Tort and evidence law.pdf

Tort and evidence law Chapter 1 Differences between Tortious Liability and criminal liability 5 main differences → Crime Tort Damage against Society Damage against person sanction i...

Tort and evidence law Chapter 1 Differences between Tortious Liability and criminal liability 5 main differences → Crime Tort Damage against Society Damage against person sanction is punishment sanction is compensation. criminal liability is the public prosecutor, civil liability it is the injured person (civil thereby representing the state/government party) who seeks the application of sanction possible to the victim in the civil liability’s not possible mostly in criminal liability’s scenario to reconcile with the tortfeasor, scenario, since here it is the society's right. since it is individual's private right it In criminal liability, as per UAE law (Article In tortious liability, the rules are broader. 12), an action is only considered a crime if it Any wrongful act that causes harm to is specifically mentioned in the law. If the law someone can result in liability, even if the doesn't explicitly define an action as a crime, specific act (like a road accident or medical it is not punishable. This means criminal acts malpractice) isn't listed in detail. It focuses must be clearly listed in legal articles. more on whether damage occurred rather than having a predefined list of wrong actions. What if a single act constitutes both a Crime and a Tort? - In most cases of tortious liability, the wrongful act is due to negligence rather than being intentional. However, a single act can sometimes be both a crime and a tort, meaning it can lead to both criminal and civil liability. E.g.; Murder, it is an illegal act that causes damage to both the society and the individual, and subsequently it is sanctioned by both criminal punishment and compensation. When an event leads to both civil and criminal liability, the criminal case takes priority. This leads to four key consequences: 1. Extended Time Limit: In Emirati law, the time limit for criminal cases is longer than for civil cases (20 years for felonies, 5 years for misdemeanors, and 1 year  for infractions). As a result, the time limit for civil liability is extended to match the longer criminal liability period. 2. Criminal Court Handles Both: The criminal court can handle both criminal and civil cases together. If someone drops the civil case from the criminal court, they can still file it later in a civil court. 3. Civil Case on Hold: According to Article 29 of UAE Criminal Law, if a lawsuit starts in civil court but is later taken up by the criminal court, the civil court must pause its proceedings until the criminal court makes a final decision. 4. Criminal Verdict Binding: If the criminal court declares someone innocent of a crime, they cannot be sued later in civil court for compensation related to that same act. The civil court must respect and follow the criminal court's verdict and its consequences. Sources of obligation: Tort and contract According to Article 124 of the UAE Civil Transaction Law, personal obligations or rights arise from legal actions and the law. The sources of these obligations are: 1. Contract – Agreements made between parties. 2. Unilateral Act – An action taken by one party that creates an obligation. 3. Tort – A wrongful act that causes harm to someone. 4. Beneficial Act – Acts that benefit another person, even without a contract. 5. The Law – Obligations imposed directly by legal statutes In many legislations, especially Europeans, these 5 sources of obligations are classified in two distinct categories: - Legal acts: actions taken by individuals or entities with the intention of creating or modifying obligations. Characteristics: deliberate and conscious action aiming at achieving specific legal effect. We can find: 1. The contract → based on agreement 2. The unilateral → based on one will - Legal facts: behavior or events not intended to produce specific effect (death). Characteristics: have legal implications but do not require intent or deliberate actions. We can find: 1. Tort 2. Beneficial act 3. Obligation which arise from the sole authority of legislation Difference between contractual liability and tortious liability 1. Contractual liability arises when there is a contract: a legally binding agreement between two or more parties that sets out their obligations. If one party fails to fulfill their contractual obligations, this results in a breach of contract. Under **Article 272 of the UAE Civil Transaction Code**, the party in breach may be held contractually liable and required to compensate for any damages or losses caused. 2. Tortious liability occurs when someone breaches a legal duty that is not based on an agreement. This duty is to avoid causing harm to others or inflicting damages on third parties, or more simply to not harm others. 