The Basis of Civil Liability for Service Providers in Islamic Law and Its Comparison with French, American, and European Union Law

کل مقاله به زبان انگلیسی است.

The Basis of Civil Liability for Service Providers in Islamic Law and Its Comparison with French, American, and European Union Law


Mohammad Hadi Javaherkalam:
Assistant Professor of Private Law, Faculty of Law and Political Science, Allameh Tabatabai University

Ahmad Ghanavizchi: PhD Student in international law at Angers (France) and Geneva (Switzerland) universities

Journal of Research and Development in Comparative Law, Volume 7, Issue 22 - Serial Number 22, July 2024, Pages 131-162

Abstract
The foundation of civil liability for service providers is not uniformly interpreted across different legal systems. In Imami jurisprudence the narrations indicate that the Sacred Lawgiver, to enhance caution in service provision and protect victims, has established a presumption of liability for service providers placing the burden of proof for exoneration on them, or at the very least, presuming their fault in liability arising from causation, obligating them to prove the absence of fault. This solution is also suggested to be accepted in Maliki jurisprudence specifically for craftsmen, although there is contrary opinion. In Hanafi and Hanbali jurisprudence, the liability of a common hireling is based on "destruction," whereas in Shafi'i jurisprudence, the presumption of non-liability is stronger. In European countries the 1991 European Commission proposal envisaged a presumption of fault for service providers, placing the burden of proving the absence of fault on the service provider, although this was not enacted due to member states' disagreements.
However, there is a tendency to facilitate the proof of their fault. Therefore, as specified in the comprehensive research conducted in 2004 commissioned by the European Commission and accepted by the judicial practice of France, the United States, and the European Court of Justice, the liability of service providers is based on fault, and the burden of proof lies with the "consumer." Consequently, the solution accepted in Imami jurisprudence, for the aforementioned reasons, is preferred over the solutions established in the other legal systems studied, and it is proposed that the global community should also adopt this approach.


Keywords: Service Providers, Fault , Strict Liability , Presumption of Fault, Presumption of Liability.