Tort Law Under Common Law and Egyptian Legal Systems – Of

Divergence and Convergence

’Gbenga Bamodu, Mariam Allam, Maha Omar

Citation of Published Version: (2023) 8 Crescent University Law Journal 111-130

https://bacolaw.edu.ng/?page_id=748

Abstract

The common law and the Egyptian civil law legal systems appear to proceed
from divergent perspectives in their respective approaches to tortious liability.
Common law legal systems rely considerably on judicial decisions and judicial
precedent in the development of the common law and the law of tort. In the
Egyptian legal system, provisions relating to tortious liability are contained
primarily in the Civil Code and expressed in general principles. Nevertheless,
as both systems are grappling with the same fundamental issues concerning
redress for tortious wrongs, it is natural that amidst divergence there will be
points of convergence. This article explores the approaches of the Egyptian
and common law legal systems to matters of tortious liability in private law.
Using mainly the common law of England, similar though not necessarily
identical with Nigerian common law, as the primary comparator, the article
explores examples of tort at common law and illicit acts in Egyptian law to
identify areas of convergence and/or of divergence in the approaches of the
two significantly different legal systems.

Keywords: Tort, Illicit Acts, Common Law, Civil Code, Egyptian Law, Arabic Law


FCIArb; LLM (London), PhD (Nottingham), Barrister & Solicitor; Partner in Phillipsons Legal
Practitioners & Arbitrators (Nigeria), formerly Professor and Head of Common Law, British
University in Egypt, and formerly of the University of Essex, Colchester, United Kingdom;
gbenga@phillipsonslaw.com

LLB (Ain Shams), LLM (Indiana University, USA), Assistant Lecturer, British University in
Egypt and PhD Candidate at the University of Cairo; mariam.allam@bue.edu.eg.

LLB (Ain Shams), LLM (Jean Moulin-Lyon III University, France); Senior Lawyer at Mashreq
Egypt, PhD Candidate at Ain Shams University, and formerly Assistant Lecturer, British
University in Egypt; mahaels@mashreq.com.

1
1. Introduction

In English law, as with other common law systems, the law relating to tortious
liability is typically classified as belonging within the realm of the law of
obligations1 together with the law of contract and the law of restitution.

Generally, tort law in English and other common law legal systems is concerned
with an action or omission by one party which wrongfully affects a right or
interest of another party. The aim of the law of tort is to provide compensation
- or other remedy2 - to the party whose interest or right is deemed to be unjustly
affected by the action or omission of another. The aim is not so much to punish
the infringing party but more to compensate the aggrieved party. Importantly,
the protection of a party’s interest or right within the law of tort is not dependent
on the existence of any agreement between that party and the other party who
might have infringed that right or interest.

English tort law is a product of the common law and has been mostly developed
through the courts. It encompasses a range of torts covering, among others,
the torts referred to as intentional torts, including the various forms of trespass,
and the important tort of negligence. In civil law systems on the other hand,
rules of law relating to the protection of the right or interest of one person
against the action or omission of another are generally provided for in a civil
code. In this vein, Egypt’s Civil Code3 contains provisions relating to matters
that in comparison with the common law4 fall within the same realm as the law
of tort.5

1 See e.g. J. Cooke & D. Oughton, The Common Law of Obligations 3rd ed., (Oxford: Oxford
University Press, 2000 reprinted 2008).
2 Depending on the circumstances, other remedies within the common law in relation to tort

may include, among others, an injunction and some forms of self-help remedies such as
abatement.
3 The current Egyptian Civil Code was promulgated by Law No. 131 of 1948 and has been in

force since the 15th of October 1949. In this work, references to the English version of the
Egyptian Civil Code are based primarily on The Civil Code (Cairo: Middle East Library for
Economic Services, 2018 – ‘MELES’) unless otherwise indicated. Occasionally, there will be
comparisons with another English translation of the code, in particular an English translation
obtained courtesy of the Shalakany Law Office, which will be referred to in this work as the
Shalakany Law Office translation; gratitude is expressed to Mr Mohammed Essam, assistant
lecturer in the Faculty of Law at the British University in Egypt, for obtaining and supplying a
copy of this translation.
4 Although Egypt did fall under British control at some point during its evolution to its current

status as the Arab Republic of Egypt, the influence of the common law on Egyptian law is
limited; cf., B.L. Mosely, ‘England's Work in Egyptian Law Reform’ (1886) 12 The Law Magazine
and Review (5th ser) 1.
5 See also https://egyptjustice.com/civil-law/ (accessed 14 August 2023).

2
Book 1, in the first section of substantive provisions, of Egypt’s Civil Code
contains provisions dealing with ‘Personal Obligations Or Rights’ covering,
among others, contracts and ‘illicit act’.6 The expression ‘personal obligations
or rights’ under the Egyptian Civil Code is comparable to what is referred to in
the common law system as the law of obligations. Similarly, the Egyptian Civil
Code expression ‘illicit act’, in context, is comparable to tort law in the common
law system.7 Egyptian scholars tend to classify the provisions on obligations in
Book 1 of the code into ‘voluntary’ and ‘involuntary’ sources of obligations with
the latter incorporating illicit acts, liability by virtue of law, and also liability for
unjust enrichment.8

Some provisions of the Egyptian Civil Code deal with particular examples of
illicit act. The examples of illicit act in the Egyptian Civil Code do not use specific
nomenclature as found in tort law at common law though they include behaviour
which would also amount to tort9 at common law.10 Nevertheless, here lies the
beginning of points of significant difference between the Egyptian Civil Code
and the common law, in particular, as the range of torts identified at common
law are not replicated in the Egyptian Civil Code.

The common law has already developed a range of specific torts addressing
various circumstances and civil wrongs done by one person to another. The
emergence of the tort of negligence also significantly expanded the remit of tort
law in the common law system. It is instructive to recall the famous statement
of Lord MacMillan in Donoghue v Stevenson11 that the categories of negligence
are never closed. It is tempting to draw a quick conclusion that while the
common law system is more amenable to the emergence of new forms of

6 Section 1, Book 1, Part 1, Chapter 3 of the MELES English translation of the Egyptian Civil
Code. This is rendered as Part 1, Book 1, Chapter 1, Section III in the Shalakany Law Office
English translation.
7 Indeed, the Shalakany Law Office English translation of the Egyptian Civil Code specifically

uses the word ‘Torts’ instead of the expression ‘illicit act’ used in the MELES translation.
8 See e.g. Mohamed Abu Zaid, The General Theory of Obligations 27.
9 For an interesting historical perspective on the naming and identification of torts in even the

common law system see J. Smith, ‘Torts Without Particular Names’ (1921) 69(2) University of
Pennsylvania Law Review 91.
10 In comparison, corresponding provisions in an English translation of the Civil Code of the

United Arab Emirates (‘UAE’) do include nomenclature which translate as expressions also
found in the common law system such as ‘misrepresentation’ and ‘trespass to goods’; see
Article 185 and the heading to Article 304 and of the Civil Code of the UAE respectively, (English
translation by J. Whelan and M. Hall) https://lexemiratidotnet.files.wordpress.com/2011/07/uae-
civil-code-_english-translation_.pdf (accessed 14 August 2023).
11 [1931] UKHL 3, [1932] AC 562; http://www.bailii.org/uk/cases/UKHL/1932/100.html
(accessed 14 August 2023).

3
tortious liability, the fixed nature of the Egyptian Civil Code makes the
recognition of new forms of liability less likely.

Here, one may be confronted by a paradox: the body of rules and principles
that amounts to tort law at common law is mostly developed by the judges with
the most important and stark development being the recognition of the tort of
negligence. On the other hand, the Egyptian Civil Code provides, firstly, for
liability in respect of illicit acts with a number of instances mentioned.
Significantly, though, the general nature of the provisions of the Egyptian Civil
Code in respect of illicit acts intrinsically and conceptually does in effect leave
a considerable amount of scope to the courts in relation to when judicial remedy
should be available for an illicit act. There is no suggestion that the instances
of illicit acts mentioned in the Egyptian Civil Code are exhaustive.12 It may just
be possible to recast Lord MacMillan’s aphorism in the Egyptian context to say
that the categories of illicit acts are never closed.

