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Chapter 9: Liability For Damage

Two types of liability exist:

  1. Liability associated with contracts or commitments.

  2. Liability that results from harm that is caused.

The terms and conditions of contracts specify liabilities, in the sense that parties to the contract are entitled to include all manner of conditions and terms that are legally binding. Disputes that later arise are then judged in accordance with those terms and conditions.

As stated by the principle that 'Islam does not occasion harm' (see chapter 5), no person is permitted to cause damage or harm to another's person or property. The issues and criteria upon which compensation is based, discussed in this chapter, concern those liabilities that result from damage to persons, property or financial circumstances.

Fuqaha referred to the following guideline on this issue, 'Those who cause damage to another's property are responsible for any compensation levied.' The great scholar Shaykh Muhammad Hasan Najafi stated that, despite the principle being commonly accepted by jurists, there is no hadith to state this.1

In the early years of Islam, the primary application of this rule was understood to refer to the rights of the individual and the rights of the community, as is seen from the following:

The Basis Of This Principle

  1. Zurarah narrates that he asked Imam al-Sadiq (‘a) about a passer-by who had fallen into a well that had been dug by someone who did not own the land. Imam al-Sadiq (‘a) replied that the person who had dug the well was to be held liable for any compensation claimed by the passer-by.2

  2. Abu al-Saba al-Kinani narrates from Imam al-Sadiq (‘a) that 'Those who cause damage on "common land" or "public rights of way" are liable for any compensation that is claimed.'3

  3. When Sama’ah asked Imam al-Sadiq (‘a) about liability related to wells dug in one's own property, the Imam replied (‘a) that 'Those who dig wells on their own property have no liability; however, those who dig wells on "common land", or on the property of another, are liable for any compensation that is claimed.'4

  4. Al-Halabi narrates that he asked Imam al-Sadiq (‘a) about the liability of those who leave obstacles on a 'public right of way' that cause a 'mount' to stumble, throw off and thus injure the rider. The Imam (‘a) responded saying that 'Those who leave obstructions on "public rights of way" that result in damage to others are liable for any compensation that is claimed.'5

The content of the above ahadith is exceedingly clear. Regarding authenticity, the narration of the first and fourth ahadith are Sahih, the third is Muwathaq, while the second is not considered to be entirely reliable. However, in these instances, the chain of narrators is mostly authentic.

While the above outlines how issues of liability for damages came about, unremitting efforts to establish 'Principles of Jurisprudence' have resulted in concentrated examination of this subject by fuqaha.

Negligence

Liability for loss or damage to property left in the care of another is determined by the diligence with which that property has been safeguarded.

Those who accept the burden of caring for the property of others are obliged to uphold that trust. They are considered to have behaved negligently if they have not securely stored items of value. All organizations assess risk, be they schools that take pupils on educational trips, hospitals that care for patients, companies that advance loans, offer insurance or undertake other ventures. A standard aspect of any ‘risk assessment’ is examination of the detailed consideration that has been undertaken to ensure safety and avoid accusations of negligence.

Thus, every care has to be taken to ensure the safe working environment of those whom we contract to effect work in our homes. However, if a carpenter, plumber or other contractor is negligent, they themselves must bear the cost of their own negligence

Stories of litigation over negligence abound. A coffee shop in America was sued for not warning a customer that the cups in which they served coffee were hot. A life-long cigarette smoker who contracted lung cancer sued a tobacco company for not having warned him, when he started smoking over fifty years ago, that this disease could be contracted from their product. The courts ordered the company to pay him compensation to the value of 50 million dollars.

However, no liability is incurred in the absence of negligent behavior being proven, that is, when all possible pecautionary steps have been taken to protect the life and property of others.

Intention

An important aspect of liability is ‘intention’. In all legal systems the difference between murder and manslaughter rests upon the existence of intent or premeditation. Murder is defined as taking the life of another with intent; manslaughter, as taking the life of another without any intent so to do.

Examples:

  • Driving at speed without due care that results in the injury and/or death of another/others.

  • Shooting at a moving object while hunting, without having first clearly established that the object is not a fellow huntsman.

  • Building a camp fire without ensuring that it will not get out of control and endanger life or the natural environment.

In all these examples, despite the absence of any intention to cause such consequences, liability for compensation for the effects of those actions rest with the perpetrators.

