The legal Regulation of the down payment: Light of the Concept of the Bahraini Constitutional Court

Abstract

The judicial interpretation of legal texts must focus on the specifity of their parameters, and within the boundaries entailed in their meanings that are closely associated with the intended verdict. However, if the interpretation exceeds the aforementioned, it surmounts the interpretation phase to a different one of developing new legal pretext, which in its entirety constitutes an encroachment of the judicial role that must focus on enforcing the legal bases, not creating a new one. The Bahraini legislator has affirmed its position with regard to the “down payment” by virtue of stipulating it as a reversed right that is entrusted to parties of a contract. This right, moreover, is entirely independent from the issue of damages and is hence associated with it thereof. It is a commitment that is a consequent of the party breaching a contract. It is also a commitment that is based and completely independent from damages; nevertheless, the compensation that is awarded by a judge in cases of the arbitrariness use of this right, it is thereto a compensation for the aforementioned only. This is not related to the right of repeal. As such, a down payment in a contractual agreement, which is a descriptive contract, is related to the exchanged commitment.