This article explores the approaches of the Egyptian and common law legal
systems to matters of tortious liability in relation to private rights and obligations.
It explores examples of tort at common law and illicit acts in Egyptian law to
identify areas of convergence or divergence in the approaches of the two
significantly different legal systems. The article starts with brief discussions of
some of the fundamental elements of the two legal systems.

2. Fundamentals of the Egyptian Legal System

Egypt is an ancient nation13 with an interesting legal history14 along with the
country’s fascinating general history. The history of legal development in Egypt

12 In fact, the first provision under the heading of ‘illicit act’ is couched in clearly general
language: article 163 of the Egyptian Civil Code; see further section 4 below.
13 For one chronology of ancient Egyptian civilisation and the evolution of Egypt to a nation

state, see ‘Chronology’, Digital Egypt for Universities, University College London, text at
https://www.ucl.ac.uk/museums-static/digitalegypt//chronology/index.html (accessed 14
August, 2023); see also A. Goldschmidt, Modern Egypt: The Formation of a Nation State 2nd
ed., (Routledge/Westview Press, 2004); T. Phillipp, ‘Nation State and Religious Community in
Egypt: The Continuing Debate’ (1988) XXVIII Die Welt des Islams 379.
14 The claim is even made in the Encyclopaedia Britannica that: ‘The history of Egyptian law is

longer than that of any other civilization.’ See https://www.britannica.com/topic/Egyptian-law

(accessed 14 August 2023). One author notes that Egypt is ‘a country where many legal
traditions have historically operated to produce the legal system that exists today’; see Adel
Omar Sherif, ‘An Overview of the Egyptian Judicial System and Its History’ (1998-1999) 5
Yearbook of Islamic and Middle Eastern Law 3.

4
encompasses the Pharaonic era, periods of early customary law,15 the era of
Roman occupation, the spread of the Sharia during the Islamic era and,
eventually, the colonial and postcolonial eras.

From a contemporary perspective, modern Egyptian law and the legal system
can be traced to the reforms that emanated during the reign of Mohammed Ali
in the nineteenth century.16 That era is regarded as having brought the
operation of western legal rules and the western system of law to the fore in the
Egyptian legal and judicial systems with a consequent diminution of the spheres
of operation of the Sharia.17 The era also saw the introduction of ‘mixed courts’
which are said to have had jurisdiction over financial disputes, including foreign
interests, and with many of the judges being foreigners who based their
decisions on western legal codes, including the French civil and commerce
codes.18

Following the sustained period of westernisation of the legal and judicial

systems, albeit with modifications and adaptations19 since the nineteenth
century, Egypt eventually promulgated its own nationally applicable civil code
in 1948. The Egyptian Civil Code is modelled in the fashion of the French civil
code system and after the Napoleonic Code; it has been in turn influential on
civil codes enacted in other Arab states.20

15 Reference to customary law in relation to Arabic countries incorporates what is known as

‘Urf’’ (Arabic ‫ )العرف‬which refers to the custom and knowledge of a people as separate from
Islamic revelation; see e.g. ‘Urf’ in J.L. Esposito (ed.), The Oxford Dictionary of Islam at Oxford
Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t125/e2438 (accessed
14 August 2023); H.A. Ghani, ‘Urf-O-Ädah (Custom and Usage) as a Source of Islamic Law’
(2011) 1(2) American International Journal of Contemporary Research 178.
16 Sherif, note 14 above, 12; F. Amereller, K. Bälz & S. Klaiber, A Guide to Business Law in

Egypt 14 (2010), at http://amereller.com/wp-content/uploads/2016/10/Amereller_Egypt-Guide-

2010.pdf, alternative link at https://www.scribd.com/document/420743246/A-Guide-to-
Business-Law-in-Egypt-Amereller (accessed 14 August 2023); Aly Mokhtar, ‘An Egyptian
Judicial Perspective’ (2003) 80 Denver University Law Review 777.
17 Sherif, ibid; see also W. Tetley, ‘Mixed Jurisdictions: Common Law v Civil Law (Codified and

Uncodified)’ (2000) 60(3) Louisiana Law Review 677, 699.

18 Amereller, Bälz & Klaiber, note 16 above, 14-15. The mixed courts applied a peculiar civil

code that was enacted in 1875; a second other civil code was enacted in 1883 and applied by
then newly established native courts.
19 See ‘Civil Law (Egypt)’ text at https://egyptjustice.com/civil-law/ (accessed 14 August 2023).
20 See e.g. Gamal Moursi Badr, ‘New Egyptian Civil Code and the Unification of the Laws of

Arab Countries’ (1955-56) 30 Tulane Law Review 299; G. Bechor, The Sanhuri Code and the
Emergence of Modern Arab Civil Law (1932-1949) (Brill, 2008).

5
The Egyptian Civil Code deals with general matters of private law though there
are other statutes on specific subjects including personal status21 and a
Commercial Code22 relating to business activity. In addition, matters of public
law and governance are covered by the Egyptian Constitution.23 Article 2 of the
Constitution provides that the principles of the Sharia are the24 main source of
‘legislation’25 – a provision which remains a continuing source of potential
controversy.26

The Arabic word used in article 2 of the Egyptian Constitution which is often
translated as ‘legislation’ is ‘tashreaat’, as opposed to ‘qanun’27 which is usually
translated as law. Perhaps the use of the word ‘tashreaat’ and its specific
meaning in the Arabic language does confirm what seems to be generally
accepted that ‘legislation’ is indeed intended in the provision. On the other
hand, it may be wondered whether a more generic approach to understanding

21 Matters relating to personal status are dealt with in separate statues (on both substantive
and procedural law) including, inter alia, the Law no. 1 of 2000, Law no. 100 of 1985, Law no.
25 of 1929, Law no. 25 of 1920; see also, F.M. Najjar, ‘Egypt's Laws of Personal Status’ (1988)
10(3) Arab Studies Quarterly 319; D.S. El Alami, ‘Law no. 100 of 1985 Amending Certain
Provisions of Egypt's Personal Status Laws’ (1994) 1(1) Islamic Law and Society 116; M.
Lindbekk, ‘The Enforcement of Personal Status Law by Egyptian Courts’ in E. Giunchi (ed.),
Adjudicating Family Law in Muslim Courts (London & New York: Routledge, 2016) chapter 5,
text available at:
https://www.researchgate.net/publication/312027348 (accessed 14 August 2023); N. Bernard-
Maugiron, ‘Courts and the Reform of Personal Status Law in Egypt: Judicial divorce for injury
and polygamy’ in E. Giunchi (ed.), note 21 above, chapter 6, text available at
http://horizon.documentation.ird.fr/exl-doc/pleins_textes/divers17-07/010061047.pdf
(accessed 14 August 2023).
22 Law No. 17 of 1999.
23 Constitution of the Arabic Republic of Egypt 2014; English translation at
https://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved
=0CAIQw7AJahcKEwig9ufTjMX_AhUAAAAAHQAAAAAQAg&url=https%3A%2F%2Fwww.co
nstituteproject.org%2Fconstitution%2FEgypt_2014.pdf&psig=AOvVaw1GWbkAgRle0PQ6Jgv
6I9fk&ust=1686912389892971 (accessed 14 August 2023).
24 Emphasis added.
25 The source of this provision dates back to an amendment to Egypt’s Constitution in 1980;

prior to the amendment, the provision, for example in the 1971 Constitution, had previously
been that the principles of the Islamic Sharia are a main source of legislation.
26 The continuing potential controversy is that a gap remains open to some extent for those who

take a more fundamental approach to the predominant religion to seek to challenge any piece
of legislation on the basis of incompatibility with the principles of the Sharia; see further, F.M.
Najjar, ‘The Application of Sharia Laws in Egypt’ (1992) 1(3) Middle East Policy 62; Sherif, note
14 above, especially p.13; Amereller, Bälz & Klaiber, note 16 above, 34; S Habachy,
‘Commentary on the Decision of the Supreme Court of Egypt Given on 4 May 1985 concerning
the Legitimacy of Interest and the Constitutionality of Article 226 of the New Egyptian Civil Code
of 1948’ (1986) 1 Arab Law Quarterly 239.
27 See further K. Bälz, ‘Shari 'a and Qanun in Egyptian Law: A Systems Theory Approach to

Legal Pluralism’ (1995) 2 Yearbook of Islamic and Middle Eastern Law 37.

