The Nature of Syria’s Civil Code
The Syrian legal system is a member of the family of secular civil law jurisdictions, which are prevalent in France and the rest of continental Europe. The Civil Code, which is regarded as one of the main foundational pieces of legislation, was promulgated on May 18, 1949 by Legislative Decree 84/1949. It turned 70 last year and is one of the main contributions to Syrian law enacted during the short-lived tenure of President Husni Zaim’s administration. Its formulation was spearheaded by Assaad Kourani, the Minister of Justice at the time. While it has been occasionally amended over the decades, it has remained the basis of the civil law system in Syria. Before the Civil Code came into effect, the Ottoman-era Majalleh, which was based on the Islamic law principles of the Hanafi school of thought, was in force. The drafters of the Civil Code used their Egyptian counterpart formulated by the famed jurist Abdel-Razzaq Al-Sanhouri as their template since it reflected European codes in addition to certain Sharia principles.
The Civil Code is perceived as representing the highest level in the hierarchy of private law filling in the gaps where other legislation is silent or unclear. Private law is that part of the legal system that is concerned with governing relationships exclusively among individuals, corporations and associations whereas public law covers relationships involving a state entity as they affect society as a whole. In other words, the laws of obligations such as contracts and torts, commercial law, corporate law, employment law and property law for example are all applicable to individuals engaging in legal relationships among each other and do not relate to the general public so they fall under the domain of private law.
As opposed to private law, the other portion of the legal system is labelled public law. Public law encompasses constitutional law, administrative law, municipal law, criminal law and international law in general. In the event disputes arise under any of these laws, they may draw in a state entity, a government, local councils or a public prosecutor for instance who act on behalf of society and therefore come under the umbrella of public law. In the realm of private law, the Civil Code can be deemed to possess constitutional status so to speak similar in nature to a country’s national constitution when referring to public law. The only exception to this characterization is that provisions or sections of the Civil Code may easily be overtaken and superseded by subsequent legislation, which is not usually the case with a country’s constitution.
Back in 1949, Syria’s legal system was still relatively new and the Civil Code attempted to envision every potential situation and scenario that could arise among private individuals, corporations and associations, and regulate it by law. In effect, it is a systematic collection of legal provisions covering the main subject areas of private law. As is often the case, the Civil Code cannot govern every situation that may arise but it does try to foresee such circumstances and alleviate potential problems. If a suitable legal provision is lacking, reference shall be made to Islamic law principles in the first instance and in the absence of these, to customary practices. If these are not available, the principles of natural law and the rules of equity shall be applied.
The Civil Code is not an exclusive piece of legislation but rather leaves room for certain areas of the law to be further developed independently in the form of standalone legislation. To name a few, these include the Personal Status Code of 1954, the Commercial Code of 2007, the Commercial Agencies Law of 2008, the Companies Law of 2011, the Employment Law of 2010, the Lease Law of 2015 and others, which are more comprehensive. Most of them are also modern as they were mainly enacted starting in the late 2000s.
In the event that there are any gaps in any independent legislation such as those listed above, reference shall still be had to the Civil Code. Moreover, if a specific law is silent on a matter that eventually surfaces, the provisions of the Civil Code may be invoked to find a particular solution if it is applicable. For example, the Commercial Code attempts to focus on most, if not all eventualities, that may arise in the practice of commerce. Where it is silent on a point in question, the Civil Code shall attempt to fill in any potential gaps. Furthermore, the provisions regulating agency agreements contained in the Civil Code should be applied alongside those in the Commercial Code and in the Commercial Agencies Law, which touches on particulars related to foreign companies as well. While the Companies Law seeks to regulate all forms of corporations, the Civil Code still governs the incorporation of civil companies, which are specialized vehicles utilized by certain professionals such as lawyers, accountants and consultants.
It is therefore worth classifying the hierarchy of legislation where matters of private law are concerned. In the event standalone legislation is enacted and expands on provisions contained in the Civil Code, that statute shall take precedence. Where the statute is silent or unclear on a point of law which is already addressed in the Civil Code, reference shall then be had to the latter. In practice, the Civil Code becomes the fallback option. As explicitly stated in the Civil Code, priority shall then be given to Islamic law principles followed by customary practices and finally, the principles of natural law and the rules of equity.
