Dr. Yonis Salahalden
Department of Law
Cihan University - Erbil
The civil liability in the context of the civil law, as we know, is legal terminology, sub-categorized into two main branches, that is to say the contractual liability and the tortuous liability. As far as the pandemic coronavirus COVID-19 wide-spread dissemination is concerned, the tortuous liability will be more important that contractual one, particularly concerning the intentional escape of individual carrying coronavirus from the hygienic quarantine, and their active participation in disseminating or proliferating the type of dangerous virus. It is worth-bearing in mind that the hygienic quarantine organized by states and regions according to their laws, may be divided into special and general. The special hygienic quarantine is usually reserved to persons or individuals actually carrying or suffering from COVID-19 coronavirus. And this type of quarantine is characterized by its being protective and therapeutic simultaneously. And fleeing this type of hygienic quarantine is somehow difficult, because of the strict measures imposed by governmental organs. Therefore we will be focused on the other type of hygienic quarantine, that is to say, The general quarantine imposed upon the whole population, and reserved only for protective aims and purposes, the escape from which can lead to tortuous liability of the person. In fact this type of liability can be qualified either as a civil liability arising from injurious act, and classified within the field of the liability from personal acts, in conformity with the rules of the Iraqi civil law No.40 of 1951. Or an objective liability, which is called also strict liability or liability without fault. therefore any person escapes intentionally from the general hygienic quarantine imposed upon the whole population, and leaves his or her home for purposes other than urgent ones and breaks the order of the curfew, will be liable according to the rules of the Iraqi civil law either personally or objectively. We want here to sub-categorize the liability according to the health status of lawbreaker himself or herself and in two situations. The first situation: If the person encroaching, trespassing or violating the orders of the general hygienic quarantine is not carrying or suffering from COVID-19 coronavirus, he or she will be liable for personal acts, in conformity with the text of the article No. (186) from the Iraqi civil law, which provides that : ( 1-A person who willfully or by trespassing has directly or indirectly caused damage to or decreased the value of the property of another person shall be liable. 2-Where two persons- a perpetrator and an abettor – are involved in committing the damage, the one who acted willfully or by encroachment shall be liable, where both are liable, the liability will be joint and several). Analyzing this legal text, we can understand that it is unsuitable to impose the civil liability from personal acts upon persons encroaching the quarantine, and not carrying or suffering from COVID-19 coronavirus, because of many reasons the most important of which, it is intended to protect property rather than personal or bodily safety of individuals, and it does not make a difference or distinguish between initiator and causer of the personal act, which means that it makes the liability conditional to both the willful intention or the encroachment (trespassing) of the doer of injurious act, whether he or she be a perpetrator or an abettor. The second situation: If the person encroaching, trespassing or violating the orders of the general hygienic quarantine is actually carrying or suffering from COVID-19 coronavirus, he or she will be liable for damage inflicted, without building his or her liability upon fault, that is to say, liability without fault or objective (Strict liability). We support the imposition of strict liability upon both the persons encroaching, trespassing or violating the orders of the general hygienic quarantine whether they be carrying COVID-19 coronavirus or not. Even if the first section of the article (191) of the Iraqi civil law restricted the extent of the application of this article to the minor, and provides that ( A minor rational or irrational or anyone having his status who has damaged the property of a third party will be liable from his own funds). We suggest that the objective (Strict liability) of both the persons encroaching, trespassing or violating the orders of the general hygienic quarantine whether they be carrying COVID-19 coronavirus, be inflicted on the basic element of the damage, irrespective of the element of fault. And we can fill this gap or shortage in the Iraqi civil law, by relying upon the well-established juristic rule of the Islamic jurisprudence, which provides that (the perpetrator must be liable to indemnify, even if without willful intention or encroachment, while the abettor must only be liable to indemnify, by willful intention or encroachment). This is because the Islamic jurisprudence, regardless of its various doctrines, according to the first article of the Iraqi civil law which provides that (1-The legislative provisions shall apply to all matters covering these provisions in letter trend and content. 2-In the absence of any applicable legislative provisions in the law, the courts shall adjudicate according to custom and usage, and in the absence of custom and usage in accordance with the principles of the Islamic shari'a which are the most consistent with the provisions of this law, but without being bound by specific school of thought, and otherwise in accordance with the rules of equity. 3-The courts shall in all the foregoing be guided by the adjudication determined by the judiciary and jurisprudence in Iraq and then of the other countries, the laws of which are proximate to the laws of Iraq).
