October 2014

October 6, 2014December 1, 2020

Elements and Conditions for a Valid Will

A document that contains the wishes of the person regarding the disposal of the property of such a person is known as Will. The property of a person is distributed among the heirs of the deceased by two methods – by testamentary succession and intestate succession. Intestate succession is the succession where the deceased dies without leaving behind any testament while testamentary succession is when the deceased on dying leaves behind a testament for the disposal of his property.

The federal law no. 28 of 2005 on personal status (hereinafter referred to as ‘the law’) provides for regulation of succession – testamentary and intestate of the property of the deceased. The law provides for regulations that need to be followed with respect of wills for the purpose of testamentary succession. This present article discusses the essential elements and the conditions that need to be satisfied for a valid will.

The term ‘will’ is defined by the law as the disposal of an estate that is enforceable after death. It is therefore a process of disposal of the estate of the deceased according to the wishes of the deceased. A Will may either be absolute i.e. the disposal must take place in the way specified in all circumstances, or it may have various conditions on which the disposals provided for may depend and the Will may be either contingent , dependent or restricted by such condition. Where such condition provided in the will is valid the will is enforceable provided that condition is satisfied. Any condition that is against the tenets of Islam is considered an invalid condition and where a Will is coupled with invalid conditions the will is still enforceable but without the condition. The said condition being invalid is discarded and the Will is applied as if no such condition was provided for.

Another important regulation provided for the Wills by the law is regarding the scope of a Will. According to the law, the will may be executed only out of one-third of the estate of the deceased and this one-third is calculated after deducting the amounts that are rights of any persons or the obligations of the deceased. If the distribution by the Will exceeds one-third of the estate, it may be met from the shares of the legally aged heirs if they permit for the same.

The important elements of a Will are as follows:

2. Legatee – the person in whose favor the Will is drawn. Legatee may be one or more than one, it may also be a group of specified or unspecified persons.

3. Bequeathed Object – is the estate of the Legator who draws the Will that needs to be given to a Legatee after the death of the Legator. The bequeathed object must be owned by the Legator and legitimate. The bequeathed object must be common or specific. The common bequeathed object shall include all the Legator’s present and future property. The specific bequeathed object shall include properties and movables, fungible things, valuable things, realties, utilities and utilization of a realty or movable for a specific or unspecific period.

4. The formula – this refers to the manner provided by the Legator in the Will for the disposal of the bequeathed property.

Further it is provided that the Legator of a Will must have capacity to draw such Will. Persons who are in their Last Illness are said to have such capacity. The Last Illness is described as the illness during which man cannot handle his usual business and in which he is most likely to die in this condition before one year. If his illness extends one year or more while he is in the same condition, his disposals shall be regarded as effective as those of a healthy person. Also, the cases in which man is threatened with the danger of death and in most cases similar to which death is most probable even if he is not ill shall be regarded as last illnesses. Even a Will created by prodigal persons is considered to be valid if the court permits for the same.

A Legator is also allowed to retract his Will anytime during his lifetime and the loss of the property that is so bequeathed by the Will has the effect of retraction of the same.

A Will may be created in favor of a specified person and in order to validate the same the said person must accept the Will during the life or after the death of the Legator. If the acceptance is given during the life it must continue till after the death. In case the person is a minor, the acceptance must be given by his guardian on his behalf after taking permission for the same from the judge.

Wills created for unspecified persons do not need to be accepted or rejected and in case of entities, establishments or institutions, the Will must be accepted or rejected by the legal representatives for the same.

The Acceptance of the Will is not required to be done by the Legatee immediately after the death of the Legator and the same may be done any time later but rejection of the Will needs to be done within a period of thirty days from the day the Legatee learns about the said Will and is informed about the details specified in the Will regarding the share of property bequeathed to him/her. If the Legatee remains silent for a period of thirty days after such Will comes to his/her knowledge, he/she shall be deemed to have accepted the Will. Where the Will is burdened with an obligation, the said period of thirty days are extended to a period of fifty days. In case the Legatee has an admissible reason for not being able to reply in the specified period then he may be granted more time on request.

In case the Legatee dies after the death of the Legator but before accepting or rejecting the Will, the Will is to devolve on the heirs of the Legatee. This provision is valid only when the Will is not burdened with obligation(s).

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For legal advice regarding the subject, please call +971 4 4221944, or call 800-LAWYER (529937).

October 6, 2014December 1, 2020

Legal Effects of Separation

Marriage is the union between two persons which is in the form of a legal contract. According to the Federal law no. 28 of 2005 of the United Arab Emirates (hereinafter referred to as ‘the law’), marriage is a contract entitling one spouse to have legal enjoyment with the other in order to protect his/her chastity and build a stable family under the husband’s care on grounds that enable them to muster its burdens in affinity and mercy. Marriage is therefore a union of two persons that is recognized by the society to be lawful and chaste. In an ideal society, this union through marriage is eternal but the reality is different.

The rate of breakdown and dissolution of marriage is very high. The contract of marriage is said to be dissolved if it contains an impediment contrary to its requirements or if something prevents its legal continuation. The law provides for certain requirements for a valid marriage such as the marriage should not be between two people who are so related that they fall under the prohibited degree of relatives or such other impediments or the free consent of both the parties, etc. Further, prevention of legal continuation refers to situations where it becomes impossible for the spouses in the marriage to continue to live together due to certain diseases or cruel behavior of one towards the other, etc. In such situation the marriage between the two parties is dissolved. Such separation may occur between the spouses either by divorce, dissolution or by death. But before finalizing the separation of the parties to a marriage it is the duty of the court to try to reconcile the spouses before it decides on separating them.