The Civil Code was produced in 1949 during the 138-day tenure of President Husni Al-Zaim alongside two other notable codes, the previous Commercial Code provided for in Legislative Decree 149/1949 and the current Criminal Code provided for in Legislative Decree 148/1949. The architect who spearheaded this legislative trio was Minister of Justice Assaad Kourani. The legal regime that he developed sought to reinforce the secular, continental European model, which was influenced by the French legal system.
Kourani’s reforms certainly passed the test of time and winds of change as evidenced by the fact that those three Codes survived throughout the turbulent years of one coup d’état after another and the shifting nature of the Syrian economy from capitalism to socialism. However, that is not to suggest that they were retained intact but rather, have been subjected to a variety of amendments. In the case of the Commercial Code, it was fully repealed and replaced in 2007 during the time when Syria was transitioning from a more or less command socialist orientation towards a neoliberal social market economy.
The commercial aspects of the Civil Code only went so far as the main comprehensive source of law regulating the spheres of business and trade was to be found in the Commercial Code. Even though some civil law jurisdictions do so, it would simply have been impractical for Kourani to attempt to subsume the Syrian commercial legal system within the Civil Code as it would have unnecessarily lengthened and complicated it. In any event, the Commercial Code went on to be replaced by a new version provided for in Law 33/2007. The Commercial Code is applicable to activities deemed commercial in nature where the parties to a transaction are traders or trading entities. In such circumstances, the terms of the Commercial Code prevail over the Civil Code. In the absence of a commercial activity undertaken by contracting parties, the provisions of the Civil Code would more appropriately be followed. As for the Criminal Code, it is a part of the realm of public law and is therefore separate from the elements of the Civil Code.
It is also worth mentioning that since Syria is a civil law jurisdiction with its own Civil Code, it is complemented by the Civil Procedure Code formerly provided for in Legislative Decree 84/1953 and presently in Law 1/2016. The Civil Procedure Code governs the operation of civil court proceedings. Any causes of action brought pursuant to a breach of a private law duty or obligation whether arising from the Civil Code or any relevant standalone legislation are heard before the civil courts in accordance with the rules of procedure laid down in the Civil Procedure Code.
With respect to the courts that adjudicate on matters of public law, they include the Supreme Constitutional Court which is governed by the Constitution of 2012 and Law 7/2014, the Council of State previously regulated by Legislative Decree 55/1959 but more recently by Law 32/2019, and the criminal courts that operate according to the Criminal Procedure Code provided for in Legislative Decree 112/1950. Although the Council of State is an administrative court that hears disputes when one of the parties is a governmental entity and therefore falls under the umbrella of public law, it adheres to the Civil Procedure Code when conducting proceedings.
There are a total of 1,130 provisions in the Civil Code that deal with diverse legal subjects. In order of sequence, the Civil Code starts out by detailing the notions of laws and rights acknowledging what are lawful and unlawful acts and their applicability. Provisions pertaining to conflicts of laws or private international law, which correspond to the rules under French law, are then laid down. They are followed by the conditions to determine and distinguish between natural and legal persons. The original provisions referring to civil society organizations used to be governed by the Civil Code but have since been repealed and incorporated into Law 93/1958. A short reference is made to economic and property rights and public funds before the Civil Code delves into the law of obligations starting with contracts and continues with tortuous liability arising from personal acts and other sources. Where appropriate, it determines possible compensatory measures.
Other areas regulated in the Civil Code include in the order that they appear unjust enrichment; provisions of payments; relationships treated as agencies; certain mandatory obligations; specific performance; compensation in lieu of performance; securities and collateral, including insolvency, the assignment of rights and liabilities, novations and setting-off; sales of goods contracts, including the obligations of vendors and purchasers, sales made during a person’s last illness and barter agreements; the elements, effects and revocations of donations; partnerships, including how they are managed and dissolved; loan agreements; an individual’s right to pledge their income to another person or their heirs; disputes and resolutions; lease agreements; borrowing agreements; the joint and several decennial liability of contractors and architects in the event that their work proves defective, including their rights and obligations; public utilities; employment; commercial agency; depository contracts; receivership and custody over movable and immovable property in dispute; gambling and betting agreements; lifetime salary contracts; insurance contracts, including life and fire policies; guarantee contracts; inheritance and wills; and property law in much detail. In the event that any disputes arise, the statute of limitations for civil cases concerning contractual and tortuous causes of action is generally 15 years.
