Vicarious Liability in Islamic Law of Tort

1. 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

2. 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.

3. 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

4. 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

5. 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

6. 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.

7. Islamic authorities for
vicarious liability
Hadith about individual responsibility
(mas’uliyyah shakshiyyah)…
•ْ‫م‬ُ‫ك‬ُّ‫ل‬ُ‫ك‬ْ‫ول‬ُ‫ئ‬‫س‬َ‫م‬ْ‫ن‬َ‫ع‬ِْ‫ه‬ِ‫ت‬َّ‫ي‬ِ‫ع‬َ‫ر‬َْ‫ال‬َ‫ف‬ُْ‫ير‬ِ‫م‬‫ي‬ِ‫ذ‬َّ‫ل‬‫ا‬‫ى‬َ‫ل‬َ‫ع‬ِْ‫اس‬َّ‫ن‬‫ال‬ْ‫اع‬َ‫ر‬َْ‫و‬َْ‫و‬ُ‫ه‬
ْ‫ول‬ُ‫ئ‬‫س‬َ‫م‬ْ‫ن‬َ‫ع‬ِْ‫ه‬ِ‫ت‬َّ‫ي‬ِ‫ع‬َ‫ر‬ُْ‫ل‬ُ‫ج‬َّ‫الر‬ َ‫و‬ْ‫اع‬َ‫ر‬َْ‫ع‬‫ى‬َ‫ل‬ِْ‫ل‬‫ه‬َ‫أ‬ِْ‫ه‬ِ‫ت‬‫ي‬َ‫ب‬َْ‫و‬ُ‫ه‬ َ‫و‬ُْ‫ئ‬‫س‬َ‫م‬ْ‫ول‬ْ‫م‬ُ‫ه‬‫ن‬َ‫ع‬
ُْ‫ة‬َ‫أ‬‫ر‬َ‫م‬‫ال‬ َ‫و‬ْ‫ة‬َ‫ي‬ِ‫ع‬‫ا‬َ‫ر‬‫ى‬َ‫ل‬َ‫ع‬ِْ‫ت‬‫ي‬َ‫ب‬‫ا‬َ‫ه‬ِ‫ل‬‫ع‬َ‫ب‬َْ‫و‬ِْ‫ه‬ِ‫د‬َ‫ل‬ َ‫و‬َْ‫ي‬ِ‫ه‬ َ‫و‬ْ‫ة‬َ‫ل‬‫و‬ُ‫ئ‬‫س‬َ‫م‬ُْ‫ه‬‫ن‬َ‫ع‬ْ‫م‬ُْ‫د‬‫ب‬َ‫ع‬‫ال‬ َ‫و‬ْ‫اع‬َ‫ر‬
‫ى‬َ‫ل‬َ‫ع‬ِْ‫ل‬‫ا‬َ‫م‬ِْ‫ه‬ِ‫د‬ِِّ‫ي‬َ‫س‬َْ‫و‬ُ‫ه‬ َ‫و‬ْ‫ول‬ُ‫ئ‬‫س‬َ‫م‬ُْ‫ه‬‫ن‬َ‫ع‬َْ‫ل‬َ‫أ‬ْ‫م‬ُ‫ك‬ُّ‫ل‬ُ‫ك‬َ‫ف‬ْ‫اع‬َ‫ر‬ْ‫م‬ُ‫ك‬ُّ‫ل‬ُ‫ك‬ َ‫و‬ْ‫ول‬ُ‫ئ‬‫س‬َ‫م‬ْ‫ن‬َ‫ع‬
ِْ‫ه‬ِ‫ت‬َّ‫ي‬ِ‫ع‬َ‫ر‬

8. 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)

9. ْ‫إن‬ْ‫علىْأهلْالحوائطْحفظهماْبالنهار،ْوأنْماْأفسدات‬
ْ‫المواشيْبالليلْضامنْعلى‬‫أهلها‬
• 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.

10. 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.

11. •‫ألْتزرْوازرةْوزرْأخرىْوأنْليسْلإلنسنْإل‬
‫ماْسعى‬
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)

12. • Hadith about mentally disabled
persons,
A child is exempt from it until he is
of age
A sleeping person until he wakes up
A lunatic until he recovers from
lunacy

13. 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)

14. 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

15. (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.

16. 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)