كتاب شرح قانون الالتزامات والعقود المغربي pdf



شرح قانون الالتزامات والعقود المغربي


يشكل  القانون المدني الشريعة العامة التي تنظم العلاقات الخاصة بين الافراد، ماعدا ما يخضع منها لاحكام  فرع  من  فروع  القانون الخاص .
يلاحظ  ان  مضمون  القانون  المدني  في  كثير  من  دول  العالم  يشمل  نوعين  من  العلاقات  القانونية:
–   علاقة  الفرد  باسرته  او  ما  يسمى  بالاحوال  الشخصية –  وعلاقة  الفرد  بالغير  من  حيث  المال  او  ما يسمى  بالاحوال  العينية .
وفي  المغرب فان  القانون  المدني  يشمل  فقط  الاحوال  العينية في  حين  تخضع  الأحوال  الشخصية  لحكم  الشرائع  الدينية ، وبذلك  فان  القانون  المدني  ينظم  الروابط  المالية  بين  الافراد ويحكم  حقوقهم  المالية ، ومعلوم  ان  الحق  في  المعاملات  هو  مصلحة  ذات  قيمة  مالية  يعترف  بها  القانون  للفرد وهو  اما  ان  يكون  حقا  عينيا  او  حقا  شخصيا .
الحق  العيني : هو  سلطة  يمارسها  شخص  على  شيئ  مادي  معين بالذات يخول  لصاحبه  الحصول  على  منفعة  دون  وساطة  احد .
          مثال: حق  الملكية  وحق  الرهن  ويشمل  عنصرين  فقط: صاحب  الحق   //     والشيئ  محل  الحق
الحق  الشخصي: هو  رابطة  قانونية  بين  شخصين  احدهما  الدائن  واللآخر  المدين  فعناصر الحق  ثلاثة:
    صاحب  الحق  او  الدائن   //     المدين بالحق   //   ثم  محل الحق  أي  الاداء  الواجب  على  المدين
الحقوق  تنقسم  الى حقوق  شخصية  وحقوق  عينية  ومن  ثم  فان  قواعد  القانون  المدني  تنقسم  الى  :
قواعد  تنظم  الحقوق  الشخصية( الالتزامات)   //   وقواعد  تنظم  الحقوق  العينية
من جهة  اخرى : تنقسم  الحقوق  الشخصية  الى: النظرية  العامة  للالتزامات و  العقود ونجد  ان  قانون  الالتزامات  و  العقود  ينقسم  الى  كتابين:





