1.

Vicarious liability can be defined as the liability imposed on one person for the tortious act or

omission of another which causes loss to a third party.

The issue identify in the problem given is whether A, the general permananent manager of B

will vicariously liable to C.

In order to establish the liablity, firstly we need to determine, B falls under which type of

employees. Employee means the one who rents out his self (labour). It should be noted that

the Muslim jurists have categorized employee into two, which are Ajir khass (private

employee) and Ajir Mushtarak ( Independent Contractor).

Ajir khass (private employee) means a person working for another for a definite time and for

a specific work or a person taken on hire to work for the hirer alone, not for another person

(contract of service) His wages are due if he is ready to work during the period which his

services are hired. But, if he declines to do the work, he is not entitled to his wages. He also

would not be liable for any damage which occurred without his own fault in the course of his

duty because he is a trustee (amin). This is due to the fact that he has submitted himself and

made himself available for the job which was for the benefit of his employer.

Where as Ajir Mushtarak ( Independent Contractor) means a person who is hired, who is not

restricted by the condition that he is not to work for anyone other than the hirer and his wages

are paid when the work is done (contract for service). For instance, clockmaker, jewelers, cab

drivers and others. He is entitled to have his wages for his service to his customer.It is also

define as a person who entered into a contract with others (customers/employers) in doing a

specific work or in doing a work for a period but the employer is not entitled to have his

service for the whole period which means that the hired person may also give his service to

others that period.

There are conditions that must be satisfied in order to prove vicarious liability. Firstly, there

must be a contract(‘Aqd) between the Employer and the Employee. This condition has been

absorbed from the definition of ajir khass mentioned by Ibn Qudamah who says that ajir khass

is a person who makes a contract on himself for a definite time, and an employer is entitled to

get benefit from him for the whole period of time.

In the Majallah, the word of (contract) has also been put forward so as to highlight and show

that the contract is an important element which should exist between an employer and an

employee. Section 423 of the Majallah enacted the person employing a private employee may

be one single individual or several persons contemplated as one individual only.

Consequently, when the inhabitants of a village hire the services of a shepherd for themselves

alone by means of a single contract, such shepherd becomes a private employee.

Secondly, wrongful or tortious act resulting from the acts of an Employee. It is noteworthy,

that the wrongful acts of an employee could exist in two situations. First, wrongful acts occur

in a situation where the employee is working on the property of his employer under the terms

of the contract between them, and second, wrongful acts occur in situations where the

employee is working on the property of a third party on the contract between him and his

employer. In both situations of contract of service if he caused any damage upon the property

of another person or any injury upon any person in the course of the employment without any

ta’addi(transgression/trespass) or negligence.

This is illustrated in the case of Century Insurance Co. v. Northern Ireland Road Transport

Board (1942) A.C. 509, where a tortious act of a petrol tanker driver caused an explosion

which wrecked the garage and nearby houses. His employer was vicariously liable for the

damage as it happened in the course of the petrol tanker driver’s employment.

Thirdly, the occurrence of an injury(Darar) to a third party while acting in the course of

employement in an intra vires activity.Wahbah al-Zuhayli says, the employer is responsible

for any work of his employee when between them there existed a contract of hire (‘aqd

ijarah), and the injury (darar) occurs on account of the employee in the course of his work.

For example in the course of his employment where the equipment, the place and the method

of the work are in accordance with normal practice, or the employer ordered them explicitly

or implicitly; if these two condition are not confirmed, the employer is not liable.

The employer is therefore liable only for damage caused by the act of his employee where the

act is within the scope of duties imposed upon him.This condition is extracted from the

classical manuscripts of the Muslim jurists. A famous manuscript Al-Hidayah subscribes to

the underlying condition by saying that, it is not liable upon ajir khass for anything which is

damaged in his possession (fi yadih) (without his contributory act) and he is also not liable for

anything damaged resulting from his act (min ‘amalih).

Al-Babarti elaborates the words above “…anything damaged resulting from his act (min

‘amalih)” by examples such as work equipments broken in the course of the employee’s

employment (fi ‘amalih). The word fi ‘amalih which is used by al-Babarti in his elaboration

clarifies ‘in the course of employment” and it has been accepted by the contemporary Muslim

jurists in order to be a condition in the discussion of vicarious liability regarding employer

and employee. Hence, the words of the Muslim jurists, namely min ‘amalih or bi ’amalih of fi

‘amalih or fi yadih are equivalent to “in the course of employment”.

Ibn ‘Abidin uses bi ‘amalih in the context of the “the work which is permitted to be done” and

if the employee does something which is outside the command, he himself would be liable for

anything that happens, not his employer. This could be regarded as outside the course of

employment.

For example, if an ajir khass lit a lamp complying with the command of his employer, and the

lamp dropped and singed or oiled the cloth in the fuller’s work (thiyab al-qisarah), the liability

is not upon the ajir khass, but is vicariously upon his employer or master because lighting the

lamp is an authorized work (bi idhnih) for a fuller, but if the lamp dropped and it singed the

cloth other than the cloth in the fuller’s work, the liability is upon the ajir khass because he

engages in an ultra vires activity without express authority. This is outside the course of his

employment.

