Section Thirteen
Compensation for Damage
Damān At-Tālif
In some of the previous sections the term ‘damage’ and some of the situations that make compensation obligatory were mentioned; here we shall explain this term more clearly, discussing some more situations where compensation becomes obligatory. We shall also explain how to pay compensation according to the types of things compensated for.
(A) Damage that makes compensation obligatory
1252. Damage is: the occurrence that leads to the asset stopping, in its substance and form, to be suitable for use in appreciable benefiting ways, which is different in its manifestation depending on the nature of things and the forms in which they are made, since damage to a chair is different to damage to wheat, a book, a dress, oil other countless things.
1253. Damage should be divided – as far as the damaging effect is concerned – into two types:
First: Natural d damage (talaf), which takes place to the thing due to natural causes without man’s intervention, such as an animal dying naturally, fruits becoming spoiled or a dress becoming worn out over time, burning, drowning, falling from a high place, being eaten by a wild beast, bitten by poisonous insects and other almost countless things.
Second: Human damage (itlāf), which occurs when a human cause effects the damage, through doing something, either directly or indirectly, by effecting something which leads to damage. This may be deliberate, caused with full awareness, intention and free will, such as damage caused by a sane, aware, adult making this choice; or it may come about through coercion, or lack of awareness and attention, such as damage caused by a child, a sleeping person, an absolutely insane person, someone walking in darkness and the like. Human damaging takes one of two forms:
1- Direct damage, which is: the person himself doing the damaging, such as slaughtering a sheep, tearing up a dress, erasing words from a book, demolishing a house using demolition equipment, and the like.
2- Providing the cause of damage, which is: the person does things that lead to causes of damage, such as wetting wheat with water which leads to spoiling, splashing the road with water which leads to pedestrians sliding and falling, and the like.
1254. The responsibility lies with the person under whose control the asset was when it was damaged - or if he damaged it when it was under his control – as follows:
First: Compensation is due from the person under whose control the asset was - for any cause - when the damage occurred to it, and in any situation in which control over the asset is unlawful, such as through misappropriation, invalid exchange transactions or out of a lack of awareness or ignorance, which is the control called ‘yad al-‘Odwān’ (lit. hand of aggression) and similar situations in which no ‘aggression’ is involved.
Second: Any damage caused by natural causes that occurs to the asset under the lawful control of someone is not to be compensated for; this is called ‘yad al-Amānah’ (lit. hand of trust), which also covers the situation in which the asset came into his control through proxy, mortgage, loan or deposit, or a valid exchange transaction if invalidated through iqālah (relieving from the obligation) or choice as a result of which the asset must be returned to its owner, or an invalid non-exchange transaction.
Third: Compensation is due from anyone who damages others’ assets, whether intentionally or otherwise, whether the asset was under his control or not, a ‘hand of aggression’ or ‘hand of trust’, or directly or through facilitating the cause.
1255. When an animal under the control of someone - the owner or others such as those renting or borrowing it - transgresses on another’s assets(crops or other things) and damages it, then if the person whose control the animal is under is with it, riding it, driving it, leading it or accompanying it, he is liable to pay compensation for what it damages, but if he is not with it, such as if it went out of the barn and wandered around and damaged the asset of someone else, in this case the person will not be obliged to compensate for the damage unless two things are present:
First: The person whose control the animal is under failed to secure it in a manner suitable for animals of its type.
Second: The damaged thing must be in a place or at a time in which its owner is not regarded as negligent in leaving it there. So if the owner failed to do that, such as if he left his things in the road then the animal whose owner failed to tie it came and damaged it, no compensation is due from the animal's owner.
If the animal is a bird and its cage door was opened, it flew out and broke a container spilling what was in it, the person who opened the door will have to pay compensation for whatever was spoiled, even if this took place as a result of the small size of the cage and the disturbance of the bird when it escaped.
1256. If a person informs against another person to an unjust ruler, or if he complains to him rightfully or not, causing the unjust ruler to take from him an asset without the right to do so, compensation is not due from the informer or the complainer, but on the asset-taker. The informer or the complainer have committed a sin if they did not have the right, and even sinned if they had the right but if the right could have been claimed through resorting to other authorities besides the unjust ruler.
