TITLE XIII EXTRA-CONTRACTUAL LIABILITY AND UNLAWFUL ENRICHMENT
Chapter 1. Extra-Contractual liability
Art. 2027.- Sources of extra-contractual liability.
(1) Irrespective of any undertaking on his part, a person shall be liable for the damage he causes to another by an offence.
(2) A person shall be liable, where the law so provides, for the damage he causes to another by an activity in which he engages or by an object he possesses.
(3) A person shall be liable where a third party for whom he is answerable in law incurs a liability arising out of an offence or resulting form the law.
Section 1. Liability arising form an offence
Paragraph 1. General rules
Art. 2028.- General principles.
Whosoever causes damage to another by an offence shall make it good.
Art. 2029.- Types of offence.
(1) An offence may consist in an intentional act or in mere negligence.
(2) An offence may consist in an act or failure to act.
Art. 2030.- Public morality.
(1) A person commits an offence where he acts or refrains from acting in a manner or in conditions which offend morality or public order.
(2) Regard shall be had to the behavior of a reasonable man.
(3) Unless otherwise provided by law, the offence shall be assessed without regard to the age or mental state of the person concerned.
Art. 2031.- Professional fault.
(1) A person practicing a profession or a specific activity shall, in the practice of such profession or activity, observe the rules governing that practice.
(2) He shall be liable where, due regard being had to scientific facts or the accepted rules of the practice of his profession, he is guilty of imprudence or of negligence constituting definite ignorance of his duties.
Art. 2032.- Intent to injure.
(1) A person commits an offence where he acts with intent to injure another notwithstanding that he seeks no personal gain form his act.
(2) A person commits an offence where, with full knowledge of the facts, he causes substantial damage to another in seeking personal gain disproportionate to the damage caused.
Art. 2033.- Abuse of powers.
(1) A person commits an offence where he turns to his own advantages powers conferred upon him I the interest of another.
(2) A public servant commits an offence where he turns to his own advantage or to the advantage of another individual, powers conferred upon him in the public interest by his office.
Art. 2034.- Purpose of rights.
Subject to provisions of the preceding Articles, the manner in which a right is used may not be challenged on the ground that it is contrary to the economic or social purpose of that right.
Art. 2035.- Infringement of a law.
(1) A person commits an offence where he infringes any specific and explicit provision of a law, decree or administrative regulation.
(2) Ignorance of the law is no excuse.
Art. 2036.- Hierarchical order.
(1) The fact that an act has been carried out on the orders of a higher authority shall not necessarily relieve the doer of liability.
(2) The doer commits an offence where he is aware of the illicit nature of the order, in particular by reason of the lack of competence of the person giving the order, and the criminal nature of the act ordered.
(3) There is no offence where, in the circumstances of the case, and in particular having regard to the strict exigencies of administrative or military discipline, the doer was placed in such a position that he could not discuss the order received or act otherwise than he did.
Art. 2037.- Non-performance of a contract.
(1) A person shall not commit an offence involving his extra-contractual liability where he fails to discharge his obligations under a contract.
(2) The provisions regarding the non-performance of contracts shall apply in such case.
Paragraph 2. Special cases
Art. 2038.- Physical assault.- 1. Principle.
(1) A person commits an offence where he intentionally makes contact with the person of another against the latter’s will.
(2) An offence shall be committed regardless of whether the bodily harm done to the other person is caused by personal contract or by the use of an object, animate or inanimate.
(3) Unless otherwise provided, the mere threat of physical assault on another shall not constitute an offence.
Art. 2039.- Justification.
No offence shall be deemed to have been committed where:
(a) the defendant could not reasonably have foreseen that the plaintiff would object to his act; or
(b) the act was done, in a reasonable manner, in legitimate self-defence, or in the legitimate defence of another, or to safeguard property of which the defendant is the lawful owner or possessor; or
(c) the act consists in reasonable corporal punishment inflicted by the defendant on his child, ward, pupil or servant; or
(d) the plaintiff was a dangerous lunatic whom it was necessary to restrain from doing harm, and the act was done in a reasonable manner; or
(e) there are any other circumstances such as to justify the defenednat’s action in the eyes of a reasonable person.
Art. 2040.- Interference with the liberty of another.- 1. Principle.
(1) A person commits an offence where, without due legal authority, he interferes with the liberty of another person, even for a short time, and prevents him from moving about as he is entitled to do.
(2) In such a case, an offence shall be deemed to have been committed notwithstanding that no injury is done to the plaintiff’s person.
(3) It shall be sufficient for the plaintiff to have been compelled to be have in a certain manner by the threat of a danger of which he could not be unaware.
Art. 2041.- 2. Lawful authority.
No offence shall be deemed to have been committed where the constraint has been imposed in a reasonable manner on a person in the legal custody of the defendant and for the purpose of enforcing the authority conferred upon the latter by law.
Art. 2042.- 3. Criminal offence.
(1) No offence shall be deemed to have been committed where the person who has interfered with the liberty of another had good reason to believe that the latter had committed a criminal offence.
