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Civil Liability and Damage Arising from Artificial Intelligence

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 Migration Letters
Volume: 20, No: 5, pp. 430-446
ISSN: 1741-8984 (Print) ISSN: 1741-8992 (Online)
www.migrationletters.com

Civil Liability and Damage Arising from Artificial Intelligence

Nadia Yas1, Reema Al Qaruty2, Samer Abdel Hadi3, Ayesha AlAdeedi4

Abstract
Artificial Intelligence is no longer just a dream floating in the mind of some people, or an
illusive form of a scientific mystery. Indeed, it has become a reality that has a lot of
applications simulating human intelligence, and surpassing it indeed in many times. As a
matter of fact, the use of robots as well as the artificial intelligence programming in
various sectors and fields has raised different types of complicated issues related not only
to the responsibility for the procedures of this program, but extending to its feasibility to
the current legislations and its capability to accommodate the unique features of this
technology. Accordingly, we intend to discuss the current challenges of artificial
intelligence, especially the types that have been widely used. Besides, we shall focus on
investigating the main characteristics of this technology as well as the national and
global framework, which regulates artificial intelligence. The main objective that lies
behind our effort in this study is to determine the law that could accommodate the related
legal challenges. The importance of this study is attributed to the vitality of its new topic,
and that is the civil liability resulting from the damages caused by artificial intelligence,
which is considered as an essential product of the fourth industrial revolution. Nowadays,
artificial intelligence plays an essential role in the various fields of our daily life, as
robots that are based on artificial intelligence are used for medical, military, legal and
many other purposes. Despite the fact that artificial intelligence facilitates and
accomplishes services and solves very complicated problems in a record time that
exceeds human’s abilities, but in case of damage occurrence, it becomes very difficult to
identify the person who causes the damage, and therefore the injured shall fail to obtain a
compensation. The research hence is divided into two main parts. The first part deals
with the civil liability caused by artificial intelligence, while the second part shall
investigate the effects resulting from the implementation of civil liability for the damages
of artificial intelligence.

Keywords: civil liability, damage, artificial intelligence.

1. Introduction
During the last two or three decades, artificial intelligence has occupied an essential part
in our society, playing a prominent role in our life since it is used nowadays in different
fields, such as medical, legal, military and many others. It represents indeed the
technological progress that has been applied on machines so that they become capable of

1
College of Law, Umm Al Quwain University, Umm Al Quawain, UAE, Drnadia.a@uaqu.ac.ae, https://orcid.org/0000-
0001-5933-7669
2
General Undergraduate Curriculum Requirements, University of Dubai, Dubai, UAE, ralqaruty@ud.ac.ae,
https://orcid.org/0000-0003-2128-2580
3
College of Education, Humanities and social sciences, Al Ain University, Abu Dhabi, UAE, samer.abdelhadi@aau.ac.ae,
https://orcid.org/0000-0002-4111-0084
4
School of Business & Quality Management, Hamadan Bin Mohammed Smart University, Dubai, UAE,
ayesha.aladeedi@gmail.com, https://orcid.org/0000-0002-5494-4229
431 Civil Liability and Damage Arising from Artificial Intelligence

performing tasks that require human intelligence, such as the abilities of thinking,
perceiving, and problem solving through the processes of error analysis as well as
collecting and analyzing data, recognizing speeches and translating languages. According
to this progress in technology, artificial intelligence has become to a great extent capable
of imitating humans. However, its behavior might cause specific impairments to others
that somehow cannot be faced by referring to conventional rules of civil liability,
(Muhammad Sulaiman, 1998) and this is due to the fact that artificial intelligence is
uncontrollable by others, and it takes its own decisions by itself. Accordingly, it is not
easy to determine whether the damage caused by the robot is the result of certain
behaviors it has acquired from the environment where it is used, or because of a
manufacturing defect. We therefore might consider the issue of recognizing the legal
personality not because artificial intelligence or robots shall have full human rights, but
indeed to accurately identify the one who is responsible for causing the impairment
(Muhammad Sabri, 2004).
According to the legal attempts to interpret this issue, we may assume that the legal
liability falls on the manufacturer. However, such claim can be so easily negated as most
of these smart devices and machines operate quite independently. Besides, there is the
worker representing a human element who intervenes in the operating process. Reality
and law cannot imagine that machines shall be legally responsible for any consequences.
Article No. 316 of the Emirati Transactions Law No. 05 of 1985 confirms that the
maintenance person or whoever possesses the source of the damage shall be responsible.
It has emphasized that the person who is in charge of these things, such as mechanical
machines that require special care, it is his job and responsibility to protect them and keep
them operating properly except in unavoidable cases (Mahmoud Jalal, 1985). The
question to be raised here is whether these legal texts could deal with issues resulting
from artificial intelligence. This inquiry shall lead us to ask that in case the person using
Artificial intelligence is unqualified, and errors could be easily committed, are the
elements of legal liability shall be complete? Can we consider this person legally
responsible for such errors?
Due to the importance of civil liability for the damages provoked by artificial
intelligence, as being the main focus of this research, we shall investigate it on both
practical and theoretical levels. The person who commits the impairment shall be
punished for this as being personal and not for what is required to protect society. From a
practical point of view, and because of the many dangers at work as well as the increase
of new machines, it has become very difficult to identify the person committing the
damage. we are going to explore the area of machine learning and artificial intelligence to
unlock the possibility of unlocking potential values (Abdallah, S., Al Azzam, B., El
Nokiti, A., Salloum, S., Aljasmi, S., Aburayya, A., & Shwedeh, F., 2022). All these
factors have led jurisprudence as well as judiciary to look for an opportunity to expand
the scope of offense liability and to settle on appropriate grounds for compensating the
aggrieved without affecting the interests of the litigants. Finally, the great changes in
technology that depends on artificial intelligence and the inadequacy of the traditional
civil liability rules that cannot address the impairments caused by artificial intelligence
the aggrieved person may get partial or no compensation at all. This status is also
attributed to the multiplicity of people involved in the AI Robots Industry, and hence the
process of identifying the person responsible for the damage becomes too complicated.
One main objective that lies behind the current research is to investigate future
involvement of industrial robots and in an unprecedented way in human life. Accordingly,
jurists of law shall deal with the issue more seriously and start a legal dialogue as well as
objective and practical discussions so as to clarify the rules of civil liability that can be
applied on robots in case of committing acts leading to specific damages. Another
objective to be taken into consideration is to determine the flexibility of legal
jurisprudence when dealing with issues related to Artificial Intelligence. There is no doubt
 Nadia Yas et al. 432

