Al-Maisira Perspective: A Study in Libyan Legislation.

Abstract

This study centers on the system of "Nathrat al-Maisara" (Grace Period) in the Libyan Civil Code, a legal framework aimed at establishing the rules of justice and protecting the "good-faith" debtor facing financial hardship that prevents them from fulfilling their obligations on time. The study aims to highlight the "Judicial Term" (Grace Period) as a mechanism that grants the judge discretionary power to intervene in contract execution, as an exception to the principle of "Pacta Sunt Servanda" (contracts must be honored) and the rule of "Immediate Performance." This is intended to grant the debtor a reasonable additional period to settle their debt without causing significant harm to the creditor.

The study adopts a descriptive-analytical approach to clarify the nature of "Nathrat al-Maisara" and distinguish it from similar legal concepts such as the "Theory of Unforeseen Circumstances" and "Force Majeure." It concludes that this grace period does not exempt the debtor from the obligation nor reduce its value, but merely postpones its execution to a later date. Furthermore, the study reviews the legal conditions for granting this period according to Article (333) of the Libyan Civil Code, which stipulates that there must be no prohibition by a specific legal text (as in commercial papers like bills of exchange and checks), that the debtor’s actual situation warrants leniency, and that this delay must not result in serious harm to the creditor's legitimate interests.

The research also addresses the effects of granting this period, noting its personal nature as it benefits only the debtor and their guarantor. Legally, it leads to the suspension of compulsory execution proceedings during the term while maintaining the creditor's right to take precautionary measures and set-offs to secure their future rights. The study concludes with recommendations to the Libyan legislator on the necessity of limiting the judicial term to a specific timeframe not exceeding two years, ensuring a balance between considerations of leniency toward the debtor and the requirements of credit stability and the protection of legal positions.