موضوعية ضمان الضرر : دراسة مقارنة

Abstract EN

Laws took different positions relating to damage guarantee.

Some laws have built the obligation to compensate on the idea of personal mistake which renders it necessary to examine the behavior of the person who committed the wrongful act and that person’s capacity.

In this context, civil liability has two functions which can be used to justify the approach taken by the first set of laws: the first function is correctional whereby the affected party is compensated for the damage he\she suffered, and the second function is punitive aiming at disciplining the behavior of the person who committed the wrongful act.

On the other hand, there are laws that have built the obligation to compensate on the basis of guarantee which assumes that there is only one goal for civil liability and that is to make for the damage done or for reparation.

This type of guarantee and civil liability focus only on the affected person and damage he\she suffered without paying attention to the person who committed the wrongful act and his behavior.

The article analyzes the merits of damage guarantee by comparing three laws; the Iraqi Civil Code, Jordanian Civil Code, and UAE Civil Transactions Law, and their origins in Islamic Fiqh.

The main points raised in the article are as follows: 1.

Highlighting the merits of damage guarantee in Islamic Fiqh and the relevant laws under study as well as forms of this guarantee.

2.

The extent of clarity and effectiveness of Islamic Fiqh’s view on damage guarantee, as Islamic Fiqh preceded other laws in addressing this issue.

3.

Addressing some of the negative effects damage guarantee.

4.

A Critical study of the relevant laws and the different views adopted by scholars and jurisprudence which run contrary to the general tendency of damage guarantee.