1257. If someone disposes of his ownership lawfully, but causes damage to someone else’s asset, no compensation is due from the first person unless his disposal was liable to harm the other if accompanied by negligence and failure to take careful measures, such as in the following cases:
a- Someone places a flower pot or water jug on his wall and is liable to fall, but he ignores this and it falls on another person’s animal or his belongings and damages it.
b- Someone lights a fire within his property where it is liable to spread to another’s crops, but he does not take measures to prevent its spread and it does spread to the crops and burns them.
c- Someone opens a water tap within his property and the water is liable to flow into his neighbour’s property and harm it, but nonetheless he does not take measures to prevent that and it flows into it and damages it.
However, if the jug was not liable to fall, nor was the fire or the water liable to spread or flow, but by accident it harms another person, no compensation for the damage is due from the owner of the jug or property.
1258. Compensation is due from the person who harms the road by the damage which he causes in others’ asset, such as if he opens the water tap or fuel pump and a car slides and is damaged, or if he digs a ditch without taking the necessary measures to prevent others from falling into it, or similar acts that violate the rights of pedestrians.
(B) How to pay compensation
It has become clear that compensating for something that has been damaged can be effected by replacing it with a similar thing if it was a similar-type (mithli) asset, or by its value if it was a value-type (qimi) asset, the explanation of which is as follows:
First: Compensating with something similar
1259. According to the scholars, a ‘similar-type’ asset is: something belonging to a large group of similar things, but which have features that are different according to the different desires of people; or it is: something that is sought after for its kind (naw‘) and type (sinf, i.e. sub-kind), not an individual item. So when there are a lot of individual items but are similar in their fundamental features, these things are of a ‘similar-type’, such as wheat or lentils or other grains, goods manufactured in modern factories – tools, medicines, material, jewellery, watches, canned food etc. to which the above definition applies.
When the kind is the same but the types (sub-groups) are different, such as wheat which has different species that are used differently according to people’s tastes, the compensation must be with a similar in type. So a person who has damaged an amount of a certain type of wheat is not relieved of his responsibility unless he pays the same amount of the same type of wheat, not of another type. The same applies to grapes and raisins, and dates and unripe dates, for grapes will not be a valid compensation for raisins, nor type A of grapes for type B, and so on in similar examples.
1260. Value is not a valid replacement for paying with a similar item for a similar-type asset unless the person being compensated accepts this. The person paying the compensation must hasten to pay it without unnecessary delay, and if he does not have a similar item, it is obligatory on him to find one even by buying it at a price that is more than the price of the original, unless the excess in price is commonly regarded as too much to meet, in which case paying with similar item will no longer be obligatory and he may pay its value as compensation.
1261. If the similar item loses its financial value, such as if the damaged good is a currency that was later withdrawn from circulation, in this case the person who has done the damage is not relieved of his obligation by paying similar items that have no financial value any longer if the person being compensated does not accept this. Also, if the person who has done the damage refuses to wait until the value of the similar item goes up, which will mean that he will have to pay when the value is higher, he is allowed to pay the value at which it stood before cancellation if its value did not change during that period, otherwise it is sufficient for him to pay its value when the currency is no longer available.
Second: Compensating the value
1262. According to the scholars, a ‘value-type’ asset is: something this is unique and has no parallels that are similar to it in its fundamental features; or it is what is sought after as an individual item, not as a kind or type; this includes things like animals, certain foods, hand-made items such as craft-made paints and textiles, etc.
1263. Paying with a similar item is not a valid replacement for the value in value-type assets unless the person receiving the compensation accepts any individual item of the damaged kind. The person paying the compensation must hasten to pay the value without unnecessary delay; so if the market value throughout the period between misappropriating (ghasb) or damaging it and paying the compensation is the same, no problem; but if the market value changes – according to the different trends and changes in the supply and demand – he is obliged, then, to pay its value on the day of paying the compensation not the day that the damage was done. However, if the difference in value was due to the difference in place, such as if its value in the place where it was misappropriated was ten, and in the place where it was damaged five, and in the place where compensation is going to be paid is seven, compensation must be set at its value in the place of where it was damaged.