III-Mandatory and supplementary rules
The first category: Mandatory rules:
• Mandatory legal rules are those rules directly commanding
acting, the accomplishment of which is necessary for the
society, or those forbidding acts which are inimical to the
society or to the requisite freedom of individuals. Any
agreement contrary to these rules is absolutely null and void.
Examples of mandatory rules are abundant but it is worth
mentioning that the following are mandatory rules:
• Rules of Criminal Law, which under the pain of punishment
forbid certain kinds of action.
• Rules creating social duties such as military service and
payment of taxes.
The second category: Supplementary rules:
• Supplementary legal rules are those which people are not forced
to follow and may agree on something contrary to their
provision .These rules are applied by the courts only in the
absence of any contrary provision by the persons whose interests
they regulate. These rules do not bind except where the contract
(do not) state otherwise.
Examples of supplementary rules are:
• The rule governing the delivery of a sold thing which states that""
The price of a sold thing should be paid in the same time in which
the delivery of the sold thing is made, unless other wise is agreed
or as may be required by custom".( Article 457/1 of the Egyptian
Civil Code).
• The rule which states that" If there is no agreement upon the rent
or how it can be evaluated, or it became impossible to prove it,
rent of a similar place is considered".(Article 562 of the ECC).
The criteria of differentiating between mandatory rules
and supplementary rules:
1-The verbal criterion:
• The verbal criterion enables us to know the type of the legal
rule whether mandatory or supplementary from the
wording and phrasing of its provision and it may be
expressly or tacitly indicated. The following wordings
indicate that the rule is mandatory:
- The legal rule may provide that its provisions may not be
violated and that any breach of its provisions will be null
and void.
- The legal rule may include a penal sanction for any breach of
its provisions.
- The legal rule may contain words of a commanding or a
prohibiting purport.
Examples of a mandatory legal rule:
• Article 227 of the ECC which states that "The interest
rate should not exceed seven percent (7%). If the
parties agree to a rate exceeding seven percent, the
rate shall be reduced to seven percent and any surplus
that has been paid shall be refunded".
For the supplementary rule, we usually find in its
provision "unless otherwise is agreed". Examples of this
wording are the following:
• Article 456/1 of the ECC which states that "The price of
a sold thing should be paid at the same place where
the delivery of the sold thing is made, unless otherwise
is agreed or as may be required by custom".
• 2- The objective criterion:
the nature of the rule is not clear from the words and phrases of the
provision, the content of the text should examined to know whether it is
related to the public order and/or public morality or not.
• If it is found that the rule organize an issue or more related to the basic
order of the society, then it is mandatory rule because these issues are of
public benefit for all people.
• But if the rule was found to regulate matters relate to individual persons
and not linked to the basic order of the society or the group interests, then
it is a supplementary rule of an optional nature.
• The wording of the provision of the Article 44/2 of the Egyptian Civil Code,
Which states that" The majority age is twenty-one, calendar year" does not
indicate whether the rule is mandatory or supplementary but it is tacitly
understood that the rule aims the regulation of an issue related to the
validity of transactions in the society. Thus this rule organizing the majority
age is a mandatory one
• On the one hand, public order is meant to be all those basic group-
interests upon which the entity of the society is based in a certain time. Be
these interests political, social, economical, etc.
Variations in public policy:
• The idea of public policy is not of course, identical in all countries. Thus
in France a testator is bound to leave a share of his property to certain
members of his family, and under Muslim law only one-third of the total
property can be disposed of by the owner by way of a will. These
provisions are made in the public policy or morality terms to avoid
leaving them to the caprice of the testator. But in England no such
limitations on testamentary power exist .
• The limits of public have also undergone many changes at different
epochs. For example intermediary contract for marriage, considered as a
common practice in the past, is becoming, at present, rarely practiced.
• It is worth mentioning that when a dispute arises, it is up to the judge to
decide whether the applicable rule is of a public order nature or not.
• In application of the objective criterion on the branches of law one can
say that the rules of public law related to the public policy, because they
touch the political existence of the state and its social and economic
aspects as well as morality. For this reason, it is not acceptable that a
person waives to another his right of election for the legislative councils .