Similarly, when an employee (ajir or tilmidh) in the fullerwork makes a pounding and causes

damage to the cloth, the employer(ustadh) is vicariously liable because pounding is part of the

work of a fuller, and thus liability is ascribed to him. On the other hand, where the pounding

of the fuller causes a damage to a cloth other than the cloth which is commanded by the

employer, the liability is upon the employee, because the act upon the other cloth is not

authorized or is an ultra vires activity. The act is regarded as outside the course of his

employment.

This is supported by the case of Poland v. Parr (1927) 1 K.B. 236 where an employee saw a

boy stealing sugar which belonged to his employer from the sugar carts. He struck the boy

who consequently fell under the cart and was injured. The defendant(the employer) was held

liable for the act of his employee even though the employee’s act falls within the course of his

employment and it could be regarded as impliedly allowed by his employer on account of

protecting his property.

Fourthly, the tortious act which happens in the work of an employee is done for the benefit of

his employer.The contract made between an employee and an employer, warrants the

employee to give his service for the benefit of the employer. For liability to fall upon the

employee himself, it is necessary that his act has profited him personally, not his employer.

An employee is a person who has been employed by his employer to work for himself. This is

the definition of the employee, who has submitted himself and made himself available for the

job which was for the benefit of his employer. It means that he would not be liable for any

damage which occurred without his own fault in the course of his duty because he is regarded

as a trustee (amin), and working with the permission of the owner of the property (employer).

The reason for the liability of the employer concerned with the injury which is done by his

employee is that his employee is his authorized representive (na’ib/niyabah). Hence, his

tortious action is as if the employer had caused the loss or damages himself. At the same time,

the employer alone owns the benefits gained by the employee. Therefore, the fault of the

employee is the fault of the employer, because he (the employer) is the guarantor (damin) or

surety (kafil) for the employee. That the service of the employees belongs exclusively to the

employer, and the liability belongs to him on behalf of his employee could be summarized in

the maxim: “Liability is an obligation accompanying gain”. That is to say, a person who

enjoys the benefits of a thing must submit to the disadvantage attaching thereto. Further, there

is another maxim to this effect derived from the Majallat al-Ahkam al-‘Adliyyah: “Benefit

follows responsibility”. That is to say, the enjoyment of a thing is the compensation factor for

any liability attaching thereto.

It is clear that Islamic law subscribes to the underlying principle of vicarious liability of an

employer; that is a person who employs others to work for him and then he gets benefits from

their works, is liable for any damage caused by his employees in the course of their

employment or of carrying out their employer’s business and work. For example, if an

employer ordered his employee to dig a well on his land and the employee has done it in

complying with that order, and then a person fell into it, the liability would be borne by the

employer. This is because the work is done by the employee for the benefit of the employer or

the one who ordered it. He is regarded as a person who has legal power to get benefits from

his land (wilayat al-intifa’).

In the case of Zakaria b. Che Soh v. Chooi Kum Loong & Anor (1986) 1 M.L.J. 324. In this

case, the plaintiff has worked as a driver for a research institute in Ipoh. An accident

happened on the way back to his home for lunch after finishing his task to send his director

back to his home. It was held that even though the driver was doing something for his own

benefit but his act at that time was within the course of his employment. Thus, his employer

(the State Government) was vicariously liable.In brief, if a work is done for the employer’s

business, it is usually done in the course of employment, even though it is a prohibited act. If

it is done not for the employer’s benefit, even if not for the benefit of the employee himself, it

is regarded as outside the course of the employment

Lastly, the job which the employee gives his service is lawful and legal. It is necessary that

the job in which the employee gives his services to his employer is lawful (mashru’) and the

employer has ordered him to do it implicitly (sarahah aw dimnan). It means that the Islamic

law of tort requires the employee to execute his employer’s orders provided that they are not

unlawful.

Thus if the commanded act concerns another person’s property, the command will be null and

void because Islamic law does not permit anyone to exercise any action on another person’s

property without his consent. And in any situation where the command is void, the

commander shall not be responsible, as the Muslim jurists have theorized that: anything

forbidden to be done, is also forbidden for its performance to be requested. Therefore the

request is regarded as invalid.

Consequently, if a person commands another person to get hold of another person’s property

illegally, the person who gets hold of the other property is liable by virtue of the fact that the

command from the first person is invalid. Hence, in any situation that the command is invalid,

the liability will not be borne by the commander.

In some cases, the employee would be held liable if he had inflicted damage on the property

of a third through the command of his employer. He will be entitled to compensation from his

employer if he did not know that the act is unlawful and illegal.

For example, the case where the employer commands his employee to make a door on another

person’s wall or to dig a well on a highway. The employer will definitely be liable for any

damage resulting from the acts of his employee. In the aforesaid cases, the employer is in the

position of vicarious liability.

However, if the employee does his jobs commanded by his employer in awareness that those

jobs are unlawful and illegal, the liability will be upon him, not upon his employer. For

example, in the case where the employer orders his employee to dig a well on a highway and

he is aware that his action is unlawful and illegal, he should be held liable for any damage that

may arise.

In brief, the Islamic law of tort puts this condition in mind before making any decision on

liability. It can be said that to implement this condition and to make the decision on liability is

a question of fact. Consequently, the Court should look at a case as a whole before making

any decision. In islam, if the employee does the job which is unlawful or expressly prohibited

by the employer, the employer will not be liable for any liability resulting from the acts of his

employee.

In Islam, if either one of the two elements could be proved, the employer will not be liable,

firstly, the job which is done by the employee is outside the course of employment, or the

employee does his job in a negligent manner.

