15 Jan 2013


Authored by: Salaheldin Al Nahas


Differences in the criteria of Criminal Liability and Civil Liability and Contractual Liability and Liability in Tort

In this article Salaheldin Al Nahas provides an overview of the differences between criminal and civil liability.

Definitions of the difference between criminal liability and civil liability: 

Criminal liability can be described as damages from criminal dispositions which impact the society while damage from civil dispositions impacts individuals.  The penalty which follows criminal dispositions is punishment as prescribed by the law, while the penalty which follows civil liability is a financial compensation.

Public Prosecution is the only authorised entity to request punishment on criminal liability. With civil liability the injured party is the one who claims compensation.   In criminal liability, public prosecution or injured party may not compromise or waive the punishment prescribed by the law; this is due to the fact that it is involved with the rights of society.   Within civil liability cases the injured party or debtor may compromise or waive such compensation given the fact that it is a personal right of the injured party or the debtor. 
For criminal liability to be established a law provision in addition to a punishment should exist to criminalize and punish the act. On the other hand civil liability is established on all illegal actions committed by a person without having to prescribe to a provision of law for such an action. 
For criminal liability to be established on an individual, intention to commit crime should exist,  such intention is not required for establishing the civil liability.   Establishing the criminal or civil liability does not contradict with establishment or non-establishment of the other liability, and the criminal punishment shall have no impact on confining the scope of the civil liability nor estimating the security.
Definitions of the difference between contractual liability and liability in tort: 

The contractual liability is established when there is a breach to any contractual obligation in a contract. Liability in tort is established by breaching one legal obligation that does not change i.e. the obligation of not damaging the other.
In the contractual liability, the debtor shall have the burden of proving that he met his contractual obligations after proving the validity of the contract.   In the liability in tort, the creditor (injured party) has to prove that the debtor has breached his legal obligation and committed illegal action against him. 
Joint liability of debtors is not established unless an agreement of joint liability between the contracting parties is concluded or in some of the cases prescribed by the law, whilst joint liability of debtors in the liability in tort is already prescribed by provision of law. 
If the contract is concluded between the parties, each party shall be held liable within the limits stipulated by the contract, and breaching such limits shall only establish the contractual liability. Hence, the debtor has to sue only based on the contractual liability and not the liability in tort which assumes that the debtor has breached an obligation prescribed by the law. In the in-hand case the obligation has no source other than the contract.

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the develop jurisdiction of the UAE.