6
the word ‘tashreaat’ in the specific context of article 2 of the Constitution is not
desirable.28

While it may be said that where legislation is not incompatible with the Sharia it
is in accordance with ‘the principles of the Sharia’,29 Egypt needs and indeed
has a range of entirely secular laws30 in order to operate a modern economy,
particularly in a globalised world. The purpose of certainty recommends an
approach that makes it less likely that a piece of legislation may be struck down
for not being based on the principles of the Sharia31 – even if in many cases
this is only a remote possibility.32 An approach of this nature also has the
advantage of consistency with article 1 of the Egyptian Civil Code which
provides that in the absence of provisions of law a judge is to decide a case
according to custom; in the absence of custom, in accordance with the
principles of Sharia; and, in the absence of the latter, in accordance with
principles of natural justice and the rules of equity (fairness).33

In terms of judicial administration of laws, the Egyptian judiciary comprises an

array of courts including secular and religious courts. At the apex is the
Supreme Constitutional Court which deals predominantly with matters
connected to the Constitution.34 In relation to private law matters the highest

28 This is the approach followed by the editors of the Arab Law Quarterly in ‘Supreme
Constitutional Court (Egypt): Shari'a and Riba: Decision in Case no. 20 of Judicial Year no. 1’
(1985) 1(1) Arab Law Quarterly 100, and in A.S. El-Din & M. Alamedin, Introduction to the Study
of Law (Al Nesr Al - Zahabi Printing Company, 2004) 59 et seq and especially 72-73.
29 A comparable approach, even if not stated expressly, has been associated with legislators

and policy makers in some circumstances; see Najjar, note 26 above.

30 It has been noted for example that ‘the Egyptian Civil Code contains very few rules of an

Islamic nature’ and that Islamic law is of minor importance in modern Egyptian business law;
see Amereller, Bälz & Klaiber, note 16 above, 34.
31 This potential conflict can be seen in other contexts; in the English case of Beximco

Pharmaceuticals Ltd & Ors v Shamil Bank of Bahrain EC [2004] EWCA Civ 19, [2004] WLR
1784, a clause in a finance contract which provided that the applicable law was to be English
law, subject to the Principles of the Glorious Sharia, was interpreted to mean that only English
law was applicable while the Sharia was excluded for being incompatible with the latter; see
further, ’Gbenga Bamodu, ‘The Rome I Convention and the Relevance of Non-State Law’ in P.
Stone & Y. Farah (eds.), Research Handbook on European Union Private International Law
(Cheltenham, UK; Northampton, MA, US: Edward Elgar, 2015) 221.
32 The issue has not always been only a remote possibility; see e.g. Aly Mokhtar, note 16 above,

778-780. It is understood, however, that Egypt’s Supreme Constitutional Court has tended
towards an approach which upholds secular provisions and does not allow them to be readily
invalidated on the basis of claims of incompatibility with the Sharia; see e.g. Amereller, Bälz &
Klaiber, note 16 above, 34; see also the 1985 Supreme Constitutional Court’s Decision in Case
no. 20 of Judicial Year no. 1 in (1985) 1(1) Arab Law Quarterly 100.
33 The apparent hierarchy of law recognised under this provision thus appears to be: legislation,

custom, principles of the Sharia and, finally, principles of natural justice and rules of equity.
34 See further articles 191-195 of Egypt’s 2014 Constitution and articles 174-178 of the 1971

Constitution.

7
court is the Court of Cassation and, beneath it, ‘ordinary courts’ deal with family,
civil and commercial matters at first instance and, in some cases, summarily.
Separately, there are administrative courts, with the State Council at the apex,
which deal with cases related to administrative functions and actions.35

As a predominantly civil law system, the Egyptian legal system does not adhere
to a system of judicial precedent and there is no strict requirement that one
court must follow the decisions of another. In practice the Supreme
Constitutional Court is essentially authoritative on issues of constitutional
interpretation36 while the Court of Cassation serves a role of providing uniform
authoritative legal interpretations on other matters; lower courts are likely to
follow decisions of those courts where a relevant one is extant.

The combination of an absence of a doctrine of judicial precedent and the

general nature of the provisions of the Egyptian Civil Code on matters of private
law, including tortious liability (liability for ‘illicit act’), are both matters marking
departures from the common law system. It is helpful to briefly explore salient
elements of the common law, using the English legal system, for comparison
ahead of an examination of specific instances of tortious liability under the two
legal systems.

3. Fundamentals of the Common Law System

The expression 'the common law' can be used in different senses. It could be
used to describe a system of law, operative in many countries,37 in which a
large part of the rules consists of principles of law that are ‘declared’ by judges

35 See further Sheriff, note 14 above; N. Amin, Egypt’s Court System: A study of Court and
Training of Judges (Cairo: Amin Law Firm, 2004) 11-15; see also ‘Justice at a Crossroads:
The Legal Profession and the Rule of Law in the New Egypt’ in Report of the International Bar
Association’s Human Rights Institute (IBA, 2011) chapter 3, text available at
https://manshurat.org/node/7296 (accessed 15 June 2023) and see also
https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/justice-at-
a-crossroads-the-legal-profession-and-the-rule-of-law-in-the-new-egypt (accessed 14 August
2023).
36 See e.g. Mahmud Sami Muhammad 'Ali Wasil v The Minister of Education (and others)

Supreme Constitutional Court case number 8 of constitutional judicial year 17; an English
translation is available in N.J. Brown & C.B. Lombardi, ‘The Supreme Constitutional Court of
Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme
Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996)’ (2006) 21(3)
American University International Law Review 437.
37 The countries with a common law system, apart from England itself, are usually countries

which have or have had a history of some kind of association with England - usually as a colony,
protectorate or mandated territory. Nigeria is one such country.

8
as opposed to systems of law where a large part of the body of laws is contained
in codes.

As a source of English law, the common law is normally used to describe that
part of English law developed by the common law judges in distinction to
doctrines of equity and statutory rules. It developed and was originally applied
in the common law courts - the Court of Exchequer, the Court of Common Pleas
and the Court of King's Bench. The common law was historically formalistic with
the principal remedy for a claimant, which also depended on the availability of
a suitable ‘writ’, being an award of monetary compensation called damages.

In contradistinction to the common law ‘equity’, as a source of English law,

evolved historically due to the dissatisfaction of litigants who either could not
obtain a remedy in the common law courts because of the lack of a suitable writ
or for whom common law damages did not provide an adequate remedy.
Initially, petitions were made to the Chancellor but eventually the Chancery
Court was set up and that court applied rules of conscience and fair dealings
(or doctrines of ‘equity’) to judge the petitions rather than the strict rules of the
common law.

At first, common law and equity operated separately and were administered by
the different courts. It would soon happen that sometimes the Chancery Court
and the common law courts would issue conflicting and contradictory
judgements. The high-water mark arose in the Earl of Oxford's case38 in which
the Chancery Court issued an injunction to prevent a successful litigant in a
common law action from enforcing the common law judgment. The matter was
referred to the King and, upon advice from the then Attorneys General (one of
whom was Sir Francis Bacon), it was decided that where common law and
equity were in conflict, equity should prevail.

A very important further development occurred with the passing of the

Judicature Acts of 1873-1875, which amalgamated the English courts, with the
result that the same court can apply both common law rules and the doctrines
of equity. The principle still remains that where equity conflicts with the common
law equity prevails.

38 (1615) 21 ER 485.

9
Presently, the sources of law in the English legal system are rules of the
common law, principles of equity and legislation.39 From the perspective of the
law relating to tortious liability, the most relevant aspect of English law are rules
of the common law though augmented in some respects by legislation,
including legislation originating in European Union law.

Another significant point of note about the English legal system is that, as with
other common law systems, the doctrine of judicial precedent or stare decisis40
plays a very important role. Broadly, the doctrine of judicial precedent requires
that cases coming before the courts should be decided in the same manner
that previous cases on the same subject-matter, and with similar facts, were
decided. Specifically, the doctrine means that, in some circumstances, courts
are bound to follow decisions in previous similar cases to the one currently
before them. This doctrine depends on the existence of a clear hierarchy of
courts in which the position of a court in the hierarchy determines the extent to
which its decisions are binding on other courts and, indeed, on itself.