3. In matter of burden of proof: In contractual liability, according to Article 273 of the Civil Transaction Code (CTC), the debtor must prove that their failure to fulfill the obligation was due to a reason beyond their control, such as force majeure or a mistake made by a third party or another contracting party. This burden of proof is generally easier compared to tort cases. - In tortious liability, as per **Article 282 of the CTC**, it is the responsibility of the creditor (the injured party) to prove that the debtor (the tortfeasor) committed the wrongful act. 4. In contractual liability, a contracting party cannot be held liable unless they have full legal capacity, which is typically 21 years old in the UAE. - In contrast, under tortious liability, according to **Article 282 of the Civil Transaction Code (CTC)**, the tortfeasor (the person who commits the tort) can still be held liable even if they are under the age of discernment (younger than 7 years old). 5. Formal notice: In contractual liability, the creditor must notify the debtor through a formal notice before seeking compensation from the court, as stated in **Article 272 of the Civil Transaction Code (CTC)**. - In tortious liability, the injured party can go directly to court to sue the tortfeasor for compensation without needing to send any formal notice first. 6. The nature of damage compensable: tortious liability has a wider scope compared to contractual liability. Under tortious liability, both foreseeable and unforeseeable damages can be compensated. - Contractual liability: compensation is limited to damages that were foreseeable at the time the contract was made. 7. The statutory limitation Period: An action for damages resulting from tortious liability must be filed within three years from the date the victim became aware of the injury and the identity of the responsible party, or within 15 years from the date the harmful act occurred, as stated in **Article 298 of the Civil Transaction Code (CTC) - Contractual liability, the limitation period for seeking damages is three years from the date the contract was concluded, according to **Article 417 of the CTC**. CHAPTER TWO: Types of Tort (Types of Tortious Liability) When tortious liability arises under uae civil law? to Article 282,313, 314, 315, 316 (Civil Transaction Code) the Emirati law strictly recognized 5 types of torts (harmful acts) arising different kinds of tortious liability: 1. Liability for personal act 2. Liability for the acts of others (vicarious liability) 3. Liability for animals 4. Liability for collapses of buildings 5. Liability for dangerous things VERY IMPORTANT PRELIMINARY REMARKS ! The tort regime of the UAE has been influenced by two main bodies of rules: 1. The French civil law 2. has roots also in Islamic legal tradition. in Islamic jurisprudence, a tripartite distinction is made in matters of liability (‫)ﺿﻣﺎن‬: it differentiates between “contract-based liability" (‫)ﺿﻣﺎن اﻟﻌﻘد‬, “delivery-based liability” (‫ )ﺿﻣﺎن اﻟﯾد‬and “damage-based liability” (‫)ﺿﻣﺎن اﻻﺗﻼف‬. Tort liability is “damage-based liability," It’s applied when a person commits an act that causes harm to another when no contract exists between them. In Islamic jurisprudence, tort liability is based on the idea of committing an unlawful or harmful act, called an "illicit act." This is understood objectively, meaning that the focus is on the act itself, not on whether the person intended harm or was at fault. → Even if the (tortfeasor) is not capable of understanding the consequences of their actions — Ex:, if they are mentally incapacitated or a minor — they are still held liable for the damage caused. The key point is that responsibility comes from the harmful act, regardless of the person's mental state or intentions. In Islamic law, people are only responsible for their own actions, not for the actions of others. Also, a person isn’t automatically responsible for damage caused by things they own unless they directly caused the harm. Liability is based on what a person does, not on what others or their belongings do. the 1804 French Civil Code bases civil liability on "fault." This means that a person is only required to compensate for damage if they failed to take proper precautions and their negligence caused harm to someone else. Additionally, the French Civil Code includes general rules that hold people liable for the actions of others and for harm caused by objects or things they own. The UAE tort system aims to balance traditional Islamic law and modern French law by adopting: Islamic law's view on personal liability French law's influence It focuses on the concept of an "illicit act" It incorporates the French approach by (‫)اﻟﺿرر اﻟﻣﺑﺎﺷر‬, meaning harm caused directly introducing a **general principle of liability for by someone's actions, without considering the actions of others** (Article 313) and  whether there was "fault" or if the person **general liability for harm caused by understood the consequences of their dangerous objects** (Article 316). actions. This approach merges aspects of both systems. The liability for personal act - The notion of tort in uae civil law The general principles of liability for personal acts are established in **Article 282 of the UAE Civil Transaction Code (CTC)**, which states: “The author of any tort, even if not discerning, shall be bound to repair the prejudice." For a harmful act (tort) to be constituted, three essential elements must be present: 1. A Tort (Illicit Act): This refers to any unlawful act, without regard to the tortfeasor's fault or intent. Even if the person committing the tort (such as a minor or mentally incapacitated individual) lacks the ability to understand the consequences of their actions, they can still be held personally liable. 