Mahmoud A. H. Kinship's Influence on the Application of the Moral Impediment in Civil Evidence A Comparative Analysis

Abstract

The Moral Impediment constitutes a personal circumstance and a statutory exception to the general rule that mandates written evidence for legal dispositions whose value exceeds the legal threshold. It is a moral, psychological, or incidental cause arising from the relationship between the two parties to a transaction, which precludes the claimant from obtaining a written instrument to prove their right, thereby creating a relative impossibility of procuring such evidence at the time of contracting. Consequently, the claimant is permitted to resort to testimony or parole evidence and all other methods of proof instead of written evidence, even though the value of the transaction exceeds the statutory limit. Kinship or affinity is recognized as one of the most prominent and common forms of the Moral Impediment, as the law presumes that the nature of a family, familial, or affinity relationship engenders a moral constraint that prevents one contracting party from demanding a written bond to prove a financial or other right from the other. Although kinship establishes a prima facie presumption of the impediment's existence, the authority to assess whether the Moral Impediment is present ultimately rests with the trial judge, who adjudicates the matter according to the facts and circumstances of each individual case, while considering the existence of any prior hostility or the parties' custom of written documentation in their dealings. The most significant legal effect of establishing the Moral Impediment is the admissibility of proof by testimony and presumptions, as the legal transaction that exceeds its legal threshold is converted from being mandatory to prove by writing to being admissible for proof by all methods of evidence (such as testimony, presumptions, admission, and the oath). This constitutes the primary effect of the exception.