Selling someone else’s property according to the provisions of the Egyptian law

The Egyptian Civil law defines sale as: (A contract by which the seller undertakes to transfer to the buyer the ownership of a thing or another financial right in exchange for a cash price). This definition of sale has two advantages:

• First: The sale is not limited to the transfer of ownership but extends to the transfer of any other financial right. The sale may involve an in-kind right other than the right of ownership, such as the right of usufruct and the right of easement.
• Second: The price shall be in cash because it distinguishes between sale and consideration. Contrary to Islamic Sharia, in which sale is the exchange of money for money. It includes consideration and exchange other than sale.

Definition of selling someone else’s property and its conditions

It is the sale of something that neither the seller nor the buyer owns and that neither the law nor the agreement gives them the authority to dispose of. The sale of someone else’s property is not valid and is not taken into account with regard to the owner of the property, and it does not result in the transfer of ownership to the buyer, even if it is a real estate property.

The sale of someone else’s property is when a person sells something that he does not own. It is a contract that can be voided by the buyer. The sale in this manner must be for a specific property, and it is not permissible to sell something that does not exist at the time of the contract but will exist in the future.

Likewise, it is not considered a sale of someone else’s property if a person undertakes on behalf of the owner of the thing that the owner will sell the thing to another person. Rather, this is considered a commitment on behalf of the other.

Likewise, the sale of the owner’s share in the common property is not considered the sale of the property of another, because the sold item is something that the seller owns in common with other partners, and the matter depends on the separation and division, and that depends on the agreement of the buyer with the seller, whether he agreed to the sale in common or the sale stipulated a separate share. If the sold item falls into the seller’s share, the sale is valid and not a sale of someone else’s property. If it does not fall into the seller’s share, it becomes a sale of someone else’s property.

In order for the sale to be considered a sale of the property of another, it must include the following:

1. The existence of a sale contract for a cash price.
2. The sold item must be specific, such as real estate.
3. The sale must be intended to transfer ownership immediately and not a promise to sell.
4. That the sold item is owned by another and not by the seller at the time of concluding the sale contract.

The sale of someone else’s property has civil and criminal effects

1- Civil effects:

Article (466) of the Civil Law stipulates that:

(1) If a person sells a specific thing that he does not own, the buyer may request the annulation of the sale. This is the case even if the sale is of real estate, whether the contract is registered or not.
(2) In any case, this sale shall not be valid before the owner of the sold property, even if the buyer approves the contract.

Article (467):

(1) If the owner approves the sale, the contract shall be valid in his right and shall become valid in the right of the buyer.
(2) The contract also becomes valid in the right of the buyer if ownership of the sold item reverts to the seller after the issuance of the contract.

Article (468):

(1) If the buyer is ordered to nullify the sale, and he was unaware that the sold item was not owned by the seller, he may demand compensation even if the seller was acting in good faith.

In light of the previously mentioned articles, the sale contract is valid between its two parties, but it is not valid against the original owner. The buyer has the right to annul the contract or to obtain compensation for the damage he suffered from the seller in this contract.

This contract becomes a valid contract in the event that the real owner approves this sale or that the sold share or the sold property becomes the property of the seller after the conclusion of the contract.

2- Criminal effects of selling someone else’s property:

Criminal penalties – Article (336) of the Penal Law criminalizes the disposal of movable or immovable property owned by others, as stated in the following:

Article 336 of the Penal Law:

Whoever succeeds in seizing money, goods, debt bonds, counterfeit bonds, or any movable property by fraudulent means in order to steal all or part of the wealth of another, either by using fraudulent methods that are likely to deceive people into believing that there is a false project or a forged event, or by creating hope of obtaining an imaginary profit or repaying the amount taken by fraud, or by deceiving them into believing that there is an incorrect debt bond or a forged release bond, or by disposing of immovable or movable property that he does not own and that he has no right to dispose of, or by adopting a false name or incorrect description, shall be punished by imprisonment.

Whoever starts to commit fraud but does not complete it shall be punished by imprisonment for a period not exceeding one year.

It is permissible to make the offender in case of recidivism, the offender will be under police supervision for a period of at least one year and at most two years.

The legislator decided that this crime is committed by the disposer merely by disposing of movable or immovable property that he does not own and does not have the right to dispose of. He stipulated two conditions for the establishment of this crime:

• Disposing of real estate or movable property. It must be accompanied by the use of fraudulent methods in establishing this personal right over property owned by others.
• It shall not be owned by the perpetrator, and he does not have the right to dispose of it.

This requires that two conditions be met in the offender, such that if one of them fails, there is no room for criminalization or punishment. These two conditions are that he is not the owner and does not have the right to dispose of it. Accordingly, it is not possible to criminalize in the following cases, and there is no room for the punishment stipulated in this article:

1. If the person is the owner and has the right to dispose of it, then there is no sin.
2. Likewise, if he is not the owner but has the right to dispose of it, such as an agent, guardian, or trustee, after obtaining permission from the guardianship authority as well, then there is also no sin.

The buyer’s rights in the event that he purchases a sale of the property of another person who sold it to him and the responsibilities of that seller

The buyer has the right to request the annulment, cancellation, or return of the sale contract or to guarantee the entitlement. This is a right established for the benefit of the buyer only. This right shall lapse after three years from the date on which he learns that the seller does not own the sold item and fifteen years from the date on which the contract was drawn up in general. (Article “140” of the Civil Law).

The buyer can file an original lawsuit to recover the price or by way of a plea to annul the sale because it occurred on the property of others.

The buyer has the right to either file an original lawsuit to refund the price. The invalidity is therefore relative and is decided in favor of the buyer rather than the real owner. The contract remains valid, existing, and producing its effects until it is ruled invalid based on the buyer’s request. However, pre-emption is permissible in the sale of someone else’s property if it is completed before a ruling is issued declaring the sale of someone else’s property invalid.

The buyer has the right to request compensation if he is in good faith, i.e. he is unaware of the seller’s lack of ownership of the sold item, regardless of whether the seller is in good faith or bad faith, for the damage that has befallen him as a result of the invalidity of the contract issued to him in accordance with Article (468 of the Civil Law). If he is in bad faith, i.e. he knows that the seller does not own the sold item, then he shall not have the right to compensation, but shall only have the right to request the cancellation of the sale and the refund of the price.

How to avoid selling someone else’s property and legal advice for buyers and sellers?

To avoid the methods of fraud and deception that some people take to obtain interests from that, the buyer shall first, before any upcoming contract, verify the thing sold and the validity of the ownership and documents and their legality and the existence of the thing sold and the validity of its ownership by the seller through the competent and concerned authorities such as the city authorities, the notary public, local units and neighborhoods.

Firstly – Verify the identity of the seller and his title deed by searching for title deeds through the notary public and the extent of their legality and registering those deeds legally and searching within the deed for the existence of a prohibition on disposing of the seller and the period during which the disposition is prohibited, and whether it is found that there is any marginal indication on those deeds (sale deeds if they are registered in the notary public).

Secondly – Searching and investigating the actual possessor of the sale if it is a real estate, by asking at the place of sale and the document of that possession.

Thirdly – In the event of the intention to purchase and contract for the sale, a legal rafting must be written that includes all legal guarantees to protect the buyer and seller from any violation or breach of the terms agreed upon by the contracting parties.