2. Damage (Prejudice): There must be actual harm or injury suffered by the victim. 3. Causation (Causal Link): A direct link must exist between the tort (illicit act) and the damage caused. Differentiate “ Tort ” from other similar concepts: Tort & Harm (Damage): 1. Tort: In civil liability, a tort is the triggering act—either an action or inaction—that leads to damage. It is the wrongful act or omission that causes harm to another party. The tort is the cause or generator of the harm. 2. Harm (Damage): Harm refers to the consequence or the result of the tort. It is the injury, loss, or suffering that the victim experiences as a result of the wrongful act. In other words, while the tort is the cause, the harm is the effect. Example 1:If a car of party (A) collided with the car of party (B) due to excessive speed from the latter, which caused serious injuries to the driver and his family, and this accident required hospitalization and payment of medical care expenses. In this case Where is the Tort? And where is the damage? - Tort: The act (incident) of the collision between the two cars caused by excessive speed. - Damage: It is the material losses in the car and the pain and injuries suffered by party B, which constitute physical/moral/financial damage. Example 2: The doctor performed surgery on his patient, but left a medical instrument inside his body, which caused complications and led to his death. What is the Tort here? What constitutes damage ?  - Tort: In the medical act of the doctor in which he violated the rules of his profession due to his negligence and lack of caution. - As for the Damage here: it is bodily harms suffered by the patient as a result of the medical instrument being left inside his body and which caused his death; as well as the pain and suffering caused to his family. May any harmful act be considered as a Tort? - A tort is not simply defined as any harm caused to another person; it must be inflicted in an unlawful manner for it to qualify as a tort. This is referred to as the condition of “unacceptability” of the damage caused. There are instances where an act may result in harm but is legally justified, meaning it does not constitute a tort. For example: - In cases of legitimate defense, if a person causes injury to another while defending themselves, their honor, or their property (or the same for others), they are not held responsible for the harm caused. According to Article 288 of the UAE Civil Transaction Code (CTC), the damage in such situations is considered “acceptable” and “lawful,”thereby exempting the individual from liability. Tort and Fault In tort liability, the concept of fault is established in Article 1382 of the French Civil Code, which states that if one person's fault causes damage to another, that person is automatically liable for the damage. The three key elements of this liability are: 1. Fault 2. Damage 3. Causal link between the fault and the damage. This approach has been widely adopted in many Arab countries, beginning with the Egyptian Civil Code and extending to others like the Syrian, Bahraini, and Qatari Civil Codes. However, in contrast to these Arab laws, Emirati law focuses on “illicit acts” (Ālʾdrār) for personal liability, and it does not require the presence of fault for liability to arise. The Effects of Adopting the Element of “Tort” Instead of “Fault” In UAE tort liability, the three key pillars are tort (harmful act), damage, and the causal link between the two, without requiring any element of fault. This approach, derived from Islamic jurisprudence as reflected in Article 282 CTC, has led to several important effects: 1. Liability Regardless of Fault: Unlike other Arab legislations that link liability to a person's ability to understand the consequences of their actions, Emirati law bases liability solely on the existence of a harmful act. This means that individuals such as minors, the insane, and prodigals can still be held liable.  2. Focus on Compensation, Not Punishment: Emirati law prioritizes the main goal of civil liability, which is to repair damages and compensate victims. It does not aim to punish individuals for their faults. 3. Requirement of a Harmful Act: Liability is not determined by the presence of damage alone; there must also be a specific harmful act (i.e., an illegitimate conduct) by an identifiable person that causes the damage. Types of liability for personal act Article 283 (Civil Transaction Code): "Tort shall be committed by Perpetration or by Causation." According to this article, there are two types of personal acts that can lead to tortious liability: 1. Personal Acts Committed by Perpetration: This type refers to directly causing harm or damage through one’s actions, regardless of intent or negligence. In this scenario, the individual who inflicts the damage is referred to as the "Perpetrator." 