Subject Matter of a Contract under Syrian Law
Its Requirements and the Effect of Their Absence on Contract Validity
A valid contract is not formed merely by mutual consent. That consent must relate to subject matter which the law can recognize and to which it can assign binding effect. The subject matter of the contract or obligation is the essence of the performance undertaken by the debtor, whether it consists of transferring a right, delivering an item, performing an act, or refraining from an act.
The importance of contractual subject matter becomes apparent in practical disputes where the obligation is impossible, ambiguous, incapable of determination, or contrary to public order or morality. In such cases, the issue is not limited to difficulty of performance; it may render the contract itself void.
The Syrian Civil Code regulates the subject matter of obligations in Articles (132) to (136), establishing specific requirements that must be satisfied for the subject matter to create a valid obligation with legal effect.
First: What Is Meant by the Subject Matter of a Contract?
The subject matter of a contract means the general legal effect intended by the contracting parties, whereas the subject matter of an obligation is the specific performance owed by each party in implementing the contract. The two expressions are often used similarly in practical legal writing, although distinguishing between them is useful when analyzing the structure of a contract.
In a sale contract, the subject matter of the contract is the creation of reciprocal obligations through which the sold item is transferred in exchange for the price. The seller’s obligations are to transfer the right and deliver the sold item, while the buyer’s obligation is to pay the price.
The subject matter of an obligation may take any of the following forms:
• Giving an item or transferring a right, such as transferring ownership of the sold item.
• Performing an act, such as constructing a building or providing a professional service.
• Refraining from an act, such as an obligation not to compete or disclose confidential information.
Second: May a Future Item Be the Subject Matter of an Obligation?
Article (132) of the Syrian Civil Code permits a future item to be the subject matter of an obligation. Accordingly, the fact that the item does not exist when the contract is concluded does not prevent the contract from being valid, provided that its future existence is possible and it is capable of determination.
Examples include the sale of crops to be produced in a later season, a contract to manufacture a machine that has not yet been made, or construction of a building according to specified plans and specifications.
The legislature, however, excluded dealings concerning the estate of a living person and declared them void even with that person’s consent, except where permitted by law. This prohibition aims to protect public order and prevent speculation on people’s deaths or dealings in rights that have not yet lawfully arisen.
Third: Requirements for Valid Subject Matter
For the subject matter of an obligation to be valid, it must be possible, specified or capable of determination, and lawful. Failure to satisfy any of these requirements renders the contract void in the cases prescribed by law.
1. The Subject Matter Must Be Possible
Article (133) of the Syrian Civil Code provides that a contract is void if the subject matter of the obligation is intrinsically impossible. This refers to original impossibility existing when the contract is formed, rather than impossibility arising after its formation.
The impossibility must be absolute: performance must be impossible for any person, rather than merely difficult for the particular debtor. A person who undertakes to deliver an item that perished before the contract, while both parties mistakenly believed it still existed, has undertaken intrinsically impossible subject matter.
If performance is intrinsically possible but becomes burdensome or costly for the debtor, this does not in itself render the contract void. Other rules may apply, including those governing force majeure, exceptional circumstances, formal notice, and performance.
2. The Subject Matter Must Be Specified or Capable of Determination
Article (134) requires that, where the subject matter of an obligation is not individually specified, it must be specified by its kind and quantity; otherwise, the contract is void. Specification by kind is sufficient if the contract sets out the bases by which its quantity may later be determined without a new agreement.
A supply contract must therefore state the type and quantity of the goods or establish an objective standard by which they can be determined, such as actual monthly production or the requirements of a particular project during a specified period.
If the parties do not agree on the item’s quality and it cannot be inferred from custom or the circumstances of the transaction, the debtor must deliver an item of average quality. This rule prevents a contract from failing merely because the quality description was omitted, while maintaining a reasonable balance between the parties.
3. The Subject Matter Must Be Lawful
Article (136) provides that a contract is void if the subject matter of the obligation is contrary to public order or morality. Contractual rules do not protect an agreement intended to perform a legally prohibited act or achieve an unlawful purpose.
Lawfulness concerns the nature of the performance itself, rather than the parties’ mere wishes. If an obligation involves trading a prohibited item, performing an act forbidden by law, or refraining from a duty that the parties may not agree to suspend, its subject matter is unlawful even if all contracting parties consent.
Fourth: The Subject Matter of Monetary Obligations
Article (135) addresses obligations whose subject matter is a sum of money. It provides that the debtor is bound by the number of monetary units stated in the contract, without any increase or decrease in the value of money at the time of payment having an effect, unless the law contains special provisions concerning foreign currency conversion.
This rule reflects the nominal value principle of money. Its application to long-term contracts or during severe currency fluctuations nevertheless requires careful drafting, particularly regarding the payment currency, payment mechanism, conditions for adjusting consideration, and legal restrictions relating to foreign currency.