By applying to the given question, B is regarded as contract for service, ajir mushtarak, with

X and under contract of service, ajir khass with A. The general rule is that the first employer

will be vicariously liable for the tort committed by his employee which had been lent to

second employer unless the first employer divested himself of all possession and control. In

fact the elements are also fulfilled. Therefore, A will be vicariously liable for the tort

committed by his employer B.

To conclude, employer will be liable for the tort committed by the employee (ajir khass)

eventhough he is negligent under the condition of during the course of employement.

2.

Vicarious liability can be defined as the liability imposed on one person for the tortious act or

omission of another which causes loss to a third party. This is line with one of the latin legal

maxims, qui facit per alium facit per se, which means he who does thing by an action of

another effectively doe it himself.

The issue identify in the problem given is whether Karim, who is the owner of the hospital

will vicariously liable to Elyas for the tort committed by Adli?

In order to establish the liablity, firstly we need to determine, Adli falls under which type of

employees. Employee means the one who rents out his self (labour). It should be noted that

the Muslim jurists have categorized employee into two, which are Ajir khass (private

employee) and Ajir Mushtarak ( Independent Contractor).

Ajir khass (private employee) means a person working for another for a definite time and for

a specific work or a person taken on hire to work for the hirer alone, not for another person

(contract of service) His wages are due if he is ready to work during the period which his

services are hired. But, if he declines to do the work, he is not entitled to his wages. He also

would not be liable for any damage which occurred without his own fault in the course of his

duty because he is a trustee (amin). This is due to the fact that he has submitted himself and

made himself available for the job which was for the benefit of his employer.

Where as Ajir Mushtarak ( Independent Contractor) means a person who is hired, who is not

restricted by the condition that he is not to work for anyone other than the hirer and his wages

are paid when the work is done (contract for service). For instance, clockmaker, jewelers, cab

drivers and others. He is entitled to have his wages for his service to his customer.It is also

define as a person who entered into a contract with others (customers/employers) in doing a

specific work or in doing a work for a period but the employer is not entitled to have his

service for the whole period which means that the hired person may also give his service to

others that period.

There are conditions that must be satisfied in order to prove vicarious liability. Firstly, there

must be a contract(‘Aqd) between the Employer and the Employee. This condition has been

absorbed from the definition of ajir khass mentioned by Ibn Qudamah who says that ajir khass

is a person who makes a contract on himself for a definite time, and an employer is entitled to

get benefit from him for the whole period of time.

In the Majallah, the word of (contract) has also been put forward so as to highlight and show

that the contract is an important element which should exist between an employer and an

employee. Section 423 of the Majallah enacted the person employing a private employee may

be one single individual or several persons contemplated as one individual only.

Consequently, when the inhabitants of a village hire the services of a shepherd for themselves

alone by means of a single contract, such shepherd becomes a private employee.

Secondly, wrongful or tortious act resulting from the acts of an Employee. It is noteworthy,

that the wrongful acts of an employee could exist in two situations. First, wrongful acts occur

in a situation where the employee is working on the property of his employer under the terms

of the contract between them, and second, wrongful acts occur in situations where the

employee is working on the property of a third party on the contract between him and his

employer. In both situations of contract of service if he caused any damage upon the property

of another person or any injury upon any person in the course of the employment without any

ta’addi(transgression/trespass) or negligence.

This is illustrated in the case of Century Insurance Co. v. Northern Ireland Road Transport

Board (1942) A.C. 509, where a tortious act of a petrol tanker driver caused an explosion

which wrecked the garage and nearby houses. His employer was vicariously liable for the

damage as it happened in the course of the petrol tanker driver’s employment.

Thirdly, the occurrence of an injury(Darar) to a third party while acting in the course of

employement in an intra vires activity.Wahbah al-Zuhayli says, the employer is responsible

for any work of his employee when between them there existed a contract of hire (‘aqd

ijarah), and the injury (darar) occurs on account of the employee in the course of his work.

For example in the course of his employment where the equipment, the place and the method

of the work are in accordance with normal practice, or the employer ordered them explicitly

or implicitly; if these two condition are not confirmed, the employer is not liable.

The employer is therefore liable only for damage caused by the act of his employee where the

act is within the scope of duties imposed upon him.This condition is extracted from the

classical manuscripts of the Muslim jurists. A famous manuscript Al-Hidayah subscribes to

the underlying condition by saying that, it is not liable upon ajir khass for anything which is

damaged in his possession (fi yadih) (without his contributory act) and he is also not liable for

anything damaged resulting from his act (min ‘amalih).

Al-Babarti elaborates the words above “…anything damaged resulting from his act (min

‘amalih)” by examples such as work equipments broken in the course of the employee’s

employment (fi ‘amalih). The word fi ‘amalih which is used by al-Babarti in his elaboration

clarifies ‘in the course of employment” and it has been accepted by the contemporary Muslim

jurists in order to be a condition in the discussion of vicarious liability regarding employer

and employee. Hence, the words of the Muslim jurists, namely min ‘amalih or bi ’amalih of fi

‘amalih or fi yadih are equivalent to “in the course of employment”.

Ibn ‘Abidin uses bi ‘amalih in the context of the “the work which is permitted to be done” and

if the employee does something which is outside the command, he himself would be liable for

anything that happens, not his employer. This could be regarded as outside the course of

employment.