Excluding the Court of Justice of the European Union (‘CJEU’), the most
important superior courts in the English legal system are the Supreme Court
(formerly House of Lords), the Court of Appeal and the High Court. Generally,
the High Court must follow previous decisions of the Court of Appeal and the
Supreme Court while the Court of Appeal must follow previous decisions of the
Supreme Court. The Court of Appeal is also normally bound by its own previous
decisions. However, if two previous decisions of the Court of Appeal are in
conflict the court may choose which one to follow. The Court of Appeal will also
not follow a previous decision of its own if that decision is inconsistent with a
decision of the Supreme Court or of the Judicial Committee of the Privy
Council41 or had been given per in curiam.42 The Supreme Court is not bound

39 Until recently the United Kingdom was a member state of the European Union but, following
the well-publicised ‘Brexit’, the United Kingdom has now left the European Union. To this end
the United Kingdom has pursued legislation intended to result in European Union law ceasing
to be a source of law in the United Kingdom, though a large amount of EU law already part of
UK law will remain so for some time.
40 From the Latin maxim ‘Stare decisis et non quieta movere meaning in essence ‘to stand by

decisions and not disturb the undisturbed’; see G.G. Adeleye et al, World Dictionary of Foreign
Expressions: a Resource for Readers and Writers 371 (Illinois, USA: Bolchazy-Carducci
Publishers, 1999) (accessed 14 August 2023).
41 The Judicial Committee of the Privy Council ‘is the court of final appeal for the UK overseas

territories and Crown dependencies, and for those Commonwealth countries that have retained
the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.’
See https://www.jcpc.uk/ (accessed 14 August 2023).
42 See Young v Bristol Aeroplane Co [1944] KB 719.

10
by its own previous decisions but will only depart from a previous decision in
exceptional cases.43

As the law relating to tort in the English and other common law legal systems
is largely rooted in rules developed by the courts, judicial decisions are crucial
to both the development and understanding of the law in this field.
Consequently, this article will make references to some of the cases from the
English courts in the process of comparison to the Egyptian approach to tortious
liability. The comparison follows an analysis of the underlying principles and
structure of liability in the Egyptian Civil Code under the concept of ‘illicit acts’
or ‘acts causing harm’.

4. The Concept of Illicit Act in the Egyptian Civil Code

The primary provision of the Egyptian Civil Code relating to tortious liability is
contained in article 163 of the code which provides: ‘Whoever perpetrates an
error causing harm to a third party shall be liable to compensate therefor’; an
alternative translation reads: ‘Every fault which causes harm to another
imposes liability for damages upon the person who committed it.’44 Despite
differences in phrasing,45 article 163 of the Egyptian Civil Code corresponds
with article 1382 of the French Civil Code which provides that: ‘Any act
whatever of man, which causes damage to another, obliges the one by whose
fault it occurred, to compensate it.’46

43 See The Practice Statement [1966] 1 WLR 1234, [1966] 3 All ER 77 (House of Lords); see
also G. Dworkin, ‘Stare Decisis in the House of Lords’ (1962) 25 Modern Law Review 163.
44 MELES translation and Shalakany Law Office translation respectively. Further provisions of

the code, especially in Articles 172 to 178, indicate that responsibility for harm arising from illicit
acts may extend to responsibility for one’s own acts, responsibility for the acts of others, and
responsibility for objects; see further footnote 62 below and accompanying text.
45 The phrasing in the Egyptian Civil Code (MELES translation) is in an active tone while that

in the French is in a passive tone; cf. however the Shalakany Law Office translation of the
Egyptian code which uses a passive tone as in the French code.
46 English translation by G. Rouhette & A. Rouhette-Berton, available at
https://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved
=0CAIQw7AJahcKEwjQssyulMX_AhUAAAAAHQAAAAAQAg&url=https%3A%2F%2Fwww.fd.
ulisboa.pt%2Fwp-content%2Fuploads%2F2014%2F12%2FCodigo-Civil-Frances-French-
Civil-Code-english-
version.pdf&psig=AOvVaw1O4SsZVmokgsRYyscpobRQ&ust=1686914447729078 (accessed
14 August 2023) and previously at
https://www.legifrance.gouv.fr/content/download/1950/13681/version/3/.../Code_22.pdf; an
alternative translation reads: ‘Every act whatever of man that causes damage to another,
obliges him by whose fault it occurred to repair it’, translation by D.W. Gruning available at
https://wipolex.wipo.int/en/text/450530 (accessed 14 August 2023).

11
Under both article 163 of the Egyptian code and article 1382 of the French code,
the primary basis of liability for a tortious civil wrong is fault.47 Under both codes,
it is common to summarise the required elements for ‘tortious’ liability as: (a)
fault, which is regarded as including both an act or omission despite the wording
‘act of man’ in the French code;48 (b) damage; and (c) a causal link, i.e., that
the fault is the cause of the damage.49

In relation to the French Civil Code, fault has been described in terms of
behaviour which is a departure from what is expected of ‘the prudent
administrator’.50 In respect of the Egyptian Civil Code, which also does not
define ‘error’ or ‘fault’, it is understood that the definition traditionally followed is
that given by Egypt’s Court of Cassation in relation to the expression ‘tortious
fault’. According to Bremer, the court defined tortious fault in a 1978 case,51 in
that author’s words, 'as conduct that deviates from the norm, insofar as it
ignores the care and prudence that an average reasonable person would
observe'.52 This may be compared to an older definition of fault in the same
context as: ‘a breach of a legal obligation to observe due care towards others,
by deviating from the behaviour of the reasonable man’.53

The French Civil Code contains a significant additional provision which is not
replicated in the Egyptian code. Article 1383 of the French code provides:
‘Everyone is liable for the damage he causes not only by his intentional act, but
also by his negligent conduct or by his imprudence.’54 The significance of the
provisions of that article of the French code is in the distinctions that it makes

47 For a comparison of French and English approaches to tortious liability see D. Watson, ‘Style
over Substance? A Comparative Analysis of the English and French Approaches to Fault in
Establishing Tortious Liability’ (2013) 2(1) Manchester Student Law Review 1.
48 The equivalent in the Egyptian code is ‘an error’ (MELES translation) or simply ‘fault’

(Shalakany Law Office translation).

49 See e.g. A. Tunc, ‘A Codified Law of Tort: The French Experience’ (1979) 39(4) Louisiana

Law Review 1051; BIICL Files, Introduction to French Tort Law text available at
https://www.biicl.org/files/730_introduction_to_french_tort_law.pdf (accessed 14 August 2023);
N. Bremer, ‘Product Liability Under Egyptian Law’ (International Law Office), text available at
https://www.internationallawoffice.com/Newsletters/Product-Regulation-
Liability/Egypt/Alexander-Partner-Rechtsanwlte/Product-liability-under-Egyptian-law#Product
(accessed 14 August 2023).
50 The prudent administrator was represented in the concept of a bonus pater familias, the good

father of a family; on this approach to the understanding of fault in the French code and on the
limitations of the concept of the bonus pater familias, see further Tunc, note 49 above, 1052-
1053.
51 Court of Cassation Case 336 (May 31, 1978).
52 Note 49 above, especially footnote 21 and accompanying text.
53 Abdel Razaq El Sanhoury, Al Wasit in the Civil Code, Sources of Obligation, Pt II, Vol. II,

1094 (Cairo: Dar Al Nahda Publishers, 1981).

54 Rouhette & Rouhette-Berton translation, note 46 above.

12
internally within itself and also in that, as an expansion on the provisions of
article 1382, it expressly recognises negligence and imprudence as bases of
liability – being examples of the bases of acts causing damage as a result of a
particular person’s fault. The internal distinction within article 1383 of the French
code has been expressed in the form of a distinction between delict, referring
to when damage is inflicted intentionally on the one hand, and quasi-delict,
referring to when damage is due to negligence or imprudence.55

The Egyptian Court of Cassation’s interpretation of tortious fault as conduct that

deviates from the care and prudence expected of an average reasonable
person would seem to accommodate and demonstrate some equivalency with
the provisions of article 1383 of the French Civil Code. Both systems thus
recognise negligence (or imprudence) as incorporated within the idea of fault
as the basis of tortious liability.