(2) The person interfering with the liberty of another shall be liable in the case provided or in sub-art. (1) where he fails to hand over forthwith the person under his constraint to the police.
Art. 2043.- 4. Bail.
A person who has provided bail for another guaranteeing to the authorities that the latter will reside in a certain place, may lawfully interfere with the liberty of the person on bail where he has good reason to believe that he is preparing to abscond.
Art. 2044.-Defamatin.-1. Principle.
A person commits an offence where by his words, his writings or by any other means he acts in such a way as to make another living person detestable, contemptible or ridiculous and to jeopardize his credit, his reputation or his future.
Art. 2045.- 2. Absence of intent to injure.
(1) The intent to injure shall not be deemed to be an essential requirement for defamation.
(2) No defamation shall be deemed to have been committed where the author of the utterances or writings alleged to be defamatory had no intention of referring in such utterances or writings to any particular person.
(3) In such a case, the author of the utterances or writings shall be liable only where in the circumstances he ought reasonably to have foreseen that his words or writings would inflict injury on another.
Art. 2046.- 3. Matters of public interest.
(1) A person shall not be deemed to have committed an offence where he confined himself to expressing his opinion on matters of public interest, notwithstanding that such opinion inflicts injury on another by bringing him under public obloquy.
(2) In this case, defamation shall not be deemed to have been committed unless the defendant has made against the plaintiff charges which to his certain knowledge are false.
Art. 2047.- 4. Truth of the alleged facts.
(1) No defamation shall be deemed to have been committed where the defendant adduces proof of the accuracy of his charges.
(2) In this case, he shall not be liable unless he had acted solely which intent to injure.
Art. 2048.- 5. Immunity.
(1) No liability shall be incurred in respect of utterances made in parliamentary debates or in the course of legal proceedings.
(2) A person who repeats such utterances in their exact form shall be liable only where he has acted solely with intent to injure.
Art. 2049.- 6. Justification.
(1) Where defamation is committed by way of publications, no liability shall be incurred where the defendant has acted without intent to injure and without gross negligence, provided that at the plaintiff’s request he publishes immediately a withdrawal and an apology.
(2) Where the defamation is committed by way of a periodical which appears at intervals of more than one week, the plaintiff may require the withdrawal and apology to be published immediately in a periodical of his choice.
(3) In other cases, the withdrawal and apology shall be published in the periodical in which the defamatory matter was published.
Art. 2050.- Injury to the rights of spouses.- 1. Principle.
(1) A person commits an offence where, knowing her to be married, he or she induces a woman to leave her husband against the husband’s will.
(2) A person commits an offence where, knowing him to be marred, he or she induces a married man to leave his wife against the wife’s will.
(3) A person commits an offence where he receives, harbours or detains a married woman against the will of her husband, in full knowledge of the husband’s opposition.
Art. 2051.- 2. Justification.
No offence shall be deemed to be committed in the case provided in Art. 2050 (3) where:
(a) the husband and wife have agreed to live party; or
(b) the husband has been guilty of cruelty to his wife or the defendant had good reason to think so and has received the woman out of humaneness.
Art. 2052.- Duty to educate and to supervise.
(1) A person commits an offence where he fails to take in respect of persons entrusted to his charge or supervision by law or in conformity with the law the measures of education and supervision which may reasonably be expected of him, having regard to the circumstances and custom.
(2) He shall be liable where, as a consequence of his default, damage is suffered by the person in his charge.
(3) He shall be liable where, as a consequence of his default, the person subject to his supervision causes damages to a third party.
Art. 2053.- Trespass.
A person commits an offence where, without due legal authority, he forces his way on the land or into the house of another, against the clearly pressed will of the lawful owner or possessor of the land or house.
Art. 2054.- Assault on property.
A person commits an offence where, without due legal authority, he takes a possession of property against the clearly expressed will of the lawful owner or possessor of the property.
Art. 2055.- Pre-contractual negotiations.
A person commits an offence where, having declared his intention of entering into a contract and having induced others to incur expense with a view to concluding a contract with him, he arbitrarily abandons his intention.
Art. 2056.- Disregard of contractual liability.
(1) Whosoever is aware of the existence of a contract between tow other persons commits an offence where he enters into a contract with one of those persons thereby rendering impossible the performance of the first contract.
(2) He shall not be liable where the party complaining of the breach of the first contract had failed to take the necessary measures which would have ensured the effective performance of that contract.
Art. 2057.- Unfair competition.
A person commits an offence where, through false publications, or by other means contrary to good faith, he compromises the reputation of a product or the credit of a commercial establishment.
Art. 2058.- Simulation.
Where, by his declarations or conduct or by nonfeasance, a person induces third parties, or certain third parties, to believe in a certain state of affairs, he commits an offence where, in breach of good faith, he takes action against such third parties based on the true state of affairs.
Art. 2059.- False information.- 1. Principle.
A person who, intentionally or by negligence, supplies false information to another commits an offence where:
(a) he knows that the person to whom the information is supplied or another given person, will act upon the information and thereby suffer damage; or
(b) he is bound by the rules of his profession to give correct information.
