اشكاليات المانع الادبي واثره في العقود الناقلة للملكية دراسة تطبيقية مقارنة معززة بأحكام القضاء

Abstract

Moral obstruction  is  a topic of high importance in the theory of evidence due to the complexities it raises when legal rules of evidence, which mandate written proof for legal transactions, conflict with the constraints or moral considerations imposed by the nature of relationships between individuals, which may prevent a party from requesting a written instrument. The importance of this issue increases in contracts transferring ownership, given the serious consequences regarding the transfer of real rights (In Rem rights) and the stability of transactions. This makes researching the extent to which moral impediments can be invoked to prove or negate such contracts of both scientific and theoretical value. Through judicial and jurisprudential applications, discrepancies have emerged in assessing, defining the limits, or determining the scope of this impediment and its conditions, particularly in familial and social relationships that may preclude obtaining written evidence despite the existence of the transaction in reality. Accordingly, this research aims to clarify the concept of moral impediment, analyze its impact on contracts transferring ownership, and demonstrate the stance of jurisprudence and the judiciary regarding its evidentiary weight. The goal is to establish benchmarks that achieve a balance between protecting legitimate expectations and the stability of ownership on one hand, and ensuring that rights are not forfeited due to the moral impossibility of written documentation on the other. The research concludes that moral impediment is an exception that must be interpreted narrowly and shall only be applied when its grounds and justifications are clearly established in a manner consistent with the requirements of justice and the proper conduct of transactions.