It is noteworthy that while it is widely accepted that the Egyptian Civil Code is
modelled on the French code as, ultimately, the civil codes of other Arab
countries which are modelled in turn on the Egyptian Civil Code, there is a line
of thought that claims an Islamic Sharia origin or influence for the provisions
relating to tortious liability in the codes of the Arab countries.56 Under this line
of thought, Islamic principles were incorporated in a code of the Ottoman
Caliphate era known as The Mejelle57 and some of these progressed to the
modern codes. It has been argued, however, that The Mejelle was not a civil
code in the proper or modern sense in that it was a compilation of rules rather
than a logical statement of general principles of law. Even this latter argument
acknowledges, however, that while parts of The Mejelle were adaptations of
French codifications and substantive law, the part relating to contracts and tort
was an attempt at ‘a European-style codification of Islamic law of the Hanafite
school.’58

55 See e.g. Yves-Louis Sage, ‘French Law of Delict: The Role of Fault and the Principles
Governing Losses and Remedies’ (1996) 26 Victoria University of Wellington Law Review 1;
F.P. Walton, The Egyptian Law of Obligations: A Comparative Study with Special Reference to
the French and the English Law (London: Stevens & Sons, 1920) 16.
56 See e.g. Anis Al-Qasem, ‘The Injurious Acts under the Jordanian Civil Code’ (1989) 4 Arab

Law Quarterly 183, 184.

57 The Mejelle is also referred to as Majallat al-Ahkam al-Adliyyah meaning ‘the Book of

Rules of Justice’.
58 See Dan E. Stigall, ‘Iraqi Civil Law: Its Sources, Substance and Sundering’ (2006) 16(1)

Journal of Transnational Law & Policy 1, 6-9.

13
In the case of Egypt, prior to the current Civil Code, there were two previous
civil codes which were both expressly repealed under article 1 of the current
code. The two repealed codes were that of October 28, 1883 which was
applicable before national courts and that of June 28, 1875 which was
applicable before the then ‘mixed courts.’ Writing in 1920, an author said, of
what he referred to as ‘the Egyptian Native Code’, that ‘the articles upon
obligations in the Egyptian Code are merely an abridgment of those in the
French Code with modifications in details ….’59

Significantly, even for those who claim Sharia origin or influence for the
provisions on tortious liability in the modern civil codes of Arab countries, the
bases of tortious liability are expressed in similar manner to the standard
understanding under the extant Egyptian and French civil codes. For example,
in relation to Saudi Arabia and in the absence of a civil code addressing tortious
liability, it has been argued that under the Sharia as the source of tort law, the
elements of tort are harm, wrongdoing and causation and that harm includes
both intentional and negligent acts.60 This is comparable to fault/error, damage
and causal link in relation to the Egyptian and French codes and the claimed
amplification of those concepts under the Sharia are comparable to their
understanding under the modern codes.61

In light of the foregoing elucidation, liability for illicit acts under the Egyptian Civil
Code is based on the elements identified as an act or omission that may be
intentional or negligent and that caused damage. Additionally, article 164(1) of
the Egyptian Civil Code provides that a person is responsible for illicit acts
perpetrated as a person of ‘discretion’. This may perhaps suggest that minors
or persons of impaired sanity, for example, may not be held responsible for illicit
acts. On the other hand, article 164(2) provides that such a person may be
required to pay a fair compensation if there is no one responsible for him or if it
is practically difficult to obtain compensation from a responsible person.

59 See Walton, note 55 above, 2.

60 See Othman Talbi, Tort Reform in Saudi Arabia: Obstacles and Solutions (2015) Theses and
Dissertations Paper 20 (Maurer School of Law, Indiana University), 10 & 21-32, text at
https://www.repository.law.indiana.edu/etd/20/ (accessed 14 August 2023).
61 For an attempt to draw general similarities of concepts between ‘Western and Islamic Law of

Tort’, see Abdul Basir Bin Mohamad, The Islamic Law of Tort (University of Edinburgh PhD
Thesis, 1997) 24-37, text at https://www.era.lib.ed.ac.uk/handle/1842/17549 (accessed 14
August 2023).

14
Articles 165 to 168 provide defences that may enable a person who commits
an illicit act to avoid having to pay compensation. The defences include
extraneous cause, force majeure, error of a third party, self-defence or defence
of a third party’s life or defence of property ‘within necessary degrees and
limits’, work of a public official in the execution of an order, or harm caused
while trying to avoid a greater imminent harm.

Beyond the provisions relating to illicit acts in general terms, the Egyptian Civil
Code contains some provisions dealing with specific circumstances when a
person may be liable for harm caused.62 Paradoxically, the Egyptian Civil Code
does not provide specifically for torts that are well known in English law and
which are standard stock in textbooks on tort in common law systems. This
highlights the importance of an understanding of what Egyptian courts will
regard as an illicit act in delineating the scope and limits of ‘tortious’ liability.
The following section examines some examples of recognised torts at common
law, using English law, and makes a comparison or speculative assessment of
the approach or likely approach in Egyptian law.
5. Examples of Torts in English Common Law in Comparison with
Illicit Act under the Egyptian Civil Code

In this section, a selection of widely recognised examples of tortious liability is

considered and a general comparison is made between the approaches under
the English common law and the Egyptian Civil Code, while also drawing more
widely from Islamic Sharia law.

5.1 Trespass to the Person

Trespass to the person is an old tort at common law which may occur in one or
more of three ways, i.e., assault, battery or false imprisonment. It is an
intentional tort in that the defendant must have done the action which amounts
to the trespass even if he did not intend to actually commit trespass.

62 Article 176 contains provisions dealing with liability on the part of the guard or person in
charge of an animal for damage caused by the animal; article 177 deals with the liability of a
person in charge of a building, particularly in the event of the collapse of the building, as well
as the right of a person threatened by harm from a building to take preventive action at the
expense of the owner; article 178 deals with the potential liability of a person in charge of objects
that require special care or of machines. It is notable that the provisions dealing with liability in
respect of the guardianship of things and buildings are essentially based on strict liability or at
least an assumption, prima facie, of fault on the part of the defendant.

15
In Collins v Wilcock,63 Goff LJ helpfully provides definitions of the three forms
of trespass to the person. Assault is defined as ‘an act which causes another
person to apprehend the infliction of immediate, unlawful force on his person’
while battery is defined as ‘the actual infliction of unlawful force on another
person’. The key distinction between assault and battery in tort traditionally at
common law is that while assault only involves making the claimant apprehend
unlawful force, battery involves the actual application of force.64 The third form
of trespass to the person, false imprisonment, is defined as ‘unlawful imposition
of constraint on another’s freedom of movement from a particular place.’ 65

In spite of the absence of express reference in the Egyptian Civil Code to

trespass to the person or to any of assault, battery or false imprisonment,66 the
claim has been made that historical Egyptian customary law recognised and
made provision for compensation for battery, resulting in injury, in the form of
diyah or blood money.67 There have also been references to an ancient
Egyptian equivalent of assault.68 Similarly, it has been argued that ‘tort’ in
Islamic law derived from the Qur’an also recognises such infringements of
private rights including physical assaults69 exemplified as including ‘beating,
kicking and the like’.70 It seems that under Islamic law a word corresponding to
trespass or transgression, ta’addi, is used to refer to an action against another
person’s right with resulting damage.71

63 (1984) 1 WLR 1172, 1177.

64 See also ’Gbenga Bamodu, An introduction to English Tort Law (Cairo: Dar Al Nahda Al
Arabia, 2018) 17.
65 Collins v Wilcock, note 63 above.
66 Compare article 202 of the Iraqi Civil Code of 1951: ‘Every act which is injurious to persons

such as murder, wounding, assault, or any other kind of inflicting injury entails payment of
damages by the perpetrator.’
https://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=55002f084
(accessed 14 August 2023).
67 M.S. Madden, ‘The Cultural Evolution of Tort Law’ (2005) Pace Law Faculty Publications,

Paper 131 831, 841-842; http://digitalcommons.pace.edu/lawfaculty/131 (accessed 14 August

2023).
68 R. Versteeg, ‘Law in Ancient Egyptian Fiction’ (1994) 24(37) Georgia Journal of International

& Comparative Law 37, 60.