For example, if an ajir khass lit a lamp complying with the command of his employer, and the

lamp dropped and singed or oiled the cloth in the fuller’s work (thiyab al-qisarah), the liability

is not upon the ajir khass, but is vicariously upon his employer or master because lighting the

lamp is an authorized work (bi idhnih) for a fuller, but if the lamp dropped and it singed the

cloth other than the cloth in the fuller’s work, the liability is upon the ajir khass because he

engages in an ultra vires activity without express authority. This is outside the course of his

employment.

Similarly, when an employee (ajir or tilmidh) in the fullerwork makes a pounding and causes

damage to the cloth, the employer(ustadh) is vicariously liable because pounding is part of the

work of a fuller, and thus liability is ascribed to him. On the other hand, where the pounding

of the fuller causes a damage to a cloth other than the cloth which is commanded by the

employer, the liability is upon the employee, because the act upon the other cloth is not

authorized or is an ultra vires activity. The act is regarded as outside the course of his

employment.

This is supported by the case of Poland v. Parr (1927) 1 K.B. 236 where an employee saw a

boy stealing sugar which belonged to his employer from the sugar carts. He struck the boy

who consequently fell under the cart and was injured. The defendant(the employer) was held

liable for the act of his employee even though the employee’s act falls within the course of his

employment and it could be regarded as impliedly allowed by his employer on account of

protecting his property.

Fourthly, the tortious act which happens in the work of an employee is done for the benefit of

his employer.The contract made between an employee and an employer, warrants the

employee to give his service for the benefit of the employer. For liability to fall upon the

employee himself, it is necessary that his act has profited him personally, not his employer.

An employee is a person who has been employed by his employer to work for himself. This is

the definition of the employee, who has submitted himself and made himself available for the

job which was for the benefit of his employer. It means that he would not be liable for any

damage which occurred without his own fault in the course of his duty because he is regarded

as a trustee (amin), and working with the permission of the owner of the property (employer).

The reason for the liability of the employer concerned with the injury which is done by his

employee is that his employee is his authorized representive (na’ib/niyabah). Hence, his

tortious action is as if the employer had caused the loss or damages himself. At the same time,

the employer alone owns the benefits gained by the employee. Therefore, the fault of the

employee is the fault of the employer, because he (the employer) is the guarantor (damin) or

surety (kafil) for the employee. That the service of the employees belongs exclusively to the

employer, and the liability belongs to him on behalf of his employee could be summarized in

the maxim: “Liability is an obligation accompanying gain”. That is to say, a person who

enjoys the benefits of a thing must submit to the disadvantage attaching thereto. Further, there

is another maxim to this effect derived from the Majallat al-Ahkam al-‘Adliyyah: “Benefit

follows responsibility”. That is to say, the enjoyment of a thing is the compensation factor for

any liability attaching thereto.

It is clear that Islamic law subscribes to the underlying principle of vicarious liability of an

employer; that is a person who employs others to work for him and then he gets benefits from

their works, is liable for any damage caused by his employees in the course of their

employment or of carrying out their employer’s business and work. For example, if an

employer ordered his employee to dig a well on his land and the employee has done it in

complying with that order, and then a person fell into it, the liability would be borne by the

employer. This is because the work is done by the employee for the benefit of the employer or

the one who ordered it. He is regarded as a person who has legal power to get benefits from

his land (wilayat al-intifa’)

In the case of Zakaria b. Che Soh v. Chooi Kum Loong & Anor (1986) 1 M.L.J. 324. In this

case, the plaintiff has worked as a driver for a research institute in Ipoh. An accident

happened on the way back to his home for lunch after finishing his task to send his director

back to his home. It was held that even though the driver was doing something for his own

benefit but his act at that time was within the course of his employment. Thus, his employer

(the State Government) was vicariously liable.In brief, if a work is done for the employer’s

business, it is usually done in the course of employment, even though it is a prohibited act. If

it is done not for the employer’s benefit, even if not for the benefit of the employee himself, it

is regarded as outside the course of the employment

Lastly, the job which the employee gives his service is lawful and legal. It is necessary that

the job in which the employee gives his services to his employer is lawful (mashru’) and the

employer has ordered him to do it implicitly (sarahah aw dimnan). It means that the Islamic

law of tort requires the employee to execute his employer’s orders provided that they are not

unlawful.

Thus if the commanded act concerns another person’s property, the command will be null and

void because Islamic law does not permit anyone to exercise any action on another person’s

property without his consent. And in any situation where the command is void, the

commander shall not be responsible, as the Muslim jurists have theorized that: anything

forbidden to be done, is also forbidden for its performance to be requested. Therefore the

request is regarded as invalid.

Consequently, if a person commands another person to get hold of another person’s property

illegally, the person who gets hold of the other property is liable by virtue of the fact that the

command from the first person is invalid. Hence, in any situation that the command is invalid,

the liability will not be borne by the commander.

In some cases, the employee would be held liable if he had inflicted damage on the property

of a third through the command of his employer. He will be entitled to compensation from his

employer if he did not know that the act is unlawful and illegal.

For example, the case where the employer commands his employee to make a door on another

person’s wall or to dig a well on a highway. The employer will definitely be liable for any

damage resulting from the acts of his employee. In the aforesaid cases, the employer is in the

position of vicarious liability.