Art. 2060.- 2. Exception.
(1) The person supplying the incorrect information shall not be liable where the statement made by him relates to the qualifications, conduct, solvency, competence or undertaking of another person and was made with the object of securing credit, money or goods for that person.
(2) In such a case the author of the statement shall not be liable unless she has made it in the form of a signed document.
Art. 2061.- Witnesses.
(1) Witnesses who testify to the occurrence or non-occurrence of a give event or to the existence or non-existence of a given fact shall guarantee the accuracy of their statements.
(2) They shall be liable to third parties having acted on the faith of such statements, where such statements are inaccurate.
(3) Nothing shall affect the right of witnesses in good faith to bring an action against the person who led them into error.
Art. 2062.- Advice or recommendation.
A person shall not be deemed to have committed an offence where he confined himself to giving advice or making a recommendation to another.
Art. 2063.- Distraint.
A person commits an offence where, in order to secure payment of a debt due to him, he unnecessarily seizes goods in the possession on of his debtor to an extent disproportionate to the amount of the debt.
Art. 2064.- Execution of a court order.
(1) A bailiff does not commit an offence by executing a court order which is made in the prescribed form.
(2) An offence shall be deemed to be committed where the order is not in the prescribed form or the bailiff exceeds his instructions or carries them out without due regard for the provisions of the law.
Art. 2065.- Limitation of action.
A person does not commit an offence by invoking usucaption or time limit which has operated to his benefit.
Section 2. Liability in the absence of an offence
Art. 2066.- Necessity.
(1) A person shall be liable for any damage he deliberately causes to another in order to save himself or another from an imminent damage to person or property.
(2) No liability shall be incurred where the damage is due to the victim’s fault.
Art. 2067.- Bodily harm. 1. Principle.
(1) A person shall be liable where by his act he inflicts bodily harm on another.
(2) No liability shall be incurred where the act causing the harm was ordered by law or was done in legitimate self-defence, or where the harm is due solely to the victim’s fault.
Art. 2068.- 2. Sporting activities.
No liability shall be incurred where, in the exercise of a sporting activity, a person injures another taking part in the same activity, or present as a spectator, provided that there is no deceit or gross infringement of the rules of the sport.
Art. 2069.- Dangerous activities. -1. Principle.
(1) A person who exposes another to abnormal risk, by using or storing explosive or poisonous substances, or by erecting high-tension electric transmission lines, or by modifying the lie of the land, or by engaging in an exceptionally dangerous industrial activity, shall be liable where the danger he has created materializes, thereby causing damage to another.
(2) The provision of sub-art. (1) shall apply notwithstanding that the author of the danger is the State or has received an authorization form the public authorities.
Art. 2070.- 2. Potential danger.
Except I the case of fault, no liability shall be incurred where the value of neighboring property is reduced in consequence of an abnormal risk being created.
Art. 2071.- Liability for animals. -1. Owner.
The owner of an animal shall be liable for any damage caused by the animal, notwithstanding that it has eluded his control accidentally or the damage caused was unforeseeable.
Art. 2072.- 2. Custodian.
(1) A person who has taken possession of an animal for purposes of personal gain shall be liable for any damage caused by the animal while in his custody.
(2) The provisions of sub-art. (1) shall apply where a person has hired or borrowed the animal, or has taken possession of it in order to take care of it, or for any other reason.
(3) An employee attending to an animal, or making use of it for the owner’s account or for the account of another person, shall not be liable for any damage caused by the animal unless it is due to his own fault.
Art. 2073.- 3. Transfer of liability.
(1) The owner who has paid compensation to the victim may recover form the person in whose charge the animal was.
(2) He may claim to be indemnified in full, unless the damage be due to his own fault or that of a person for whom he is liable.
Art. 2074.- 4. Surrender of animal by the owner.
(1) Where damage is caused by a domestic animal,. The owner of the animal may relieve himself of his liability by surrendering the ownership of the animal to the person who has suffered the damage.
(2) He may not relieve himself of liability under sub-art. (1) where the damage is the consequence of an offence committed by himself or by a person for whom he is liable.
(3) Only those animals which it is customary to keep for purposes of pleasure or gain shall be deemed to be domestic animals.
Art. 2075.- 5. Surrender of animal by custodian.
(1) The Person in charge of the animal shall only be liable to the value of the animal at the time when the damage was caused.
(2) His liability shall not be limited where the damage was caused by an animal other than a domestic animal or arises form tan offence committed by himself or by a person for whom he is liable.
Art. 2076.- 6. Victim’s guarantee.
(1) In order to secure compensation which may be due to him, the owner or possessor of and may seize and take charge of animals belonging to another person which have caused damage to his property.
(2) He may kill them where circumstances require this in order to prevent substantial damage disproportionate to the animal’s value.
(3) He shall in both events notify the owner of the animals without delay or, where the owner is unknown to him, take the necessary measures to ascertain him.
Art. 2977.- Buildings. 1.- Principle
(1) The owner of a building shall be liable for any damage due to the building even where the damage was unforeseeable.