In other words, it is not relevant if an act is committed intentionally or unintentionally. If a sleeping person's fitful movements result in another's property being damaged, they are nonetheless liable to compensate the owner for the damage to their property. Any who intentionally or unintentionally drop a banana skin upon which another slips and sustains injury are liable for all damage claims that follow.

Questions of intention only become relevant when fuqaha consider if a murder charge is to be altered to one of manslaughter.

Professional Liability

Although it may be easy to differentiate between the work of a surgeon with many years of experience and a trainee, both are liable for their own mistakes and errors of judgement. While it is not unknown for a healthy, rather than an ailing, kidney to be removed, it is the surgeon who removes it who has to be held liable.

The only way in which professionals can avoid liability is if they enter into pre-operative contracts that clearly state that they will NOT be held accountable for any misadventure.

In a clever approach to this subject, fuqaha differentiate between a doctor who prescribes medication for a patient, and a doctor who is directly involved with the patient taking that medication. The first is not liable for any consequences while the latter is.

A tailor who ruins a bolt of cloth is held liable for the damage caused and for any compensation that is claimed. If a cabinetmaker ruins timber, it is he who is liable for any damage caused and any compensation claimed.

The following ahadith support this viewpoint:

  1. Al-Kulayni reports in an authentic chain of narration from Imam al-Sadiq (‘a) that Imam Ali (‘a) had said, ‘Physicians and veterinary surgeons are liable for the compensation claimed as the result of their actions, unless they have previously entered into pre­ operative agreements that negate such liability’.6

  2. Shaykh Al-Tusi reports in an authentic chain of narration from Imam Ali (‘a) that he had held a person who circumcised a boy liable for compensation due for having removed the child's glans penis.7

  3. Al-Kulayni reports in an authentic chain of narration from Imam al-Baqir (‘a) that he had said, 'If a baby dies as the result of its wet nurse falling asleep with it in bed, the nurse is liable for any compensation claimed by its parents. If she had accepted to feed the child as a matter of pride, for example to be associated with a prominent or noble family, such compensation must be paid out of her own funds. If, however, her acceptance was the result of her being obliged to earn her living, the compensatory payment must be shared by her paternal male relatives - 'aqelah'.8

The consensus of all the schools of Islamic law is that 'damages' that result from acts committed with intent have to be paid from the perpetrator's own funds. However, if intent is not a factor, 'damages' incurred must be met from the joint funds of the perpetrator's ‘aqelah’, who have to fulfil their family obligations and share such burdens. In this way victims are not denied rightful compensation and those who cause unintentional harm are not overly burdened.

Indirect Responsibility

Fuqaha consider both direct and indirect responsibility. For example, a person who terrifies another, by bellowing so threateningly in their face that they suffer a heart attack and die, is held liable for their death. At the time of the Caliph Umar, a woman of 'ill repute' was ordered to attend court by the caliph's representatives. She was so terrified by the manner of the summons that she suffered a miscarriage.

While some of the caliph's colleagues argued that he could not possibly be held accountable for that happening, others expressed the view that the miscarriage was an indirect result of the intimidatory nature of the summons. When the Caliph Umar asked the opinion of Abu al-Hasan (‘a), his (‘a) view was that ijtihad clearly indicted Umar.9

Another example is when Talbah and Zubayr were being chased by Imam Ali’s (‘a) troops during the Battle of the Camel. A pregnant bystander was so distressed by her proximity to the action that she had a miscarriage. Imam Ali (‘a) ordered that she be compensated from the funds of the Bayt al-Mal.10

  • 1. Jawahir al-Kalam Vol. 31, p. 91.
  • 2. Wasa'il al-Shi’ah, Vol. 29, p. 241.
  • 3. Wasa'il al-Shi’ah, Vol. 29, p. 241.
  • 4. Wasa'il al-Shi’ah, Vol. 29, p. 242.
  • 5. Wasa'il al-Shi’ah, Vol. 29, p. 243.
  • 6. Wasa'il al-Shi’ah, Vol. 29, p. 260.
  • 7. Wasa'il al-Shi’ah, Vol. 29, p. 261.
  • 8. Wasa'il al-Shi’ah, Vol. 29, p. 266.
  • 9. Wasa'il al-Shi’ah, Vol. 29, p. 268.
  • 10. Al-Kafi Vol. 7, p. 354.