69 See Bin Mohamad, note 61 above, 82-94.
70 A.B. Bin Mohamad, ‘Islamic Tort Law’, chapter 19 in M. Bussani & A. Sebok (eds.),

Comparative Tort Law: Global Perspectives (Cheltenham, UK & Northampton, MA, USA:
Edward Elgar, 2015) 441, 451 & 456; Talbi, note 60 above, 23.
71 See e.g. A.B. Bin Mohamad, ‘Strict Liability in the Islamic Law of Tort’ (2000) 39(3) Islamic

Studies 445, 456; Anon, Introduction to Islamic Law (British Institute of Comparative Law) 5;
https://www.biicl.org/files/777_introduction_to_islamic_law.pdf (accessed 14 August 2023). An
analogous example may also be made of what is said to be the recognition of ‘injury’ (darar),
which includes physical violence, as a basis on which a woman may seek and obtain dissolution
of a marriage; see I. Naveh, ‘The Tort of Injury and Dissolution of Marriage at the Wife's Initiative
in Egyptian Mahkamat Al-Naqd Rulings’ (2001) 9 Islamic Law & Society 16.

16
In light of the historical and Islamic perspectives, there does not seem to be
much doubt that actions amounting to common law torts of assault, battery and
false imprisonment72 are covered within ‘illicit acts’ under the Egyptian Civil
Code. Naturally, minutiae will differ; for example, the requirement for damage
in the Egyptian legal system will negate the element at common law of trespass
to the person being actionable per se,73 i.e., without need for the defendant to
prove injury, damage or loss.74 In further support of this conclusion, it is
noteworthy that the esteemed scholar largely responsible for the fundamentals
of the Egyptian and other Arab civil codes, Dr Al-Sanhouri, is reputed to have
regarded the concept of injurious (or illicit) acts under the codes as including
material damage that may be inflicted on a person himself.75

5.2 Trespass to Land

At common law, the tort of trespass to land relates to intentional and direct
interference with a claimant’s rights in relation to real property. It is concerned
with protecting the claimant’s rights of possession and enjoyment of interest in
land. Generally, the protection of interest in land includes the subsoil of the land
and the airspace above it but within limits.76

Trespass to land in English common law may be committed in a number of

ways including: entry onto another person’s property,77 e.g., walking onto a
land; entering someone’s house; putting a hand through a window; remaining
on another’s property beyond permission, e.g. staying on the property after
being asked to leave; going beyond area or extent permitted, e.g. going into a
private or ‘No Entry’ section; putting an object or something on someone’s
property,78 e.g., throwing something onto another person’s land; placing

72 It has been argued that infringements amounting to false imprisonment are prohibited under
Islamic tort law; see Bin Mohammad, note 61 above, 94-99.
73 See further Bamodu, note 64 above.
74 One exceptional circumstance where the Egyptian law does not require proof of damage is

in respect of a claim by a creditor for interests payable; see Article 228 of the Egyptian Civil
Code.
75 Al-Qasem, note 56 above, 185.
76 Cf. the old Latin maxim: cujus est solum ejus est usque ad coelom et ad inferos; see further,

however, Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC 35; Lord Bernstein
of Leigh v Skyviews & General Ltd [1978] QB 479.
77 Entick v Carrington [1765] EWHC KB J98, Director of Public Prosecutions v Jones [1999]

UKHL 5.
78 League Against Cruel Sports v Scott [1986] QB 240.

17
something on another person’s property - which could even be ‘continuing’
trespass if the object is not removed.79

The Egyptian Civil Code contains extensive provisions concerning real property
and ownership of rights in them.80 Separate from the provisions concerning illicit
acts and tortious liability generally, the provisions concerning real property give
rise to legal rights and the potential to seek redress for interferences with real
property comparable to interferences protected against under English tort law.

Article 802 of the Egyptian Civil Code provides that the owner of an object alone
shall, generally, have the right of using, exploiting and disposing of it. Article
803(2) provides that ownership of land comprises all that is on and under the
land as far as it can be used or enjoyed beneficially in height and depth. Article
807 obliges a property owner not to use his property in an excessive manner
that would be detrimental to his neighbour’s property. Further provisions relate
to: right to require a neighbour to delimit adjacent property;81 use, repair or
renewal or elevation of a joint or common wall;82 and ownership of a partition
wall.83

Incidentally, the provisions on the rights concerning property and dealing with
property do not expressly refer to causes of action or rights to bring legal action
for interference.84 On the other hand, interference with a person’s rights in
property with resulting damage can certainly be fitted within the general
provisions on tortious liability arising from error causing harm. Once again, a
departure from the common law in this respect would be that while an action
for trespass to land can be maintained without proof of damage, since the tort
is actionable per se, Egyptian law generally requires damage as an element to
establish liability.

5.3 Trespass to Goods and Conversion

79 Holmes v Wilson (1839) 10 A & E 503.

80 See Articles 81-88 and 802-833.
81 Article 813.
82 Articles 814-816.
83 Article 817.
84 For a useful comparison with Iraqi law, see Dan E. Stigall, ‘A Closer Look at Iraqi Property

and Tort Law’ (2008) 68(3) Louisiana Law Review 765.

18
At common law, the tort of trespass to goods relates to the protection of a
claimant’s right to possession of goods and concerns direct interference with
such goods. It is again an intentional tort which requires only an intention to do
the act that amounts to interference rather than an intention to actually trespass.
It is also a tort actionable per se in that the claimant does not have to prove loss
or damage, and simple asportation of goods can be enough to constitute the
tort.85

The tort of conversion at common law also relates to interference with goods
and a claimant’s right of possession. In this case, however, the interference
with the goods must be of such a nature that is inconsistent with the possession
of the person lawfully entitled to it.86 Conversion thus differs from trespass to
goods in the particular respect that mere interference is not enough and an
exercise inconsistent with the claimant’s right of possession is required.

In respect of interference with another person’s goods, it has also been noted
that historical Egyptian law developed to a position of providing civil remedy for
a person who was wrongfully deprived of their property by another. The remedy
was that the wrongdoer would be required to restore the goods and to pay
damages up to three times the value.87 More generally, and in relation to
modern Arabic civil codes, it has been pointed out that the concept of injurious
acts extends to material damage to a person’s property or the violation of an
interest of the victim that has monetary value.88

5.4 Negligence

As has already been discussed, the elements required for tortious liability under
the Egyptian Civil Code are fault, damage, and a causal link between the two,
i.e., that the fault is the cause of the damage. As also noted, while the Egyptian
Civil Code does not make express reference to negligence, the interpretation
of ‘fault’ by the courts and jurists recognise that fault may be due to failure to
observe the care and prudence expected of an average reasonable person or

85 Kirk v Gregory (1876) 1 Ex D 55; William Leitch & Co v Leydon [1931] AC 90.
86 Fouldes v Willoughby (1841) 8 M & W 540.
87 Madden, note 67 above, 844-845.
88 Al-Qasem, note 56 above, 185-186.

19
a breach of a legal obligation to observe due care in deviation from the
behaviour of the reasonable man.89

The treatment of negligence as only an aspect of fault under the Egyptian Civil
Code differs from the current approach under the common law where
negligence is not only a tort in its own right but perhaps the most important tort
today. It is true that the recognition of negligence as a tort under even the
common law is a relatively recent development, mainly with the narrow majority
decision of the then House of Lords in Donoghue v Stevenson.90 Since that
decision, however, the range of situations in which the specific tort of
negligence may be invoked at common law has expanded significantly.

In outline, the elements of the tort of negligence at common law are that: (a) the
defendant owed a duty of care to the claimant; (b) the defendant breached the
duty; (c) the claimant suffered damage, injury or loss; and (d) the damage injury
or loss suffered by the claimant was caused by the defendant’s breach of the
duty of care.

