Tort under Libyan Civil Law: Understanding the “Fault” Factor
In civil law jurisdictions such as Libya, a tort is an act or omission that causes harm to others for which courts impose liability. The compensation is based on injury to other’s 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 is contained within Section III (“Unlawful Acts”), Part 1 (“Liability Arising from Personal Acts”) of the Libyan Civil Code. Creates a general provision of liability for civil wrongs as defined in that section. Article 166, which is entitled “General Rules,” provides as follows:
“Every fault which causes injury to another imposes an obligation to make reparation upon the person by whom it is committed.”
A negligence claim will succeed if the claimant can prove: a fault was committed by the defendant, damage or harm, and causation between the act of the defendant and the harm suffered.
In this article, we shall deal with the concept of “fault.”
Tort under Libyan Civil Law: “Fault” According to Article 166
Article 166 of the Civil Code requires that the defendant must commit a “fault.” The Libyan Civil Code does not define the word “fault.” However, it is understood that a person is at fault. When he commits an act or omission that is a deviation from the behavior of a reasonable or “ordinary” person in the same circumstances.
Dr El-Sanhouri defines the “ordinary person” as the one who represents the “majority of people” in his intelligence and care. Similarities may be drawn between the concept of the “ordinary person” test and the English common law principle of the “standard of care” and the “reasonable person. ” Under the “ordinary person” test, the burden of proof falls on the claimant to prove that the defendant failed to act as an “ordinary person” would under the circumstances surrounding the facts.
A “fault” could thus result from an act in contravention of Libyan law, given that a reasonable person is expected to act under the law. Or 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.
The judge will examine the facts at hand and determine whether the person acted as an “ordinary person.”
In determining an ordinary person’s appropriate standard of behaviour, a Libyan court will consider whether the damage was a natural result of the defendant’s act. It is noted that although the concept of foreseeable harm is not applied explicitly, this consideration may come into the above analysis. If the defendant’s fault and causation are established, the defendant shall be responsible for the damage.
A fault, namely a deviation in a normal person’s behaviour, may also occur when someone is exercising a right or a license in an abusive manner. There is a 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 the law.
The majority of cases concerning Article 166 relate to acts rather than omissions. However, the facts of every case should be examined carefully by the court. Failure to perform accordingly may constitute a fault if there is a duty to act in a certain way while facing 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.
Article 166 of the Libyan Civil Code
Article 166 of the Libyan Civil Code focuses (Tort under Libyan Civil Law) on the nature of the harmful act. The Libyan Civil Code is not concerned with the degree of likelihood of the harmful event occurring. In analysing the nature of the act, two principles apply under Libyan law, both in the Libyan Civil Code and the legal commentaries of El-Sanhouri; the principle of (1) the deviation from the behaviour of an “ordinary person” and (2) the age of legal discretion.
Dr Mohamed Karbal is licensed to practice law in Libya, New York, and Washington D.C. He served as an expert witness on Libyan law. Karbal & Co is a full-service international law firm that serves 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 it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ, and the law may have changed since publication. Readers considering legal action should consult with 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.