Defenses in the Sharia Litigation System

First: Definition of Defenses: Defenses are the objections raised by the defendant in response to a lawsuit.

Second: Types of Defenses:

1.    Formal Defense: "Formal defenses refer to procedural tools or means defined by the legislator, which serve as a method for the defendant to invoke when procedural violations occur." Formal defenses come in many types and are one of the procedural rights. The general principle is that formal defenses do not relate to public order. The system requires that some of the defenses mentioned in this article must be raised before any request or defense in the case, or else the right to raise them will be forfeited, as stated in Article 75 of the Sharia Litigation System. If the party neglects these defenses and does not raise them at the beginning of the proceedings, they lose the right to raise them, and they cannot present the formal defense again.

2.    Substantive Defense: A substantive defense is a procedural right with an objective content. It is linked to the existence or non-existence of the right itself and is governed by the prescribed Sharia rights and prevailing systems. A substantive defense pertains to the subject matter, and the defendant uses it to counter the plaintiff’s claim on the subject, such as denying the claim or asserting payment or similar defenses. For instance, if a person claims to have lent another person 1,000 Riyals, the defendant might either admit to the claim and remain silent, deny it altogether, admit part of it and deny the rest, or admit and argue with evidence of repayment or discharge, or similar defenses related to the substance of the claim. These defenses are numerous because they pertain to public order and individual private interests. Therefore, the legislator states regarding the defenses that can be raised at any stage of the proceedings – representing the substantive defenses – "or for any other reason..." as per Article 76 of the Sharia Litigation System. The legislator also mentioned that "it is permissible to raise substantive defenses at any stage of the case..." as per Article 76 of the Sharia Litigation System.

The Difference Between Formal and Substantive Defenses:

• Formal Defense:
• Regarding the raising of the defense: Formal defenses must be raised before discussing the subject or raising a plea of inadmissibility; otherwise, the right to present them will be lost.
• Regarding the consideration and ruling on the defense: A ruling in favor of a formal defense does not end the dispute over the original right claimed.
• Substantive Defense:
• Regarding the raising of the defense: Substantive defenses can be raised at any stage of the case, even until the closure of the litigation process.
• Regarding the consideration and ruling on the defense: A ruling in favor of a substantive defense has the authority of res judicata, meaning the same lawsuit cannot be raised again between the same parties.

In conclusion, the rules for submitting defenses in the Sharia litigation system form the legal foundation upon which the parties in a case rely to present their defenses. Therefore, it is necessary to adhere to these rules to avoid losing the case from the first session.

Thus, if you need assistance in drafting a formal or substantive defense, you will need a specialized lawyer. The office of Dr. Mohammed bin Abdulrahman Al-Jaber for Legal Consultancy is your best option, with over 20 years of experience in providing legal services, particularly in drafting petitions before various courts. Just contact us.