that Artificial Intelligence is a new technology not only legally, but also at the level of
society as a whole. In fact, human fear of harm that might be caused by Artificial
Intelligence devices has been increasing, especially with the absence of a legislative
regulation that should control and organize the actions of robots and the damages that
might result from such actions. Accordingly, our research questions will be as follows:
• Who is responsible for the damages caused by robots?
• What are the types of such liability?
• How could the affected be compensated?
• What are the required mechanisms that can be pursued to obtain full
compensation to the injured.

2. Literature review
Liability is a very critical legal issue, and if we shift from theory to realty and from
general to private, taking for example the status of auto-driving cars, where we can
identify the degree of the driver’s control over the car. If the driver has no control at all,
liability then shall fall on the manufacturing company. Furthermore, we shall not ignore
the role of the person or persons who have participated in the process of assembling the
car (Ravikumar, R., Kitana, A., Taamneh, A., Aburayya, A., Shwedeh, F., Salloum, S., &
Shaalan, K., 2023). The issue will become more complicated if the driver has been
provided with more control over the car. In this case, we shall look for the person who
has taken the decision that has led to the accident. The issue, however, becomes more
complicated if we take into account that car accidents and their compensation is a
disputable issue between many parties and laws, such as the laws of traffic and roads, the
driver, the manufacturing company, the computer that has given order and the intelligent
system that drives and directs the car. We find an application to legal liability in the
medical field, and it is more dangerous and critical if the AI System permits inclusion of
robots to perform several jobs, such as medical diagnosis or analysis and even operate
surgeries. If an error occurs, legal liability is required, against which a number parties
shall appeal, starting with the doctor, the lab technician and the technical supervisor of the
robot. According to the Arab British academy for Higher Education, it is very difficult to
imagine that robots, which are being used almost everywhere and still in increase, shall
be responsible for their acts alone (John John Kabihan, 2015). In a nutshell, the
dimension of effective smart city in the world has always recognize the moderating role
vis a vis impact of leadership with strong will in order for a leadership vision not to
become a mirage (Shwedeh, F., Hami, N., & Baker, S. Z. A, 2020).
We believe that the current traditional rules of civil legislation are incapable of keeping
pace with the accelerating development of the AI System application, and therefore,
updating legislation and policies are highly required to meet challenges and respond to
technological developments (Shwedeh, F., Hami, N., & Bakar, S. Z. A., 2021). New laws
shall be legislated so as to go in line with the Fourth Industrial Revolution and its smart
tools. Law researchers have investigated the nature of the relationship between civil
liability and Artificial Intelligence, and we believe that the various studies that have
emerged in this area shall establish and clarify scientific research routes towards
contemporary legislation. In the forthcoming sub-sections, we shall attempt to review
some of these studies and summarize the most findings and as follows.
2.1 The Problem of the Human Agent’s Responsibility for the Robot Actuation “The
Effect of Artificial Intelligence on the Feasibility of Law”
It is an analytic prospective study, and the first in Arabic to determine the person who is
responsible before the law for the damages caused by operating a robot, or what is termed
as “robot”, that is programmed as per the Artificial Intelligence to simulate the human

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433 Civil Liability and Damage Arising from Artificial Intelligence

brain. We have found that the European legislator has relied on the “human representative
theory”, which determines responsibility for compensating the injured due to operating
the robot on the basis of error. Liability, indeed, shall fall on the representative, whether
he is a manufacturer, an operator, an owner, or used robots. This indicates that robots
have been given a legal status since they are treated as surrogates and not something
guarded (Humam Al-Qousi, 2008).
2.2 Civil Liability of Damages Caused by Artificial Intelligence Analytical Study
Science & technology nowadays is submitting Artificial Intelligence represented in the
form of robots that are capable of keeping up with the world through processes of
learning and organizing, using of algorithms, neural networks and other tools, and then it
becomes very difficult to determine the person responsible for the damage that the robot
has caused. Artificial Intelligence is the result of the Fourth Industrial Revolution, and it
contributes to a great extent in the various fields of our daily life, but it may cause
unexpected damages. Accordingly, the research aims to come up with a definition to
Artificial Intelligence, its origin, some of its uses, types of civil liability for damages
caused by Artificial Intelligence, and its flexibility to contain damage (Dr. Abdul Razzaq
Wahba Sayyid Ahmed Muhammad Assist Prof. of Civil Law, College of Science &
Humanities in Ghat – Majmaah University – Kingdom of Saudi Arabia).
2.3 Civil Liability of Damages Caused by Robots
The Emirati strategy for Artificial Intelligence has been a huge project that aims to place
the UAE ahead of all countries in the AI field covering different sectors, such as
transportation, education, energy, technology, space, and even restaurants and cafes that
are run by a number of robots. During the next decade, our life shall be transformed
through the use of more advanced robots if compared to the current ones. These new
robots shall be more capable in many areas, including communicative skills, being
independent and smart in developing communications. In other words, these robots can
receive and transmit information independently (Shwedeh, F., Aburayya, A., Alfaisal, R.,
Adelaja, A. A., Ogbolu, G., Aldhuhoori, A., & Salloum, S., 2022). The study has
investigated the concepts of robots, clarifying the bases of civil liability for damages
provoked by robots through conventional theories limited to the idea of guarding, and the
one in charge of the robot is responsible for the latter’s actions, referring to the European
legislation in this regard. The researcher has also dealt with the civil liability provisions,
which determine the damages caused by robots whether it is a contractual liability or a
liability of harmful actions all together with the compensation of such liability and the
agreements of exemption. The writer has invited the wise legislator to intervene in the
legislation process either through amending the liability rules included in the applicable
Emirati Civil Transactions Law or by issuing a legislation, which regulates the legal
liability of the AI system decisions so as to cover all legal liability requirements. Besides,
such procedures shall ensure the rights and maintain the Civil Law constant rule, which
confirms that “the offender shall be responsible for the harm he commits”. These
machines, i.e. the robots, are large and portable, and they might induce body injuries or
even death, and therefore, those who are injured can claim for legal compensation (Nayla
Ali, 2020).
2.4 Objective Liability Developments in the Moroccan Civil Legislation
A harmful act leads to an obligation that the harm shall be repaired by the offender
whether it is a deliberate act or unintentional, and this is what is known in the Moroccan
Law of Obligations & Contracts with the term “offense” or “semi-crime”. The occurrence
of a harm results in a liability that falls on the owner who occupies the hypothetical
responsibility, and the latter compels the perpetrator of the act to compensate for it. This
is the personal theory which obliges the person for compensation. As for the objective
theory, it does not punish the person who commits the error, i.e. the harmful act, or
attributed to him, and accordingly, there shall be no compensation for the injured or
 Nadia Yas et al. 434