However, if the employee does his jobs commanded by his employer in awareness that those

jobs are unlawful and illegal, the liability will be upon him, not upon his employer. For

example, in the case where the employer orders his employee to dig a well on a highway and

he is aware that his action is unlawful and illegal, he should be held liable for any damage that

may arise.

In brief, the Islamic law of tort puts this condition in mind before making any decision on

liability. It can be said that to implement this condition and to make the decision on liability is

a question of fact. Consequently, the Court should look at a case as a whole before making

any decision. In islam, if the employee does the job which is unlawful or expressly prohibited

by the employer, the employer will not be liable for any liability resulting from the acts of his

employee.

In Islam, if either one of the two elements could be proved, the employer will not be liable,

firstly, the job which is done by the employee is outside the course of employment, or the

employee does his job in a negligent manner.

By applying to the given question, Adli falls under ajir mushtarak as Adli’s method of

working is not restricted by Karim. Its noteworthy that, usually hospital staff will be

categorized as a grey areas. If the employer falls under ajir khass, then the hospital will be

liable. Conversely, if the employer falls under ajir mushtarak, then the hospital will not be

liable. Therefore, Karim was not liable for the tort committed by his employer, Adli. Adli

needs to pay compensation to Elyas for the negligence he caused.

To sum up, the liablility of a hospital for the negligence of his staff or experts dependent on

whether the professional is engaged in his own business or that the hospital and only if the

conduct of the medical officer is deemed to be part of the hospital’s business will be

vicariously liable.

3.

Strict liability means the tortfeasor is held strictly liable for the tort he commited.

The Quran stated verse 6 : 164 stated to the effect that ‘ no bearer of burden can bear the

burden of another’. According to Abu A’la Maududi, this verse indicate that every person is

responsible for whatever he does and no one is responsible for the deeds of others. Even in the

hadith stated that no person should be apprehended for an offence committed by his father or

brother.

Its pertinent to note that all Muslim jurists agree that a person is not liable for what is lost or

destroyed unless there has been negligence. However, this is an exception to the principle

which a person is held strictly liable for accidental harm irrespective the wrongful intention or

negligence.

There are four elements of strict liablity in islamic law of tort. Firstly, bringing water or

dangerous thing on to one’s land. Liability in respect of water or any dangerous things

depends on whether it is naturally on the land or whether its artificially or interfered in some

way. In easy words, no person is permitted to bring and keep upon his land anything which

likely to do damage. If it escapes, then the owner is bound to take care of it and has duty to

prevent it.

The author of Tabsirat al-Hukkam view that the one who brings the water in the dams without

a wall surround them, is liable if flooding. He too will be liable for injury if he surround the

water with a wall but neglects them and the water flows to the neighbour’s land. However, he

will not be liable if the injury is a result of an act of God.

Where as Imam Syafie view that the liablity will be borne if the owner acts contrary to usual

practise or the owner neglected in taken reasonable precaution.

Secondly, escape of water (ta’addi). The Muslim jurists unanimously agreed that where an

escape of water or any dangerous thing is caused by way of ta’addi, or by exceeding normal

practise and others suffers loss and damage, then the owner is strictly liable. It should be

noted that some Muslim jurists used the word ‘kharaja’ or ‘salal yasilu’ or ‘nazalal yasilu’

which can also be known as escape.

Thirdly, there are mubashir and mutassib. Mubashir/ direct cause means the person who

create the cause of destruction by oneself such as murdering or burn something. Whereas

mutasabbib means the person who create conditions leading to the destructions of something.f

for example, a person digs a well where is lawful to do so and an animal belonging to other

person happens to fall into the well and dieds. Hence, the liability fall upon the person who

dig the well. Strict liablity will be strictly imposed to mubashir irrespective the element of

ta’addi. But mutasabbib required the elemnts of ta’addi where if mutassabib couple with the

element of ta’addi then the mutasabbib is liable. However, if there are no elements of ta’addi,

then the mutasabib will not be held liable.

Lastly the elements of damage. The owner will be accoutable for his act only if the actual

damage is caused by the escape. Thus the plaintiff must prove damage since this tort is not

actionable per se.

From these facts, there are differences between strict liability in Islamic law of tort and

English tort. Firstly , the source of the strict liability. In Islamic law, it is originated from the

holy Quran and hadith whereas in English law, its originated from the case of Ryland v

Fletcher.

The second differences is the elements. In Islam, there is element of mubashir and

mutassabib. It should be remembered that if torts are committed by the mutasabbib, the rule of

strict liability will be applied to him when the elements of ta’addi exists but if the element

does not exist, the rule cannot be applied. Whereas for mubashir, the element of ta’addi is not

important as he will be strictly liable irrespective the existence of ta’addi or not. In English

law, there is the element of intentional storage/ accuo accumulation where the rule only

applies to an object or thing which the defendant purposely keeps and collect.

Thirdly the punishment. In Islam, the punishment include diyah(compensation), qisas or

ta’azir whereas in English tort, the defendant will be liable to pay compensation.

In conclusion, there are several differences of strict liablity in Islamic law of torts and English

law of torts.

4.

Strict liability means the tortfeasor is held strictly liable for the tort he commited.

The Quran stated verse 6 : 164 stated to the effect that ‘ no bearer of burden can bear the

burden of another’. According to Abu A’la Maududi, this verse indicate that every person is

responsible for whatever he does and no one is responsible for the deeds of others. Even in the

hadith stated that no person should be apprehended for an offence committed by his father or

brother. There are some islamic legal maxims that are connected to the principles of strict

liablity which are injury should be avoided as much as possible. For instance, if any person

constructs a sewer near a well belonging to some other people, and it contaminates its water,

the owner must remove the injury. If is possible to remove the injury, then he should close up

the sewer.

