SECTION 1. The Liability for personal acts
1.1. The wrongful act or fault
1.1.1. Culpability
The culpability can consist in the fault as violation of a rule, as a fault without a violation of a rule or abuse of authority.Fault, violation of a rule
A fault, violation of a rule can concern civil, penal, administrative rules…Example: to steal something from somebody (fault, violation of criminal law); to injure somebody (fault, violation of civil and criminal law).
Without a violation of a legal text
Without a violation of a legal text, one can commit a fault. This fault is defined as a behaviour which an ordinarily diligent, prudent, honest person or one mindful of fulfilling social duties, placed in similar circumstances would not have committed (e.g. behaviour of the good father of family).
abuse of authority
This is a fault that is committed by a person in the exercise of his duties. For example, a head of a certain Department who obliges his/her secretary to stay at work beyond office hours in order to have a sexual relationship.
1.1.2. Imputability
It is not sufficient that the act was illegal; it must be attributable to somebody (the wrongdoer) who has the conscious and free will to do the act. The conscience, capacity and free will are the three components of imputability.
The damage
In order for the victim to be indemnified, there has to be not only the fault but also the damage. This is the harm to be repaired. Below, we are going to examine the kinds of damage and its character in written law.
- 2.1. Various kinds of damages
- Material damage
This is damage on one’s patrimony. It is defined as attack on one’s patrimony arising from bodily injury, death or damage to property.
Moral damage
The moral damage is the extra-patrimonial damage. It is a damage which does not concern ones patrimony.
Type: an attack against one’s personality (an attack against one’s names e.g. changing someone’s name from KILA to KILLER; attack against one’s honour or the attack on the reputation of a person, or his feelings of affection. e.g. saying that one is a prostitute when she is not; etc.
- 2. Characteristics of the reparable damage;
- The damage must be actual and certain;
- The damage must consist in violation of a legitimate interest (legally protected interest);
- The damage must be direct;
- The damage must be personal.
The damage must be actual and certain
The damage to be certain means that there is no doubt of its reality. In order to be compensated, the victim must prove the existence of the damage which he suffered. This damage must be certain at the time when the judge is evaluating it in order to facilitate him.
The eventual damage cannot be indemnified. For example, a father of a child who was killed in an accident cannot claim the compensation related to the benefits invoking that his child could be a President because he was intelligent.
THE DAMAGE MUST CONSIST OF THE VIOLATION OF A LEGITIMATE INTEREST (LEGALLY PROTECTED INTEREST
The damage which the victim claims must be a legitimate damage. It is the interest which is protected by the law that will be considered. For example, the owner of a property has a right to request for indemnity because he has a right to property (interest protected by the law). On the contrary, an illegitimate interest that is not protected by the law cannot be indemnified. For example, a lady living with a boyfriend (without a marriage relationship) cannot claim compensation because of the damage that arises from the death of her lover (boyfriend). This damage is not a violation of an interest protected by the law.
THE DAMAGE MUST BE DIRECT
The damage to be compensated must be the direct and immediate continuation of a faulty behaviour. This characteristic makes it possible to put aside the reparation of many other consequential damages, which perhaps, could not have been caused by the fault of the author of the damage. For example, if the School of Finance and Banking (SFB) unjustly fires its lecturer Dr MUSEMAKWELI, he can claim damages because of the illegal expulsion. But if Dr MUSEMAKWELI becomes angry (as a result of the expulsion), and beats and injures his child, he cannot claim compensation from SFB saying that the anger leading to a slap and injury was caused by SFB act of expulsion. The injury was an indirect damage compared to the SFB’s action.
THE DAMAGE MUST BE PERSONAL.
The victim must have personally suffered the damage. Thus one must prove that s/he is victim of the damage. If the action causes damage to various persons, each of them must prove his/her personal damage.
1.3. The causal relationship
The victim must establish that there is a direct, certain and immediate relationship between the fault and the damage which has been suffered.
SECTION 2. Liability for acts committed by others
- The responsibility of parents for the acts of their children
2.1.1. Principle
According to article 260 (2), “the father, and the mother, after the death of the father, is liable for the damage caused by their children residing with them”. This liability is established except if the father or mother prove that they did all they could to prevent the action of the child (art. 260, 5)
2.1.2. Conditions for this liability – of parents for the acts of their children
Article 260 imposes a numbers of conditions for this liability to exist, namely:
- The damage must be caused by the child
- The child must be residing with the parent (article 260(2))
- The damage must be caused by the personal act of the child
2.2. Liability of masters for wrongs of their domestic and agent
- 2. 1. Principle
According to Art. 260 (3) CC III[1], a master/”commettant” is liable for acts of the domestic (home maid) and agent (worker), if the acts fall within the functions for which they were employed. A “commettant” is a French word meaning someone who asks another to do something on his behalf. This is a kind of indirect liability (for the master/commettant) because the primary liability for the acts of the domestic and agent (worker) is born by them.