affected people with the absence of the offender, or he proves that he could not prevent
the harm despite his failure to do the job properly and this is quite contradictory to
justice, especially if he is from the random rich and poor (Yas, H., Mardani, A., &
Alfarttoosi, A., 2020). A new trend of legislation has started to emerge, which establishes
liability on objective grounds, focusing on the idea of bearing responsibility and
obligating the offender to compensate whether harm occurs or not, and this theory is
based on a cause & effect relation. The study indicates that there are several legislations
which have adopted this objective view, such as the German Civil Law in Chapter 829,
the Swiss Law of Obligations & Contracts in Chapter 54, the Italian Law of Obligations
& Contracts in Chapter 2047, and the Moroccan Law already stated above.
This liability has not appeared until the end of the 19th century with the start of using
mechanical machines that has led to many tragedies inside factories and workshops
without of course ignoring the happiness that has brought to humanity. These unjustified
tragedies and errors have led to the following. Firstly, spread of insurance phenomenon
due to the new threatening dangers that have appeared at the work environment, and
because of absence of an individual method, establishment of insurance companies as
well as cooperative societies has been taken into consideration. Secondly, spread of social
ideas that aim to protect those who are injured at work. As for the scope of objective
liability in the Moroccan Civil Legislation, the legislator has addressed some of them in
the Moroccan village, such as the responsibility for actions committed by others as in
Article 85; responsibility for guarding things, Chapter 88; responsibility for damages
caused by animals Chapter 86; responsibility of building owners, Articles 89 and 90.
Others, however, have been outside the Moroccan village, such as Law No. 24.09, Law of
Traffic Accidents, and Law of Labor Accidents & Occupational Diseases (Dr. Abdul
Qadir Al-Ar’ari 2015-2016).
2.5 Civil Liability of Damages Caused by Robots
As long as there is progress in sciences and technology with their application in the
various fields of life, new dangers shall emerge threatening humans lives and their
properties. Nowadays, being described as the age of Artificial Intelligence, robots have
become very intelligent, capable for simulating human behavior, interacting with people
as well as taking decisions and implementing them quite independently (Khudhair, H. Y.,
Mardani, A., Albayati, Y., Lootah, S. E., & Streimikiene, D., 2020). They have become an
essential part of the different fields of human life, including industry, medicine,
transportation, military institutions, education, agriculture, domestic services, and so on.
Such progress in the field of Artificial Intelligence has raised human fears about the
damages that these machines might cause to people and to their properties if they violate
or deviate from their programming system, or their automated electronic operating. If this
occurs, who shall be responsible for the damages caused by these robots? What is the
basis for this liability? Is it the operator or the owner to be responsible for these unloving
things as per the theory of liability? Or is it the manufacturer according to defective
product theory? Or is there another liability theory? More questions however can be
raised related to this issue. For example, does the robot have a legal personality, or just
included within the legal description of things? Is there a special legal status for the robot
nowadays? (Al-Karrar Habib & Hussam Ubayyis, 2019).
2.6 Essential Definitions
Despite the increasing attention that Artificial Intelligence has been receiving in the
various fields of life, whether academic or industrial, there is still no one specific
definition for Artificial Intelligence. In fact, research has come up with several definitions
reflecting the complicated status of this field, which has witnessed significant growth in
the past few decades. Alan Turing, for instance, defines “Artificial Intelligence” as “the
ability to behave as if the robot is a human being while encountering people and
answering their questions” (Salah Al-Fadhli, 2019). According to Elaine Rich (1958) has