Once separated by divorce, the parties to the divorce cannot remarry each other. This impediment is placed for the spouses to take the contract of marriage seriously where they cannot get in and get out according to their whims and wishes. There is also an exception to this impediment that is if the divorced woman marries another man, consummation of marriage destroys the repudiations of the previous husband and thereafter if the woman is divorced by her husband in such case she can remarry her previous husband.

Apart from these, the law provides for two essential effects of separation or dissolution of marriage. The first is that of a waiting period known as ‘Idda’ while the seconds pertains to the ‘custody of the children of the marriage’.

The period of ‘idda’ that is the waiting period after the divorce is basically a period of time gap that is to be maintained between the separation from the spouse and the contracting of a new marriage or the meeting of any men. This period is to ensure the paternity of a child if the woman gets pregnant during this time period. Therefore it is basically to ensure that the woman does not have sexual relations with any other man during this period and therefore in case she is pregnant it is the spouse from her dissolved marriage who is the father of her child and he cannot question the same. Thus it is a protective provision for the women and the children.

In cases of revocable form of talaq (divorce), Idda practice serves another purpose also, it serves as a period of time during which the husband may revoke the talaq and resume their marriage.

This waiting period generally initiates from the time of separation but in case of suspicious copulation between the spouses, the period shall initiate since the last suspicious copulation. Depending on the cases and reasons for the separation, the period shall initiate accordingly. In case of abandonment, the waiting period begins from the date of abandonment; in case of judge-decided separation it begins from the date of separation, in case of death of the husband it begins from date of the death. Further, in case of deciding a divorce, separation, dissolution, the nullity of the contract or adjudging the lost husband dead, the waiting period shall start from the date the judgment becomes final.

As discussed above, the waiting period is provided for in order to ensure the paternity of the child in case the woman get pregnant during this period, therefore such period shall not apply to the women who have been separated from their spouses before the consummation of their marriages.

Where the marriage is consumated but the woman is not pregnant at the time of separation, the waiting period is to be calculated as follows:

b. Three full months for the woman who has never had menstrual cycles or for the woman who has reached menopause, but if she menstruates before the end of the three months, she shall continue her waiting period for three additional cycles.

c. Three months for the woman whose menstrual cycle is long or if her menstrual cycle is irregular. If she has a regular cycle that she remembers, she shall calculate the waiting period accordingly.

d. The lesser of the three cycles or one year without menstruation for the woman whose menstrual cycle stops before menopause.

Apart from the period of ‘Idda’, another important effect of the dissolution of marriage is that of the custody of the children of the marriage. Marriage is the bond that forms the basis of initiating a family where the children born out of the marriage are nurtured and supported by the husband and wife together. This is the ideal situation which is broken by the separation of the spouses. On separation of the spouses the very important question that arises is regarding the custody of the children, as both the husband and wife have equal rights on the child it is always a matter of dispute.

The term ‘custody’ is defined by the law as the keeping, bringing up and taking care of the child without interfering with the right of the guardian of the person. Custody maybe of two types: legal custody and physical custody. Legal custody is where the court awards the custody to one parent and physical custody is used when the parent who does not have the legal custody only has a right to visit the child on weekends or specified days. The Personal Status Law also governs and regulates the custody rights of both the parents in the event of separation. Generally the custody rights are given to the mother, but again it is a flexible rule and the final decision of custody is taken by courts after considering all circumstances and determining what would be in the best interests of the child.

October 6, 2014December 1, 2020

Driving License

Dubai has very well defined traffic rules which have to be strictly adhered to. The traffic police in Dubai is highly efficient and ensures that no rule violated goes unnoticed which in turn keeps the road users on alert in following the traffic rules and therefore ensures the safety for everybody on the road. One of the most common and the most important traffic regulations is the ‘driving license’. As most of the population in the Dubai is made up of expatriates not all hold a Dubai driving license. Also as Dubai is a tourist hub, a lot of the tourists visiting Dubai rent a car to look around the city and explore the United Arab Emirates. The license held by these tourists is not a Dubai Driving License but they are permitted to drive in the country on the basis of the driving license they are issued in their own home country. But this is not for all tourists; only tourists from countries which have an agreement with Dubai to the effect of allowing their driving license are allowed to drive on this basis.

Every person who is a resident of Dubai and wishes to drive here must apply for a driving license as it is prohibited to drive without a license. Any body found to drive without a license is subjected to a hefty fine. It is not only a duty put on one’s self to refrain from driving when not holding a valid driving license but it is also the responsibility of the owner of the vehicle not to allow any body not holding a valid driving license to drive their vehicle. Further it is essential to verify that the vehicle one is about to drive is permitted on the license held by that person. A person holding a license for an automatic LMV cannot drive a heavy vehicle on the basis of that license.

This article discusses the conditions to be fulfilled for application for a driving license in Dubai and the provisions providing for the same are in the Federal Law No. 21 of 1995 Concerning Traffic (hereinafter referred to as ‘the law’).

The law has excluded the people falling under the following classes of people from applying for a Dubai Driving Licenses:

2. Drivers of the mechanical vehicles which are registered in a foreign country, which are excluded from the provisions of registration and licensing stated herein, upon their driving of the military vehicles, provided that they should hold permits for that issued by the competent authorities in that country or international valid driving licenses allowing to drive such vehicles within the limits of the period which is authorized to them to drive such vehicles and within the limits of the period which is authorized to them to stay in the Country, whether for transit or visit or for specified mission.

