Vicarious Liability : Study of Liability of Employer & Employee

in Islamic Law of Tort

Nur Syafiqah Bt Mohd Najib 1122045 Siti Nur Jannah Bt Hasanuddin 1122051 Kamaliah Bt Abbas 1122492

Definition • The liability imposed on one person for the

tortious act or omission of another which causes loss to a third party.

• Eg: death caused by mistake or negligence of a person which brings liability upon his relative or the person of the town to which he belongs.

Punishment • Liable to pay diyah (blood money) to the heirs

of the deceased• Reason to justify the duty to pay the blood

money to the heirs of the deceased because it is the duty of a person’s Aqilahs to watch over his conduct and the laws presume that the wrong doer would not have acted in the way he did unless they neglected their duty

Latin legal maxims • qui facit per alium facit per se, which means ‘

he who does thing by an action of another effectively does it himself ‘ or

• ‘ he who acts through another is deemed to act in person’ meaning a principal is liable for the acts of his agents

Vicarious liability arises in the following acts :

For the acts of other : Eg: an employer may be held liable for the act of his employee, regardless a son, a hired hand or an apprentice

For buildings he owns and what he does to public roads: Eg ; a man who left his garbage in the street, as a result a resident fall because of the garbage and injured him. Thus the man is liable for the injury of the resident. This is because each of the residents had right to benefit from the road as they shared the road together

For animals, a person may be held liable for the animals he owns. Conversely, the owner will not be liable for the damage which it has done by itself but may be liable if the owner negligent.

Eg: a man takes his dog for a walk in a public road. If the dog bite a pedestrian along the road, thus the owner of the dog is liable. But if the dog bite his owner, then he is not liable for any tort.

Islamic authorities for vicarious liability

Hadith about individual responsibility (mas’uliyyah shakshiyyah)…

•                  و�ه�و�  اع� ر� اس الن ع�ل�ى ذي ال �مير� ف�األ� ه ت ي ع ر� ع�ن� ��ول ئ م�س� �م� $ك �ل ك                   � ع�ن ��ول ئ م�س� و�ه�و� ه �ت �ي ب �ه�ل أ ع�ل�ى اع� ر� ج�ل� و�الر ه ت ي ع ر� ع�ن� ��ول ئ م�س�

ه�م�                  �ع�  و�ال �ه�م� ع�ن ��ة �ول ئ م�س� و�هي� �ده و�و�ل ه�ا �ع�ل ب �ت �ي ب ع�ل�ى ��ة ي اع ر� �ة� أ �م�ر� و�ال

                    �م�  $ك �ل و�ك اع� ر� �م� $ك �ل ف�ك �ال� أ �ه� ع�ن ��ول ئ م�س� و�ه�و� 4ده ي س� م�ال ع�ل�ى اع� ر� �د� ب    ع�ن�  ��ول ئ م�س�

ه ت ي ع ر�

Its meaning

• Every one of you is a guardian and is responsible for his charge, the imam(ruler) is a guardian and is responsible for his subjects, the man is a guardian in the affairs for his family and responsible for his charge, a woman is guardian of her husband’s house and responsible for her charges, and the servant is a guardian of his masters property and is responsible for his charge.

(Sahih Al Bukhari)

ما وأن بالنهار، حفظهما الحوائط أهل على إنأهلها على ضامن بالليل المواشي أفسدات

• Its meaning, It is the duty of owners of the property to keep and protect their property in the day time, while it is the duty of the owner of animals to keep their animals (from trespassing) at night. If any injury is committed by the animals at night, its liability shall be borne by their owners.

Exception in vicarious liability

• Doctrine of criminal responsibility The guilty person is the only person who can be accused of a particular crime and no one else can be held liable for the same.

ليس • وأن أخرى وزر وازرة تزر أالسعى ما إال لإلنسن

Its means: That no bearer of burdens shall be made to bear another’s burden. And that nought shall be accounted unto man but what he is striving for.(Al quran, 53: 38-39)

• Hadith about mentally disabled persons,

A child is exempt from it until he is of age

A sleeping person until he wakes upA lunatic until he recovers from

lunacy

Definition Employer & Employee

• “Employer" means any legal or natural person at whose request and for whom a worker performs work in return for remuneration• “Employee” is the one who rents out

his self (labour)

Types of Employees(a) 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.

- His wages are due if he is ready to work during the period which his services are hired. 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) and working with the permission of the owner of the property

(b) 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

- Regarding the liability issue in ajir mushtarak, Muslim jurists unanimously agree that the liability will be imposed on him if he transgresses (ta’adda) or negligent (farrata). If the elements could not be proved, he will be free from any liability.

But..

- According to Maliki jurists, the employee still may be held liable even the elements are not fulfilled. - The reason is that protecting the public interest is more important. It is based on the principles of sad al al dhara’I (blocking the means)