1

ISLAMIC CONCEPT OF LIABILITY

LIABILITY

ORIGIN

Word used in Sharia for liability is "mas'ooliya" " 1" or "daman" " 2".

Imam Ghazali defined liability ( ) as:

3

It s duty to return the same thing or its alternative which is equal in value or price.

EXPLANATION

The Islamic Sharia has two purposes:

1) First, to regulate the relationship between man and his Creator ( )

2) Second, to regulate the social relationships of people. ()

The former aims to regulate the social relationships between people as primarily

interested in human acts are to connect men with each other.

Accordingly, Islamic jurisprudence has two provisions for each human act:

Firstly, the earthly provision which relates the external effect of the act in the earthly

life. Secondly, the afterlife provision which relates to the essence and effect of the act

as we can say the intention behind that act and its subsequent effect in the afterlife. In

both cases effect may make a person liable for his act.

Therefore, liability in the Sharia has two considerations:

a judicial

a religious consideration.

For instance, it is stated that: "One of the partners of the house went away. So the

other partner wanted to get a man to reside therein or to rent it. This should not be

1 Majma-al-lugha-al-arabia-bil-qahira,Al-thraqafa-al-arabia,Juz 2, Al- -102). 2 Qamoos-faransi-arabi-anjleezi, Bab Dama, Juz 1. 3 Nazriya-tu-daman-aao-ahkam-al-masooliya-almadania-wal-jinaiya-fil-fiqh-al-islami, Wahba-tuz-zaheeli,p.g. 21.

2

property. However, he may dispose of the same, according to the judicature, because

a man is free to dispose of his possession as long as no one disputes the same.4

"We are restricted to the apparent acts and Allah will make man account for his

hidden intents".

It can also be noted that Muslim Jurists distinguished in their books between two

liabilities:

moral liability

legal liability

Legal liability is divided into civil ( ) and criminal liability ( ).5

ELEMENTS OF LIABILITY

Three elements are established by great Islamic jurist Wahaba-tu-zahili.

i. To override/ Exceed/ Trespass ( )

ii. To damage/ injure ( )

iii. Relation between and damage ( )6

KIND OF LIABILITIES

CIVIL AND CRIMINAL LIABILITY

With regards to the Sharia, it should be noted that Muslim jurists defined each type of

liability separately.

Daman covers liability in civil as well as criminal cases. Compensated injuries in

daman include injuries inflicted on the human being as well as property injuries7.

CRIMINAL LIABILITY

4 Ali-Bin-Khalid-Talabaltasi, Mueen-ul-hukkam-fi-ma- -bain-al-khasmain-min-al-

hukkam 5 Nazriya-tu-daman-aao-ahkam-al-masooliya-almadania-wal-jinaiya-fil-fiqh-al-islami, Wahba-tuz-zaheeli,p.g. 15-17 6 Nazriya-tu-daman-aao-ahkam-al-masooliya-almadania-wal-jinaiya-fil-fiqh-al-islami, Wahba-tuz-zaheeli,p.g. 24-31 7 Nazriya-tu-daman-aao-ahkam-al-masooliya-almadania-wal-jinaiya-fil-fiqh-al-islami, Wahba-

tuz-zaheeli,p.g. 15-17

3

Criminal liability occurs due to infringement of the right of ALLAH and society. As

the due to infringement in the right of ALLAH is stated as haa'd( ) and in the right

of society as syasah( ) (state punishment).When infringement of state occurs,

punishment for that violation is called tazir ( ).

As such, jurists allocated a special section for crimes divided into sections for

homicide, crimes less than homicide, blood money, adultery, theft and rape etc.

CIVIL LIABILITY

Civil liability occurs when right of individual is to be infringed and due to that

infringement the actor is liable and has to pay compensation.

8

On hand whatever you have taken till return it.

The basis of such division was the applicable practices taken from the Holy Quran,

the Sunnah and the acts of the Caliphs and Companions of Prophet Muhammad

(Peace Be Upon Him). Islamic jurists set down and arranged their ideas without

codification. They immediately dealt with human acts which create rights and

obligations and then discussed the branches of those acts.

CONTRACTUAL AND TORTIOUS LIABILITY

CONTRACTUAL LIABILITY

In general civil liability is an obligation to indemnify for the damage caused when the

debtor breaches his obligation. If the breach is of an obligation arising from a

contract, then the liability is contractual.

With regards to contractual liability, it should be noted that liability in Islamic

jurisprudence is not extinguished on replacing what is lost by producing something

similar to what was contracted for. This is because the purpose of the contract is to

obtain profit and benefit; therefore, the liability should be proportional to the

agreement between the contractors and the liability means to make good the proposed

or expected profit.

8 Sunnan-al-Tirmizi,Bab- An-al-aariya-muvada,Hadith no 1266

4

TORTIOUS LIABILITY

If the breach is related to the public duty imposed by law on everyone not to cause

damage to others, then the liability is tortious.

With regards to tortious liability, liability gives rise to an obligation to provide a

similar thing, the intention being to make good the damage. In a tortious liability

situation the creditor and the debtor are third parties and strangers prior to the

occurrence of the damage.

as such. However, Muslim jurists were aware of the distinction between these kinds

of liabilities, especially in terms of indemnification.

Indeed, it has been stated

.9

"Contractual liability is not based on liability in kind. The purpose of the contract is to

create profit. The question is only the lawfulness of the contract. Liability should be

established on the ground of whether the agreement to contract is invalid or is

considered permissible. Contrary to this is the liability for events which cannot be

expected. Therefore, this damage is indemnified in kind as stipulated in the provision

and the decrease in the value of the damaged thing due to the damage is not

permissible".

THE BASIS OF TORTIOUS LIABILITY

The basis of tortious liability is two things.

Erroneous liability

Strict liability

9 Almabsoot-lil-Sarakhsi, Shamas-ud-Deen-Abu-Bakar-Bin-Abi-Sahal-Al-Sarakhsi, Juz 11, pg.n 11

5

ERRONEOUS LIABILITY

This theory explains that the fault is a vital condition and the basis for establishing

liability.

Every error that causes damage to a third party requires the party at fault to pay the

indemnity to the third party.

In this provision liability arises if three conditions are fulfilled as above mentioned.

1) error

2) damage

3) A causative relationship between the two.

1) ERROR

It should be noted that "trespass" is an expression frequently used to refer to the act

that causes damage in Shariah. The Shariah jurists did not clearly define trespass

materially or morally; it is defined linguistically as the excess of a limit or a right.

Therefore, it encompasses the notions of negligence, omission, and carelessness.

When a person exercises his rights within their limits, there is no liability. The

Shariah jurists regard trespass as the occurrence of an objective incident, where

indemnity is applicable, irrespective of the capacity of the trespasser or his intention.

However, if trespass occurs against a person, the Shariah takes into account the

person who is at fault, and distinguishes between whether the actor is a discreet

person or not. The adult will be held liable as he is deemed to be of full capacity as

regards to his intention, choice and discretion while the minor or lunatic will not be

held liable.

Omission and act

For the modern jurists, the error that establishes tortious liability may be a positive

causing damage (positive error), or an omission to do an act that may by turn lead to a

damage (passive error). Islamic jurists were aware of this distinction, although the

expression they used was trespass by act and trespass by omission.

Many modern jurists distinguish between different types of omission. Firstly, there

are omissions related to acts (for instance, a person omits to cover a hole that he has

created), and pure omissions (for instance, failure to rescue a drowning man).