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المانع الأدبي من الإثبات بالكتابة
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علي رئيف الديوب( باحث )
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تقضي القاعدة العامة في إثبات التصرفات القانونية في القانون السوري بلزوم الإثبات بالكتابة، و لا يجوز الإثبات بالشهادة إلا ضمن حدود النصاب الكمي للشهادة وفق ما نص عليه قانون البينات السوري. و مع ذلك فقد أجاز قانون البينات الإثبات بالشهادة و لو تجاوزت قيمة الالتزام المطلوب إثباته النصاب الكمي للشهادة؛ إذا وجد مانع أدبي حال دون الحصول على دليل كتابي. تهدف هذه الدراسة إلى بيان ماهية المانع الأدبي؛ و ذلك من خلال توضيح حالات المانع الأدبي التي تجيز الإثبات بالشهادة، كما تهدف إلى بيان مدى سلطة القضاء في تقدير المانع الأدبي، و الآثار التي تترتب على ثبوت المانع الأدبي و كيفية إثباته.
Under the general rule in the proof of legal actions in the Syrian law on evidence in writing, shall not be proof of testimony only within the limits of quantitative quorum for the certificate as stipulated Syrian Evidence Act. However, evidence of proof the law has been passed to testify if required commitment exceeded the value of proven quantitative quorum of the certificate; if a literary mind if found without written guide. This study aims to indicate what the literary inhibitor; and by clarifying cases of literary inhibitor, which allows proof of testimony, also aims to demonstrate the power of the judiciary to appreciate the literary inhibitor, and the consequences of proven literary inhibitor and how to prove.
References used
د. محمد حاتم البيات، د. أيمن أبو العيال، النظرية العامة للالتزام-أحكام الالتزام، . منشورات جامعة دمشق، مطبعة الروضة، 2011-2012
أ. محمد فهر شقفة، الإثبات بالبينة الشخصية، ط 4، دمشق، مؤسسة النوري، 2001
محمد أديب الحسيني، الإثبات في القضايا المدنية والتجارية-اجتهاد محكمة النقض السورية، ج 2, 2009
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