Case studiesProperty2025
Off-plan buyer's termination and refund upheld on appeal against a COVID-19 defence
Al Faisal came in after the first-instance judgment, which had ended our client's purchase of an off-plan apartment that was not delivered and ordered a refund with damages. On appeal, the court rejected the developer's COVID-19 and waiver arguments and upheld that judgment, but it also rejected our client's own appeal to raise the refund and the damages.
Handled by Faysel Al-Mohannadi
The judgment
- Result
- Termination, refund of every payment in the developer's statement of account, and damages upheld. The developer's appeal rejected. Our client's appeal to raise both figures rejected.
- Court
- Investment and Trade Court (appeal circuit)
- Time
- About 2 months, from our instruction to the appeal judgment
- What was at stake
- A six-figure refund of instalments already paid, and the right to end the contract
- Our client
- An individual buyer of an off-plan apartment
The case
Our client reserved an apartment in an off-plan project from a real-estate developer, at a seven-figure price paid by instalments. The contract was signed months after the COVID-19 pandemic began. It set a completion date, allowed an extension, and provided a small daily payment for delay beyond that. The extended date passed without delivery. By then our client had paid more than half the price, as the developer's own statement of account confirmed. Our client sent written demands.
In 2025, before we were instructed, our client sued for termination, a refund and damages. The first-instance court ended the contract, ordered the sum in the statement of account refunded and awarded damages well below the sum claimed. The developer appealed.
What was at stake
The developer's appeal made three points. COVID-19 was force majeure, which moved the delivery date, so delivery was not yet due. By accepting the daily delay payment, the buyer had given up the right to end the contract. And no harm had been proved.
If either of the first two points succeeded, the termination and the refund would fall: our client would stay bound to a contract for an unfinished home, with more than half the price paid.
What we did
Took on the appeal within days.We were instructed after the first-instance judgment, filed our client's appeal within days, answered the developer's appeal in a reply memo, and attended the hearings.
Set the contract date against the pandemic.Our reply showed that the pandemic began months before the contract was signed, that the delivery dates were set in full knowledge of it, and that construction work was exempt from the restrictions. We relied on Court of Cassation ruling No. 335 of 2021.
Answered the waiver point.The choice of remedy stays with the party who suffered the breach (Civil Code Arts. 171, 172 and 183(1); Court of Cassation rulings No. 219 of 2011 and No. 371 of 2014). A delay-payment clause is accessory: it falls with the contract, and damages then follow the general rules.
Asked for more, in our client's own appeal.It sought a higher refund, on a later statement of account filed as a new document, and damages raised to the full sum claimed, for years without the home or the money and for lost purchasing power (Court of Cassation rulings No. 255 and No. 277 of 2017). This appeal did not succeed.
What the court held
The appeal circuit joined the two appeals and rejected both, so the first-instance judgment stood.
On force majeure, the court followed Court of Cassation ruling No. 335 of 2021: the pandemic does not affect all contracts alike, and its real effect on each contract must be shown. The developer knew the circumstances when the contract was signed, and no causal link was shown between the pandemic and the delay. Even with the extension, the last delivery date had passed.
On waiver, the delay-payment clause did not take away the buyer's right to end the contract for non-performance (Civil Code Art. 183(1)), which remains as long as the buyer has not accepted the delay. On termination the parties return to their prior position, so the developer must refund what it received (Art. 185). The clause fell with the contract, the argument that no harm was proved failed, and the damages stood.
On our client's appeal, the court held that the statement of account filed at first instance confirmed the sum awarded and that nothing proved later payments, and it found the damages sufficient. Each side bore its own appeal costs.
Why this result matters
A pandemic that had already begun when a contract was signed is not, by itself, an excuse for late delivery: its effect must be shown on that contract. A delay-payment clause did not take away the buyer's right to end the contract, and the judgment ordering the refund stood on appeal.
If you are in a similar position
- If a developer pleads COVID-19, set the contract date against the pandemic timeline. A contract signed after the pandemic began cannot treat it as unforeseen.
- Put the latest statement of account and proof of every instalment before the first-instance court. On appeal, the court held the buyer to the earlier statement.
- Back a damages claim with a schedule (rent paid meanwhile, price rises, loss of use), not a round figure.
Who handled it
Faysel Al-Mohannadilawyer admitted before the Court of Cassation
An off-plan unit not delivered, or a developer appealing a judgment in your favour? Bring the reservation contract, the developer's latest statement of account, proof of every payment and any judgment.