(2) The owner may claim compensation from the person who built the building, from the occupier or form the person by whose fault the damage was caused.
Art.. 2078.- 2. Surrender of building.
(1) The owner may relieve himself of his liability by surrendering he ownership of eh building to the person who has suffered the damage.
(2) He may not relieve himself of liability under sub-art. (1) where the damage is the consequence of an offence committed by himself or by a person for whom he is liable.
Art. 2079.- 3. Threat of damage.
A person endangered by another’s building may require the owner thereof to take the necessary measures to avert the danger.
Art. 2080.- 4. Objects falling from a building.
The occupier of a building shall be liable for any damage caused by objects failing from it.
Art. 2081.- Machines and motor vehicles. -1. Owner.
(1) The owner of a machine or motor vehicle shall be liable for any damage caused by the machine or vehicle, notwithstanding that the damage was caused by a person who was not authorized to operate, handle or drive the machine or vehicle.
(2) He shall not be liable where he proves that, at the time when the damage was caused, the machine or vehicle had been stolen form him.
Art. 2082.- 2. Keeper or agent.
(1) A person who has taken possession of the machine or vehicle for purposes of personal gain shall be liable for any damage caused by the machine or vehicle while in his possession.
(2) An agent who has charge of the machine or vehicle for the owner’s account or for the account of another person shall not be liable for any damage caused by the machine or vehicle, except in cases of fault.
Art. 2083.- 3. Transfer of liability.
(1) The owner who has paid compensation to the victim may recover from the person in whose keeping the machine or vehicle was.
(2) He may claim to be indemnified in full, unless he has committed an offence or an offence has been committed by a person for whom he is liable.
Art. 2084.- Collision between vehicles.
(1) Where two motor vehicles are in collision, each of the vehicles shall be deemed to have contributed equally to the accident.
(2) The owner of each vehicle, or the person responsible for it, shall bear half the total amount of the damage resulting form the accident.
(3) The provisions of this Article shall not apply where it is proved that the accident was due, entirely or chiefly, to the fault of one of the drivers.
Art. 2085.- Manufactured goods.
(1) A person who manufactures goods and sells them to the public for profit shall be liable for any damage to another person resulting form the normal use of the goods.
(2) No liability shall be incurred where the defect which has caused the damage could have been discovered by a customary examination of the goods.
Art. 2086.- Exemption form liability.
(1) The persons declared legally liable for the creation of an abnormal risk or for a damage caused by animals, buildings, machines, motor vehicles or manufactured goods, may relieve themselves of their liability to the victim by proving that they have committed no offence, or that it was not within their power to prevent the damage or that the damage was due to the fault of a third party.
(2) They shall be relieved of their liability, entirely or in part, only where the damage is due solely or partly to the fault of the victim.
Art. 2087. Other objects.
Without prejudice to the provisions of the preceding Articles, the owner or keeper of an object shall be liable for any damage caused by the object only where he has committed an offence or an offence has been committed by a person for whom he is liable.
Art. 2088.- Contractual obligations.
(1) The rules relating to liability arising out of abnormal risks, or out of animals, buildings or objects, may not be invoked by a person who, under a contract concluded by the person legally responsible, is connected with the dangerous industrial activity animal building or object which has caused the damages
(2) The consequences of the damage shall in this case be settled in accordance with the rules governing the agreement reached.
Art. 2089.- Disinterested parties.
(1) The rules governing liability arising out of animals, buildings or objects may not be invoked by a person who, even in the absence of a contract, was at the time of the damage making use of the animal, building or object without the owner or keeper thereof deriving benefit form such use.
(2) In such a case, the owner or keeper shall not be liable unless be has committed an offence.
Section 3. Mode and extent of compensation
Paragraph 1. – Damages
A. Material damage
Art. 2090.- Modes of compensation.
(1) Unless otherwise provided, the damage shall be made good by awarding the victim an equivalent amount in damages.
(2) The court may, subject to eh liberty of persons and to the rights of third parties, order in lieu of or in addition to damages any appropriate measures to make good or limit the damage.
Art. 2091.- Extent of damages.
The damages due by the person legally declared to be liable shall be equal to the damage caused to the victim by the act giving rise to the liability.
Art. 2092.- Future damage.
A future damage which is certain to occur shall be made good without waiting for it to materialise.
Art. 2093.- Insured victim.
(1) Where the victim is insured, he may claim compensation for the damage he has suffered on the dame terms as though he had not been inured.
(2) The insurer may not claim compensation on his own behalf form the person who by his act has brought about the risk covered by the insurance contract.
(3) The insurance contract may, however, provide for the subrogation of the insurer to the victim’s claim against the person liable.
Art. 2094.- Victim pensioned off.
(1) Where the victim receives a pension as a result of the act which caused him damage, he may claim compensation for the damage he has suffered on the same terms as though he had not received a pension.
(2) The person paying the pension may not claim compensation on his own behalf from the person who by his act has caused the pension to fall due.
(3) The bond joining him to the victim may make provision for subrogation to the victim’s claim against the person liable.