3. Holders of the valid international or foreign driving licenses and who are authorized to stay in the Country for other than residence, pursuant to the controls determined by the Minister of Interior in this regard.

The law provides for certain conditions, to be satisfied by a person who wishes to apply for a driving license in Dubai, which are as listed below:

2. The applicant must submit a medical report, from a government physician or a physician approved by the Licensing Authority ascertaining his medical fitness for driving a motor Vehicle. Wearing medical eyeglasses or lenses rectifying the eyesight for a fitness test is allowed.

3. Finally the applicant must pass the required driving test organized by the implementing regulations. Before taking the driving test, the applicant is to take a fixed number of driving lessons from an approved driving school.

The number of lessons required is determined by the previous experience the person has with respect to driving. Also an additional number of lessons are to taken if the performance during the test is not satisfactory. Where the applicant is a holder of a valid driving license issued by a foreign country that is excluded by a decision of the Minister of Interior, then pursuant to the conditions determined by such decision, the applicant may be granted the license without the need to pass the required driving test.

On satisfaction of all the above conditions the Licensing authority shall issue a license which is a granted for a period of 10 years out of which the first 6 months is a probation period during which if a lot of road rules are broken then the person’s license is repudiated for a year after which he/she needs to reapply for the same. In case the applicant is between 17 and 21 years of age the license granted is valid only for a year and is to be renewed every year.

The Licensing authority may ask for a physical fitness examination before renewing the license and may refuse renewal if they find that the person is not fit to drive on the road due to some physical disorder.
A penalty of a maximum imprisonment term of a period of 3 months or/and a fine of a minimum amount of Five Thousand Dirhams (AED 5000) for a person who is driving without a valid driving license or for driving a vehicle not approved by the license held by such a person.

October 6, 2014December 1, 2020

Liquor License in Dubai

Dubai being an Islamic State does not support the consumption of liquor but as the economy of this State is heavily dependent on tourism, it cannot apply a complete ban on the sale, purchase or consumption of alcohol. Dubai unlike Sharjah is not a dry State but it has regulated the consumption and the transactions that take place for alcohol. Out of the few taxes that are imposed by this Emirate, one is imposed on Alcohol. Since the year of 1965, Dubai levies 30% tax on alcohol.

Import, export, manufacture, purchase, consumption or sale of liquor to third parties is all regulated by the Liquor Control Law of 1972 (hereinafter known as ‘the law’). This law requires a license to be obtained before indulging in any of the activities mentioned hereinabove in regards to liquor. The law provides for a license to be obtained from the Emirates Police Headquarters which is designated to be the licensing authority for liquor.

The Licensing Authority may on the basis of an application grant a person a one year renewable license permitting him to:

The law provides for the following fees in respect to application and grant of liquor licenses:

2. Annual fee for liquor import license – 10,000 Riyals

3. Liquor sales license of a hotel or restaurant – 5000 Riyals

4. Annual renewal of liquor sales license of a hotel or restaurant – 2,500 Riyals

5. Liquor sales license of a club – 2000 Riyals

6. Annual renewal of liquor sales license of a club – 1000 Riyals

7. License to sell liquor from a store or warehouse – 750 Riyals

8. Annual renewal of license to sell liquor from a store or warehouse – 250 Riyals

9. Liquor purchase license – 100 Riyals

10. Renewal of liquor purchase license – 100 Riyals

11. Single license for liquor export – 100 Riyals

To apply for a license to purchase liquor the following criteria have to be fulfilled:

2. Salary – AED 2500/month or above

3. Married women cannot apply for a license on her own and her husband is to issue a license for her too.

For application for the license to purchase liquor the following documents need to be submitted to the licensing authority:

2. A completed alcohol license application form (in Arabic) that is signed by your employer.

3. Passport copy.

4. A residency visa copy.

5. A letter of no objection from your employer headed “To whom it may concern” attached with a copy of your employment contract, which will state your salary.

6. A copy of your tenancy agreement.

The licensing authority while granting the license shall take into consideration the age, income, family status, etc. and in accordance to it provide for a consumption limit on the license. Alcohol purchased is to be limited in accordance to the limit mentioned in the license. Also, a fee which is equal to 20% of the purchase limit is to be deposited with the licensing authority in the form of an administrative charge.

The Licensing Authority may on the basis of an application grant a person an export license for liquor in the Emirate subject to a specific quota restraint for fee mentioned hereinabove.

The licensing authority has the power to impose any conditions or restraints on the license so granted and may also revoke the license if it thinks fit.

No person is allowed to purchase liquor without a license for the same. But as Dubai is a tourist place, it has provided for certain places such hotels, restaurants and bars where alcohol may be purchased and consumed without the possession of a license for the same. But that does not give any person a right to purchase alcohol and consume it in public places or getting drunk and moving around in public places and such activities are strictly prohibited. Drunk driving is not tolerated at all in Dubai and is met with strict measures. The liquor purchase license only entails the following two rights:

2. Transport the quantity of liquor shown in the above paragraph direct from the store or warehouse to his residence. The liquor is to be kept at the residence for consumption by the licensee and members of his household and guests who are not UAE nationals

Even advertising alcohol in public places or through the means of media is prohibited.

Any breach of the provisions of the law is punishable with an imprisonment term of not more than 6 months or a fine of not more than 5,000 Riyals or both. The Court may in such circumstances also order the confiscation of the liquor and any tools and devices used to commit the crime.

October 6, 2014December 1, 2020

Legal Cap Over Rental Hike

Complaints regarding the hike in rents from Dubai residents are rising due to unreasonable increases being demanded by the landlord. There is no federal law determining the rent cap, each emirate has its own separate laws.