Over the years, courts in England and other common law jurisdictions have
grappled with formulating an appropriate test for determining when to impose a
duty of care in new situations where it had not been previously decided whether
one exists or not. In Murphy v Brentwood District Council,91 the House of Lords
overruled its own earlier decision in Anns v Merton London Borough Council92
which had adopted what was known as the two-stage test.93 Eventually,
following another significant decision in Caparo Industries plc v Dickman,94
what is often described as a three-stage test emerged based on:

(a) Foreseeability of Damage: whether the defendant could reasonably

foresee that his careless conduct could result in harm to the claimant;

(b) Proximity: whether there exists between the claimant and the defendant
a type of relationship which supports imposing a duty on the claimant;

89 See above notes 51-53 and accompanying texts; see also Court of Cassation Case No. 1878
of Judicial Year 69 (October 10, 2016) discussed further below in text accompanying footnote
106 below.
90 Note 11 above.
91 [1991] AC 398, [1991] UKHL 2.
92 [1978] AC 728, [1977] UKHL 4.
93 The two-stage test was to first establish whether the relationship between the parties was

such that the defendant should have foreseen the likelihood of injury to the claimant; then to
consider if there is any reason why the defendant should not be held liable; see also Bamodu,
note 64 above, 73-74.
94 [1990] 2 AC 605, [1990] UKHL 2.

20
 (this is supposedly more than the proximity tied to foreseeability in
Donoghue; but how clear is this?);

(c) Fair, just and reasonable situation: whether the courts consider that in
the particular situation, it is fair just and reasonable to impose a duty of
care on the defendant.95

In some particular circumstances, other considerations may also be relevant

such as whether the defendant had assumed responsibility for his action or
statement.

Apart from the fact that negligence exists as a separate individual tort at
common law, the fact that English and other common law jurisdictions have
devoted considerable attention to the specific question of when a duty of care
exists is a significant difference in approach in comparison to the operative
scheme under the Egyptian Civil Code.96 Although, English common law has
long accepted that the categories of negligence are never closed, it has
nevertheless latterly followed the approach adopted from Australian case law
(Australia being another common law jurisdiction) that ‘the law should develop
novel categories of negligence incrementally and by analogy with established
categories rather than by a massive extension of a prima facie duty of care
….'97

In the recent case of Robinson v Chief Constable of West Yorkshire Police,98

the UK Supreme Court reiterated that the whole point of Caparo Industries plc
v Dickman ‘was to repudiate the idea that there is a single test which can be
applied in all cases in order to determine whether a duty of care exists, and
instead to adopt an approach based, in the manner characteristic of the
common law, on precedent, and on the development of the law incrementally
and by analogy with established authorities.’

Considering the strictures and parameters for recognising new forms of the tort
of negligence at common law, even in the light of absence of absolute certitude,
there is a considerable element of predictability as to when the court will

95 See Bamodu, note 64 above, 76.

96 For a comparison with the situation in two countries that are Egypt’s neighbours relatively,
see M. Bussani, ‘Tort Law and Development: Insight into the cases of Ethiopia and Eritrea’
(1995) 40 Journal of African Law 43.
97 Per Brennan J in Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424, (1985)

60 ALR 1; adopted by the House of Lords in Murphy v Brentwood District Council, note 91
above.
98 [2018] UKSC 4, [2018] AC 736.

21
conclude that a duty of care exists and that failure to observe such duty could
result in liability. The fluidity of the provisions of the Egyptian Civil Code and the
potential greater discretion for Egyptian trial judges in relation to determining if
there has been a failure to observe care and prudence expected of an average
person suggests that there is less certitude and predictability.

5.5 Defamation

At the outset it should be highlighted that a significant difference exists in the

comparison of defamation in English and Egyptian laws. In English law,
defamation is mainly a civil matter potentially resulting in civil liability on the part
of a person found to have made defamatory statements about another. In
Egyptian law, however, defamation also resounds seriously in criminal law with
potential criminal liability.99

In English law, defamation relates to a statement that has a tendency to injure

the reputation of the person to whom it refers and which may expose them to
ridicule, contempt or being shunned or which may negatively affect the person
in their profession or livelihood.100 English law categorises defamation into libel
and slander; libel generally refers to a defamatory statement made in a
permanent medium while slander relates to defamatory statements made in
transitory form.101 Ordinarily, libel is actionable per se in that a claimant may
succeed without proof of actual damage whereas such proof is generally
required to succeed in an action for slander. In practical terms, the significance
of the difference between libel and slander has been diminished in English law
by the effect of section 1(1) of the Defamation Act 2013 which now requires that
a defamatory statement should have caused serious harm to the reputation of
the claimant.

Although the Egyptian Civil Code does not expressly refer to defamation as a
civil wrong, defamation is certainly capable of being addressed under the

99 While criminal defamation laws still exist in some other jurisdictions, they are rarely employed
in many such jurisdictions, including Western countries especially, and there is a strong
argument that there is no place for such laws anyway; see e.g. G.C. Lisby, ‘No Place in the
Law: The Ignominy of Criminal Libel in American Jurisprudence’ (2004) 9 Communication Law
and Policy 433. Notably, Nigeria is a common law jurisdiction that nevertheless still maintains
criminal defamation laws.
100 See Nevill v Fine Arts and General Insurance Company [1897] AC 68, 72.
101 See Monson v Tussauds Ltd [1894] 1 QB 671; Goldsmith and another v Bhoyrul [1997] 4 All

ER 268; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581.

22
concept of illicit act in the general provisions relating to tortious liability. This is
also supported by the consideration that defamation is considered to be a
harmful act under Islamic law generally.102 It has been observed that one
rendering of the word ‘defamation’ in Arabic is, transliterally, ‘tashhir’, and that
this ‘means, any act or conduct of any person that intended to embarrass or
discredit the dignity or honour of any person in the eyes of the public.’103

While defamation certainly falls within the concept of ‘an error causing harm to
a third party’ in the Egyptian Civil Code, the resonance of defamation in recent
times in Egypt as with some other countries in the Middle East Region and
some other places is in criminal law. In this context, criminal defamation and its
use in addressing news stories and the prosecution of journalists has attracted
criticism and even condemnation.104 It could be that the association of
defamation with criminality, along with other factors, is a significant inhibiting
factor to the development of the tort of defamation and related civil liability in
the laws of the concerned countries, including Egypt.

6. Availability and Viability of Judicial Redress and the Development

of Tort Law

As has been discussed in preceding sections, Egyptian law provides for civil
liability in relation to tortious behaviour. Further, as can also be discerned from
the foregoing discussion, the primary remedy for tortious liability in the Egyptian
Civil Code is compensation or damages.

While the Egyptian legal system provides for tortious liability and the judiciary
provides opportunity for redress, it is important that the practicalities involved in
the ability of victims of tortious behaviour to pursue remedy do not deter victims

102 See e.g. Talbi, note 60 above, 23-25.

103 H.M. Saad, ‘Defamation: ‘A Comparison between the Malaysian Laws and the Islamic Legal
Principles’ (Special Issue Jan-Feb, 2015), International Journal of Technical Research and
Applications 11,12; text available at
https://www.researchgate.net/publication/327671103_DEFAMATION_A_COMPARATIVE_ST
UDY_BETWEEN_THE_MALAYSIAN_LAWSAND_THE_ISLAMIC_LEGAL_PRINCIPLES
(accessed 14 August 2023); H.M. Saad & A.S. Bin Musa, ‘The Concept and Scope of
Defamation (Fitnah) in Al-Quran Al-Kareem and Its Relation to Freedom of Speech in Malaysia’
(2015) 9(37) Australian Journal of Basic and Applied Sciences 294, 295 text available at
https://www.researchgate.net/publication/327671226_The_Concept_and_Scope_of_Defamati
on_Fitnah_in_Al-Quran_Al-Kareem_and_Its_Relation_to_Freedom_of_Speech_in_Malaysia
(accessed 14 August 2023). Additionally, defamation under Islamic conception traditionally also
covers accusing a Moslem person of adultery in order to discredit them.
104 See e.g. M.J. Duffy & M. Alkazemi, ‘Arab Defamation Laws: A Comparative Analysis of

Libel and Slander in the Middle East’ (2017) 22 Communication Law & Policy 189.

23
from such pursuit. This also matters in that less frequent use of the civil law
system to pursue remedies for tortious behaviour will tend to hinder the general
development of the law.

