Evidence Law for Civil and Commercial Transactions

A new evidence law for civil and commercial court cases was issued in Royal Decree 68 of 2008 (the "New Evidence Law"). Prior to the issuance of the New Evidence Law, there was no formal law governing the rules of evidence in civil and commercial court cases in Oman. The rules of evidence in such cases were developed by practice and heavily influenced by the Egyptian Civil Code.

The New Evidence Law lays out a comprehensive framework for which types of evidence may be admitted, the role of the judge in the process, privileges, and expert witnesses. Some highlights of the law include:

• The Court may require a party to a case to submit a document under the following circumstances: (1) if the law requires disclosure of the document; (2) if the document is joint or common amongst the parties to the case; or (3) if a party has used the document at any stage during the case.
• It is permissible for witnesses to provide evidence. The Court must approve the witness. It is also permissible for the Court to call witnesses.
• Witnesses must have capacity to testify. Witnesses must be at least 15 years old. If the witness is under 15 years, he may be permitted to testify but will not be required to swear an oath regarding his testimony.
• One cannot be required to testify against one’s spouse, unless one spouse has lodged a case against the other.
• The Court may appoint an expert to provide input on technical (but not legal) matters, such as engineering, accounting, etc.
• The parties to a case may question the expert report or ask that it be disregarded.

Another aspect of the Evidence Law that is being applied more frequently in recent years is the principle of "Al Yameen", or solemn oath. Al Yameen is a specific oath made by the defendant in a case swearing the truthfulness of his statement.

The New Evidence Law provides a clearer framework for proving matters in civil and commercial court cases in Oman. Companies or individuals which find themselves in litigation can rely upon this framework in determining which evidence will be admitted and how it will be treated by the Courts.

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FAQ: When is a Contract Formed?

When entering into contracts in Oman, complications may arise when the parties begin performing the obligations under a “contract” while the final terms are still being negotiated. What happens under Omani law when a dispute arises over the incomplete “contract”? When does a contract become a contract that is binding on both parties?

In some cases, the Oman Court (or arbitrator, if there is an arbitration clause) will be willing to impute the existence of a contract even when the parties do not have a signed agreement. For example, if an employer in Oman does not sign a written contract with his employee, the Oman Courts would still impute a contractual relationship based on evidence such as pay slips, or transfers made regularly to the employee's bank account by the employer.

In a more standard commercial context where two parties have a substantially negotiated but unsigned agreement, or even a verbal agreement that is never fully formalized in writing, the answer is not as clear. In these cases, the Oman Courts will most likely look to any documentation pertaining to the deal in deciding whether there is a contract. This is in accordance with Oman’s Commercial Code which states that contracts “may be proven by all means of so doing...”, and not only through a signed agreement.

The Oman Courts may recognize the existence of a contract, even though there is no final written agreement signed by both parties. The Court should recognize the contract based on exchange of letters, or on verbal offer and acceptance, or on the mutual trading conduct of the parties.

The ability of an Oman Court to recognize a contract is supported by Article 89 of Egypt’s Civil Code, which states that a contract is created from the moment that two persons have exchanged two concordant intentions. Article 90 of Egypt’s Civil Code adds that an intention may be declared verbally, in writing, or by conduct. The Egyptian Civil Code is the bedrock of Arabic legal justice and is heavily influential in Oman.

Nonetheless, despite the ostensible security afforded by the Egyptian Civil Code, parties seeking to prove the existence of a contract or finalize an agreement should seek legal advice. At a minimum, it is important for the party seeking to prove the existence of a contract to detail in writing to the counterparty, on a contemporaneous basis, those elements which have been agreed upon. In this respect, it is noteworthy that Oman’s Supreme Court has ruled that silence can amount to consent. In other words, uncontested letters can prove vital in dispute resolution scenarios.

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