The question of liability particularly around property and contracts is often at the centre of legal disputes. In this case study, we will define the elements of civil liability in the context of a fire at a commercial warehouse.
Confusion often arises between the two parts of civil liability – contract and tort. Let us first define the meaning of those terms:
A contract is an agreement between parties that can be written or spoken, creating mutual obligations that are enforceable by law.
A tort is an act or omission that causes injury, suffering or harm to another. It is a lack of care from one party that causes harm to another giving rise to a civil wrong or liability.
The uncertainty in the practical application is present despite the clarity of the limits of both components legally. The first results in the non-implementation of the obligation arising from the contractual bond in the manner agreed upon in the contract, while the second results in a violation of a legal obligation originating from the law.
However, the problem arises when elements constituting both responsibilities overlap each other. In the case study used, a lessor specifies in a contract that the lessee insures the contents of the leased warehouse and that the insurance covers damages against third parties, including the event a fire takes place. A fire then broke out and destroyed all the assets of the leased warehouse. The reason behind the fire was that the lessor had used an electrical system for the air conditioning unit installed inside the leased area which was not adequate with the actual electrical voltage loaded on it.
The question then arises, who is responsible and is it tortuous or contractual liability? Ahmed Bin Mes’har, founding partner of Bin Mes’har & Co. states –
“The responsibility here is a tort responsibility that falls on the lessor in accordance with the UAE law. although it is not permissible to consider the provisions of tort responsibility in the compensation claim in which the victim is linked with the person responsible for such compensation by a previous contractual relationship, as the adoption of the provisions of tort responsibility in the place of the contractual relationship, deactivates the provisions of the contract related to liability for non-performance and breach of its binding force, except that this is subject to the failure to prove that the damage incurred to one of the contracting parties was the result of the other party’s perpetration of an illegal act, which would result in tort liability by breaching a legal obligation as he should refrain from committing such act in all cases, whether contracted or not.”
Appeal by Cassation No. 311 of 2009, Civil Appeal – Session 14/3/2010
The case study of Appeal No. 311 of 2009 revealed the cause of fire which destroyed the assets of the leased warehouse is the lessor’s use of an electrical system for the air conditioning unit that was not compatible with the required electrical voltage. As this is an unlawful act it lies under tort liability, notwithstanding the binding terms and conditions of the contract agreed upon by both parties, it establishes tort liability for compensation, not contractual liability.
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