In the first place, questions may be raised legitimately about the level of
awareness among the general populace of the availability of legal remedies
and judicial redress for being a victim of tortious behaviour. It may seem that
the framing of legal responsibility for tortious behaviour in general terms of a
requirement to compensate for causing harm, without adequate specificity of
instances in which an entitlement to compensation by a victim will be
recognised, leaves too much room for uncertainty. The concern will be that this
is not likely to encourage victims to pursue civil legal remedies. There is a
contrary way to view this, on the other hand, in that the breadth afforded by
Egyptian law could be perceived as actually encouraging of complainants to
pursue compensation whenever they feel they have been subject to harm. It
may be that giving greater publicity to whatever judicial decisions which
establish tortious liability are available will increase awareness and the
likelihood of pursuit of civil legal remedies by victims of tortious behaviour.

An additional inhibiting factor to the pursuit of judicial redress for tortious

behaviour, at least potentially, relates to the adequacy of the judicial remedies
that are indeed available to victims. The primary remedy provided in the
Egyptian Civil Code for acts causing harm is compensation, which is principally
in monetary form.105 On the other hand, for the pursuit of compensation in the
civil courts to be worthwhile as a remedy the level of compensation awarded
would need to be realistic in terms of adequacy.

Additionally, the expenses and endeavour involved in successfully pursuing

compensation through the courts for tortious behaviour would need to be taken
into account adequately with effective award of legal costs. While Article 184 of
the Egyptian Code of Civil Procedure makes provision for requiring a losing
litigant to pay the other party’s legal costs – especially attorney’s fees – it
appears that costs awards are insignificant in practice. An interesting example
is a case commenced in 1995 against railway authorities by a claimant who had

105The terms of the provisions of the part of the Egyptian Civil Code relating to illicit acts make
clear that compensation is anticipated to be in monetary form. This is even expressly so
according to the provisions of Articles 170 and 171, taking account of Articles 221 and 222. On
the other hand, Article 171 does in fact allow for the possible award of alternative remedies in
some circumstances.

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missed his train. The proceedings, after trial and appeal, culminated eventually
with an award to the claimant in 2016 of the sum that he originally claimed in
1995 – 21 odd years earlier; the claimant was also awarded a sum of 200LE as
legal costs.106 Evidently, the value in real terms of the amount awarded is
diminished by inflation and the token amount awarded as legal costs is almost
certainly not reflective of the true costs of pursuing the action over several
years.

Reflected in the example given in the last paragraph, where a case resulted in
resolution eventually 21 years, is another likely contributory factor to reluctance
for pursuing civil redress for tortious behaviour. The pursuit of civil legal cIaims
in the Egyptian courts has historically been regarded as involving a time-
consuming and lengthy process.107 If the pursuit of a claim involves a lengthy
process and eventual outcomes – even including successfully obtaining an
award of money compensation – take so long that the time involved in the
pursuit and the inflationary effect on an award is intolerable, the result would be
a deterrence effect on the use of the civil courts to pursue remedies for tortious
behaviour.108

In addition to the issues of the time involved in pursuing a claim and the
adequacy of money compensation that may be awarded, the possibility of other
remedies that may be more effective than money compensation in some
circumstances probably needs to be given greater publicity to increase general
awareness. While confirming that compensation shall be estimated in cash
terms, Article 171 of the Egyptian Civil Code provides that the court may, at the
request of the claimant, rule for the restoration of a situation to its previous
condition or specify the performance of something connected with the illicit act

106 Court of Cassation Case No. 1878 of Judicial Year 69 (October 10, 2016)
107 It is noted in one commentary that: ‘Historically, the courts in Egypt have been slow and –
with the exception of the higher courts – not very sophisticated. Seeking redress through the
courts could therefore be a lengthy process with uncertain outcomes.’ See D. Farouk & L.
Youssef, Egypt in R. Lord et al (eds.), Climate Change Liability: Transnational Law and
Practice, chapter 10 – Egypt (Cambridge: Cambridge University Press, 2011) 245; see also
H.E. Chodosh et al, ‘Egyptian Civil Justice Process Modernization: A Functional and Systemic
Approach’ (1996) 17 Michigan Journal of International Law 865; and, Egyptian Courts and
Some Recent Challenges Report by 9 Bedford Row of December 2016, text available at
http://egyptevidence.com/egypt-courts-and-some-recent-challenges/ (accessed 14 August
2023).
108 It appears now that there has been significant progress in respect of the time it takes to

pursue some compensation claims in the Egyptian courts; a Note on the turnaround time for
compensation claims in Egyptian Courts produced by the Ministry of Justice suggests that it
can take between 91 and 180 days to render judgment in compensation claims; see
https://moj.gov.eg/ar/News/Pages/202106/statistical-reports/newcairo.aspx (accessed 14
August 2023)

25
by way of compensation. The latter aspects of the provisions of Article 171 raise
the possibility of the use of other remedies such as an order of abatement or
an injunction. These may be more effective remedies than mere monetary
compensation – especially in relation to some types of tort like those relating to
goods or real property and even defamation for example.

An interesting point of note is that it appears that there is a tendency to seek

redress for tortious behaviour that may also amount to criminal acts through the
criminal justice process than through civil proceedings. This is somewhat
understandable as a victim of tortious behaviour which also amounts to a crime
may feel some amount of satisfaction that the behaviour is not left wholly
unaddressed where the perpetrator faces consequences in criminal law.109
Withal, when the behaviour is addressed through the criminal law the expenses
in obtaining redress for the behaviour would be primarily borne by the state in
pursuing the prosecution rather than by the claimant in pursuing a civil lawsuit.

In comparison to the Egyptian legal and judicial landscapes, the development

of the law of tort in the English legal system is supported by a number of
contrasting factors. In the first place, on the whole, legal actions commenced in
an English court are likely to be completed more swiftly though delays are not
unknown. Second, the system of judicial precedent makes for greater
predictability of legal principles applicable in tort law and likely judicial outcomes
in civil proceedings. The generally greater awareness in relation to the law and
the means of protecting rights or obtaining remedies in relation to tortious
behaviour means that the pursuit of civil law remedies for tortious behaviour is
far more likely than in the Egyptian system.

On a further note, the far greater availability of adequate and effective legal
costs for pursuing a civil lawsuit in the English legal system means that, on the
whole, compensation received as remedy for tortious behaviour is less likely to
be eroded by the costs of bringing the action. Added to this is the fact, that quite
often the litigants in tort lawsuits are supported by insurance either in terms of
the fact that damages awarded will be ultimately paid by an insurance company
under insurance cover or that insurance cover exists to pursue a legal claim.110

109 It appears that the phenomenon of seeking redress for injury in criminal law rather than in
tort is not peculiar to Egypt; see T.J. O'Neill, ‘Through a Glass Darkly: Western Tort Law from
a South and East Asian Perspective’ (2009) 11 Rutgers Race and Law Review 1.
110 Tony Weir, An Introduction to Tort Law (Oxford: Oxford University Press, 2006) 43; Bamodu,

note 64 above, 8.

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7. Concluding Observations

The common law and Egyptian law proceed from different fundamental bases
in addressing matters of tortious liability. While tort law at common law is largely
based on an incremental development of principles and indeed bases of liability
through case law, Egyptian law relating to tortious liability is based on general
provisions in the Civil Code.

Tort law has evidently developed at common law to recognise specific nominal
torts. The recognition of the tort of negligence at common law gave further
impetus to the development of tort law in that system and, further in relation to
the tort of negligence specifically, the development of the law remains dynamic
with reverberating judicial decisions in light of social and legal developments.

In the Egyptian context, the codification of the law relating to tortious liability
does not necessarily have to have a stultifying effect on the development of the
law. In fact, the fluidity of the basic provisions which relate to ‘every’ error or
fault which causes harm and the historical recognition of fault or error and harm
in various circumstances in traditional Egyptian law and the Sharia means that
there is a wide scope for the pursuit of remedy for tortious behaviour under the
Egyptian Civil Code.

While tort law at common law is more dynamic than the Egyptian law relating
to tortious liability, this does not necessarily have to be because of the
differences in the bases from which the two systems independently proceed. It
seems that while the categories of negligence at common law are never closed,
the categories of error or fault causing harm in Egyptian law are not necessarily
closed either. The difference in levels of dynamism seem to be mainly
attributable to other factors which mainly relate to efficiencies in the legal and
judicial systems more generally.

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