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435 Civil Liability and Damage Arising from Artificial Intelligence

defined Artificial Intelligence as “the study of making computers do things better than
humans”. It has also been defined by Buchanan & Shortliffe (1984) by focusing on the
programming techniques used in Artificial Intelligence, considering it as “a branch of
computer science, which deals with codes and other methods of problem solving”.
Besides, it has been defined by Marvin Lee Minsky (1984) as building computer
programs that have the ability to participate in tasks, which humans can perform
effectively because they require mental processes of high level, such as cognition,
“learning, memory regulation and critical thinking”. Another definition has been given by
John McCarthy (2008), in which he considers “Artificial Intelligence” as a science of
manufacturing intelligent machines. On the other hand, Cor Zewail, a famous researcher
in the field of Artificial Intelligence, considers it as “the art of manufacturing machines
capable of performing activities that require semi-human intelligence.
2.7 Types of Civil Liability of Damages Caused by Artificial Intelligence
In the current research, we shall investigate different types of civil liability according to
their conventional functions, and then we shall analyze them to make sure whether they
can be applied to Artificial Intelligence or not. Application of any type of liability
depends to a great extent on the circumstances in which the damage has occurred. The
three types of civil liability shall be dealt with as given below.
2.7.1 Contractual Liability
Contractual liability cannot be applied until certain conditions are provided, otherwise the
provisions of liability for harmful acts shall be applied since they represent the general
law of liability. However, according to the law of contracts, if two parties conclude a
contract, and then one party does not comply with his obligations, the other party can
either waive his obligation or claim for compensation (Yas, H., Alnazawi, A. A., Alanazi,
M. A., Alharbi, S. S., & Alghamdi, A., 2022). Besides, the amount of compensation can
be determined in the contract when concluded, and if not, the court can determine it based
on the loss incurred. According to the provisions of the contractual liability, if the robot
does not comply with the conditions of the contract concluded between the seller
(producer) and the purchaser (user), the latter therefore shall not accept what violates the
provisions of the contract (Article No. 341, Civil Egyptian), which includes defects that
shall be ensured, and the defect that requires warranty is supposed to be unknown and
invisible for the purchaser. If a change occurs in the status of the product, its ruling differs
according to the nature of the change, whether its for better or for worse (Muhsin El-Bay,
2008). It is remarkable to note that being obligated to ensure the validity of the sold
product is not implemented just because this result is achieved. It should be
accomplished in a way that is consistent with the content of the contract with the
availability of good faith. It is quite obvious that the robot is just a commodity or a joint
product. According to Santosuosso (2012), some jurists believe that the application of
traditional liability rules in case of violating the contract does not lead to any problem.
However, this viewpoint is a matter of consideration because the application of
contractual liability to Artificial intelligence is not enough to confront the damage
provoked. Besides, a natural person is addressed with this liability and not Artificial
Intelligence. Moreover, some laws do not stipulate texts that regulate the contractual
liability between the manufacturer and the programmer of the robot. Nevertheless,
liability could be determined on the basis of the sale contract, but in this case the latter
cannot be considered as a party in the contract. It is remarkable to note as well that
referring to the general rules stated in the Civil Law is not enough to prove contractual
liability if an error is committed by the debtor bringing harm to the creditor.
If a robot does not meet the specifications as stated in the contract, this shall lead to the
status of claiming compensation, i.e. the buyer shall be compensated, and the creditor
cannot be forced to accept what is not worth, even if this item is equal or higher in value.
Besides, the seller is committed to deliver the sold item to the purchaser in a status
 Nadia Yas et al. 436

similar to that when signing the contract (Article 431 Civil Egyptian). He should also
ensure that the item is workable, and there is no doubt that this obligation is a contractual
one. These obligations however aim to achieve an objective (Muhammad Al-Bakri,
2019). It is considerable to note that according to the general rules included in the Civil
Law, contractual liability cannot be proved if an error is committed by the debtor causing
harm to the creditor. The legislator indeed does not impose on the creditor the
responsibility for proving the cause-effect relationship between error and damage, but he
assumes that the damage is caused by the error. If the debtor claims something else, he
shall deny the cause-effect relationship between error and damage. Article No. 215 of the
Egyptian Civil Law stipulates that “if the debtor fails to implement the tangible
obligation, he shall be sued for compensation due to his failure to fulfill his obligation”,
unless it is proved that the implementation is impossible due to external causes out of
control. In this case, the provisions of the contractual liability shall be applied since the
robot has not been delivered as per the contract concluded between the seller (producer)
and the purchaser (user). According to this viewpoint, the robot is just a commodity or a
mutual product, and that’s why some jurists believe that the application of the traditional
liability rules in case of violating the contract does not cause any problem (Samir Tanago,
2009). According to Nabil Saad (2019), this viewpoint is open for discussion because the
application of the contractual liability to Artificial intelligence is not enough to face the
damage that has been caused by the robot. Besides, the liability is directed to a natural
person in case of breaching the contract and not to Artificial intelligence as the latter
cannot be a party in the contract even if we assume that the parties add clauses to the
contract in which they describe the capabilities of the Artificial Intelligence and the risks
that might be caused by his performance. The contract in this case just generates an
obligation of care and not an outcome.
2.7.2 Tort
As a matter of fact, tort cannot be inaugurated unless there is a breach to a legal
obligation, with the assumption that there is no relation between the debtor and the
creditor, and default in this case is a general liability system, which apples to an error
committed by one person against another (Yas, H., Alkaabi, A., Albaloushi, N. A., Al
Adeedi, A., & Streimikiene, D., 2023). However, and despite the differences between the
Anglo-American law systems and the civil law, we may conclude that tort refers to an
error considered as a breach to a general legal obligation, which prohibits causing harms
to others. Error, therefore, is based on two elements: the first is tangible related to
infringement or deviation, whereas the second is intangible related to perception and
discrimination (Samir Tanago 2009). As for liability in law, it means “a person’s
obligation to compensate for a damage resulting from actions of persons or followers
under the owner’s or manager’s care or control, such as animals, buildings or other
inanimate objects within the limits determined by law”. As for Islamic Sharia, it is the
guarantee of money, i.e. one’s obligation, and it is said, “He guarantees the money, and
then I am a guarantor, i.e. obliged and the money guarantees him. I am obligated (Dr.
Saadoun Al-Amiri, 1981). In order that an injured person receives a compensation as per
harm regulations, it is quite necessary to prove the error and the damage and the causal
relation between them. It should be noted however that the application of AI Harms Law
faces lots of challenges because the courts shall determine the legal or natural person who
is supposed to be responsible for the damages caused by Artificial intelligence.
Nevertheless, increase of AI autonomy complicates the issue and makes it almost
impossible to assess the basis of liability in some cases (Y. Benhamou, 2020).
In France, Article No. 1242 of the French Civil Law No. 131 of 2016 stipulates that a
person and an individual is not only responsible for the damages that arise from his
personal actions, but also for any damage that results from the actions of individuals or
things under his responsibility or custody. There is also a trend in the French Law to
differentiate between protection of design and guardianship of use due to the complicated