Fifth: The Difference Between Impossibility, Ambiguity, and Unlawfulness
• Impossibility: The performance is intrinsically incapable of being achieved from the time the contract is formed.
• Lack of specification: The subject matter or amount of the obligation cannot be identified from the contract or an objective standard stated in it.
• Unlawfulness: The performance is possible and specified but is prohibited by law or contrary to public order or morality.
The facts establishing each case differ, but where the defect affects an essential element, the result may be the same: the contract is void.
Sixth: Effect of Failure to Satisfy the Subject-Matter Requirements
If the subject matter is intrinsically impossible, neither specified nor capable of determination, or contrary to public order or morality, the contract is void. This invalidity arises from the absence of an essential element in forming the contract. The parties cannot cure it merely by agreeing to disregard the defect or affirming the contract while the ground for invalidity remains.
As a general rule, invalidity requires the contracting parties to be restored to their pre-contractual positions where possible, taking into account the nature of the subject matter, the lawfulness of the transaction, the rules governing restitution of what was received, and any liability that may arise for either party.
Seventh: Practical Examples
Example One: Impossible Subject Matter
A person agrees to sell a particular machine, but it is later established that the machine had been completely destroyed before the contract was signed, without either party’s knowledge. The delivery obligation is intrinsically impossible, affecting the validity of the contract.
Example Two: Subject Matter Capable of Determination
A factory contracts to purchase all the raw material it needs for six months according to monthly production statements. Although the total quantity is not specified in advance, the subject matter is capable of determination by reference to an objective standard stated in the contract.
Example Three: Unlawful Subject Matter
Two parties agree to provide a service that the law prohibits without a licence, intending through their agreement to circumvent legal requirements. The subject matter of the obligation is unlawful, and the agreement does not receive ordinary contractual protection.
Example Four: Ambiguous Specifications
A supply contract provides for delivery of materials of a specified type without stating their quality, and no custom or prior course of dealing establishes it. As a general rule, the supplier must deliver materials of average quality under Article (134).
Eighth: Common Errors in Drafting Contractual Subject Matter
• Using general descriptions such as “suitable materials” or “complete service” without measurable standards.
• Failing to specify the quantity or calculation method.
• Omitting technical specifications, quality levels, and inspection procedures.
• Failing to state the place, time, and method of delivery or performance.
• Making determination of the subject matter dependent on one party’s will without objective controls.
• Contracting for an activity requiring a licence without verifying that it is available.
• Failing to regulate the effect of currency or price changes in long-term contracts.
Ninth: How Should Subject-Matter Clauses Be Properly Drafted?
A contract should precisely state the subject matter of each obligation rather than merely giving a general description of the transaction. Depending on the nature of the contract, the drafting should preferably include:
• The legal and technical description of the item or service.
• The quantity or standard for determining it.
• Quality and applicable standard specifications.
• Deadlines, stages, and place of performance.
• Inspection, acceptance, and objection procedures.
• Acceptable alternatives where part of the performance becomes impossible.
• Documents and technical annexes forming part of the contract.
• Any licence or regulatory approval required for lawful performance.
Tenth: Frequently Asked Questions
May the Parties Contract for an Item That Does Not Exist When the Contract Is Made?
Yes. A future item may be the subject matter of an obligation if its existence is possible and it is capable of determination, subject to legal exceptions, including the prohibition on dealings concerning the estate of a living person.
Does Failure to State the Quality Render the Contract Void?
Not necessarily. If quality can be established from custom or the circumstances of the transaction, that quality applies. If it cannot, the debtor must provide an item of average quality under Article (134).
Does Every Difficulty in Performance Mean the Subject Matter Is Impossible?
No. The impossibility that renders a contract void is absolute intrinsic impossibility existing when the contract is made. Difficulty or increased costs may be governed by other legal rules.
May Determination of the Subject Matter Be Left to a Later Agreement?
If the contract does not contain the elements or standards needed to determine the subject matter without a new agreement, the subject matter may be unspecified. If the contract establishes a clear objective standard, it is sufficient that the subject matter be capable of determination.
Conclusion
Contractual subject matter is one of the essential foundations on which the validity of a contractual relationship depends. Consent alone is insufficient to create an obligation protected by law; it must be directed toward performance that is possible, specified or capable of determination, and lawful.
The provisions of the Syrian Civil Code confirm that material ambiguity, original impossibility, or violation of public order are not merely defects in performance; they may render the contract void from its inception. Precisely defining the subject matter of an obligation at the drafting stage and linking it to provable specifications and standards is therefore among the most important ways to prevent disputes and protect the legal interests of individuals and companies.
Legal References
• The Syrian Civil Code promulgated by Legislative Decree No. (84) of 1949, Articles (132) to (136).
• General rules of contract and obligation theory in Arab civil-law scholarship.
• Syrian judicial principles concerning the possibility, specification, and lawfulness of subject matter.
Notice: This article provides general legal information and is not a substitute for reviewing the contract, facts, and document