Court of Cassation’s Review on the Element of Fault in Torts
Dr. Saleh AlOtaibi
Associate Professor of civil law at KILAW
Abstract:
Fault has been the center of civil liability. Whenever fault is proven, tortfeasor is obliged to indemnify the harmed person; and vice versa, no liability occurs without a fault even if an act causes harm to a third party so long as the act does not amount to a fault. This provision is provided in article 227 of the Kuwaiti civil law, which sets forth the scope of tortious liability that is broader than that of contractual liability. Liability in torts does not require the existence of a contract. Any act that is described as a wrongdoing may cause tort liability.
The Kuwaiti civil law does not define fault, leaving it, as stipulated by the explanatory note, to the legal scholarship to make its scope flexible and to be able to cope with social developments and changes. Thus, the Kuwaiti legislature has attributed the judiciary, especially the court of cassation as a court of law, with the task of determining whether a certain behavior amounts to a fault or not. Such a task was not an easy one because the law only includes the material element of fault which is the infringement, but does not include the moral element which is the perception and discretion, distinguishing between legal fault and ethical one.
Determining the occurrence of a fault differs in cases when there is a criminal verdict convicting the tortfeasor. In such a case the fault exists, while innocence does not necessarily mean the nonexistence of fault. This depends on the reason of the innocence decision. It is also dependent on whether the act violates a certain legal provision and hence is considered a tort, or it does not, in which case the court will consider the regular person standard to determine if the act is a fault.