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437 Civil Liability and Damage Arising from Artificial Intelligence

nature of things, especially robots, which is based on AI techniques. While the protection
of design is left to the manufacturer who exclusively has the right to possess information
about the function of the product more than the owner or the consumer, guarding the use
is left for the consumer. However, this distinction has raised some practical problems
related to the difficulty of identifying the cause of the damage due to the loss of main
benefit that lie behind the identification of liability and that is to exempt the injured from
seeking the cause of damage (Nabil Saeed, 2019). Such events could take place with
assistive robots at certain circumstances when a damage occurs. It shall be very difficult
to identify the person who has been responsible for the robot then. An example for such
situation, for example, when the owner as well as the caretaker both travel and leave the
robot with a friend who can use it (Ali Muhammad Khalaf Al-Fetlawi, 2015). Several
questions may arise here. Does the friend replace the caretaker of the robot in his job? Is
this friend qualified having the ability to control, monitor and direct the robot? Is it
possible to claim that that caretaker of the robot has been transferred from the owner to
his friend? Replies to such questions could found only with jurisprudence.
According to Andrea Nadeau, jurisprudence has recognized the transfer in certain
circumstances. In other words, the duty of guarding can be transferred to a person
authorized to use or maintain the object and has the right to manage and supervise that
object as well as take the necessary procedures to prevent the damage. Both Jean Beniot
and Monique Aulet referred to the same issue, confirming that guardianship can be
transferred and it is not necessary that the owner shall be custodian. According to Al-
Sanhouri (1964), a borrower or a lessee could be the custodian. It is quite obvious now
that the friend to whom the robot has been transferred becomes the custodian, if the
owner relinquishes his authority to that friend. But if the owner keeps the authority to
himself, he shall be the caretaker of the robot. If the robot is stolen, the thief in this case
becomes the custodian, and there is no effect of his illegal control over the robot since it
is an actual control and not legal. According to Kahil Kamal (2006-2007), the French
Law distinguishes between legal and actual guardianship, and since the issuance of the
judgment in the 1941 Frank case, the judiciary in France has adopted the theory of actual
custody which is based on the fact that the caretaker is the persons who has the authority
that is related to controlling, managing and guiding the thing. In Egypt, the
jurisprudence has unanimously agreed that the actual guarding is responsible for the harm
caused by things. Accordingly, and as stated above, it is quite necessary to prove the care
taker is actually using his authority in controlling, managing and guiding the thing. This,
however, has not been achieved in issues related to the robots of Artificial Intelligence
that are characterized with the feature of independence, and thus contradicting the
caretaker’s authority since it is not a matter of transfer, but a total hiding to that authority
(Yahya Muwafi, 1992).
2.7.3 Objective Liability
Objective liability rules have been established as a reaction and in response to the
requirements of a new era and in accordance with a totally different approach in civil
liability, the right of the injured is protected instead of the offender due to the industrial
development starting at the end of the 19th century and onward. This unprecedented
progress has led to a wide spread in the use of machines in factories, projects,
transportation and many other fields resulting in total control and dominance
mechanization in all aspects of life and various forms of human activities. The machine
therefore has become an essential part, which man utilizes to achieve his goals in control
and expansion for the purpose of implementing one final target, and that is the social and
economic renaissance. Nevertheless, and despite the positive side of this revolution in
technology, it has caused lots of damages and victims everywhere, whether in factories,
other various projects or on the roads because of traffic accidents. Meanwhile, it has
become very difficult to identify the person who is responsible for this type of damage
(Gabriel Hallevy, 2013).
 Nadia Yas et al. 438

In addition, the element of harm is considered as an easy problem to prove, simplifying

