A Comparative Analysis of Tort Law in the United States and Saudi Arabia

Exploring Brown v. Kendall and the Saudi Civil Transaction Law (Articles 120 & 128)

Introduction

Starting from the basic rule of Saudi civil law, “There should be neither harming nor reciprocating harm.” This rule governing tort liability, which has been in operation since the nineteenth century, addresses the modern Saudi Civil Transactions Law on liability for wrongful acts in clear texts consistent with comparative legal trends, whether in both the common law system or the civil law system. This article reviews the directions of Saudi law with its counterpart in American law.

1. Saudi Civil Transaction Law:

In Saudi Arabia, the concept of tort liability is rooted in the principle: “There should be neither harming nor reciprocating harm.” As a result, compensation for damage is directly contingent upon the presence of fault. It is noteworthy that, in the 19th century, Saudi law was not codified in a single legislative document but was instead derived from Islamic jurisprudence. Judges applied relevant provisions based on the specifics of each case.

Over the past two decades, the Ministry of Justice initiated efforts to document judicial precedents for reference, though these were not binding. Saudi law does not follow the common law approach regarding precedents but rather adopts the civil law methodology in applying Islamic legal rulings. In 2023, Saudi civil law was formally codified into a single legislative document, consolidating legal provisions that had been consistently upheld in Saudi courts since the 18th century. These provisions were drafted in a manner that aligns with legislative frameworks in other jurisdictions.

A significant aspect of Saudi law is its approach to shared fault, as reflected in Article 128 of the Civil Transaction Law.

One illustrative case that highlights this principle occurred in 2012 (Appeal Case No. 943/Q – 1433 AH). It involved two relatives studying at the same university, where a university employee mistakenly assigned both individuals the same student identification number. This error persisted for years, allowing one to benefit from the other’s high academic performance in select courses. The court ruled:

“This fact could not have escaped the plaintiff’s attention, especially given that he admitted before the panel that he shared three courses with his uncle each semester and that their results in those subjects were identical. He and his uncle were aware of this similarity at the time, meaning he contributed to perpetuating the error. In fact, his responsibility is greater, as he knowingly benefited from the shared identification number, whereas the defendant was unaware. Furthermore, his involvement was evident from his use of his uncle’s academic results. The court finds that, while the defendant cannot be held responsible, the plaintiff actively contributed to the situation and should not have exploited the academic achievements of another.”

Consequently, the court ruled against his compensation claim, reaffirming the principle that participation in wrongdoing diminishes or negates the right to seek redress.

2. U.S. Tort Law and the Legacy of Brown v. Kendall:

The American tort law first diverged from its English counterpart following a pivotal 19th-century case known as the Fighting Dogs incident, involving Mr. Brown and Mr. Kendall. During the altercation, Mr. Kendall grabbed a long stick and attempted to separate the fighting dogs by striking them. Meanwhile, Mr. Brown stood behind Kendall, observing his efforts. In an unfortunate turn of events, as Kendall stepped backward while swinging the stick, he inadvertently struck Brown in the eye, causing severe injury.

The dispute ultimately reached the Supreme Judicial Court of Massachusetts, which ruled that Kendall had acted lawfully in his attempt to break up the fight and had not been negligent in his use of the stick. In fact, the court suggested that if negligence was present, it may have been on Brown’s part. By standing carelessly close to Kendall, Brown placed himself in harm’s way, which led to his injury. Since Kendall was focused on the dogs, the court found that Brown should have exercised more caution.

This ruling reinforced an established common law principle known as contributory negligence, which prevents an adult who contributed to their own injury through carelessness from recovering damages in a legal claim for accidental harm. The case became a cornerstone in shaping negligence law in the United States, distinguishing it from the principles of English common law.

3. Legal and Philosophical Implications

The comparative study of Brown v. Kendall and Saudi Civil Transaction Law reveals several insights:

• Underlying Equity: There is no doubt that both Saudi law and American law seek to strike a balance between responsibilities by ensuring that the perpetrator bears the injury regardless of his legal status
• Evolution and Codification: American tort law has evolved dynamically through case law. In contrast, Saudi law codifies these principles in clear short-form articles that provide predictability and restrict the judge’s power to go beyond the limits of the legal text.

The experience of Saudi law can serve as a model for jurisdictions seeking to integrate concepts of common fault without the multilayered complexities of common law development.

• Cultural and Doctrinal Distinctions: The American system of punitive damages, along with its rich body of judicial precedents, reflects a cultural commitment to deterrence and compensation. In contrast, the Saudi legal framework prioritizes fair and proportional compensation rather than excessive punitive damages. However, in certain cases, both civil compensation and criminal penalties may apply. For example, under Saudi financial market law, numerous rulings have been issued ordering the confiscation of illicit gains, along with criminal financial penalties and civil compensation awarded to affected shareholders.

4. Conclusion

In conclusion, courts have demonstrated a firm approach to negligence by establishing a framework that links unlawful actions to resulting harm. Similarly, Saudi law addresses the issue with a structured and codified approach, particularly in cases involving shared fault.

Examining these unique legal experiences is not merely an academic exercise but rather a means of highlighting the nuances between different legal systems. Legal practitioners—whether international arbitrators, dispute resolution experts, or mediators in cross-border conflicts—must be well-versed in these principles and take them into account in their practice. Whether advising a U.S. corporation facing potential negligence claims or guiding a Saudi client through compensation disputes, a deep understanding of these legal doctrines enhances strategic decision-making and fosters broader discussions on justice and accountability.

If you have an ongoing case or require legal consultation, do not hesitate to reach out to Attorney Khalaf Bandar Khalaf.