Its pertinent to note that all Muslim jurists agree that a person is not liable for what is lost or

destroyed unless there has been negligence. However, this is an exception to the principle

which a person is held strictly liable for accidental harm irrespective the wrongful intention or

negligence.

There are four elements of strict liablity in islamic law of tort. Firstly, bringing water or

dangerous thing on to one’s land. Liability in respect of water or any dangerous things

depends on whether it is naturally on the land or whether its artificially or interfered in some

way. In easy words, no person is permitted to bring and keep upon his land anything which

likely to do damage. If it escapes, then the owner is bound to take care of it and has duty to

prevent it.

The author of Tabsirat al-Hukkam view that the one who brings the water in the dams without

a wall surround them, is liable if flooding. He too will be liable for injury if he surround the

water with a wall but neglects them and the water flows to the neighbour’s land. However, he

will not be liable if the injury is a result of an act of God.

Where as Imam Syafie view that the liablity will be borne if the owner acts contrary to usual

practise or the owner neglected in taken reasonable precaution.

Secondly, escape of water (ta’addi). The Muslim jurists unanimously agreed that where an

escape of water or any dangerous thing is caused by way of ta’addi, or by exceeding normal

practise and others suffers loss and damage, then the owner is strictly liable. It should be

noted that some Muslim jurists used the word ‘kharaja’ or ‘salal yasilu’ or ‘nazalal yasilu’

which can also be known as escape.

Thirdly, there are mubashir and mutassib. Mubashir/ direct cause means the person who

create the cause of destruction by oneself such as murdering or burn something. Whereas

mutasabbib means the person who create conditions leading to the destructions of something.f

for example, a person digs a well where is lawful to do so and an animal belonging to other

person happens to fall into the well and dieds. Hence, the liability fall upon the person who

dig the well. Strict liablity will be strictly imposed to mubashir irrespective the element of

ta’addi. But mutasabbib required the elemnts of ta’addi where if mutassabib couple with the

element of ta’addi then the mutasabbib is liable. However, if there are no elements of ta’addi,

then the mutasabib will not be held liable.

Lastly the elements of damage. The owner will be accoutable for his act only if the actual

damage is caused by the escape. Thus the plaintiff must prove damage since this tort is not

actionable per se.

To conclude, generally the tort liability is based on fault and it is acknowledge by the Islamic

law.

5.

Aqilah can be defined as all male adult and sane members of a group class of person through

which the offender or the convict expect to receive help and support. The Shafie’ schools of

law view aqilah as the relative who inherit based on closeness or loyalty not father and son.

The offender need not to pay a portion of the blood money or diyah as its all must be paid by

aqilah. The amount of the share which separate person has contributed is solved in different

ways. According to Shafie’ is ½ dinar or six dirham .

The aqilah consist of groups of man from the father side including, male sibling from

biological parent togather with their son, male sibling from paternal parent, all biological

uncle, and to name a few. However, there are exceptions which is father, frandfather and

above, son, grandson and below, idiocy, poverty and others.

Negligence means careless conduct. In Islam, a person is totally responsible for his actions

and has an obligation to take care of others. Imam Nawawi stated that ‘when a minor is upon

the edge of a terrace and is frightened at the cry of a passer-by, and falls down and is killed,

the passer-by owes the price of blood on higher scale and the obligation to pay it falls also

upon the aqilah. This shows that a duty of care was owed by the defendant to the victim of

unfortunate accidents.

This is supported by the verse 4:36 in the Quran where it puts duty upon us to be good to

parents, next of kin, orphans, neighbor, friend by your side and to name a few. Syed Abul

A’la Maududi interpreted friend by your side which means temporary neighbor include all the

companions who sit beside someone, fellow travellers, fellow customers in shop and etc.

In medical, the general rule is that the doctors must exercise such care as accords with the

standards of reasonably competent medical men. If they committed tort, they will be liable for

negligence. According to Imam Abu Hanifa, medical professional cannot be sued for

negligence as their act in accordance with the prevalent standard. In fact, the act of suing the

medical professional will lead to low morale of the profession.

Whereas Imam Syafie view that the medical professional will be held accountable, first if

their act is not been given consent by the patient or the guardian and second, the act is in bad

intention. Imam Malik shared the same view with Imam Abu Hanifa but contradict in the way

that the medical professional will be liable if he acted negligently.

It is pertinent to note that, unskilled doctors are prohibited from pursuing certain occupations

because of the danger to the public. This is illustrated in the hadith, a person who adopts them

medical profession though he is not a doctor, is liable (for negligence and must pay

compensation). Unless it is an emergency case and the person who performed the medical act

obtained consent of the patient which the patient knew the background of the person who

performed the medical act.

The medical professional who are liable of negligence, will have to pay blood money to the

guardian or the next of kin of the deceased, otherwise will be liable for retaliation (qisas).

There are two circumstances where the retaliation takes place, first if the surgeon operated

upon a patient and asked some else or he delegates the duty to his subordinate, and the patient

died as a result of the negligence on the part of the person who was delegated the duty as

stated above, his legal position will be analogical with the surgeon who asks the patient to

drink poison for medical purposes for immediate treatment.

