The Extent to Which the Fault Is Required as a Basic Element of the Tortious Liability in the Iraqi Civil Law: An Analytical Comparative Study

Abstract

The Author has done his utmost to draw distinctions between the Iraqi civil law No. (40) of 1951 from one hand and the Islamic jurisprudence, the English common law and some other Arab comparative laws. Although the Iraqi civil law is affected by the Islamic jurisprudence, and borrows the term of guaranteeing the harmful act from the juristic maxims of this jurisprudence. But it adopts impliedly the concept of the fault in the first paragraph of the article (186), by stipulating the willfulness or encroachment of both the perpetrator and the abettor. Thus confusing between the system of the guarantee and that of the liability. Unlike the Islamic jurisprudence which adopts the idea of guaranteeing the harmful act, and distinguishes obviously between the guaranteeing of the perpetrator and that of the abettor. Or between the act done directly by perpetration and indirectly by causation, and does not recognize the idea of the fault. As far as the English common law is concerned, it adopts the fault-based liability as a general principle, the same is true for the Egyptian civil law No. 131 of 1948. Whereas both the Jordanian Civil Law No. 43 of 1976, and the Federal civil transactions law No. 5 of 1985 of the United Arab Emirates adopt the idea of guaranteeing the harm rather than the fault. The problem of the research lies in the confusion, embarrassment and perplexity in the situation of the Iraqi civil law concerning the basic element of the fault in the tortious liability. Therefore the author tries hard to solve confusion, remove both the embarrassment and perplexity by analyzing the true situation of the Iraqi civil law towards this basic element, and comparing it with the Islamic jurisprudence, which is considered as its original historical source, by which it is highly affected. As well as the English common law, considered as the leading legal system within the Anglo-American legal system, and different from the civil law system, led by the French civil code, by which the Iraqi civil law is indirectly affected, through being affected by the Egyptian civil law. The author suggests some relevant recommendations, the most important of which is thedistinction between the system of the liability and that of guaranteeing the harmful act, and adopt the former in the case of the damage done by perpetration, and the latter in the case of the damage done by causation.