A tort is generally defined as an act or omission of an act that causes harm to others and for which courts impose liability. The compensation is based on injury to others’ physical safety, property, economic interests, or reputation. Here, we discuss tort under Libyan Civil Law and understand its factors.
In civil law jurisdictions such as Libya, a tort is an act or omission that causes harm to others and for which courts impose liability. The compensation is based on injury to others’ physical safety, property, economic interests, or reputation. Here, we discuss Tort under Libyan Civil Law and understand its factors.
Article 166 of the Libyan Civil Code (Tort under Libyan Civil Law) focuses on the nature of the harmful act. It is found in Section III (“Unlawful Acts”), Part 1 (“Liability Arising from Personal Acts”) of the Libyan Civil Code. It establishes a general liability provision for civil wrongs as defined in that section.
The Libyan Civil Code is not concerned with the likelihood of the harmful event occurring. In analyzing the nature of the act, two principles apply under Libyan law, as reflected in both the Libyan Civil Code and the legal commentaries of Dr. Abd el-Razzak El-Sanhouri; these are (1) deviation from the behavior of an “ordinary person” and (2) the age of legal discretion.
Article 166, entitled “General Rules,” provides as follows:
“Every fault that causes injury to another imposes an obligation to make reparation on the person who commits it.”
A negligence claim will succeed if the claimant can prove: the defendant committed a fault, the claimant suffered damage or harm, and that there is causation between the defendant's act and the harm suffered.
In this article, we shall discuss the concept of “fault.”
Article 166 of the Civil Code requires that the defendant commit a “fault.” The Libyan Civil Code does not define the term “fault.” However, it is understood that a person is at fault when he commits an act or omission that deviates from the behavior of a reasonable or “ordinary” person under the same circumstances.
Dr. El-Sanhouri defines the “ordinary person” as the one who represents the “majority of people” in terms of intelligence and care. Similarities may be drawn between the concept of the “ordinary person” test and the English common law principles of the “standard of care” and the “reasonable person.” Under the “ordinary person” test, the burden of proof rests with the claimant to show that the defendant failed to act as an “ordinary person” would under the circumstances.
A “fault” could thus result from an act in contravention of Libyan law, given that a reasonable person is expected to act in accordance with the law. Or from an act that is not unlawful but nevertheless falls short of the standard expected of an ordinary individual. In accordance with the common person standard as set out by Dr. El-Sanhouri, intent to commit the harmful act or the harm itself is not required to hold someone liable under Article 166 of the Civil Code.
In determining an ordinary person’s appropriate standard of behavior, a Libyan court will consider whether the damage was a natural result of the defendant’s act. Although the concept of foreseeable harm is not explicitly applied, it may be considered in that analysis. If the defendant’s fault and causation are established, the defendant shall be responsible for the damage.
A fault, defined as a deviation from a normal person’s behavior, may also arise when someone exercises a right or a license in an abusive manner. There is general agreement among scholars and judges that someone is also at fault when s/he deprives a person of a right or a privilege protected by law. The “ordinary person” standard is central to Libyan law. The judge will examine the facts and determine whether the person acted as an “ordinary person.”
The majority of cases concerning Article 166 involve acts rather than omissions. However, the court should examine the facts of each case carefully. Failure to act may constitute fault if there is a duty to act in a particular way in a specific situation. A judge may then find that, by failing to act, a person failed to meet the standard of an ordinary person under the given circumstances.
Dr. Mohamed Karbal is licensed to practice law in Libya, New York, and Washington, D.C. He has served as an expert witness on Libyan law. Karbal & Co. is a full-service international law firm serving the needs of businesses and governments in Libya and Washington, D.C.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time of writing. It is not intended to provide legal advice or guarantee an outcome, as individual situations vary and the law may have changed since publication. Readers considering legal action should consult an experienced lawyer to understand current laws and how they may affect a case. For specific technical or legal advice on the information provided and related topics, don’t hesitate to contact the author.