Second, the liability will be held by the second surgeon if the medical act was performed

without the consent of the first surgeon. Again, if it an emergency case and the second

surgeon get the consent of the patient or guardian, the surgeon will neither be liable to pay

compensation nor liable for retaliation because their position is the same as a rescuer who acts

in good faith to save the life of some one.

Pay blood money or diyah is applicable to the cases which the requirements of qisas are not

met or inadequate. Section 81 of the Offences Against Human Body 1981, speaks about hurt

which is not liable for retaliation or it is known as qisas. One of the hurt is when the offender

caused itlaf-i-udw(whoever permanently amputates any limb or organ or part of the body) of a

physically imperfect limb or organ of the victim and the offender does not suffer from similar

physical imperfection of such limb and organ, provided that the offender shall be liable to

arsh/diyah muqaddarah.

In conclusion, hospital staff or medical expert can be categorized as grey areas. If the

employer falls under ajir khass, then the hospital (the employer) will be liable. Conversely, if

the employer falls under ajir mushtarak, then the hospital will not be liable

1.

Trespass to land may be defined as intentionally enter the land without permission. The tort is

actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even

though he has sustained no actual loss to recover damages.

The issue identify in the problem given is whether Ali had committed trespass to Ahmad’s

land?

To established trespass to land, the plaintiff needs to prove two elements which are, first the

mental state of the defendant and second, interference of the plaintiff’s land.

First, the defendant must intend to do the act which is trespass. It is not necessary to prove

that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,

trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily

or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or

omission.

Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six

factors. The first factor is remaining on the land. The defendant entered the land and refuses

to leave. When a contract of hires comes to an end, it is necessary for the person or the hirer

to give up the thing hired. The hirer must leave and exit from the land or house hired when the

period of hire ends or the contract of hire is terminated and he could be regarded as a

trespasser.

The second factor is trespass by placing objects on land or projecting upon the land. A person

cannot put his belonging on the land that is not belonging to him without the owner’s

permission, which also in line with Islamic legal maxim This is illustrated in the hadith, if

anyone sows in other people’s land without their permission, he has no right to any of the

crop, but he may have what it cost him.

Third, trespass on the surface and on the subsoil of land. Hanafi jurists’ view that whoever

owns a piece of land is the owner of what is below it. Maliki and Ibn Rushd, whoever

cultivates trees of date palm or fruit trees or any plants on the land of another is ordered to

take them out. It was agreed that persons other that owner of the ground have no right of

usufruct and the like to the ground of another without lawful permission.

Fourth, trespass on the highway. Majority of the jurist stated that the whole community has

the right of passing on the highway provided that it is used under the condition of safety for

the users. Al Nawawi views that, it is forbidden to make use of a public way that connects

between two places in such a manner as to obstruct the passage.

Fifth, trespass of airspace. Majallat stated that whoever owns a piece of land, he also owns

what is above it. No person may extend the eaves of a room which he has construed in his

house over his neighbour’s house airspace. If he does so, the amount which extends over his

neighbours’s house airspace should be removed.

Six, trespass ab inition which means trespass from the very beginning. It is based on the

maxim, legal permission negates tortious liability. A person, who has been authorized by law

to carry on his task, cannot be abuse it or go beyond such license by doing something that

exceeds the permission given to him. For instance, if a person was given the permission only

to take photos on the land, but he breaks the trees on that land, he can be charged for trespass

ab initio.

By applying to the question given, Ali has fulfilled the elements of trespass to land which are

mental state and interference by remaining on the land when Ali refused to vacate the land

and still continue with his farming works. He even trespasses by projecting upon the land

when he built a wooden shed to rear chicken even though the land is only for the purpose of

cultivating vegetable farm. Hence, Ali is liable for trespass to land.

To sum up, trespass to land may be committed only against a person who has possession of

the land on which the acts complained of are committed.

2.

Ghasb can be recognized as usurpation. Technically it means snatching a thing with cruelty

and forcibly taking away thing.

Al Sarakshi explained ghasb as taking forcibly the property or chattel of another by such

methods such as wrongful misappropriation, deceit, theft and others. There are five elements

in ghasb which are, firstly, the act must be unlawful. Secondly, the act must have the element

of defiance of the owner’s right. Third, there must be transgression. Fourth, the act includes

both intention and lack of intention. Fifth, it must direct result of transgression.

The Hanafi jurists view that there can be no liability unless two elements are established

which are the elimination of the possession of the rightful owner and the establishment of an

invalid possession by an unauthorized person. Ghasb can only apply to moveable property. It

does not extend to land. Whereas Shafie’ view that, ghasb is already completed if a person

seizes another’s right wrongfully. The difference may be explained in the situation where a

person sits on a chair of another which according to Shafie’ may be classified as ghasb. But

according to Hanfi, it does not tantamount of ghasb unless the owner actually deprived his

chair by removal.

The punishment for ghasb is restitution. The Muslim jurists unanimously agreed that a person

who usurps the property of another must return it to its owner in its original state. This is

supported by the hadith where the Prophet stated that it is incumbent upon a person who

takes a thing from another to restore it to him. It is pertinent to note that, if the maghsub

(property), destroyed or lost by a ghasib (usurper), whether it by transgression or whether by

action or itself, he must replace it if is fungible property or pay the values of it if it in fungible

property.