and facilitating the victim’s effort to obtain compensation. Although jurists have agreed
on the rules of liability, and it is damage in this case, they differ on the basis of liability,
which has led to establishing theories for liability and insurance based on the principles of
Islamic Sharia (Ali Filali, 2007). According to the European Decree No. EC/85/374, the
product liability has been limited to identifying the grounds for full liability in case of
damages that occur to defected products, and that more than one person (manufacturer,
supplier or importer) is responsible for the same damages, and liability is mutual, the
European Union Law cannot be absent of regulations that can control liability outside the
scope of contracting, providing European countries with a framework for claiming
compensation as per the damage of the product. Such framework is not required
according to the demands for compensation based on the discovery of fault by the
manufacturer. It is confirmed as per this Decree that the form of the applicable system is
the objective liability. But this is not enough to determine that the product causes harm to
others. To prove liability, the product shall be essentially defective and that the defect is
the explicit cause for the damage that compensation is claimed for.
Article No. 06 of the European Decree stated above identifies the “defected product” as a
product with no legitimate safety. This trend has been adopted by the French legislator in
Article No. 4/1386 of the French Civil Law, which stipulates that “a defected product is
the one that does not meet the conditions of safety that are legally expected of this
product”. We may therefore conclude the degrees of the legally expected safety due to all
circumstances surrounding the robot. Besides, defects in products that are subject to
liability provisions, and these products, which do not meet the safety criteria, are not
limited to the benefit expected to be achieved. Moreover, the injured is only obligated to
prove the defect that has brought him damage, and these justifications could have
motivated the legislators of the European Decree not to pay attention to the elements of
error in the legal systems of producers’ liability (Najia Al-Atraq, 2015). In France, Article
No. 1/1368 of the French Civil Law states that “the producer is responsible for the
damages that result from his defected products whether or not these damages are related
to the affected party as per a contract”. It should be noted however that the text identifies
the producer’s responsibility on the idea of risks, and we believe that all the law might
have been issued though this text due to the specific interest to prove the producer’s
liability on objective bases (Fathi Abdullah, 2015).
Finally, and according to the French Cassation Court, rules of liability can be applied with
no errors at all if there is a direct contact with robots since they are of a dangerous nature
and utilized in very critical fields as a result of the scientific and technological progress.
The danger of these robots lies indeed in the difficulty in penetrating their algorithm
(Mukhtar Rahmani Muhammad, 2016). We believe that limiting the application of
objective liability to current products is quite impractical because we cannot identify the
defects of these products when the damage occurs as a result of the randomness of the
learning behaviors that a robot acquires from the surrounding environment where it is
used. According, it becomes difficult most of the time to exactly specify the defect that
has caused the damage. It requires indeed a review of the product liability rules to
determine the ones that can meet the features of Artificial Intelligence. Besides, the
application of that liability on the activities performed by robots, considering them as
dangerous, requires as well the identification of the persons in charge of these activities
(Muhammad Shanab, 1976 -1977).
2.8 Consequences Resulting from Realizing Civil Liability of Damages Caused by
Artificial Intelligence
Compensation for damages caused by Artificial intelligence is the following stage in
which civil liability is determined for such damages. The injured in this case, like any
other injured person, shall have the right to claim for compensation. The legislator has
approved people’s right to resort to the judiciary to seek protection for their rights and

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439 Civil Liability and Damage Arising from Artificial Intelligence

interests. However, it seems that the adopted method of compensation does not work
successfully all the time, especially with the damages caused by Artificial Intelligence,
that are deemed as being obscure, dangerous, and very difficult to estimate the dangers
resulting from its acts (Qada Shahida, 2005). This part of the research shall be divided
into two subsections. We shall deal in the first with “judicial compensation”, whereas the
second focuses on automatic compensation.
2.8.1 Judicial Compensation
Judicial Compensation refers to what is determined by the judicial authorities for those
who suffer or feel that they are under threat. In other words, this type of compensation is
subject to the judiciary provisions, and it performs freely provided that the cause-effect
relationship is available, and the compensation does not exceed its real value, or to be
compensated for the damage two times (Ihsan Hussein, 2019). On the other hand, the
injured has to include in his lawsuit the elements of damage, otherwise, his request could
be rejected. The compensation shall be influenced by the financial and family status of
the affected, and the court cannot ignore the financial situation of the injured when
estimating the compensation as being an exceptional circumstance. As for the person who
is responsible for the damage, the court is not required to consider his financial status,
and the compensation amount shall be the same whether this person is rich or poor.
However, practically, we find the judiciary takes into account a number of consideration
related to the financial position of the accused. The size of error anyway is not taken into
account when calculating the amount of compensation (Belhaj Al-Arabi, 1999). It is
remarkable to note as well, that if the damage issue has not been settled until the day on
which the judgment shall be issued, the judge is required to estimate the compensation as
per the value of the damage on the day the judgment is pronounced without rejecting the
right to claim for re-estimating the compensation at the time of the damage occurrence
(Article No. 170, Egyptian Civil Law). Compensation, therefore, is considered as a
judicial procedure to repair the damage either by eliminating or mitigating it.
Compensation indeed is defined as an amount of money or any satisfying action of the
same type of damage equal in the loss that has occurred to the injured (Article No. 170 of
the Egyptian Civil Law according to Idris Al-Abdoulay, 2000).
Repair of damage is implemented according to the general rules, either through tangible
compensation, which is based on removing the source or cause of the damage. This
compensation is divided into two types: monetary and non-monetary. The monetary
compensation includes giving the injured an amount of money, whereas the second type,
i.e. the non-monetary, it incorporates obligating the person in charge of the damage to pay
something else other than money. Article No. 171/2 of the Egyptian Civil Law has
referred to the possibility of a tangible compensation, confirming that the cash estimated
compensation based on the circumstances and according to the request of the injured, the
judge could give orders to bring things back as they were before the accident, or to
implement something related to the illegal action as a means of compensation (Nibras
Jabir, 2018). Nevertheless, the tangible compensation may not be judged within the
conditions of the damages caused by Artificial Intelligence unless the injured has no
choice but to obtain the compensation.
It should note that compensation includes tangible damages caused by AI-based robots.
Such damages could happen due to defects related to the procedures of operating the
robot, and therefore shall be attributed to the producer. These damages could also happen
because of physical or non-physical components, or due to poor maintenance, which can
be financially evaluated. The jurisprudence has determined the time of estimating the
damage to be compensated and has ruled that the estimation of this damage shall be from
the day the judgment is issued for the purpose of creating a balance between
compensations and damages as it is assumed that the result of the harmful act shall
remain without making changes. In accordance with the general rule, which governs
compensation for damage, it should be, i.e. the compensation, sufficient and
 Nadia Yas et al. 440