Art. 2095.- Fatal accidents. -1. Rights of certain next of kin.
(1) In the case of a fatal accident, the spouse of the victim, his ascendants and his descendants may claim compensation on their behalf for the material damage they have suffered as a result of his death.
(2) In this case the compensation for the damage shall be in the form of a maintenance allowance.
(3) The maintenance allowance shall be due notwithstanding that the plaintiffs have relatives whom they can ask to support them.
Art. 2096.- 2. Other persons.
Other persons may not claim compensation on their own behalf in cases of fatal accidents, even where they show that they wee materially assisted or supported by the victim.
Art. 2097.- Good faith.
(1) Compensation for the damage may not be claimed contrary to good faith.
(2) The victim may not claim compensation for the damage he has suffered in so far as, by acting in a reasonable manner, he could have avoided or limited the damage.
Art. 2098.- Fault of the victim.
(1) Where the damage is due partly to the fault of the victim, the latter shall be entitled to partial compensation only.
(2) In fixing the extent to which the damages shall be made good, all the circumstances of he case shall be taken into consideration, in particular the extent to which the faults committed have contributed to causing the damage and the respective gravity of these faults.
Art. 2099.- Powers of equity. -1. Unawareness of offence.
(1) The court may, where equity so requires, reduce the compensation awarded where the offence giving rise to the liability was committed by a person who was not in a state to appreciate the wrongful nature of his conduct.
(2) In this matter, regard shall be had to the respective financial positions of the parties and the consequences for the author of the offence of his liability to make the damage good.
Art. 2100.- 2. Hierarchical order.
(1) The court, may where equity to requires, reduce the compensation awarded where a sense of duty deriving from discipline or obedience moved the author of the offence to commit it.
(2) Regard shall be had to the degree of imperativeness of the duty.
Art. 2101.- 3. Unforeseeable damages.
(1) The court may, where equity so requires, reduce the compensation to be paid by a person who caused a damage which, in consequence of unforeseeable circumstances, expanded beyond what could reasonably be expected.
(2) No reduction ma be ordered under sub-art. (1) where the damage arises from an intentional offence.
Art. 2102.- 4. Difficulty of assessment.
(1) Where the exact amount of the damage cannot be calculated, the court shall fix it equitably, taking into account the ordinary course of events and the measures taken by the injured party.
(2) No indemnity may be awarded in respect of a damage of which the very existence, and not only the amount, is doubtful.
Art. 2103.- 5. Necessity.
The court shall fix equitably the amount of compensation due from a person who, without committing an offence, caused damage to the property of another in order to save himself or another from an imminent damage or danger.
Art. 2104.- Nominal damages.
Damages of a purely nominal amount may be awarded where the action has been brought solely with a view to establishing that a right of the plaintiff has been infringed, or that a liability has been incurred by the defendant.
B. Moral injury
Art. 2105.- 1. Principle.
(1) The author of a misdeed shall make good the moral harm resulting from his misdeed wherever adequate procedure exists for such redress.
(2) Unless otherwise expressly provided by law, moral harm may not be made good by way of damages.
Art. 2106.- Intentional offence.
Where moral harm has been inflicted upon the plaintiff deliberately, the court may, by way of redress, order the defendant to pay fair compensation to the plaintiff or to a charity named by the plaintiff.
Art. 2107.- Physical assault.
Where the defendant has forced an unpleasant or repulsive contact on the plaintiff’s person, the court may, by way of redress, order the defendant to pay fair compensation to the plaintiff or to a charity named by the plaintiff.
Art. 2108.- Unlawful restraint.
Where the plaintiff has been unlawfully deprived of his liberty by the defendant, the court may, by way of redress, order the defendant to pay fair compensation to the plaintiff or to a charity named by the plaintiff.
Art. 2109.- Defamation.
Fair compensation may be awarded by way of redress to the plaintiff or to a charity named by him, in the case of insult or defamation where:
(a) the injurious or defamatory charges are that the plaintiff has committed a crime or an offence punishable under the criminal la; or
(b) they allege that the plaintiff is incompetent or dishonest in the exercise of his profession; or
(c) they allege that the plaintiff, if a business man, is insolvent; or
(d) they allege that the plaintiff is suffering from a contagious disease; or
(e) they allege that the plaintiff is of low morals.
Art. 2110.- Injury to the rights of spouses.
Fair compensation may be awarded by way of redress to the plaintiff or to a charity named by him, where the defendant has injured his or her rights as a spouse (Art. 2050.)
Art, 2111.- Abduction of child.
Fair compensation may be awarded by way of redress to the plaintiff or to a charity named by him, where the defendant has been sentenced by a criminal court for having abducted a child which is in the plaintiff’s lawful custody.
Art. 2112.- Assault on property.
Fair compensation may be awarded by way of redress where the defendant has, against the clearly expressed will of the plaintiff, forced his way into his land or house or seized property of which the plaintiff is the lawful owner.
Art. 2113.- Physical injuries or death.
