Prof. Amin Dawwas
Visiting Professor
Faculty of Law, and Public Administation
Birzeit University, Palestine

Abstract:

The legal basis for liability for unlawful (tortious) act is controversial. The first theory, the objective one, which was developed by Islamic jurisprudence, argues that the basis for this liability is the damage. The second theory, the personal one that prevails in the Latin legal system, says that this liability is based on fault. Fault necessarily consists of two components: deviation (infringement) and discretion or perception. In accordance with Article (227) of the Kuwaiti Civil Code, anyone who has done a wrongly act that caused harm to others is obliged to compensate him, whether the harm is direct (mubashir) or consequential (mutasabib), even though the actor is not a person of discretion. The prevailing view in Kuwait is that the (personal) liability for tortious act is based on fault, or rather on its wrong-doing (deviation or infringement) component.
The Kuwait Civil Code does not require discretion to hold the actor accountable for his tort. Accordingly, the research aims to discuss this prevailing view, which clearly ignores the fact that the existence of fault requires, in addition to infringement, discretion in the perpetrator of the act harmful to others. The research seeks to analyze the text of Article (227) of the Kuwaiti Civil Code, and other relevant texts (whether in civil law or in the previous law), comparing it with the texts of Mejella and Civil Law in some Arab states (Egypt and Jordan), all in order to determine the correct legal basis for tortious liability in Kuwait.

Keywords: Tortious liability; personal theory; objective theory; fault; damage; Islamic jurisprudence.

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