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(i) does not perform its obligation (whether in its entirety or partly); or
(ii) there is delay in performance by that party; or
(iii) performance is defective.
II. A man pushes another causing him to fall in a well. The man
who pushed the other will be liable to the other for the damages
suffered as a result of being thrown down the well. The basis of
liability in this example is tort.
Under the civil code, a person will be liable in tort even if he had no intention to
cause damage or harm. Thus, if a person drives a car running into another person's
house, the driver will have to compensate the house owner for the damages that
resulted from that act, irrespective whether the driver had an intention to harm or
cause damage or not.
It is important to always note that in order for liability in tort to occur, the following
conditions are required:
(i) the acts performed by the individual should be a tortious conduct or wrong committed. On
this basis, if a person opens a supermarket and this act results in other supermarkets
sustaining loss, it cannot be said in these circumstances that there is tort because opening a
supermarket is permitted by law; and
(ii) There is damage caused as a result of the tortious conduct or wrong act. This is whether
such damage is Financial Damage; or 2- Physical Damage (injury); or 3- Moral damage
(affects person's reputation his mental comfort, etc.). All of the aforementioned types of
damages can be compensated for in tort.
(iii) The existence of a relationship between the tortious conduct, wrongful act and the
damage caused. It is not sufficient to have only a wrongful act and damage, there should
also be a cause relationship between the two so that a person may be held liable for his tort.
Take the following example: a person makes a car accident resulting in very minor injuries to
another person. The injured person is taken to hospital. At hospital the doctor treating the
injured person commits a gross and fatal mistake resulting in the death of the injured person.
In such circumstances, there could not be said to exist a cause relationship between the death
of the injured person and the car accident. Rather, the death is attributed to the doctors gross
mistake and not the car accident.
In addition to the above, it is important to note the concept of Abuse of rights which can be an
exception to the above. Under this concept a person may be liable for the tort even if it does not
commit a wrongful act, but rather commits a permissible act under law with the intention to harm.
The clearest example of this is when someone digs a hole in his own land with the intention of
having his neighbour falling into it when entering to his land. Or where a person opens a
supermarket and offers unreasonable discounts with the sole intention of bankrupting
neighbouring supermarkets.
The following are some of the most important difference between contractual and tortious
liability:
i. Capacity: As seen earlier in contracts, in the usual circumstances a person has to reach the age
of (18) to conclude contracts and be obligated to perform contractual agreements. In tort,
under Jordanian law, a person is liable for his acts even if the person is a minor. Clause (256)
of the Civil Code states: Any person, even if non-discerning, shall be held accountable for
inflicting damage on others. Thus, if a minor throws a stone on a car causing damage to the
car, the owner of the car can sue the minor (and could in certain circumstances sue the person
whose responsibility is to care for the minor) for the damage inflected to the car.
ii. Amount of compensation: in contractual liability, the view is that the party in breach of his
contractual duties is liable only for direct damage that is expected at the time of contract. In
tort, it is widely accepted that the party which causes damage to another is responsible for all
damage (whether expected or not) and this may includes loss of profit which resulted from
the tortious act.
iii. Limitation of liability: in tort, a person cannot agree to dismiss his liability or limit it.
Accordingly, a factory owner cannot agree with his workers that even where the owner is
negligent in providing a safe place to work in, then he will not be liable to the workers for any
injury or damage caused to them due to this negligent act. In contractual liability, however,
some writers argue that the parties can agree to limit their liability in cases of breach of
contract. Thus, if a project owner agrees with a builder that the builder constructs a building
within (1) year. The builder and the project owner can agree in the contract that the builder
will not be liable for any delay in constructing the building. However, there are provisions in
the civil code of Jordan which suggest that limitation of liability in contracts may not be
enforceable and actual damage will be compensated for.