Fair compensation may be awarded by way of redress to the victim of bodily injures or, in the event of his death in consequence thereof, to his family.
Art. 2114.- Indecent assault.
(1) Where a person has been sentenced by a criminal court for rape or indecent assault, the court may award the victim fair compensation by way of redress.
(2) In such an event, compensation may also be awarded to the husband of the woman, or the family of the girl who has been raped.
Art. 2115.- Injury to a wife.
(1) Fair compensation may be awarded by way of redress to a husband against a person who, by inflicting bodily injury on the wife, renders her companionship less agreeable to the husband.
(2) The action which the husband may bring on this ground shall be independent of the action for damages which the wife may bring in respect of the injury she has suffered.
Art. 2116.- Custom.
(1) In fixing the amount of the fair compensation provided for in the preceding Articles, and in establishing who is qualified to act as representative of the family, the court shall have regard to local usages.
(2) The court may not disregard such usages unless they are anachronistic or manifestly contrary to reason or morals.
(3) The compensation awarded for moral injury may in no case exceed one thousand Ethiopia dollars.
Art. 2117.- Representative of the family.
In he absence of any applicable local usage, the following shall alone be considered as qualified to present the family:
(a) the victim’s husband or wife; or
(b) failing such or where he or she is incapable, the victim’s eldest child who is capable under the law; or
(c) failing such or where he or she is incapable, the victim’s father; or
(d) failing such or where he is incapable, the victim’s mother; or
(e) failing such or where she is incapable, the eldest of the victim’s brothers or sisters who is capable under the law.
Paragraph 2. Other modes of compensation.
Art. 2118.- Restitution.
(1) The court shall order the return to the plaintiff of property which has been improperly taken away from him, and of the elements yielded by the property since the date of its removal.
(2) Where the property has been lost or destroyed the defendant shall repay its value, notwithstanding that the loss is due to force majeure.
(3) Where the defendant has incurred expense on the property which he is required to return, the provisions relating to unlawful enrichment shall apply (Art. 2168-2178).
Art. 2119.- Restitution in kind.
(1) The court may, where it thinks fit, order the property which has been damaged or destroyed to be replaced or put in order at the expense of the person responsible for the destruction or deterioration.
(2) The in this case, the court shall fix the way in which the property is to be replaced or put in order.
(3) This mode of compensation may not be prescribed where the duty to compensate falls on the State.
Art. 2120.- Honour and reputation.
In the cases of dealings directed against the honour or reputation of an individual or individuals, the court may order such publicity to be made at the defendant’s expense as is likely to counter the effect of the dealings.
Art. 2121.- Inunctions.
(1) The court may grant in injunction restraining the defendant from committing, form continuing to commit or from resuming an act prejudicial to the plaintiff.
(2) An injunction shall be granted only where there are good reasons be believe that the act prejudicial to the plaintiff is likely to be carried out and where the injury with which he is threatened is such that it cannot be redressed by an award of damages.
Art. 2122.- Unfair competition.
In the case of unfair competition, the court may order the abandonment of he dishonest practice used by the defendant.
Art. 2123.- Simulation.
Acts done by third parties on the faith of a pretence may be declared demurrable against the person who, by his behaviour or by non-feasance, has created the pretence.
Section 4. Liability for the actions of others.
Art. 2124.- Father’s liability.
The father shall be liable under the law where his minor child incurs a liability.
Art. 2125.- Other guardians of he child.
The following persons shall be liable in lieu of he father:
(a) the mother, where she exercises the paternal authority over the child;
(b) the person in whose charge the child has been placed, where the child lives outside the family home;
(c) the headmaster or the employer during the time when the child is at school or serving an apprenticeship;
(d) the employer where, under the terms of the following Articles, his liability is involved inconsequence of an act committed by the child.
Art. 2126.- Liability of the State. – 1. Principle.
(1) Any civil servant or government employee shall make good any damage he causes to another by his fault.
(2) Where the fault is a professional fault, the victim may claim compensation from the State, provided that the State may subsequently claim from the servant or employee at fault.
(3) The State shall not be liable where the fault is a personal fault.
Art.2127.- 2. Professional fault.
(1) A fault shall be deemed to be a professional fault where the person who committed it believed in good faith that he acted within the scope of his duties and in the interest of the State.
(2) A fault shall be deemed to he a personal fault in other cases.
(3) Unless the contrary is proved, the servant or employee shall be deemed to have acted in good faith.
Art. 2128.- 3. Assimilated cases.
The provisions of Art. 2126 and 2127 shall apply to the liability of servants or employees of a territorial subdivision of the State or of a public service with legal status.
Art. 2129.- Liability of bodies corporate.
Bodies corporate shall be liable under the law where one of their representatives, agents or paid workers incurs a liability in the discharge of this duties.
Art. 2130.- Employer’s liability.
The employer shall be liable under the law where one of his employees incurs a liability in the discharge of his duties.
Art. 2131.-Dishcarge of duties.
(1) For the purpose of Art. 2129 and 2130, a liability shall be deemed to have been incurred in the discharge of duties where the wrongful act or the abstention was committed for the purpose of carrying out the duties.