For the emirate of Dubai, Law No. 26 of 2007 regulates the relationship between landlord and the tenant and provides for regulations in regards to rent. In respect of rent, the Union Supreme Court has stated that “ the effect of the provisions of a contract of lease (tenancy contract) as set out in articles 742 et seq. of the Civil Code is that rent is payable in consideration of the enjoyment of the thing leased.

(It should be noted that the Dubai Law No. 26 of 2007 is applicable all over Dubai except for the areas that are covered by the DIFC zone as the real property in the DIFC zone is regulated by the DIFC Law No. 4 of 2007).

The law defines rent as a specified amount of consideration which the tenant is bound to pay according to the tenancy contract. The tenancy contract is the contract by which the landlord is committed to enable tenant to benefit from the property for the specified purpose and period against specified consideration and thus the amount of rent is to be specified in the contract and shall remain the same till the expiration of the said contract.

Further the law provides for the determination of the rent value in case the same is not provided for in the tenancy contract or where the rent is determined but it is not possible to evidence the same. In such cases the Committee i.e. the Judicial Committee authorized to settle disputes between landlords and tenants, is to determine the rent of the property so leased in accordance with the ‘similar rent’. The ‘similar rent’ is to be specified by the committee in accordance with the standards of specifying the rent increase percentage applied by the Real Estate Regulatory Agency (RERA). Also, the general economic circumstances in the Emirate, the status of the property, market rent in the same area and existing legislation are all factors that have to be taken into consideration when determining the similar rent. RERA is to set out criteria to determine the rent increase rates in the Emirate, in accordance with the general economic conditions therein.

Any dispute regarding the rent of leased premises is to be referred to the committee as the jurisdiction of the committee includes all such disputes.

Upon the expiry of the tenancy contract, it is to be renewed for a similar period and during the renewal the landlord may amend the contractual terms. He may review the rent which he may either maintain at the same rental amount or he may increase or decrease it. The rent so increased or decreased would be valid for the period of the tenancy contract. For the tenancy contract to continue to be in force it is essential that the tenant consents to the terms so amended by the landlord, if the parties do not reach an agreement, the Committee may decide a fair rent. If either party to the tenancy contract wishes to amend any of its conditions then he must notify the same to the other party not less than 90 days prior to expiry date but this condition may be nullified by agreement of the landlord and the tenant.

The law also sets a ceiling limit to the increase in the rent by the landlord so that landlords do not take advantage of the vulnerable position of tenants and exploit them by unreasonable increases in the rent rates. Also the rent may not be increased during a tenancy contract. It can be increased only after the expiry of the previous contract, and therefore the rent is to remain for a period of one year starting from the commencement of the tenancy contract.

Further the Dubai Decree No. 62 of 2009 concerning rental prices in the emirate of Dubai has fixed the maximum increase in the rents of properties in the Emirate of Dubai according to the average rent of properties in the same area and the percentage of the difference between the average rent and the present rent. Thus depending on the difference the increase may be up to the following limit:

Apart from this the government of Dubai has provided us with an online rental increase calculator on the following website: http://www.dubailand.gov.ae/english/Tanzeem/Rentals/Rental_Increase_Calculator.aspx

The above mentioned website of the government provides for a service to calculate increase percentages in order to obtain rental values in certain areas as a guiding tool. All that the user has to do to use this service is to select the calculator from the website and enter the required details and then he/she shall be provided with the increase cap and average rental for the requested area and unit.

Tips on avoiding an illegal rent hike:

2. Check that the amount of the increase accords with the RERA rent calculator for your property.

3. If you cannot reach an agreement with your landlord on the amount of the rent increase make an application to the Rent Committee.

October 6, 2014December 1, 2020

Hit and Run in UAE

Walking on UAE roads? Beware! Road accidents in the UAE have been on the rise and government has not been able to reduce the number even after all the sanctions and fines that have been attached to rash and negligent driving. News reports reveal the increasing number of road accidents where it has been highlighted that the first quarter of 2013 has seen a glaring rise to 48 road accidents compared to the 27 road accidents that took place in the corresponding period of last year. Not only have the number of accidents increased, even the number of accidents causing serious injuries and deaths has increased this year in comparison to last year.

With the rise in the accidents, the number of Hit and Run cases are also on a rise. Daily the newspapers give us a new story about such cases. one published a case concerns a person who was arrested after he submitted himself to the police for committing a Hit and Run a week earlier in which a 5 year old girl lost her life while playing outside her house. Hit and Run are cases where a person after committing the road accident by hitting someone with his vehicle flees from the scene in order to escape liability for his actions. Hit and Run is considered to be a serious crime as not only does the person committing such crime try to escape his liability but also he leaves the person injured there unattended which may at times aggravate the injury or even lead to the death of the person and therefore the Law has provided for sanctions against such acts.

The Federal Law No. 21 of 1995 (hereinafter referred to as ‘the law’) concerns the regulation of traffic in the United Arab Emirates. The law provides for various rules and regulations that one need to follow while driving a vehicle. Some of the rules that are essential to avoid injuring pedestrians are as follows:

2. In case there are traffic signs for the passage of pedestrian, it is mandatory to halt when the sign indicates for the passage of pedestrians. In case a pedestrian is passing and the passage sign goes red when the pedestrian is halfway, it is obligatory for the vehicle driver to wait for the pedestrian to pass and only when the passage is clear of pedestrians should he start moving.