الاول: يخص  الاحكام  و  الالتزامات  بشكل  عام .                      
الثاني: يتضمن  مختلف  العقود  المسماة  واشباه  العقود  اظافة  الى  القانون المتعلق  بالتبادل  الالكتروني للمعطيات القانونية.
تعريف الالتزام  وخصائصه
الفقهاءعرفوه بأنه رابطة  قانونية  بين  شخصين  احدهما  دائن  والآخر  مدين يترتب  بمقتضاها على  الطرف  المدين  نقل حق  عيني او القيام بعمل او امتناع عن العمل فالالتزام رابطة اوعلاقة لها  طرفان : أحدهما  الدائن(يسمى  الطرف  الايجابي) والمدين  (يسمى  الطرف  السلبي)
 والالتزام لايتطلب  وجود  دائن  ومدين  ويمكن  قيامه  من  طرف  واحد ( الوعد  بالجائزة للجمهور)  و يتميز  الالتزام القانوني  عن  الالتزام  الطبيعي  بخاصية  الاجبار الالتزام  يمكن  ان  يكون:
ايجابيا: اذا  انصب  على  نقل  حق  عيني  ويطلق  عليه  الالتزام  بإعطاء ( التزام  البائع  بيع   منقول  بنقل ملكية  الشيئ  المبيع  للمشتري)
سلبيا: يكون  محل  الالتزام  القيام  بعمل( التزام  مؤجر  بتسليم  الشيئ  المأجور  الى  المستأجر)
التمييز بين  الحق  الشخصي( الالتزام) و  الحق  العيني
الحق  الشخصي او  الالتزام: رابطة  قانونية  بين  شخصين  احدهما  الدائن  والآخر  مدين  يترتب  بمقتضاها  على  الطرف  المدين  تجاه  الطرف  الدائن  نقل  حق  عيني  او  القيام  بعمل  او  الامتناع  عن  العمل .
الحــق  الــعيني : هو  سلطة  يمارسها  شخص  معين  على  شيئ  معين  تمكنه  من  الحصول  على  المنفعة  المرجوة  من  هذا  الشيئ  بصورة  مباشرة  دون  وساطة  أحد.
النظريتان  مختلفتان  من  حيث  التكوين:
 الالتزام او الحق الشخصي:لابد له من توافرثلاثة عناصر: طرف  صاحب  الحق( الدائن)// طرف  ملتزم(هو  المدين)//الشيئ  محل  الالتزام اوالحق
  الحق  العيني: لايتطلب  قيامه  الا  بوجود  عنصرين:      طرف  صاحب الحق     //    الشيئ محل الحق
من  حيث  الخصائص:
     الالتزام  او  الحق  الشخصي: هو  نسبي  لايجوز  للدائن  صاحب الحق  الاحتجاج  بحقه  الا  في  مواجهة  المدين.
     الحق العيني: له  حق  مطلق  يخول  لصاحبه  الاحتجاج  به  تجاه  اي  مكان(حق ملكية منزل تجاه الكافة)
يترتب  عن  كون  الحق  العيني  حق  مطلق وجود  ميزتين  غير  موجودتين  في  الحق  الشخصي وهما:
     ميزة  التتبع: تخول  لصاحب  الحق  العيني  تتبع  الشيئ  محل  الحق  في  يد اي شخص  تنتقل  حيازة  هذا  الشيئ
    ميزة  الافضلية: تسمح  لصاحب  الحق  العيني  ان  يقدم  في  استيفاء  حقه  على  من  سواه  ( الرهن)
ضلت الحقوق  منقسمة  الى  يومنا  هذا  الى  حقوق  شخصية  وعينية رغم للفروق العديدة  الموجودة  بينهما
فالحقوق  الشخصية:او  الالتزامات : باعتبارها  حقوقا  نسبية  لايتعدى  أثرها  حلقة  الدائن و  المدين ولاتفيد  سواهما.
اما  الحقوق  العينية: بوصفها  مطلقة  يتعدى  أثرها  الى  الكافة  لها مساس  بالنظام  العام  ووردت  على  سبيل  الحصر
مصادر  الالتزام
 الحصر يقصد  به  الاسباب  القانونية  المنشئة  للالتزام:
– التزام  المشتري  بأداء  ثمن  مصدر  عقد  البع
– التزام  من  الحق  ضررا  بغيره  بالتعويض  مصدره  العمل  الضار
فمصادر  الالتزام  متعددة  فهناك  نظرية  تقليدية  تقسم  الالتزتم  الى5 مصادر  وهي:
1)      العقد: توافر  ارادتين  على  انشاء  التزام  او  اكثر  كعقد  البع           
2)      شبه  العقد: هو  عمل  اختياري  مشروع  يترتب  عنه  نشوء  التزام  نحو  الغير( الفضولي)
3)      الجريمة: هي عمل  ضار يقوم به شخص عن عمل يقصد الاضرار بالغير(اتلاف مال مملوك للغير فيلتزم الفاعل بالتعويض عن الضرر)
4)      شبه الجريمة:وهي فعل يصيب الغيربضرر كالجريمة ولكن دون قصد اضرار الغير(اهمال وعدم تبصر)
5)      القانون: هو مصدر مباشر للالتزام في حالات معينة ميتمدة من نص قانوني(الالتزامات بين افراد الاسرة كالنفقة)
يرجع  التقسيم  التقليدي  لمصادر التزام الى القانون الروماني وانتقل الى القانون الفرنسي وتعرض هذا  التقسيم لانتقادات شديدة حيث رفض الفقه الاخذ به لانعدام المنطق الذي يقوم  عليه
التقسيم  السائد في  الفقه و التشريع .
الفقه و  التشريع  قسم  مصادر  الالتزام  الى5 اقسام:
1)      العقد           2)  الارادة المنفردة        3) الاثراء بلا سبب        4) العمل غير المشروع     5) القانون
اخذ  بهذا  التقسيم  العديد  من  التشريعات  الاجنبية والعربية و المغرب  كذلك.
حسب التشريع  المغربي يمكن  الالتزام ان  ينشأ الى:
            1)  الاتفاقيات او  العقود   2) التصريحات  الاخرى  المعبرة  عن  الارادة   3) اشباه  العقود   4) والجرائم   5) ثم اشباه  الجرائم


إقرأ أيضا :  رسالة لنيل دبلوم الدراسات المعمقة تحت عنوان "العنف الأسري ضد المرأة بالمغرب أية حماية ؟"

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