Civil Liability: Contractual and Tortious Liabilities
Our Associate, Fatima Alsayed explains civil liabilities along with the types of liabilities it gives rise to.
Fatima Alsayed – Associate ([email protected])
Legal liability is a legal responsibility under the law. If a person or entity (a company) does not uphold this responsibility, they may be held liable for the damages that might arise from it. The law segregates the liabilities into three types known as: civil, administrative and criminal liability. This article will focus on the overview of civil liability along with the types of liabilities it gives rise to.
Civil Liability and Criminal Liability
To understand civil liability, we must distinguish between civil and criminal liability. A person who suffers damage or injury from another person’s breach of obligation can seek financial remedies in a civil court. Such lawsuit is filed by a private person against another private person seeking compensation for the damage. Criminal liability, on the other hand, develops when bad acts are recognized as crimes under the Penal Code of Bahrain, and a punishment is demanded by the public prosecution based on them representing the society.
Since some situations can result in a civil penalty that may be enhanced by criminal charges, one act may carry both civil and criminal liability. However, it is important to note that in order for an individual to be civil and criminally liable, a criminal case must be filed before a criminal court prior to filing a civil case. This has been confirmed by the Bahraini Court of Cassation in Challenge No. 263 J.Y. 2011 wherein the Court held that:
“It is established that the civil court’s obligation is to stop the determination of a compensation claim filed before them based on Article 41 of the Criminal Code Procedure in the case of a criminal judgment being issued in connection with the case filed in accordance with Article 100 of the Evidence Law and that a criminal case must be brought to a criminal court either before filing a civil case or during its course”.
Contractual Liability
Prior to understanding contractual liability, it is critical to define the numerous terms that relate to it. Contractual liability requires the existence of a contract; a legally binding agreement that regulates the relationship between two or more parties and imposes an obligation on each party to execute. In the case of a party not executing such contractual obligation, a breach will arise and he/she may be ‘contractually liable’, hence liable to compensate for damages or losses suffered as envisaged by the Civil Code (Decree Law 19/2001). This is confirmed by the Bahraini Court of Cassation in Challenge No. 150 J.Y. 2006 wherein the Court held that:
“The basis for the appellant’s compensation is the responsibility of the respondent because he has exceeded in reclaiming his right with what the contract entitles him to, making it a contractual liability in which the debtor is not obligated to- pursuant to article 223 of the Civil Code- except to compensate for the damage that could have been foreseeable at the time of the contract, as long as he did not commit fraud or gross fault”.
A debtor may be exempted from liability if such non-performance or delay was due to a foreign cause beyond his control, as stipulated under article 216 of the Civil Code. Recent ruling of the Bahraini Court of Cassation in Challenge No. 238 J.Y. 2010 states that:
“the debtor’s non-execution of his contractual obligation or his delay is considered fault that holds him liable, unless he proves that the non-execution is due to a foreign reason beyond his control, such as a sudden accident, force majeure, or a mistake of a third party or of another contracting party[…].
Tortious Liability
In any society, conflict of interests is bound to lead to the infliction of losses and the obligation to compensate. Tortious liability arises out of a wrongful act or breach of duty fixed by the law. Such act may occur as a result of intention, neglect, failure to act on a duty, or a violation of the law. In many cases, the damages or injury suffered by the party is not material or physical in nature and the defendant may be ordered to pay moral damages for the harm he caused. However, this may not be the case in some matters, as a defendant may be charged with criminal offenses which may lead to time in prison.
Tortious liability has a broader scope than contractual liability when it comes to compensation, as it is based on the foreseeable and unforeseeable harm. Contrarily, contractual liability’s compensation is limited to the elements of damage that could have been foreseeable at the time of concluding the contract. This is confirmed under the Bahraini Court of Cassation in Challenge No. 1796 J.Y. 2019 wherein the Court held that:
“[…] The scope of compensation in the field of tortious liability is more extensive than contractual liability, as the first extends to include compensation for foreseeable and unforeseeable harm, while the scope of contractual liability is limited to the elements of damage that could have been foreseen at the time of concluding the contract, as long as the debtor does not commit fraud or gross fault”.
Fault, Damage, and Causal Link
There are three elements that must be proven to establish a liability; fault, loss, and causal link, regardless of whether it is contractual or tortious. A fault may arise either from the commission of an act or omission to perform an act. It is a deviation from normal behavior, wherein an individual deliberately harms another individual or causes injury out of neglect. On the other hand, damage may occur when a breach exists and harm is done to the interest of an individual, either financially or morally. Lastly, only with a clear causal link between the fault and damage does a liability occur. So long as these three elements are met and recognized by the court, an individual has the right to seek compensation for all types of damage, including material, financial, bodily, and moral injuries.
This was confirmed under the Bahraini Court of Cassation in Challenge No. 519/533 J.Y. 2011 wherein the Court held that “It is decided that establishing fault, proving the damage and causal relationship between them is a discretion of the competent court, as long as this deduction is justified and derived from the facts of the case”.
Concluding Remarks
The importance of distinguishing between liabilities assists individuals in understanding the legal remedies available to him/her in the case of harm conducted by others. Regardless of the type of liability, each individual has the right to compensation for the harm they have suffered, thus it is necessary to regard a legal liability as a form of insurance for their protection.
For more information, please contact us on [email protected].