3. There is fine of 500 AED provided for the person violating the above mentioned regulations.

The law also provides rules that a person must follow while driving for his own safety and the safety of other people on the road. But the following regulations that are to be abided by in case of an accident where an injury is sustained to either a human or an animal.

2. All necessary assistance that is needed by the injured person or the animal must be provided to ensure that the injury is not aggravated.

3. If in case there is no attending police officer present on the site then the accident must be notified at the nearest police station immediately. If it is not possible to inform immediately it must be informed within a maximum period of six hours from the time of the accident. In case it gets delayed beyond that time, the police must also be informed as to a reason for such delay.

In case the person involved in the accident doesn’t abide by the above rules, it shall be considered to be a Hit and Run case. The Police officers in such cases have the power to arrest such persons. The law empowers the police to arrest a person in the following cases:

2. Driving a vehicle in a reckless or dangerous way.

3. Driving a vehicle under the influence of alcohol or any other narcotic or the like, thus depriving him of his power of control over it.

4. Refusal to give his name or address or giving a false name or address at the time of occurrence of one of the cases enumerated hereinabove.

5. Attempt to flee in case an accident harming any person occurs or in case of an order to stop given by a policeman.

Apart from the arrest, sanctions are also provided for the above enlisted offences. The sanction provided for Hit and Run cases is that of a term of imprisonment according to the discretion of the court and a minimum amount of twenty five thousand dirhams (AED 25,000) as fine.

A similar penalty is also sanctioned in cases where the vehicle driver is driving or attempting to drive the vehicle on the road while under the effect of alcoholic drinks, drugs or any other anesthetic substances.

Further a penalty of imprisonment for a period not in excess of three months and to a fine of a minimum amount of five hundred Dirhams (AED 500) or either of the two is sanctioned in case the vehicle driver fails to provide necessary documents and information required by the attending police officer on the commission of any offence such as Hit and Run or Drunk Driving by the said person.

Apart from the above mentioned penalties prescribed by the law, the court is also empowered by the law to take the following measures against the offender in case any of the above discussed offences are proved against him:

2. Deprive him from the right to obtain a driving license for a specific period if he does not hold a license in accordance with this Law.

Whoever is so deprived from the right to obtain a driving license may submit before the same court that condemned him an application for abrogating such deprivation after the lapse of six months from the date of the condemnation. Any license obtained during the period of deprivation is considered to be null and void and the person driving on the basis of such license will be deemed to be driving without a license and shall be sentenced to imprisonment and with a fine of a minimum amount of five thousand dirhams (AED 5000).

October 6, 2014December 1, 2020

Sponsoring Your Family in UAE

The majority of the population of the United Arab Emirates is made up of expatriates and studies have shown that UAE thrives due to its expat population who are spread in every industry and practically run the country. Without the expat crowd there would be no working class in UAE which would cripple the country. But the UAE law doesn’t grant citizenship to these expatriates even after they live in the country for a lifetime. Sometimes generations of a family live in UAE and still every two or three years they have to go through the tiresome procedures of renewal of their visa. One of the most common issue which is experienced by most expats is to bring their family to the UAE and thus this article deals with the criteria that one needs to fulfill to sponsor his or her own family to live in UAE.

The very first question that occurs for sponsoring one’s family is who can one sponsor under the scope of ‘family’. The Resolution of the Cabinet (9) of 1995 Regulating Expatriates Bringing their Families and Servants (hereinafter referred to as ‘the law’) has provided the definition of a family to include the wife of the person intending to sponsor his family, his male children who are under the age of 18 and his female children who are not married. Further it should be noted that if any of these children are pursuing in the universities or higher institutes in the country then in that case they are excluded from the scope of family who may be sponsored. These children are provided with a visa by the university or the higher institute from where they are pursuing their education.

The only criterion that has to be fulfilled to sponsor one’s family is the criteria of salary. The salary of the expat intending to sponsor his family must be a minimum of Three Thousand Dirhams (AED 3000) with a provision for accommodation by the employer or in case accommodation is not provided by the employer then the salary requirement is increased to Four Thousand Dirhams (AED 4000). The salary is to be proved by a formal certificate approved by the concerned bodies in the State.

Parents of an expat are not included within the scope of ‘family’ defined under the law but that doesn’t mean they cannot be sponsored by the expat. Though the provisions of the law are silent about sponsoring one’s parents, the UAE government does allow the sponsoring of the parents.

The salary requirement for sponsoring one’s parents is increased from the salary requirement which was set for sponsoring the family. For sponsoring one’s parent, the minimum salary must be of the amount of Six Thousand Dirhams (AED 6000) with accommodation provided by the employer and in the employer does not provide for the accommodation, the salary requirement is increased to an amount of a minimum of Seven Thousand Dirhams (AED 7000). The visa acquired this way for one’s parents is only valid for a year and needs to be renewed every year unlike the family visa which needs to be renewed every three years.

Also the documents required for sponsoring parents are much more than those required for sponsoring your ‘family’. The documents include a Certificate by the relevant authorities evidencing that you are the sole person your parents are dependent on. The procedure of sponsoring your parents is much more complicated, time consuming and the resultant expenses are also high. Also, in case you wish to sponsor only one parent, especially only your mother, the procedures get even more complicated and tiresome. The UAE government needs to amend its law and include parents within the scope of ‘family’ after all Islam advocates for the children to live with and take care of their parents as the foremost duty and responsibility.

The UAE is taking major steps in providing equal opportunities to women but when it comes to sponsoring the family, only the women working in the rare or important specializations such as medicine, engineering and teaching and the like, of which the State is in direct need of, are considered to be equal to men. Apart from these women, none are allowed to sponsor their family even when they earn much more than the salary requirements specified by the law.

There are some exceptions created in the salary clause for the sponsoring one’s family. Teachers, Imam of mosques and preachers and Drivers of buses used to transport students of schools, universities and other scientific institutes are the three categories of people who may sponsor their family even when they earn less than the required Four Thousand Dirhams (AED 4000) without accommodation or Three Thousand Dirhams (AED 3000) with accommodation.

And there are some categories of people who are not allowed to sponsor their families even after fulfilling all the salary criteria. They are the housekeepers and people working in similar positions and the workers and all the people who come within the category of workers or a similar category. The law therefore is very vague as to who are included in this category. This categorization by the law seems to create an inequality between these classes of people and therefore must be amended.

Apart from family, a person (a man or woman if she fulfills the criteria discussed above) may also sponsor a male or female servant, if the said person earns a monthly salary of not less than Six Thousand Dirhams (AED 6000). The male or female servant so sponsored is to be paid a monthly salary of not less than Four Hundred Dirhams (AED 400) and an amount equivalent to the servant’s annual salary is also to be paid to the treasury of the State.

October 6, 2014December 1, 2020

Essential Elements of a Valid Contract

A contract is an agreement that can be enforced by a one of the parties to it against the other party through a court of law. Thus, when an agreement is backed by law it is said to be a contract. It is essential to understand the basic concepts and elements of a contract as contracts are at the heart of every commercial transaction. When we purchase a loaf of bread from the supermarket, we enter into a contract of sale of the said loaf of bread with the supermarket owner who in turn has a contract of selling the said bread with the manufacturers of the bread. We also enter into a contract with the manufacturer of the bread whereby we can make them liable for any defect or quality/standards lower than the one made known to the consumer or for any other misleading information which resulted in the purchase of the said loaf of bread. Therefore, there may exist a multiple number of contracts behind every commercial transaction that we enter into during our day to day lives.

The contracts entered into in the Emirate of Dubai are governed by the Dubai Contracts Law of 1971 (hereinafter referred to as ‘the law’). This law also has a retrospective effect and therefore also applies to contracts that were entered into prior to the coming into force of the law. This article analyses the law and considers the essential elements that require to be present in a valid contract in accordance with the law.

According to the law, a contract is defined as an agreement that is enforceable by law. Article 12 further elaborates on the same point by describing the terms that may constitute to be a contract. It reads as follows. “It shall be deemed as a contract any agreement made with the consent and election by parties having the capacity to contract against a lawful consideration and for a lawful purpose unless expressly provided hereinafter to be deemed invalid.” Thus the following conclusions about a valid contract are arrived at:

2. The consent of and election by the parties entering into the agreement has to be present.

3. The parties must have the capacity to enter into a contract.

4. The presence of lawful consideration is a must.

5. The contract should be entered into for a lawful purpose.

6. The contract should not fall into the categories of invalid contracts that are provided by the law.

The first necessity is that of the presence of an agreement, which is defined as a set of promises with consideration. Thus it is a promise to do or to abstain from doing some act in exchange for consideration. The important question to be answered here is how a promise comes into being, the answer to which is through ‘offer’ and ‘acceptance.’ Offer and acceptance’ are the two most important elements of a contract.

OFFER

The law defines the term ‘offer’ as ‘the proposal made by a person to another to do or omit to do any act, purported to obtain the consent of the other party to such act or mission.’ In the above example of a supermarket, the consumer while purchasing the loaf of bread puts forward an offer to purchase the said bread for the price inscribed for the same with an intention to obtain consent of the supermarket to accept the same. It is important to note that the display of goods does not amount to offer but only amounts to the invitation to make an offer.

The offer is said to be complete when it is notified to the other party. It can be withdrawn before the acceptance of the other party but not after the other party accepts the offer.

ACCEPTANCE

‘Acceptance’ is defined by law as ‘the expression of consent by the person to whom the proposal is made, and thereby the proposal becomes accepted. When the proposal is accepted, it shall become a promise.’ Thus in the example of the loaf of bread, when the representative of the supermarket owner at the billing counter accepts your offer to buy the loaf of bread for the said price, the promise is said to have come into existence. As this promise is backed with consideration i.e. the price of the bread, the transaction is an agreement where the supermarket promises to give you the loaf of bread in exchange for the consideration which you provide to the supermarket in the form of the price in exchange of the loaf of bread.

The acceptance is said to be complete when the person offering is notified of the same by making him aware of the same through any means of communication.

CONSIDERATION

The term consideration is defined by law as anything done or omitted to be done, is being done or omitted to be done or shall be done or omitted to be done by the promisee and anything that the promisee arranges to do or omit to do, subject to the provisions of this Law, provided that all is done or omitted to be done as demanded by the promisor. Here the promisee is referred to for the party who accepts the proposal and the promisor is referred to for the party who provides an offer for the proposal.

In the example of the loaf of bread, the promise of providing the loaf of bread is the consideration for the consumer in exchange of the promise by the consumer to pay the price of the loaf of bread which is the consideration for the supermarket for providing the loaf of bread.

One of the most important criteria to appreciate is that the consideration must be lawful and must not be prohibited by the law.

FREE CONSENT OF PARTIES

Consent of the parties is said to be free when the following conditions are satisfied:

2. There must not exist coercion on any party to enter into the contract.

3. No party should be under any unlawful and undue influence to enter into the contract.

4. It should not be a case of fraud or temptation.

5. There should be no mistake of facts which leads to the entering of the party into the contract.

Contracts entered into without the free consent of one of the parties are revocable by the same party.

CAPACITY OF THE PARTIES

The parties are said to have the capacity to enter into contracts when they have the mental capacity to understand the nature of transactions and the consequences of entering into such transactions.

The criteria for a party to have the capacity to enter into a contract are as follows:

2. Must be of sound mind, he must be sane.

3. Must not be interdicted from entering into the contract by any other law or by the order of a court of law.

LAWFUL PURPOSE

The purpose of entering into the contract must be lawful, must not be prohibited by law or in contradiction with any of the existing laws. The purpose must not be to defraud another or any such illegal or penalized acts.

INVALID CONTRACTS

Certain agreements are pronounced to be invalid by the law and thus they are not enforceable.

2. Agreement to prevent free trading.

3. Agreement to prevent legal proceedings.

4. Agreements that are not clear and suffer from ambiguity.

5. Wagering agreements.

The above enlisted agreements are not enforceable and thus cannot form valid contracts.

October 6, 2014December 1, 2020

Sustainable Development Of The UAE

With the increase in Global Warming and the spread of awareness of its effects, the terms such as ‘sustainable development’ are always in discussion and we keep coming across them. As the term “sustainable development” signifies it refers to development in such a manner that it is compatible with sustenance. The natural resources that are utilized for the development must be consumed in such a manner that they may replenish and the remaining quantities are enough for the coming generations. Sustainable development thus refers to development which facilitates the continuance of life on our planet. The needs of the present generation must not undermine the aspirations of the future generation.

The UAE federal law no. 24 of 1999 (hereinafter known as ‘the law’) contains provisions regarding sustainable development. First, it casts a duty on the people responsible for development of the country or those who play any role in the process of development, who are responsible for planning, economic and constructional development, to consider aspects of protection of the environment, control of pollution and rational use of natural resources when developing economic and social plans and when establishing and executing of projects.

The second responsibility vested in the Federal Environmental Agency who is to consult and coordinate with the competent authorities and the people concerned with the development and undertake the preparation, issuance, revision, development and updating measurements and standards of environment protection. The Agency while determining the measures for environmental protection is to at all times keep in mind that the measures must be such as to facilitate sustainable development for which it must at all times strike a balance between the technological capabilities available and the economic cost in such a manner that the levels of pollution remain in control and the requirements for a healthy environment are fulfilled.

The measures and standards for sustainable growth and development and environmental protection by the Federal Environmental Agency are to be complied with at all times and the only time when non-compliance shall be tolerated is in the case of emergency or in case a non-compliant act is necessary in order to protect the lives or the ensure the safety of the establishment or work area. But it is essential that such acts of non-compliance must be notified to the Agency and the competent authorities so as to enable them to take necessary measures for damage control.

Further the law also prohibits certain acts enlisted below that are derogatory to the lives of animals that help maintain a wholesome environment:

2. It is prohibited to possess, transport, wander with, sell or offer such birds or animals for sale, alive or dead, without obtaining a license from the competent authorities.

3. It is also prohibited to damage the nests or destroy the eggs of the said birds. The executive regulations shall determine the areas licensed for hunting, the conditions for licensing and the means of supervision that are necessary for the implementation of this article.

The law has also prescribed sanctions for violation of any of the above three prohibitions. The degree of punishment is in accordance to the category of the birds and animals. For violations in respect to the birds or animals that are listed in the first list the punishment prescribed is a term of imprisonment for a period of no less than six months and a fine of no less than twenty thousand Dirhams. For violations in respect to the birds or animals that are listed in the second list the punishment prescribed is a term of Imprisonment for a period of no less than three months and a fine of no less than ten thousand Dirhams or either punishment. For violations in respect to the birds or animals that are listed in the third list the punishment prescribed is a term of Imprisonment for a period of no less than one month and a fine of no less than five thousand Dirhams or either punishment.

Apart from this, any other violation with respect of any regulation prescribed by the law is punishable by a fine of not less than Five Hundred Dirhams (AED 500) and not exceeding Ten Thousand Dirhams (AED 10,000). The punishment in all cases of repetition of violation is double the term of imprisonment and double the fine amount that was awarded during the prior conviction.

Apart from the above mentioned sanctions the law has also adopted the Polluter Pays Principle (PPP) according to which when a person either intentionally or due to any negligent act of his causes harm to the environment, he is to compensate for the loss suffered by all people due to the said environmental damage. Not only does the person have to compensate for such loss, he is also supposed to bear all costs that are incurred in the process of treating or removing such environmental damage.

The UAE is playing an active role in promoting sustainable development and in furtherance of that the 20th Session of the Commission on Sustainable Development which took place on 29th- 30th May 2013 was hosted by UAE and was held in Dubai. The issues regarding the climatic change, food security, water security, increasing drought and desertification, land degradation, natural disasters and extreme events (dust storms, heat waves and floods), diseases and epidemics in the Arab region were the main discussion topics during this meeting and it reaffirmed the principles enumerated by the Rio Declaration in 1992.

There are also various private organizations that provide their services to industries and establishments in undertaking their projects in a sustainable manner. One such organization is the Middle East Centre for Sustainable Development (MECSD) which provides for guidelines for green building and efficient use of Energy. Also it provides for a LEED (Leadership in Energy and Environmental Design) Certification for the establishments that undertake green building.

The Emirate of Dubai has often been criticized for its unsustainable rate of urbanization and the extreme use of natural resources for the transformation of the desert. Also the projects of creation of artificial islands is said to deteriorate the aquatic life forms. Dubai needs to re consider its own environmental policies in order to follow the principles of sustainable development and going green.