Property rights, both movable and immovable, account for a considerable part of the provisions contained in the Civil Code. The Civil Code covers substantial issues such as the scope and means of protecting property, including by conferring a right on the owner to use, exploit and dispose of it as he sees fit; the restrictions on the right of ownership; the common ownership of property when there are two or more owners; the rights and obligations of owners of communal areas; the acquisition of property and the registration of property rights in the Land Registry; movable and immovable properties that have no owners and the subsequent options of obtaining title to them; the ownership over the physical components of land as well as buildings and plantations constructed on the land; the transfer of property between individuals through contracts; binding promises to sell property; the characteristics of possession of property; usufruct rights; easements; special conditions on certain properties, including those that may not be subject to conveyance; the rights of individuals to exploit property and to acquire ownership through the payment of installments over time; and securities and collateral, including pledges over movable properties, and mortgages and other guarantees over immovable properties with the latter being subject to registration in the Land Registry.
Real estate leases in general are governed by the Lease Law 20/2015. The Law adopts a more friendly position towards landlords, which is in contrast to the previous Law contained in Legislative Decree 111/1952. The 1952 Law, which emphasized the protection of tenants’ interests, was adopted during Adib Shishakli’s time in power when socialist attitudes were growing in Syria. Its passage resulted in the annulment of a section of the Civil Code dealing with leases. Up until that point, the Civil Code gave both parties the freedom to negotiate their contracts, an aspect that would not reappear for almost 50 years when Law 6/2001 was issued and succeeded by Law 20/2015. While the Civil Code contains relevant provisions, which have been revived following the abrogation of Legislative Decree 111/1952, they are applicable to situations where the Lease Law is silent.
Despite being covered in great detail in the Personal Status Code, family law features in the Civil Code as well. The Civil Code steps in to address marriages between spouses of different nationalities. Accordingly, a marriage between nationals of different countries is governed by the national law of each spouse. With respect to the implications of the marital contract, including its financial effects, the law of the country of which the husband is a national shall apply. It is also the case for instances of divorce. Nevertheless, these positions are qualified by the fact that if one of the spouses hold Syrian nationality at the time the marriage is contracted into, only Syrian law will be applicable. Under the Civil Code, inheritance is based on the Hanafi school of thought. While wills are briefly mentioned in the Civil Code, the more rich detail regarding wills made in Syria is contained in the Personal Status Code, whose provisions are enforceable after the death of the testator.
It has been more than 70 years since President Husni Zaim tasked Minister of Justice Assaad Kourani with formulating a legal regime for Syria that entrenched secular aspects of the civil law system prevalent throughout France and the rest of continental Europe. Whereas analysts assess the first 100 days of any government as an indicator of the type of change that is to come, Kourani used the mere 138 days of Zaim’s administration at his disposal to set in stone three core and foundational pieces of legislation that surely passed the test of time and winds of change. The Civil Code and the Criminal Code have similarly outlived their counterpart from the trio the Commercial Code, which was repealed and replaced in 2007, and other defining laws that followed in the years to come.
Given the so-called constitutional status of the Civil Code from the perspective of private law, it is intriguing to note that it has more or less survived in its form while Syria has passed through several national constitutions. The key conclusion to draw in this respect is that in spite of all the shifts and instabilities that Syria has been subjected to over the decades, the realm of private law has proven to be the most durable part of the legal system. It is borne by the fact that lawmakers and legal drafters have for the most part steered clear of significantly amending or replacing the Civil Code. The reason is most likely because relations between individuals, corporations and associations are on the whole quite predictable and universal. Such an outcome is clearly contrasted with the relationship between citizens and the state, which can prove erratic every few years or decades. It probably explains why the realm of public law is revisited with proposals and amendments more frequently than its private law counterpart. Thus, it is more likely than not that Syria’s Civil Code will survive in its current form even after the horrific war in the country is formally over.