passed to abolish all existing courts and

substitute them for a unified court structure, consisting eventually of

the House of Lords and the supreme court of judicature. The judicature

act laid down that

a) Equity and common law should be in future administered side

by side in all courts.

b) Where there is any conflict between a rule of equity and a rule of

law, with reference to the same matter, the rule of equity shall prevail.

53

Common law was later inherited by the Commonwealth of

Nations, and almost every former colony of the British Empire has

adopted it (Malta being an exception). The doctrine of stare decisis or

precedent by courts is the major difference to codified civil law systems.

Chapter 3 The communist law system

Socialist law denotes a general type of legal system which has been

used in communist and formerly communist states. It is based on the

civil law system, with major modifications and additions from Marxist-

Leninist ideology. There is controversy as to whether socialist law ever

constituted a separate legal system or not. If so, prior to the end of the

Cold War, socialist law would be ranked among the major legal systems

of the world.

While civil law systems have traditionally put great pains in

defining the notion of private property, how it may be acquired,

transferred, or lost, socialist law systems provide, for most property, to

be owned by the state or by agricultural co-operatives, and having

special courts and laws for state enterprises.

Many scholars argue that socialist law was not a separate legal

classification. Although the command economy approach of the

communist states meant that most types of property could not be

54

owned, the Soviet Union always had a civil code, courts that interpreted

this civil code, and a civil law approach to legal reasoning (thus, both

legal process and legal reasoning were largely analogous to the French

or German civil code system). Legal systems in all socialist states

preserved formal criteria of the Romano-Germanic civil law; for this

reason, law theorists in post-socialist states usually consider the

Socialist law as a particular case of the Romano-Germanic civil law.

Chapter 4: The Islamic law system

Overview of Islam

Islam is to submit to Allah in His Oneness (Monotheism), to be

subservient to Him in obedience and not to associate any partners,

rivals, and intercessors with Him. It is a religion of tolerance and ease.

Allah (سبحانه وتعالى) says: ( Allah intends for you ease and does not intend

for you hardship), (2:185).

«According to Islam, the ultimate authority of law-making belongs

to God alone. In the ideal of Islamic law, everyone including the

Prophet and ruling authorities, is subordinate to God, working under

His direct or indirect guidance. Islamic law, irrespective of the variety

of its sources, emanates from God and aims at discovering and

formulating His will. God's will is not defined once for all and it is not a

55

static system. It is, on the other hand, dynamic and progressively

reveals itself in history. As Islam gives guidance for all walks of life,

Fiqh, the law of Islam, as developed from the beginning, comprehends

the religious, social, economic, and political aspects of human existence.

That is why a man acting according to the Islamic law is, in all

circumstances, deemed as fulfilling God's will. Thus, Islamic law is the

manifestation of God's will»34.

The Islamic legal system

The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic

jurisprudence) is the most widely used religious law, and one of the

three most common legal systems in the world alongside common law

and civil law. It is the most protected divine law, because, the majority

of the rulings of Sharia law are based on the Qur'an and Sunnah, while

a small fraction of its rulings are based on the Ulema (jurists) who used

the methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad

(research) and Urf (common practice) to derive Fatwā (legal opinions).

An Ulema was required to qualify for an Ijazah (legal doctorate) at a

Madrasah (school) before issue Fatwā.

34 AHMAD HASAN, THE SOURCES OF ISLAMIC LAW, Islamic Studies (Islamabad) 7:2 (1968),

http://irigs.iiu.edu.pk:64447/gsdl/collect/islamics/import/v7i25.pdf

56

The Mecelle (also transliterated Majalla) was the civil code of the ٭

Ottoman Empire in the late 19th and early 20th centuries. It was the first

attempt to codify a part of the Sharia-based law of an Islamic state.

57

PART THREE : JORDANIAN LEGAL SYSTEM35

Jordan was a part of the Ottoman Empire for more than four

centuries. The country was then placed under the League of Nations’

mandate which lasted until the achievement of independence on 5, May

1946. Jordan is a constitutional monarchy based on the constitution

promulgated on January 8, 1952. Executive authority is vested in the

King and the Council of Ministers. Legislative power rests in the

bilateral national assembly, and the 110 members of chambers of

deputies, elected by universal suffrage to a four year term, subject to

dissolution by the King. The forty members Senate is appointed for a

four year term.

Judges are appointed (and not elected) by the Judicial council

which comprises high ranking members of the legal system and cases

are decided only by judges and not juries. As a rule, the Constitution

adopts “the separation of power” doctrine, but, in some cases, this

doctrine is not adequately applied.

Although democratic parliamentary elections have been held

regularly since 1989, the government can delay the elections beyond the

35 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,

58

constitutional deadline of the ballot. During the dissolution of

parliament or in cases where the National Assembly is not sitting, the

Government has the power to issue provisional laws.