To conclude, ghasb is an offence and thus Islam puts the duty on the offender to restore the

property to the original owner and pay compensation if the property damaged.

3.

Trespass to land may be defined as intentionally enter the land without permission. The tort is

actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even

though he has sustained no actual loss to recover damages.

The issue identify in the problem given is whether Bin Bin had committed trespass to

Ahmad’s land?

To established trespass to land, the plaintiff needs to prove two elements which are, first the

mental state of the defendant and second, interference of the plaintiff’s land.

First, the defendant must intend to do the act which is trespass. It is not necessary to prove

that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,

trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily

or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or

omission.

Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six

factors. The first factor is remaining on the land. The defendant entered the land and refuses

to leave. When a contract of hires comes to an end, it is necessary for the person or the hirer

to give up the thing hired. The hirer must leave and exit from the land or house hired when the

period of hire ends or the contract of hire is terminated and he could be regarded as a

trespasser.

This is shown in the case Stone v Taffe, where the deceased was a member of a society which

was permitted by the manager of a public house to carry on social gathering on the premises.

The manager knew that the licensing hours had to be strictly observed but he permitted the

society to hold a party which went on well after the licensing hours. The deceased left the

party at 1.00 pm and fell down an unlighted staircase. The brewery (the premises owner)

claimed that he had no duty regards to the condition of the premises as it happened after the

licensing hours where the deceased had become a trespasser. The court found out that the

brewery did not give a notice to the deceased, thus the deceased could not be deemed to be a

trespasser.

The second factor is trespass by placing objects on land or projecting upon the land. A person

cannot put his belonging on the land that is not belonging to him without the owner’s

permission, which also in line with Islamic legal maxim This is illustrated in the hadith, if

anyone sows in other people’s land without their permission, he has no right to any of the

crop, but he may have what it cost him.

Third, trespass on the surface and on the subsoil of land. Hanafi jurists’ view that whoever

owns a piece of land is the owner of what is below it. Maliki and Ibn Rushd, whoever

cultivates trees of date palm or fruit trees or any plants on the land of another is ordered to

take them out. It was agreed that persons other that owner of the ground have no right of

usufruct and the like to the ground of another without lawful permission.

Fourth, trespass on the highway. Majority of the jurist stated that the whole community has

the right of passing on the highway provided that it is used under the condition of safety for

the users. Al Nawawi views that, it is forbidden to make use of a public way that connects

between two places in such a manner as to obstruct the passage.

Fifth, trespass of airspace. Majallat stated that whoever owns a piece of land, he also owns

what is above it. No person may extend the eaves of a room which he has construed in his

house over his neighbour’s house airspace. If he does so, the amount which extends over his

neighbours’s house airspace should be removed.

This is supported in the case of Kelsen v Imperial Tobacco Co where the defendant committed

trespass by allowing an advertising board to project eight inches into plaintiff’s property at

ground level and another above ground level. The plaintiff was entitled to succeed in trespass.

This was not merely a nuisance and although the plaintiff has suffered no physical damage at

all, he was entitled to a mandatory injunction, namely the defendant was ordered to removed

it.

Six, trespass ab inition which means trespass from the very beginning. It is based on the

maxim, legal permission negates tortious liability. A person, who has been authorized by law

to carry on his task, cannot be abuse it or go beyond such license by doing something that

exceeds the permission given to him. For instance, if a person was given the permission only

to take photos on the land, but he breaks the trees on that land, he can be charged for trespass

ab initio.

By applying to the question given, Bin Bin has fulfilled the elements of trespass to land which

are mental state and interference by remaining on the land when Bin Bin refused to vacate the

land even when earlier notice had been given by Ahmad, but he still continue with his

business. He even trespasses the airspace when he erected an advertisement board. Hence, Ali

is liable for trespass to land.

To sum up, trespass to land may be committed only against a person who has possession of

the land on which the acts complained of are committed.

4.

Trespass to land may be defined as intentionally enter the land without permission. The tort is

actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even

though he has sustained no actual loss to recover damages.

The issue identify in the problem given is whether Bin Bin had committed trespass to

Ahmad’s land?

To established trespass to land, the plaintiff needs to prove two elements which are, first the

mental state of the defendant and second, interference of the plaintiff’s land.

First, the defendant must intend to do the act which is trespass. It is not necessary to prove

that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,

trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily

or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or

omission.

Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six

factors.

One of the factors is trespass of airspace. Majallat stated that whoever owns a piece of land,

he also owns what is above it. No person may extend the eaves of a room which he has

construed in his house over his neighbour’s house airspace. If he does so, the amount which

extends over his neighbours’s house airspace should be removed. Whereas in English law,

according to Salmond, a mere entry into the air space above the land was not actionable

wrong unless it caused some harm to the occupier of the surface.

This is supported in the case of Kelsen v Imperial Tobacco Co where the defendant committed

trespass by allowing an advertising board to project eight inches into plaintiff’s property at

ground level and another above ground level. The plaintiff was entitled to succeed in trespass.

This was not merely a nuisance and although the plaintiff has suffered no physical damage at

all, he was entitled to a mandatory injunction, namely the defendant was ordered to remove it.

By applying to the given problem, Mr. Melvin built the 29 ft. structure across the center of the

highway. It is on his own land. He did not extend to Sheikh Faizal land. Thus, Sheikh Faizal

could not recover the damage of the lost profits.