2. Personal Acts Committed by Causation: This type involves causing harm or damage indirectly through one's actions, even if the individual did not directly perform the act that resulted in the harm. These distinctions help clarify how liability can arise in tort cases based on different types of actions. II. types of liability for personal acts Ex: Torts by Perpetration→ * If a person hits another vehicle with his car, damaging the vechile. * If someone lit a fire and threw it at Omar, burning him in his right arm. * If a person threw someone's mobile phone from the balcony. Smashing it into pieces. How is it known if the damage is caused by perpetration? (the common elements in all these harmful acts): In all these damages, there is a direct contact between the damaging tool (car, fire, throwing) and the damage inflicted on objects or persons (damaged car, arm, mobile destroyed), directly without any intermediary fact in between. 2- Personal acts committed by causation: In contrast, tort by causation (‫ )اﻟﺿرر ﺑﺎﻟﺗﺳﺑب‬refers to harm caused indirectly. - Causation refers to the indirect involvement in causing harm, where the act or omission of an individual leads to damage or injury without direct commitment. In this case, the person who inflicts damage is called “The Abettor.”. ِExample of Tort by Causation: If someone digs a pit on their property and fails to mark it, causing an injury to a passerby. → (abettor) the one who dug the pit, and the tort is caused by causation. Why are these torts caused by causation? What are the common elements between them? → Zaid lights a fire in front of his workshop and because of a sudden movement of the wind, the fire moves towards the neighbor's workshop causing damage to it. → Omar threw a slippery substance by the pavement of his house, which caused Omar to fall and break his leg. 1. Indirect Involvement: In causation, the individual (the abettor) does not directly commit the harmful act but contributes to the circumstances that lead to the damage. This is distinct from perpetration, where the individual directly inflicts harm. 2. Contribution to Harm: Causation involves an action or omission that contributes to the harm in an indirect way. It is not the immediate cause of the harm but an intermediate cause under which the harm occurred. III- Conditions of LIABILITY under Perpetration and Causation Article 283 (Civil Transaction Code): “If committed by perpetration, he is unconditionally bound to repair the prejudice and, if by causation, it is conditional upon transgression premeditation or if the act caused the prejudice.” 1. Conditions of liability under tort by perpetration: Under UAE law, tort by perpetration refers to direct harm caused by a person's actions, regardless of whether there was intent or negligence. Islamic jurisprudence, which strongly influences UAE law, adopts the concept of guaranteeing (‫ )ﺿﻣﺎن‬harm done by the perpetrator according to the rule (The perpetrator is always guaranteeing the harm, even though he is not acting willfully or committing any act of encroachment) (AlMubāshiru ḍāminun Wa in lam Yata'ammad). This concept aligns with the concept of strict liability in modern tort law since it ensures that if a person directly causes damage, they are liable to compensate the injured party, regardless of intent or fault. 2. Conditions of liability under tort by causation: In contrast, tort by causation under UAE law Article 283 of the UAE Civil Transaction Law and Islamic jurisprudence, liability is conditional upon proving the abettor’s willfulness or encroachment. Without these, the abettor may not be held responsible for the harm caused, according to the Islamic Rule. (The abettor will only be guaranteeing if acting willfully or committing any act of encroachment) (Al-Mutasabbibu Lā-yaḍmanu IllāBī -l-Ta'ammud). Consequently The liability of the abettor is conditional on 2 elements: Its WILLFULNESS (‫ )اﻟﺗﻌﻣد‬or its ENCROACHMENT (‫)اﻻﻋﺗداء‬ 1. Willfulness (‫ )اﻟﺗﻌﻣد‬: refers to the intentional or deliberate act that leads to harm through indirect means rather than directly committing the harmful act. Meaning that the abettor must have intended both the action and its harmful consequences. Ex: If someone intentionally leaves a dangerous object in a pathway, knowing that another person will likely trip over it and get hurt, → willfulness in tort by causation. The individual did not directly cause the injury (they did not physically push the person), but their intentional act of leaving the dangerous object led to the harm. 2. Encroachment: (‫ )اﻟﺗﻌدي‬Encroachment in tort by causation happens when someone indirectly causes harm through a failure to act within the limits of care or legal responsibility. For the person to be liable, their conduct must be deemed negligent or willful, leading to the harmful outcome. Ex: an individual fails to repair a fence that is part of their property, and this fence eventually collapses onto a neighbor's car, causing damage. Although the individual did not directly damage the car (perpetration), their failure to repair the fence (an act of encroachment by causation) resulted in the damage. If it is proven that the failure to repair was negligent, the person would be liable for the damage caused.