Basic human Rights and freedoms are incorporated in the

Jordanian constitution. The right to establish political parties and

societies is recognized in the Jordanian constitution.

Genuine efforts are being made towards democratic reform and

modernization is taking place. Specialized human rights institutions

and consultative Human Rights councils are being set up. Recently, new

laws have been enacted and several laws have been amended in order

to enhance Human Rights and democracy in the country but the

condition of human rights in the Kingdom is not at its best36.

Jordan is subscribing more and more to universal human rights

standards. During the last two years, the main international rights

conventions have been published in the official gazette, making these

conventions part of the Jordanian legal system. These conventions

include the international convention on the elimination of all forms of

Racial Discrimination, the International covenant on civil and political

rights, the International Covenant on Economic and Social and Cultural

36 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,

59

Rights, the Convention Against Torture and other cruel, inhumane, or

degrading treatment or punishment, the Convention on the rights of the

Child and the convention on the elimination of all forms of

discrimination against women.

Reservations made upon ratification or accession to international

human rights conventions are regrettable, but the withdrawal of these

reservations may be possible in the near future. International

conventions of human rights have become part of the national law

endorsed by the competent authority and replaced any current law to

the extent that such law is not in line with the constitution.

Codification37:

Jordan follows the codification system. Therefore, all legal rules

that are applicable by the courts are codified. Hence, there is no place

for applying common law system which is known in some countries

such as the United Kingdom and the United States.

Within this codification system, the constitution is considered as

the highest legal instrument, whereby all other laws must observe its

general principles and rules. The laws enacted by the parliament come

37 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,

60

in the second place and after that come the regulations which are made

by the executive authority by virtue of the laws themselves.

Courts in Jordan apply the written laws in their constitutional

sequence of enforcement and priority. They are not, therefore, bound by

the ruling of other courts even if they have been issued by a higher

court nor are they bound by their own previous ruling, but only by

what is provided by the law. In short, Jordan does not apply the

precedent system.

The constitution provides for the establishment of three categories

of courts: civil courts, religious courts and special courts. Civil ordinary

courts comprise courts of first instance: courts of appeal, the High court

of Justice, and the Supreme Court.

These courts have jurisdiction over all persons in all matters, civil

and criminal, including cases brought by or against the government.

The religious courts are Shariah courts which have jurisdiction in

respect to matters relating principally to personal status of Muslims and

tribunals of other religious communities with jurisdiction over the

personal status of non-Muslims. Special courts deal with different

matters and compromise courts such as state security courts

administered by the Jordanian military.

61

Diversification and Modernization38:

Enacted in 1976, the current Jordanian civil Law replaced the

Ottoman Majallah of 1876 which is highly influenced by Islamic Law.

The Civil Law comprises rules derived from the Egyptian civil code of

1948 which in turn was modelled on the Napoleon code.

Despite this fact, it can be generally said that the civil law of Jordan

remains an Islamic-oriented one. Section two of the Civil code makes

this clear when it provides that Islamic jurisdiction is the second source

of the civil law and Shariah the third. In this sense, wherever a judge

does not find a specific rule within the provisions of the Civil law code,

he shall try to find the solution by referring to Islamic jurisdiction, and

Shariah principles, respectively.

The Jordanian civil code deals with the main following topics: the

formation of a contract, performance of obligations, the conrtact of sale,

some other specific contracts, rights of ownership, real securities. It

includes also some general rules relating to evidence and some

provisions that regulate labour contract and lease contract. However,

and given the importance of these contracts, the legislator regulated

38 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,

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them by independent acts. Therefore, we have an independent evidence

act, lease act, civil procedure act, labour act, insurance act, among

others.

Family laws, such as marriage, divorce and custody fall out of the

scope of the Civil Law, as these matters are governed by independent

acts. Family laws for Muslims are derived from Islamic law, whereas

family laws for Christians are derived from the Christian faith. Some

other laws of Jordan are highly influenced by French law such as the

Criminal law. On the other hand, English law is found to be the prime

source for other laws, such as company law, insurance and trade laws.

Moreover, customs and trade practices are considered a source of

the legislation, especially in civil and commercial law. It is generally

believed that such diversification enriches the legal environment in

Jordan and makes it more exposed to international legal standards.

The legal system in Jordan is flexible in the sense that it is open

and ready to adopt new laws. In a number of instances, laws were

enacted or amended in order to reflect the requirements of new

circumstances, or to cater to political and economic reform needs. Laws

governing businesses in Jordan have undergone a fundamental change

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in 1995 in an attempt to attract foreign investment and create a self-

sustaining economy.

Several laws are enacted as a result of Jordan’s accession to WTO

in 2000 and the signing of free-trade agreements with the United States

and the European Union the following year. The new laws regulate

matters such as intellectual property, linecontracting, electronic

signature and certification, arbitration and companies.