Opposition by fulfilling the cheque Study in Yemeni Commercial Law

Abstract

Commercial papers, in general, and the cheque in particular have the power of legal exoneration, which made it a legal payment tool just like money. This legal status of the cheque has become linked to bank payment operations fulfillments, which made it vulnerable to many problems, especially in the Yemeni environment, which has lost confidence in dealing with it due to the weak official role to protect this paper as a tool of payment.

One of the serious problems facing the cheque is the bank's failure to pay it to its legal holder, due to the opposition of the writer for any reason, in violation of the provisions of the law. This entails harm to the beneficiary, which was worthy of research and rooting, in order to avoid critical banking activity and litigation without the basis of the law, if the cheque was cashed despite the opposition of the drafter, and at the same time if the drawee bank failed to pay it to the bearer.

This issue would not have caused the slightest problem if the status was restored to the previous one, which is the inevitable possible result of the opposition. However, the reality has revealed to us otherwise, and we have shown that the opposition system is nothing more than a temporary measure that does not affect the right of the beneficiary but seeks to delay his fulfillment. Through this research, we have tried to answer some questions about the mistakes made by the banking system when responding to the wishes of the writer in various forms. Whether in the scope of traditional or electronic cheques.

We have explained the legal reasons for the opposition, and the jurisprudence and the judiciary have concluded by analogy with the reasons stipulated for the union of the cause, since they are not addressed in Yemeni legislation, because the legislator cannot predict the psychological potential of the cheque writer on the date of its issuance. We have called on the Yemeni legislator to adopt these reasons, so that they are not subject to different judgments, and many interpretations. In this paper, we have clarified the considered interests in litigation, and we have shown the importance of the lawsuit entitlement accompanying the opposition, as it cannot be allowed to expose people's interests to malicious lawsuits.

I do not claim pride of my findings, but I tried to answer through the descriptive analytical approach the position of the Yemeni legislator, and the judgment of jurisprudence and the justice system, reaching practical results that serve the subject. It is enough that I have tried, and if I succeed, it is thanks to Allah, and if it is the opposite, it is only that I am a human being.