(2) The fact that the wrongful act or abstention was ultra vires, or that its author was strictly forbidden to commit it, shall not release the person who is legally responsible form his liability unless the victim knew or ought to have known of that fact.
Art. 2132.- Presumption.
(1) Where the damage is caused by the representative or agent of a body corporate or by a paid worker at the place where or during the time when he is normally employed, he shall be deemed to have caused the damage in the discharge of his duties.
(2) Proof to the contrary is admissible to rebut such presumption.
Art. 2133.- Non-discharge of duties.
The liability shall not be deemed to have been incurred in the discharge of duties where such duties have merely provided their author with an opportunity of committing the wrongful act or abstention which caused the damage.
Art. 2134.- Independent workers.
A person shall not be liable for the faults or offences committed by another while carrying out work which he has asked him to do, where the author of the offence is not subject to the former’s authority and is to be considered as having retained his independence.
Art. 2135.- Defamation.
The managing editor of the newspaper, the printer of the pamphlet or the publisher of the book shall be liable under the law for defamation committed by the author of a printed text.
Art. 2136.- Cumulation of liabilities.
(1) A person who caused damage shall repair it notwithstanding that an other person is declared by law to the liable for such damage.
(2) The person who caused the damage and the person whom the law declares to be liable for such damage shall be jointly liable to repair such damages.
(3) The person under the law liable for the action of another may demand that the author of the damage be made a party to the proceedings brought by the victim for compensation.
Section 5. Action for damages.
Art. 2137.- Legal immunity.- 1. The Sovereign.
No action for liability based on an offence committed by Him may be brought against His Majesty the Emperor of Ethiopia.
Art. 2138.- 2. Ministers, members of Parliament and judges.
No action for liability may be brought as the result of an act connected with their functions against:
(a) a member of the Imperial Ethiopian Government; or
(b) a member of the Ethiopian Parliament; or
(c) a judge of the Ethiopian courts.
The provisions of Art. 2138 shall not apply where the persons mentioned therein have been sentenced by a criminal court for acts pertaining to their office and invoked by the plaintiff.
Art. 2140.- Reference to the administrative law.
Where the State is liable, the rules of administrative law determine against whom the action shall be brought and which department or service shall finally assume the burden of the debt.
Art. 2141 – Burden of Proof.
The victim of the injury shall establish the amount thereof and prove the circumstances which render the defendant liable to make it good.
Art. 2142 – Undiscovered author of damage.
(1) Where damage has been caused by one or other of several persons and it is impossible to ascertain which of the persons involved is the author, the court may, where equity so requires, order the damage to be made good jointly by the group of persons who could have caused it and among whim the author of the damage is certainly to be found.
(2) In such case, the court may order the damage to be made good by the person who is beyond doubt liable under the law for the undetermined author of the damage.
Art. 2143 – Period of Limitation.
(1) The action shall be brought by the victim within two years from the time at which he suffered the damage for which he is claiming compensation.
(2) Where the damage arises from the commission of a criminal offence in respect of which the Penal Code prescribes a longer period of limitation, the latter period shall apply to the action for damages.
(3) Nothing in this Article shall affect the right of the victim to make a claim for the recovery of his property or to invoke the provisions relating to unlawful enrichment (Art. 2162-2178).
Art. 2144 – Heirs.
(1) The victim’s heirs may claim compensation for the material damage he has suffered.
(2) Unless otherwise provided by law, they may not claim compensation for moral injury suffered by the victim unless an action for compensation for such injury has been initiated by the victim during his lifetime.
(3) The succession of the person who is liable for the injury shall be liable as he himself was to make good the damage.
Art. 2145 – Victim’s creditors.
(1) The creditors of a person may not claim compensation on behalf of the debtor for an injury done to him where such injury is connected with his person, his physical integrity or his honour.
(2) They may, on the conditions laid down in Art. 1993, bring their debtor’s action where the debtor has, after the date on which they became his creditors, suffered an injury affecting solely his financial interests.
Art. 2146 – Claim may not be assigned.
(1) The victim’s claim against the person liable for the damage may not be assigned so long as it has not been upheld by a decision of the court and the amount fixed.
(2) It may thereupon be assigned in accordance with the provisions of Art. 1962-1975.
Art. 2147 – Agreement excluding Liability.
(1) A person may not relieve himself of the consequences of an offence.
(2) A person may stipulate by contract that he will not be liable for offences committed by a person for whom is liable under the law.
(3) A person may stipulate by contract that he will not be liable, except in the case of an offence, for damage which, under the provisions of this Title, is to be made good in the absence of any offence.
Art. 2148 – Compromise.
After damage has been caused, the parties may agree that it shall not entail compensation or may compromise on the conditions on which is shall be made good.
Art. 2149 – Effect of criminal on civil action.
In deciding whether an offence has been committed, the court shall not be bound by an acquittal or discharge by a criminal court.
Art. 2150 – Date of assessment of damage.
(1) The court shall assess the damage suffered by the victim as on the day on which it renders judgment.