2.2.2. Conditions for the liability of a master/commettant for wrongs of a domestic and agent (worker) respectively – Relationship of subordination
- The fault of the domestic or agent (worker)
- The damage is supposed to be caused to a third party, that is to say, any other person other than the master/commettant
- A relationship between the act of the domestic or agent and the functions which they do g. A domestic who injures somebody who is near him while he is cutting a fish.
2.1.3. The liability of teacher and craftsman for the acts of their students and apprentices respectively
PRINCIPLE
According to article 260 (4) CC III, teachers and craftsmen are responsible for the damage caused by their students and apprentices respectively.
A teacher is not only one who teaches but also someone who has the role of direction and supervision within an educational establishment. A craftsman is one who gives a professional training to the apprentice.CONDITIONS FOR THERE TO BE THIS CIVIL LIABILITY
- the most important condition is one of time. The law indicates that the damage for which the craftsman and teacher are liable is that which was caused by the student or apprentice while the latter was under the supervision of the former.
- the act which caused the damage must be the fault of the student or apprentice
The law only talks about teacher and student, craftsman and apprentice. It does not prescribe that the student or apprentice must be minors.
However, the law creating the National University of Rwanda provides that professors and lecturers in university are not liable for the actions of their students (article 39 (2) of the Decree law no 33/76 of 16/09/1976).
- the damage for which teachers and craftsmen are liable are those caused by the students and apprentices against third parties or those committed between themselves.
- There must be a relationship of artisan and apprentice. This is usually by way of contract of apprenticeship.
2.1.4. Liability of the damage caused by things.
In the section below, we will study the liability for the damage caused by animals (art. 261 (2) of CC III); ruins of buildings (art. 262 of CC III) ; and for lifeless things ( art. 260, Para 1).
- LIABILITY FOR THE DAMAGE CAUSED BY ANIMALS
- Principle
According to article 261 CC III, the owner of the animal or one who uses it during the time of its usage, is liable for the damage which the animal has caused, whether it was kept by him, escaped or lost. Therefore, the legally liable person is either the owner, or one who keeps it (the keeper).
Conditions of application of this liability
These conditions concern the animal and the one liable for it.
2.1. The concerned animal and its behaviour
Here, the concerned animal is one that is domestic or even wild if the latter was caught and made domestic.
These animals may be dangerous or harmless. We therefore consider all animals without distinction of their zoological nature: domestic animals or others (dog, goat, pig, cat, monkey, rabbit, bees in hives, etc.)
– The behaviour of the animal is also important, and it must be a positive one. The animal must do a positive act.
2.2. The liable person
According to article 261 CC III the liable person is the owner of the animal which caused the damage or its keeper while it is being used by him.
In general, the owner of the animal (this is why the law firstly cites him or her) or its keeper. The keeper can be “an independent keeper” or “a professional keeper”
1° an independent keeper
This is the owner or the hirer of the animal. When the owner of the animal hires it out, it means that he has transferred all the care and duty towards the animal to another person. Then if the animal causes damage to someone, the hirer is liable and must indemnify the victim.
Another situation is when the owner of the animal loses its custody, for example when it has been stolen. Then the thief becomes the keeper of the animal and the liable person. But someone who abandons the animal cannot be considered as the one who loses its custody and will therefore be liable for its damage.
2° the professional keeper
Someone who takes care of an animal on a professional level is considered to be its keeper and will therefore be liable under article 261 CC III. An example could be a veterinarian who treats the animal and is liable for the damage which it causes during the time when the animal is under his care.
Also, someone in a circus who trains animals while exercising, dancing, running, etc., is liable for the damage caused by these animals while they are under his care.
2.1. Liability for the damage caused by the ruins of a building
2.1.1. The principle
According to article 262 CC III, the owner of the building is liable for the damage caused by its ruins when the ruins were caused by a result of default of maintenance or a construction defect.
Here, the owner of the building is liable, contrary to the case of the animal (article 261CC III) where the owner and others may be liable for the damage caused by the animal.
Necessary condition
According to article 262 CC III, three conditions have to be met in order to establish the liability of the owner of the building.
- There must be a building. The primary meaning of a building should be understood as a normal construction.
- the damage must be caused by the ruins of the building: in other words, when the building or a part of the building falls. This is different from the building in ruins, meaning that building has already fallen. The article (article 262 CC III) does not apply in this second case.
- the origin of these ruins can either be caused by the default of maintenance or a construction defect.
Article 262 CC III does not consider other causes of ruins like those falling because of a fire, or car accident.
- DEFENCES
- case of force-majeure if it is not caused by default of maintenance or a construction defect.
The exclusive fault of the victim
There is an exclusive fault of the victim when the latter knows the deteriorating situation of the building (for example if the owner posts the sign clearly indicating that the building is in ruins) and the victim sustains an injury after passing nearby.
LEGAL ACTIONS OF THE OWNER
The owner can have legal actions against:
- The architect or entrepreneur in case of default in construction
But this kind of action is prescribed after 10 years from the time the owner receives the building (article 439 CC III)
- The tenant if the owner proves that there was default of maintenance (a failure of an obligation resulting from the contract).
[1] Civil Code Book iii
