Tort Liability of a Non-discerning Person : A Comparative Study

In this study, I discussed the Tort Liability of a non-discerning person. In the first chapter, I discussed the cause of Tort Liability of a non-discerning person in the Judicial Regulation Journal and positive laws. Theses causes include non-discernment for minor age, insanity, idiocy, and stupidity. These cases are stated by the regulations of both the Journal and the civil positive laws. In addition, the Judicial Regulation Journal stated cases of non-discernment other than those stated by the positive laws such as: indebtedness, fatal disease, coercion, unconsciousness, sleeping and drunkenness. I have carried out a comparison between the system of competence incidents and what it contains of causes and regulations in the Judicial Regulation Journal on the one hand and what is included in the civil positive laws on the other. I have reached several findings including that the Judicial Regulation Journal does not provide clear criteria to judge whether the person is completely insane or not. I suggested that the technical medical opinion should be taken as a criterion to investigate diseases that affect the mind, and that should not be left to the abstract legal regulations and provisions. I also concluded that the system of competence incidents in the civil positive laws is inadequate. There are cases of non-discernment or when discernment is spoilt that are not covered by the system of competence incidents such as drunkenness. I proposed a legal text that may decide the cases of discernment more comprehensively. In the second chapter, I discussed the Tort Liability of a non-discerning person in the Egyptian civil law. In this respect, I found out that the Egyptian law takes in consideration the idea of mistake in Tort Liability, and the origin in the Egyptian law is non-liability of the non-discerning person except in exceptional cases and that such exceptional cases are inadequate to achieve justice. Therefore, the Egyptian civil law should have held the non-discerning person liable for his detrimental acts. On the other hand, I discussed in this chapter, the jurisprudent bases and the various theories on which the liability of the non-discerning person is based in the French civil law due to the fact that the Egyptian civil is influenced by it. I traced the developments related to the regulations of this liability in the French law, attempting to find out to what extent the Egyptian civil law is affected by the French jurisprudent schools and their theories, as can be seen clearly from the explanations and comments of the Egyptian jurisprudents. At the end of this chapter, I found out that the theory of holding liability which is stated in most of the Egyptian jurisprudence remains the legal basis of the non-discerning person included in the text of Article (164/2) in the Egyptian civil law. The third chapter is dedicated to the liability of the non-discerning person in the Islamic jurisprudence and the Jordanian civil law. In this respect, I investigated the stand of the Islamic jurisprudence related to the liability of the non-discerning person in light of the two important rules stated in the Islamic jurisprudence: initiation and causing. I discussed the definitions of both the initiation and causing and to what extent their regulations are in conformity with the non-discerning person. I found out that there are two directions: the first sees that the non-discerning person is not liable in the case of causing and the other states the necessity to hold the non-discerning person liable of acts that are detriment to the others whether in their capacity as initiator or causer. In addition, I discussed in this chapter the stand of the Jordanian civil law related to the liability of the non-discerning person by studying the legal texts that govern this liability and the regulations included in these texts. At the same time, I compared these texts with their similar texts in the Western civil laws. Following this, I criticized the formation of some of these legal texts that govern the liability of the non-discerning person in this law. At the end of this chapter, I discussed the legal basis of the liability of the non-discerning person in the Jordanian civil law by studying the liability theory in the Islamic jurisprudence and its basis that damage is the basis of holding liability. Meanwhile, I discussed the evidence of holding liability in the Islamic religion and the liability of the non-discerning person in light of the general principles of the Holy Quran and the Noble Sunna of the Apostle. Finally, I put a conclusion to record my various deductions and viewpoints regarding the liability of the non-discerning person in the two civil laws that I studied, in addition to the proposed text that I put forward regarding the cases of non-discernment that are not covered by the positive laws.