(2) Where it is impossible finally to evaluate the damage on that date, the court may give a provisional judgment and authorize an application for reconsideration of such decision.
(3) The application for reconsideration may not be made later than two years from the date of the provisional judgment.
Art. 2151 – Res Judicata.
(1) Without prejudice to the provisions of Art. 2150, the court’s evaluation of the damage shall be final.
(2) The victim may not bring a fresh action for compensation for other damage he has suffered unless such damage was caused independently of that for which he has already claimed compensation.
Art. 2152 – No appeal.
No appeal shall lie against the judgment of the court of first instance relating to the amount of damages to be paid.
Art. 2153 – Exceptions.
The provisions of Art. 2152 shall not apply where:
(a) the court has taken into consideration circumstances which it should not have taken into account or has failed to take into consideration circumstances which it should have taken into account; or
(b) the amount of damages fixed by the court is manifestly unreasonable and could only have been inspired by prejudice or improper motive; or
(c) the amount of damages is due to an error of calculation on the part of the court.
Art. 2154 – Allowance.
(1) Where such mode of payment is justified by the nature of the damage or by the circumstances attending the case, the court may order the damage to be made good by means of an allowance.
(2) In such case, the debtor shall provide security for the payment of the allowance.
Art. 2155 – Joint Liability.
(1) Where several person are required to make good the same damage, they shall do so jointly.
(2) No distinction shall be made between instigator, principal and accomplice.
(3) Persons required to make good the same damage shall be jointly liable regardless of whether the liability has its source for one or other of them in a contract or in an extra-contractual liability.
Art. 2156 – Sole Liability – 1. Principle.
Where only one of the persons liable has committed an offence, he shall alone finally bear the burden of the debt.
Art. 2157 – 2. Fair division of Liability.
(1) Where the offence has been committed in the discharge of his duties by the representative or agent of a body corporate or by a paid worker, the court may decide that the debt shall finally be borne, either wholly or partly, by the body corporate or the employer.
(2) Where the offence consists in a professional fault committed by a civil servant or employee, the court may decide that the debt shall
Finally be borne, either wholly or partly, by the State or its territorial subdivision or the public service concerned.
Art. 2158 – 3. Directions to follow.
(1) In making its decision, the court shall take account of the gravity of the offence and whether it was due to the author’s desire to carry out his duties as conscientiously as possible.
(2) No regard shall be had to the respective financial positions of the persons declared liable.
Art. 2159 – 4. Restriction.
No division of liability may be granted by the court where:
(a) the act giving rise to the liability was committed with intent to harm; or
(b) the act is a criminal offence the author of which has been sentenced by a criminal court.
Art. 2160 – Collective Liability.
(1) Where several persons have contributed by their fault or offence to the same damage, the court shall fix on the basis of equity what proportion of the debt is finally to be borne by each of the persons liable.
(2) In making its decision, the court shall have regard to all the circumstances, in particular the extent to which the several offences contributed to the damage and the gravity of each such offence.
Art. 2161 – Subrogation.
(1) A person who has paid the whole debt although he is not bound finally to bear more than a part thereof shall be entitled to recover from those liable with him
(2) For the purposed of such recovery he shall be subrogated to the victim’s claim.
(3) The court may in its judgment subrogate the person sentenced to the victim’s possible claims against other persons liable for the damage.
Chapter 2. Unlawful Enrichment
Section I. General provisions
Art. 2162 – General principle.
Whosoever has derived a gain from the work or property of another without just cause shall indemnify the person at whose expense he has enriched himself to the extent to which he has benefited from his work or property.
Art. 2163 – Loss of enrichment.
(1) Restitution shall not be ordered to the extent to which the person who has received the undue gain can show that he is no longer enriched at the time of the claim for recovery.
(2) Restitution shall be due where the defendant has alienated the enrichment in bad faith or where, at the time of alienating it, he ought to have been aware that he was bound to make restitution.
(3) Where the unlawful enrichment has been transferred without consideration to a third party, the claim for restitution may be brought against the third party.
Section 2. Undue payments
Art. 2164 – Undue payment.
(1) Whosoever has paid what he was not required to pay may recover it.
(2) He may demand restitution of the fruits of the property, or legal interest, from the date on which the payment was made, where the person to whom the payment was made acted in bad faith.
Art. 2165 – Absence of mistake.
Recovery shall not be admitted where a person pays voluntarily and in full knowledge of the facts what he knew he was not bound to pay.
Art. 2166 – Sufficient cause.
(1) Recovery shall not be admitted where the payment was made in the discharge of a barred debt or of a moral obligation.
(2) Recovery shall be admitted in such case where the person who made the payment was not competent to alienate without consideration.
Art. 2167 – Recovery precluded.
(1) The receiver of the undue payment shall owe no restitution where, as a consequence of the payment, he has in good faith destroyed or annulled his title, relinquished the security for his claim or allowed his action against the true debtor to lapse.
(2) In such case, the person who made the undue payment shall have legal redress against the true debtor only.
Section 3. Expenses
Art. 2168 – