Form Of Contracts Relating To Immovables In Ethiopia Analysis Of The Position Of The Federal Supreme Court Cassation Division

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The justifi cations for the importance of the doctrine of precedent rest on the need forrncertainty, reliance, equality and efficiency in the law. Hence, cases involving similar legal issuesrnare expected to have similar outcome in all COUl1s. When the Ethiopian Federal Supreme CourtrnCassation Division (FSCCD) tries to hold on its deci sions of prior cases, its credibility willrnincrease. This paper, however, finds that the Cassation Division rendered many contradictoryrninterpretations on Article 1723 of the Civil Code of Ethiopia which deals with form ofa contractrnrelating to an immovable. The FSCCD neither clearly follows nor overrules its ownrninterpretation rendered in Cassation File No. 21448 (the Gorfie Case) and this creates a conflictrnwithin its jurisdiction. It, in this case, held that the requirement of regi stration before a court or arnnotary as embodied in Article 1723 is binding thereby rendering unregistered contract of sale ofrnan immovable a mere draft that is non-enforceable. The debate that arises after this interpretationrnpartly lies in the fact that the Cassation division has departed from settled practices to enter into arncontract relating to an immovable. The judges in the FSCCD state that this interpretation is therngoverning principle as to form of contracts relating to immovables so far. However, in thernopinion of the writer, registration is not a formal requirement for the validity (ad validitalem) ofrna contract relating to an immovable. The sole purpose of regi stration is publicity as envisagedrnunder Articles 2877 and 2878 of the Ethiopian Civil Code. The prevailing practices proved thatrncontracts relating to an immovable were not registered with a court or a notary.rnThe writer has not observed a consistent approach in the other interpretations of thernCassation Division which he has examined as to form of a contract relating to an immovable.rnThe Cassation Di vision rendered clashing interpretations with the Gorfie Case in Cassation FilernNumbers- 36887 (Alganesh v.Gebru), 39336 (Nyala Insurance S.C v. Adugna and Tenaye),rn38666 (Development Bank of Ethiopia v. Ato Tesfay) and others. Almost all of the inconsistentrninterpretations of the Cassation Division are rendered within two years time span, i.e. from 1999rnto 200 I E.e. Hence, the decisions of the FSCCD on form of a contract relating to an immovablernhave not stayed for reasonable long period of time without being overruled. As a result, trialrncourts, lawyers and other planners of transactions find themselves in untenable position wherernthey are bound by conflicting decisions of the Cassation Division. In the present Ethiopianrnsituation, it is hard for lawyers to advise their clients with a confidence that the law as to form ofrna contract relating to an immovable is settled. Such inconsistent interpretations of laws, ifrnallowed to persist, forfeit the benefits of certainty, stability and predictability of the law whichrnthe doctrine of precedent is intended to foster.rnConsequently, there is a need for further reform of the position of the FSCCD on form of arncontract relating to an immovable. The Cassation Division should clearly overrule its blamefulrninterpretation rendered in the Cassation File No. 2 1448 (the Gorfie Case) since the interpretationrnhas departed from settled practices. Every ruling of the FSCCD has far reaching implications onrnthe legal system of the country. Therefore, the cassation judges should criti cally consider thernimpacts of their interpretation on social , economic, political, cultural and moral contexts of thernpeople. They have to make sure that their decision would exist and applicable relatively for arnreasonable long period of time. The FSCCD should follow one fairly reasoned position andrnclearly overrule other contradictory decisions. Every interpretation has to be made in accordancernwith the concept of hori zontal stare decisis that the Cassation Division should refrain fromrncreating conflicting interpretation of laws.

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Form Of Contracts Relating To Immovables In Ethiopia Analysis Of The Position Of The Federal Supreme Court Cassation Division

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