Ubi jus ibi remedium – the legal maxim meaning, "where there is a right, there must be a remedy", forms the basis of the principle of tortious liability. One among the most acclaimed definitions of "tort", as propounded by Sir John William Salmond, an eminent common law jurist is as follows: "A tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or a trust or other merely equitable obligation".
Liability under tort may spring up from the breach of a duty primarily fixed by law, and a breach of this duty is redressible by an action for unliquidated damages. The law of tort aims to deter persons from infringing the rights of others, and compensate those who have suffered loss at the hands of the tort-feasor.
In one sense, torts can be touted as the civil equivalent of crimes since each would require a certain standard to be observed, and a breach of the 'code' would lead to consequences. Tortious behavior may entitle a 'victim' to compensation or some other remedy, while criminal behavior would generally lead to punitive measures. The distinction between a tort and a crime is essentially one of degree. In tort, while the 'victim' is free to decide if a private remedy is to be pursued or not, a crime is regarded by the society as wrongdoing of an extreme nature requiring punishment.
It is starkly appreciable that the legislators of the UAE have foreseen the significance of the principle, years before the country's economy has taken a swift stride. Nevertheless, it is skeptical if the country folks including the legal fraternity and the business community are aware of the immense prospects offered by the principle. It is high time that we all become literate in this regard and put the principle in to effective practice.
In the UAE, the principle of tortious liability is mainly accommodated in Federal Law No. (05) of 1985 on the issuance of the Civil Transactions Law (the "Civil Code"), under Articles 124, and 282 through 298.
The Civil Code provides that personal obligations or rights shall arise out of dispositions, legal events and law, and the source of such obligations shall, inter alia, be contracts and acts causing harm (torts). Any harm done to another shall render the actor, though incapable of discretion, liable to make the harm good. The Civil Code mainly intends to safeguard personal security, property, reputation and economic interests of persons.
A person shall be liable under tort, if he commits an act or omission which results in loss or damage to another. In order to establish the liability of the tort-feasor, it may not be necessary to prove that the tort-feasor intended to cause loss to the claimant. It is sufficient if the claimant establishes that the tort-feasor violated a legal obligation to take reasonable care, whether intentionally or not.
The harm caused as a result of the tortious act is distinguished as either direct or consequential. If it is direct, it must unconditionally be made good, and if it is consequential there must be wrongful or deliberate element, and the act must have led to damage. The courts have laid down that in order to claim loss of profits and consequential losses, the claimant ought to prove the existence of a "malicious element" which should be a "stronger" element than negligence.
If more than one person is responsible for the tortious act, each of them shall be liable in proportion to his share in it, and the courts may make an order against the joint tort-feasors in equal shares or by way of joint or several liability.
The compensation for tortious liability shall be assessed based upon the extent of harm suffered by the claimant together with loss of profits, provided it is natural result of the harmful act. The right to have the damages made good shall also include moral damages which may mean an infringement of the liberty, dignity, honor, reputation, social/financial standing of the claimant.
If we attempt a comparison, it is pellucid that both the laws of contract and tort are designed to ensure a person's compliance of his duties and obligations, whether imposed by an agreement or law. The fundamental distinction lies in the quantum of proof required to establish the breach or the harm caused, and the restrictions in claiming damages.
It is pertinent to note that the concept of liability is not reckoned as a matter of public policy in the UAE, particularly from the viewpoint of a contractual relationship. Article 390 of the Civil Code inter alia permits the contracting parties to fix the amount of compensation in advance, by making a specific provision in the contract itself or in a subsequent agreement, subject to law. Consequently, it is possible for the parties to limit their liability inter se, in the event of a breach of the contract.
On the contrary, it would not be possible for the parties either to exempt or limit their liability in advance from tortious acts, as any agreement in that regard shall be null and void. There may be instances where a party to a contract may not be in a position to claim the actual damages suffered by it pursuant to a breach committed by the other party, due to stipulations on liquidated damages. Such instances of adhesion contracts are common in the region, and in like events, the principle of tortious liability may become handy. The claimant shall be at liberty to claim from the tort-feasor any amount that may be sufficient enough to cover the actual damages, together with loss of profits and/or moral damages.
Further, imagine a situation where B is bound by an exclusivity contract to purchase certain goods from A, and during the subsistence of the said contract B purchases the same goods from C. Under the law of contracts, albeit A may be able to sue B for breach of the contract, it may not have many options against C. However, the principle of tortious liability may bolster the cause of A, and A may be able to sue B and C together, claiming damages and loss of profits.
Therefore, if a claim in tort would be more beneficial to the claimant, he may choose to pursue a claim in tort (certainly, not all breaches of contract may tantamount to tort), though it is not clear as to whether a party could make concurrent claims both under contract and tort, or if he could present a claim under one head on rejection of the other by the court. However, despite the absence of pellucid judgments on this point, it could be presumed that an action brought under tort would certainly widen the possibilities for a claimant.
The principle of tortious liability may enable even a third party to sue for damages if he suffers losses pursuant to a contract executed between two other persons. This may not be possible under the law of contract for the absence of privity of contract.
However, if the tort-feasor proves that the loss arose out of extraneous reasons, such as the occurrence of a force majeure event, or act of the claimant himself, the tort-feasor shall not be bound to make good the loss, in the absence of a legal provision or agreement to the contrary.
A person who causes loss to another while defending himself, his family, his property or other individuals and their property, shall also not be liable to pay any damages, provided that the act committed and the loss caused was the result of an inevitable response to the situation and was not excessive under the circumstances.
Further, the court is empowered either to reduce the extent of damages payable or to reject any claim for damages, if it is of the opinion that the claimant has contributed to the tortious action.
On the element of limitation, it must be noted that no claim for compensation under tortious liability shall be heard by the UAE courts after the expiration of three years from the day on which the claimant became aware of the occurrence of the harm and the identity of the tort-feasor. However, if such claim arises out of a crime and the criminal proceedings are pending after the expiration of three years, the limitation shall run up to fifteen years from the date of occurrence of the tortious act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.