October 6, 2014

CHANGING SURETIES – An Employment Dilemma

UAE’s population is ever increasing but what is to be noted here is that the population of the UAE nationals is only about 12% whereas the expats (expatriates¹) make up for the rest of the 88% of the total population. According to the UAE law all expats are aliens. An alien is defined in the Article 1 of the federal law no. 6 of 1973 “On Entry and Residence of Aliens’ (hereinafter referred to as ‘the law’) as whoever is not the national of the UAE.

The constitution of the UAE through article 34 grants the freedom to choose one’s own occupation, trade or profession. But this freedom is granted only to the UAE citizens, which means 88% of the population in UAE is deprived of this freedom. The present article is going to look into the provisions of the law and the implementing law (the implementing regulation to federal law no. 6 of 1973 on alien’s entry and residence) for the transfer of workplace of the aliens living on work-residence visas in UAE.

According to article 13 of the implementing law, for an alien to be granted visa he must have a surety residing in the Country whether the latter be a national or an alien. The term ‘surety’ is not defined in the implementing law but according to article 14 ‘The surety guarantees the veracity of the information written down in the application and undertakes to bring the guaranteed or, where necessary, get him out of the Country or any other obligation imposed on him by the General Administration for Nationality and Residence’. Thus the surety is the person, who takes responsibility and gives guarantee to the government for the guaranteed alien‟s law abiding conduct, and for the accuracy and reliability of the documents presented and the information given by the guaranteed in his visa application.

In case of a residential-work visa, the employer is the surety of the employee and gives guarantee to the UAE government for the employee. As the employer is the surety and takes the guarantee of the employee, article 67 of the implementing law provides that the guaranteed person shall undertake not to work with anyone other than his surety also it provides a reciprocal provision for the surety that the surety shall undertake not to employ any alien guaranteed by someone else without abiding by the terms and conditions of the transfer of guarantee as stated in the article 68.

Further the law places a duty on the surety to inform the Nationality and Residence Administration or the nearest police station of the alien under his guaranty who has left his service for any reason whatsoever within three months from the date the alien guaranteed leaves his work.

Article 68 of the implementing law provides for conditions and procedures for the transfer of the alien’s guaranty to work. The said conditions are listed below:

1. If the application for transfer is from an organization, institution or company of the public sector to another similar one, the following conditions should be met:

a. The approval of the previous surety and the new one.

b. The approval of the application by the Nationality and Residence Administration.

2. If the application for transfer is from a private sector to a public or private one, the
following conditions should be met:

a. The approval of the previous surety and the new one.

b. Ratification of the Ministry of Labor and Social Affairs if the guaranteed person is included in the classes subjected to the Law regulating the Labor Relations.

c. Ratification of the application by the Nationality and Residence Administration.

3. If the transfer is from a public to a private sector, the following conditions are required:

a. The approval of the previous surety and the new one.

b. The approval of the Ministry of Labor and Social Affairs on the transfer, if the guaranteed person is included in the classes subjected to the Law regulating the Labor Relations.

c. The approval of the Nationality and Residence Administration on the application.

4. If the application for transfer concerns the class of house servants or those in similar condition, the following conditions are required:

a. The guaranteed must have completed the contract period agreed upon between the parties.

b. The guaranteed person must give a thirty day advance notice to his surety of his will not to renew the contract upon expiration of the fixed period.

c. Payment of the fees prescribed for the transfer of the guarantee.

In all instances, the guarantee may be transferred without abiding by the conditions mentioned in paragraphs (a and b) in case of securing the surety‟s approval.

5. If the application concerns the transfer of aliens guaranteed by their parents to the private sector, the following conditions are required:

a. The approval of the previous surety and the new one.

b. The approval of the Ministry of Labor and Social Affairs, if the guaranteed person is included in the classes subjected to the Law regulating the Labor Relations.

c. The approval of the Nationality and Residence Administration.

6. If the application for transfer concerns aliens guaranteed by the public or private sector to reside with their parents, the following conditions are required:

a. The new surety must fulfill the conditions for guaranteeing his family.

b. Approval of the previous surety and the Ministry of Labor and Social Affairs, if the guaranteed person is included in the classes subjected to the Law regulating the Labor Relations.

c. The approval of the Nationality and Residence Administration.

In addition, it is required to transfer the guarantee from the public sector to individuals or from an individual to another, and that the new surety satisfies the conditions required for the guarantee mentioned in this Regulation.

7. The guarantee of house servants, or the like, may be provisionally transferred in accordance with the following conditions:

b. The period of the provisional transfer must not exceed 90 days.

c. The provisional surety shall, during the specified period, guarantee all incumbent legal liabilities.

d. The guaranteed person must not commence the provisional work except after obtaining the card or authorization required for this purpose.

e. Payment of the prescribed fees for the transfer of the guarantee.

In all cases the provisional transfer of residence for the same guaranteed person may not be effected more than once.

If the guaranteed alien changes his workplace without the approval of his surety, such an alien need to be reported at the Nationality and Residence General Administration and shall be considered to be the persons escaped from their surety. The name of such persons shall be put on an administrative list as a result of which such person shall be prohibited to enter the Country because of cancellation of their residence or prohibited from exit therefrom and their arrest is requested. Their name shall be removed from the list after a period of one year from the departure or deportation from the country.

A person may be deported and banned from the country for a period of a full year. Therefore it is recommended that one should take care while getting into any arrangement with a person becoming one‟s surety, also changing of surety should be done only with the consultation of the existing surety.

^[1] A person temporarily or permanently residing, in a country and culture, which is other than that of the person’s upbringing.