Tort Policy in a Plural Context: Pathways Towards Objective Liability in UAE Tort Law

2019 ◽  
Vol 17 (1) ◽  
Author(s):  
Iyad Mohammad Jadalhaq
Keyword(s):  
United Arab Emirates ◽  
Islamic Law ◽  
Strict Liability ◽  
Tort Law ◽  
Civil Code ◽  
Tort Liability ◽  
Legal Tradition ◽  
Critical Dialogue ◽  
Point Of Departure ◽  
Careful Assessment

Abstract This article approaches tort policy contextually, as an argument around actually available alternatives within a historically-specific legal tradition, like that of the United Arab Emirates (UAE), which combines French civil law influence with roots in Islamic law. The article examines alternative tunings of the requirements of tort liability, in view of cases where a technically sophisticated investigation is required to ascertain what precautions the tortfeasor might have taken to prevent injury. For this purpose, it takes as its point of departure a careful assessment of the availability of the “extraneous cause” exception in UAE law, which allows defendants to avoid liability by demonstrating the occurrence of a causal factor outside their sphere of control. To understand when this exception ought to be available, the paper engages in critical dialogue with French doctrines on tort liability, distinguishing a fault-based “subjective approach” from an “objective approach” (strict liability). These doctrines also speak to Arab jurisdictions that have adopted a civil code (like the UAE), modelled after the French one. The article therefore proceeds to situate the tort regime in the UAE Civil Code with respect to those French doctrines. With respect to these, the UAE Civil Code takes an intermediate position drawn from Islamic law. However, additional provisions, e.g. on liability for nuclear installations or for machinery of which a person is in charge, demonstrate a timid reception of the objective approach. The article proposes a reform of UAE tort liability on the basis of the objective approach, which is robust even in complex cases, where an investigation around causation would risk being inconclusive. Finally, the paper considers the additional possibility of arguing for a voluntary assumption of liability on the part of the tortfeasor, as yet another way of orienting tort liability in the UAE towards an objective approach.

Law of Torts

Japanese Law ◽  
2021 ◽  
pp. 191-211
Author(s):  
Hiroshi Oda
Keyword(s):  
Burden Of Proof ◽  
Tort Law ◽  
Case Law ◽  
Civil Code ◽  
Tort Liability ◽  
The Law ◽  
General Provision

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.　

The Concept of Fault of the Tortfeasor in Estonian Tort Law: A Comparative Perspective

2013 ◽  
Vol 38 (2) ◽  
pp. 141-170 ◽  
Author(s):  
Janno Lahe
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Frame Of Reference ◽  
Comparative Perspective ◽  
Tort Liability ◽  
European Model ◽  
Common Frame Of Reference

The fault of the wrongdoer is one of the preconditions for general tort liability. Nowadays, fault-based liability and strict liability are two equally important forms of liability that are not polar opposites but, rather, complement one another. This article focuses on the meaning of the fault of a tortfeasor. It considers the notion of fault in two European model rules (the Draft Common Frame of Reference and the Principles of European Tort Law), in the Estonian Law of Obligations Act, and also makes reference to German, French, English, and Russian tort law. We shall begin with a comparative discussion of the questions of general liability based on fault, fault capacity, various forms of fault, the burden of proving fault, and the importance of differentiating those forms of fault. Thereafter, we will treat the issues of fault in the context of liability for torts committed by another person and, also, borderline issues between fault-based liability and strict liability. This analysis seeks to offer the reader a basis for determining whether the regulations of Estonian tort law are justified or whether amendments should be considered within such a comparative-law framework.

scholarly journals Mauritian Tort Law

2020 ◽  
pp. 184-203
Author(s):  
Goran Georgijević
Keyword(s):  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Causal Link ◽  
Civil Code ◽  
Tort Liability ◽  
French Case ◽  
Harmful Event

According to the general tort law of Mauritius (articles 1382 through 1384 of the Mauritian Civil Code), three conditions must be met before tort liability may be implemented, namely the existence of harm, the existence of a causal link, and the existence of a harmful event. This paper contains an analysis of the fundamentals of the tort law of Mauritius, which is based on Mauritian case law and French case law and French doctrine, which are considered a persuasive authority in Mauritian Civil Law.

Reading UAE Contract Law through the Lens of Islamic Jurisprudence: A Case Study on the ‘Extraneous Cause’ Exception in the UAE Civil Code

Global Jurist ◽  
2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Iyad Mohammad Jadalhaq ◽  
Mohammed El Hadi El Maknouzi
Keyword(s):  
United Arab Emirates ◽  
Islamic Law ◽  
Civil Code ◽  
Mixed System ◽  
Legal Responses ◽  
The Face ◽  
Architectural Principles ◽  
The One

