Civil Liability in the Light of the Egyptian Civil Code and the Civil Transactions Law

What civil liability is

Liability in its general sense is accountability, or bearing the consequence. By civil liability is meant, broadly, liability to compensate harm arising from the breach of an obligation established in the patrimony of the person liable. Its counterpart in Islamic law is the term daman, or suretyship: gain accompanies liability. The precise sense of liability in the civil field is accountability for faults harming another, by binding the party at fault to render compensation to the party harmed, in the manner and to the measure the law fixes. This is the same sense as the daman Islamic law brought to preserve people's rights, to keep harm from them, to repel aggression against them, and to make good what has been diminished of their property. The Prophet, peace be upon him, said: no harm and no reciprocating harm.

Civil liability may be defined, by reference to the interest it protects, as liability directed to protecting a private interest, the party harmed having wide latitude to relinquish his right to compensation wholly or in part — no distinction being drawn between harm arising from the breach of a contractual obligation and harm arising from a tortious one. In its foundation, civil liability means binding the person liable to render compensation to the party harmed in the cases where the conditions of that liability are met. Civil liability is among the principal foundations of civil law, whose compass must be set out if the liability of each person in disputes between individuals is to be established, and if what follows from that liability is to be made plain. The civil codes recognise civil liability in both its kinds, contractual and tortious. It is important first, however, to understand the foundation and the source of civil liability.

The foundation of civil liability

The general principle of civil liability and its foundation is the breach of a pre-existing obligation. The Commercial Court in Jeddah held, in case 4430209391 of 1443, that liability as a general principle is a breach of a legal obligation and a legal duty, arising only from the sources of obligation: (a) under contractual liability, by proving its elements — fault, harm and the causal link; (b) or under the harmful act, that is tortious liability, by proving its elements — the act of harm, the harm, and the causal link; (c) or under the law. For although in principle every obligation has the law as its source, the law having caused obligations to arise from direct sources, fixed their elements and set out their provisions — whether that direct source be contract, unilateral will, the harmful act or the beneficial act — the law also selects, alongside those direct sources, particular cases, and attaches to each an obligation resting upon a legal act or a material act. In resting upon it, the law does so not as a general source creating the obligation in that case and in others, but as a particular fact creating the obligation in that case alone, so that the legal text is the direct source of that obligation, fixing its compass, marking its extent and attaching its provisions, among them the obligation and the liability that follows from it. Such liability is of a particular kind, being neither contractual nor tortious. Two things follow: first, that the law is the direct source of certain obligations, whether positive or negative, so that they can be fixed only by the text, which is their sole source; and second, that the text alone fixes the elements of that legal obligation, sets out its provisions and what follows from its breach by way of exception — and an exception is neither extended nor reasoned from by analogy, there being no independent reasoning where a text governs.

The kinds of civil liability

One: contractual liability

This is the sanction attaching to the breach of contractual obligations. In principle obligations are to be performed when they fall due, as Article 161 of the Civil Transactions Law provides, and are enforced against the debtor by compulsion, as Article 199 of the Egyptian Civil Code provides. Where a debtor refuses to perform the obligation contained in the contract he has signed, he is compelled to perform it specifically where that is possible; and where specific performance is impossible, performance by way of compensation is permitted. Liability then attaches to him as having arisen from his breach of a contractual obligation, and is known as contractual liability. In it the debtor answers only for the harm that was foreseeable at the time of contracting, and formal notice is required unless the contract dispenses with it.

The contract is the law of the parties. Any breach of that contractual bond calls for liability to be placed on the party whose fault caused it. This liability falls on every contracting party who has not performed what he undertook in the contract — as with a contractor's liability for delay beyond the agreed date in erecting a building he undertook to build.

Two: tortious liability

This rests on the breach of a legal obligation, namely the obligation not to harm others. Article 120 of the Civil Transactions Law provides that "every fault causing harm to another binds the person who committed it to make compensation". This liability falls on whoever by his fault has caused harm to another, and its purpose is to bind the party at fault to compensate the harm arising from his fault — as with the liability of a driver who drives without care and injures a person or damages property.

Article 118 of the Civil Transactions Law fixes the compass of tortious liability as liability arising from the harmful act of a natural or a juridical person.

The general elements of civil liability in both its kinds under the civil codes

The Egyptian Court of Cassation has held in its judgments that it is settled — according to the rulings of this Court — that tortious liability arises only where its three elements are met: a fault established on the part of the person liable, harm suffered by the party harmed, and a causal link joining the two. The settled general rule, in the courts and in doctrine, is that the elements of liability in both its kinds are fault, harm and cause. These are not the elements of tortious liability to the exclusion of contractual liability. Article 163 of the Egyptian Civil Code provides that "every fault causing harm to another binds the person who committed it to make compensation", as does Article 120 of the Civil Transactions Law. These elements must therefore be set out in some detail.

The element of fault

Fault in tortious liability is a person's breach of a legal obligation with awareness of that breach. It is thus a breach of a legal obligation. Tortious fault depends on two elements: the first material or objective, being the breach of a legal duty; the second psychological or moral, being discernment and awareness.

Fault in contractual liability, by contrast, is a breach of a contractual obligation whose source is the contractual bond between the parties to it — whether deliberate, negligent, or from some other cause; and whether the non-performance is total or partial, defective or delayed. Recourse is had in this to the terms of the contract and to the legal texts bearing upon it, as supplementing the intention of the parties.

The Supreme Administrative Court in the Kingdom of Saudi Arabia has held in this respect that fault in contractual liability consists in the breach of the contract's terms, whether contractual or statutory. The obligation in contractual liability may be an obligation of result or an obligation of means; whereas the legal obligation breached in tortious liability is always one of means. What that care requires is that a person adopt conduct embodying the ordinary and familiar measure of vigilance and foresight, so as not to harm others. Where he departs from that conduct while aware of the departure, this is a fault on his part requiring his tortious liability.

The element of harm

Harm is the second element of civil liability: it does not suffice that a fault occur, for it must cause harm. By harm is meant an impairment of an interest of the party harmed; it is made out by an impairment of an existing position or by deprivation of an advantage held, so that the party harmed is left worse off than he was before the fault occurred. It is not required that the infringement bear upon a right of his protected by law: it is enough that it impair a legitimate interest. Harm must be certain, and is so where its cause is realised even though its effects extend into the future, as with the suffering of a permanent injury: the injury is certain even though the quantification of the material loss following from it is deferred. Contingent harm does not suffice, whatever its degree; liability arises only once the harm has in fact been realised.

The element of cause

This is the direct relation between the fault the person liable has committed and the harm the party harmed has suffered. The fault must be the cause of the harm occurring, such that the harm could not be conceived to have occurred without it. The causal link is the third element of liability and is distinct from the element of fault. Causation may exist without fault, as where a person causes harm by an act not amounting to fault and his liability is established on the footing of bearing the risk. Fault may equally exist without causation.

What the trial court must address first

The trial court must first inquire into the nature of the rules of liability applicable, so as to determine whether the liability is tortious or contractual. This requires it to examine the rules of liability applicable to the facts before it and to establish their elements. The Egyptian Court of Cassation has held that where a trial court wrongly applies the provisions of tortious liability rather than the rules of liability applicable, it breaches the law; for it must — according to the rulings of this Court — inquire of its own motion into the correct legal rule applicable to the relationship between the two parties to the compensation, and apply it to the facts before it, since determining the nature of the liability giving give rise to the harmed party's right to claim compensation is treated as being before it. Cassation, 2 January 1991, appeal 2091, year 57.