corresponding to the damage. In other words, the compensation shall not exceed the
damage nor being less. Besides, the compensation shall cover only the damage that has
resulted from the error with the aim to retrieve the balance that has been disrupted.
Anyhow, the difficulty arises in the case of moral damage as it cannot be compensated
with money determined by the court. In general, this type of damage is difficult to
compensate unless it is related to some tangible damages. Despite of everything, money
remains as the best means through which damages can be mitigated if not eliminated,
including moral damages.
2.8.2 Automatic Compensation
Civil Liability is no longer the only framework through which an injured person can
claim for compensation. Indeed, another system known as the automatic compensation
has appeared in addition to the previous one. This system, which is self-independent,
almost contradictory to civil liability in its provisions, principles, procedures and even in
excluding the civil liability terms. However, the automatic compensation system is related
to an error once committed by the person in charge, and by the victim at another time. We
are required therefore to investigate these exceptional roles of error and the civil liability
within the framework of automatic compensation, and their impact on the victim’s right
for compensation as well as the status of the person responsible for the accident
(Muhammad Ismail, 2019). The Algerian legislator’s vision regarding the automatic
compensation has been clarified in Article No. 140 bis 1 of the Civil Law No. 05-10
amended and supplemented, and it is indeed a qualitative change in the Algerian
legislation, which includes a special system of compensation apart from the rules of civil
liability. we have talked in detail about the necessity to provide specific conditions so that
the State guarantees compensation for body injuries.
The new compensation system mainly aims to make up for victims of physical injuries as
well as the social consequences, regardless of the offender’s behavior whether he is right
or wrong, or he is known or unknown to the victim. Being bodily harmed, gives the
victim the right for compensation, especially if this right has become one of the human
components among the basic rights protected by the Constitution, situating the victim in
an excellent position. In some cases, we should prefer to protect the interests of the
victim. In other cases, the body injuries are caused by natural disasters beyond the control
of humans, and in this case the State intervenes to compensate these victims as part of
social solidarity. Moreover, it is remarkable to note that jurists of Civil Law have differed
about the name they may use to this new system of compensation. Some have called it as
the “social liability in individual confrontation”, since the new system represents a
transition from an “individual compensation system” to a collective one.
There is another jurisprudential trend called “Humanitarian Liability” (Ahmed Al-Saeed,
1997), according to which any harm that occurs to the human body, the injured shall be
compensated even if it is implemented through systems taking a collective form. These
different trends with emergence of victim studies more calls have arisen confirming the
individual’s right to protect his body from any harm or injury, and it is quite necessary to
establish social system for compensating the victim. Some however avoid saying that the
State shall compensate the victim from the public treasury if the offender is financially
ruined, and such claim is based on the fact that the State has neglected its role in
protecting and shall therefore compensate. Others have called it “automatic
compensation” (Abid Fayid, 2014) because the victim shall obtain the compensation in
any case by force of law. There is another term, and that is “the right to body damage”
(Lambert Faivre, 2000). It refers here to the “Human Rights Law in the Field of Response
and Correctional System (Lahlou-Khair, 2017-2018). This new system is also called “The
Compensation System for Violating the Right to Physical Safety”. Using such name is
attributed on one hand to the holiness of the right to physical safety, and on the other
hand, any violation to this right shall be the basis for compensation. Automatic

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441 Civil Liability and Damage Arising from Artificial Intelligence

compensation is often implemented through insurance and compensation funds, and that
is what we are going to clarify and as follows:
• Insurance: The insurance Company assembles many dangers as per the laws of
statistics and refines them on a scientific basis so as to become capable for meeting its
obligations when the insured dangers are realized through the amounts of money paid by
the insured person. Accordingly, we may claim that there is no insurance but inside a
group of comparable dangers within a project scientifically organized. Insurance, indeed,
has a prominent role that cannot be confined to compensating damages. Insurance,
however, can perform other functions that are somehow precautionary procedures to
insure some future accidents, which might take place even if they do not cause any
damage, but they could be categorized as “compensated accident damages”. While
insurance covers things and against liability, the idea of precaution occurs in the future to
include insurance for people, such as insurance against death (Muhammad Lutfi, 2017-
2018). Insurance companies shall face very complicated challenges in the assessment of
the dangers related to manufacturing and using robots of all kinds. By referring to
modernity and the complexities with which robots are characterized, we may conclude
that the identification of losses is almost impossible due to their diversity, difficulty of
anticipating or managing them.
• Compensation Funds: According to the decision of the European Parliament on
16th February 2017, compensation funds can be considered as one of the tools of
compensation for damages that are not covered with insurance. As a matter of fact,
compensation funds can only be applied in uncontrollable situations, such as the rise of
insurance problems, or by people who own robots with no insurance policies. This is
attributed to the fact that the rules of traditional civil liability depend on a form of
legitimate compensation, which cannot be considered as suitable to the type of dangers
that people might be exposed to in case of dealing with AI robots, and with the emphasis
on the knowledge of the person in charge. Signs of the so-called social responsibility has
started to emerge in contrast of sign to individual responsibility based on the traditional
civil liability (Meha Ramadan, 2017). The establishment of compensation funds,
therefore, could be traced to the possibility of obtaining reasonable rectification for the
injured in special cases where they cannot be compensated in any other way. Besides,
those funds aim to spread the dangers resulting from dealing with AI-robots on the
persons who practice such activities. Moreover, these funds do not intermix except the
supplemental or reserve ones.

3. Methodology
We have adopted in the current research a descriptive approach, using laws and studies of
the period between 2010 & 2021 with the focus on the development of Artificial
Intelligence, addressing meanwhile the impact of legal liability on individuals and the
means of dealing with civil liability through the definition of Artificial Intelligence in
jurisprudence. Moreover, we have worked on analyzing legal texts included in some legal
systems and comparing them with different laws that have stipulated provisions regarding
Artificial Intelligence. After that we have moved to automatic liability that is based on
direct compensation without having tort liability rules, which depends on the error-
damage relation, represented in insurance procedures as well as compensation funds. We
have also referred to similar studies for the period between 2015 & 2020.