Abstract This article reveals the different formative layers at work in a mixed system of law, such as that of private law in the United Arab Emirates (uae), by focusing on the lack of coherence between competing ‘architectural principles’. This experience of friction is regularly encountered by a skilled interpreter of the law, in the course of his/her activity of ensuring predictable and appropriate legal responses to practical problems. Specifically, this piece tracks the interpretive difficulties surfacing in cases of supervening impossibility of performance for loss or damage to a necessary item, when that loss or damage originates in a causal factor outside of the defendant’s sphere of control (‘extraneous cause’). In such cases, the contract is terminated and the legal question shifts to one of awarding compensation for the loss or damage suffered by the item. In the face of this question, two competing criteria for assigning liability come into play. On the one hand, the civil law distinction between unilateral and bilateral contracts, meaning contracts giving rise to obligations upon only one or both parties to the contract. On the other hand, the categories of trust-based, liability-based and mixed possession in Islamic law. Here, liability is assigned based on the material circumstances that define the manner of possession, as opposed to looking at the abstract scheme of performance and (if available) counter-performance. The categories drawn from Islamic law have the potential to unify a number of apparently scattered provisions in the uae Civil Code: for this reason, the article puts forth a recommendation to follow the approach of the Iraqi Civil Code and acknowledge those categories as an explicit organising principle for assigning liability in the presence of an extraneous cause. The paper makes an additional recommendation to treat the classification of possession (as trust-based or liability-based) as a matter of public policy, unavailable for the parties’ consensual deviation.

Tort law makes a quantum leap: a review of the civil liability regime for nuclear operators in UAE law

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Iyad Mohammad Jadalhaq ◽  
Enas Mohammad Alqodsi
Keyword(s):  
United Arab Emirates ◽  
Strict Liability ◽  
Civil Liability ◽  
Civil Code ◽  
Vienna Convention ◽  
Federal Law ◽  
Nuclear Operator ◽  
Content Type ◽  
Quantum Leap ◽  
Nuclear Damage

Purpose This study aims to illustrate the special liability regime applying to a nuclear operator for damage caused to individuals, property and natural resources, after the United Arab Emirates (UAE) implemented the Vienna Convention on Civil Liability for Nuclear Damage of 1963 through Federal Law No. 4 of 2012. This paper contrasts this special regime with the default regime of civil liability set out in the UAE Civil Code. The comparison helps clarify the legal nature of nuclear operator liability, the extent of protection it affords to the parties injured in a nuclear incident, the conditions under which it obtains, as well as the different damage headings it allows. Design/methodology/approach This paper is a desk-based legal research. Findings The main novelties enshrined in the special liability regime for nuclear facility operators are the adoption of an objective approach (strict liability) and the introduction of exceptions different from those contemplated in the default regime spelled out in the UAE Civil Code, thereby affording greater protection to victims of nuclear leakages. Originality/value This paper is a first in-depth commentary of UAE Federal Law No. 4 of 2012 Concerning Civil Liability for Nuclear Damage. Considering the UAE’s dualistic approach to the implementation of international obligations, and the present lack of reliable alternative avenues towards compensation beyond private operator liability, the overview provided here will be of value to regional and international practitioners – including from neighbouring countries to the UAE (Oman, Qatar, Bahrain) – that are not currently signatories to any convention on nuclear liability.

Genetically Modified Crops in the United States: Federal Regulation and State Tort Liability

2003 ◽  
Vol 5 (2) ◽  
pp. 86-108 ◽  
Author(s):  
Margaret Rosso Grossman
Keyword(s):  
United States ◽  
Genetically Modified ◽  
Strict Liability ◽  
Genetically Modified Crops ◽  
Tort Law ◽  
The United States ◽  
Tort Liability ◽  
Agricultural Crops ◽  
Federal Regulation ◽  
Regulatory Scheme

This article first discusses some benefits and risks of agricultural crops developed through biotechnology and then outlines the complex US regulatory scheme for genetically modified crops. The article then analyses nuisance, trespass, negligence, and strict liability as possible tort law remedies for damage caused by these crops.

Ragam Bangunan Perundang-Undangan Hukum Keluarga di Negera-Negara Muslim Modern: Kajian Tipologis

2018 ◽  
Vol 11 (1) ◽  
pp. 49-60
Author(s):  
Miftahul Huda
Keyword(s):  
Saudi Arabia ◽  
United Arab Emirates ◽  
Islamic Law ◽  
Family Law ◽  
Marriage Law ◽  
The Third ◽  
Muslim Countries ◽  
Fourth Type ◽  
Modern Family ◽  
The Difference

The reality of the difference in applying Islamic law in the context of marriage law legislation in modern Muslim countries is undeniable. Tunisia and Turkey, for example, have practiced Islamic law of liberal nuance. Unlike the case with Saudi Arabia and the United Arab Emirates that still use the application of Islamic law as it is in their fiqh books. In between these two currents many countries are trying to apply the law in their own countries by trying to bridge the urgent new needs and local wisdom. This is widely embraced by modern Muslim countries in general. This paper reviews typologically the heterogeneousness of family law legislation of modern Muslim countries while responding to modernization issues. Typical buildings seen from modern family law reforms can be classified into four types. The first type is progressive, pluralistic and extradoctrinal reform, such as in Turkey and Tunisia. The second type is adaptive, unified and intradoctrinal reform, as in Indonesia, Malaysia, Morocco, Algeria and Pakistan. The third type is adaptive, unified and intradoctrinal reform, represented by Iraq. While the fourth type is progressive, unifiied and extradoctrinal reform, which can be represented by Somalia and Algeria.

scholarly journals Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Tort Reform ◽  
Corrective Justice ◽  
Social Standing ◽  
Tort Liability ◽  
Criminal Punishment ◽  
Expressive Function ◽  
The Social ◽  
The Way

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

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