"الملف 14/115 VII الملحق (B 9) أكسيد جزيرة أبو موسى: مواد خلفية حول هذه القضية" [و‎‎٩‎٠] (١٩٠٤/١٩٠)

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discussed serious!yv ^ The point has been examined here only in order to show the
weakness of the position taken up by Sakar.
^ question of the termination of the lease agreement opinions'"* have been
obtained liom the leading merchantsf at Lingah and Bussorah, and from the most
important ciergyT at Lingah, bhargeh, and Debai,§ who have given their views on the
matter Avai the point of view of commercial law and from that of religious law. The
reference waB maae in the form usual in that region, the agreement in question being
submitted to them in copy, together with certain questions in writing, and their opinions
being given without a detailed statement of the legal grounds on which thev were
based. |1"
^ All the opinions come practically to the same conclusion. The legal construction of
the case is, however, not the same in commercial law as in religious law.
According^to commercial Jaw, the lease agreement is valid; the lessor cannot
terminate it so long as the lessees 44 wish to keep the object leased in accordance with
the agreement, liie agreement could only be terminated by amicable arrangement,
since the lessor was not forced to sign it, but did so of his own free will.
According to religious lo..w the lease agreement is invalid, because a consideration
was stipulated for the use ot the mines, while oxide and similar minerals lying on the
surface are the common property of ali Mohammedans^ and the lessor has accordingly
conferred a right which he did not possess. But any person who discovers or works the
mines tnereby acquires the right to exploit them, and is at liberty to dispose of the
produce as he chooses. Sheikh Salim or Sheikh Sakar ? whichever of them is to be
considered the lessor, has no claim to the rent, and Hassan Samaih or the company of
lessees has, by working the mines, acquired a right to them. The Ruler of the territory
cannot dispose of the mines, and he cannot prevent the person who has acquired them
by working them from exercising his right.
bo that both the commercial law and the religious law forbid the lessor to
terminate the agreement, the latter absolutely, and the former on the assumption that
the lessee acts in accordance with the terms of the agreement. This has been done*
The rent has been paid regularly. The sale to foreigners is not a breach of the
agreement, since it is not forbidden by the agreement ; indeed, it is expressly
contemplated in the Memorandum of Association (pp. 14, 15), which will be mentioned
further on, with the consent of Sakar as at that time a shareholder.
Accordingly, neither Sakar nor Salim has a right to terminate the agreement.
(B.)—T he P osition oe S heikh S akar with respect to the C ompany op L essees
prom the point op view op public law.
As observed in the British Memorandum, the reigning Sheikh of Shargeh is the
absolute ruler of his country. The final appeal is accordingly to him in all matters
concerning the political administration of his country. The British Memorandum
further remarks that the principal object of Sakar was to administer justice as
between the partners of the company on the strength of his " sovereign rights of
jurisdiction. In connection with this point, the question must be considered as to
whether Sakar had authority to decide as judge the dispute between the partners of
the mining company, and whether the decision arrived at was justified by law, or
whether he had power to cancel the lease at his discretion in the interest of the
administration of the country.
^ Annexes 19 to 24.
| Some of the Lingah merchants come from the Oman coast, have branches or ag-ents there and have for
many years been doing a very active trade with the places on the Oman coast;"they have therefore an
accurate knowledge of the mercantile customary law there.
Among the opinions is that of Abdallah Miihamrned Hassan Alkhadja, a man who, on account of his
experience and reputation, is a recognized arbitrator in commercial matters, whose opinion is asked for by
Persians and Arabians of the Persian and Arabian coasts as far as Bahrein, and to whose decisions they
willingly submit. ^ A v ' v
t Among the religious opinions are those of Muhammed Mahdi-ibn-Abdallah and Yussuf-lbn-Muhammed»
ibn -Abdallah, judges at Lingah.
§ Annexes 25 to 31.
j| To the clergy at Shargeh and Debai was submitted a fictitious agreement, the contents of which were
in harmony with the agreement of April 10, 1898, in which only the names of persons and places were
changed, and dates were spoken of instead of mother-of-pearl, and " mines" mentioned instead of "oxide
mines/
In obtaining opinions it is usual in the Persian Galf to submit fictitious agreements whenever it is
desired to conceal the names of persons and things, and so obviate the possibility of the referee being
influenced.
[2574 c—1]
d