4. Discussion and Result

Civil liability criteria are totally different from the ones that determine the AI damages.
Similarly, they are different from other types of liability, contractual, tort and objective as
per the surrounding circumstances. The first, i.e. the civil liability, is raised when there is
 Nadia Yas et al. 442

a causative relation. The second, which is related to Artificial Intelligence, is based on

automatic compensation. In other words, there shall be no cause-effect relation. As for the
criteria of contractual liability, they come into effect if a valid contract is violated by one
of the contracting parties. Tort liability requires to prove the error or damage and the
cause-effect relation, which is somehow very difficult to the point of being impossible.
An example for such status is dealing with Artificial Intelligence where its application is
facing great challenges, especially when AI-Robots take their decisions by themselves. As
for the objective liability, which is based on harm, the injured person is required to prove
the error-damage relationship. Nevertheless, its application on Artificial Intelligence
again faces similar challenges, because robots are uncontrollable, and the rate of risk in
their job is very high.
Besides, the liability for damages caused by Artificial intelligence shall inevitably lead to
compensation in both cases of tangible and intangible types of harm. The judge could
estimate compensation based on the asperity of the damage without referring to the
harmful acts, taking into consideration the financial and social situation of the injured.
Furthermore, victims could be compensated through the means of compulsory insurance
in the fields of Artificial Intelligence, or through compensation funds as well. As a matter
of fact, the right to body safety is considered as the basis for establishing a compensation
system, especially after rise of human rights, and almost all countries joining international
and regional agreements, which mainly focus on the protection of these rights.
Accordingly, internal legislations of these countries shall not contradict with the content
of these agreements, and hence leading to protecting the victim and not the person
responsible for the injury. The right to body safety has become a social responsibility.
This mainly aims to provide more protection to the victim creditor for compensation by
obligating the debtor to pay compensation even if he has not committed an error, or the
damage has been the result of a sudden accident or force majeure. Insurance therefore has
just one meaning that the victim shall be compensated in all cases in which he is
responsible and the debtor shall endure all the dangers that are not related to his behavior.
Compensation in the new system is originally limited to body injuries, while tangible
damages are not included. But what I have noticed while studying this particular
legislation that tangible damages are exceptionally compensated, and we clearly find this
in the Algerian legislation, which stipulates on compensating the victims of terrorism. In
other cases, intangible damages are compensated as well, and the debtor becomes a
guarantor and not responsible, based on the idea of social solidarity in the face of social
dangers, and in accordance with the theory of liability in the Islamic Sharia.
Consequently, the judge shall have no authority to estimate the amount of compensation.
According to the theory of automatic compensation, it becomes a legally acquired right,
estimated as per the body injury, and it is obtained in an amicable and administrative
manner through conciliation, investigation, and medical examination to ensure simplicity
of procedures as well as speed in compensating victims of body injuries. Error in a civil
liability system constitutes some kind of a burden on the injured to obtain compensation,
specifically in the context of an industrial community. If the victim has managed to prove
the error and the damage, i.e. the cause-effect relation, he shall be compensated for all
damages, whether tangible or intangible. According to the special legislations
incorporated in the new compensation system, it is called the “Complete Compensation”.
The injured person is only required to prove that he has been physically harmed due to an
accident regardless of the cause or location of this incident. In other words, there shall be
no investigation in the causes, whether it is caused by a motor vehicle or it is a result of a
terrorist act, or due to violence that has occurred during demonstrations, gatherings or
other occasions. And the role of the injured whatever it is shall not be taken into
consideration. It is enough for the victim to prove his state to obtain compensation.

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443 Civil Liability and Damage Arising from Artificial Intelligence

5. Recommendations
Jurists are required to recognize and legalize plausible legal personality for AI-robots
similar to that of legal persons. Accordingly, we invite legislators to establish appropriate
legal systems that could determine all damages provoked by Artificial Intelligence. In
addition, insurance for these damages, i.e. the ones caused by Artificial Intelligence, shall
be mandatory. After all, we recommend to approve the bases of objective liability that
depend on damage, narrowing the scope of exemption similar to the rules of civil liability
for nuclear damages as robots cannot be less dangerous than nuclear activities. WE also
hope that a new branch of law shall be established under the name “Compensation Law
for Body Injuries”, which can gather all legal texts scattered in different legislations,
whether those stipulated in the traditional system of civil liability or in the new system
that has been adopted by special legislation, meanwhile seeking to fund systematic
practical research. Thus, we shall create a legal jurisprudence approach that can deal with
the damages caused by Artificial Intelligence through the adoption of new methodologies
and ideas for future research.

6. Conclusion
It is remarkable to note that the reasons and factors that led to producing the idea of social
damages do lie in the development of society after the Industrial Revolution, which has
brought radical changes in the various of life, economic, social and political. These
changes have necessitated the harmonization of existing legislative texts with the
requirements of the new legal life. These developments in the different fields of life has
led to the rise of new dangers. The general rules of the civil liability have failed insure the
new type of damages caused despite the constant efforts exerted by jurisprudence, the
judiciary and the legislation because these damages have become a serious threat to the
security and stability of society (Adnan Sarhan, 2007). Compensation system has become
incapable of protecting victims because of the huge social gap between victims and their
offenders. In some cases, the latter are completely unknown and in other cases, even if
they are known, they could be insolent and compensation therefore shall not be paid.
Moreover, the difficulty of proving the error has left many victims without being
compensated because most of tangible damages are caused by a thing or a result of
natural crises and not by a human being. Due to these obstacles, the liability system has
left many victims without compensation. Therefore, it has become somehow natural for
the legislator to intervene to stipulate special legislations for compensating the victims of
social dangers. In addition, the development of social thoughts and the rise of social
solidarity has placed the whole community in a responsible position towards the
consequences of these dangers (Muhammad Aqida, 1992). These special legislations have
been developed to face social dangers, and it has included exceptional solutions for body
damages that are totally different from the method of compensation already applied in the
general rules of civil liability, leading to the emergence of a new legal system in addition
to the existing one.

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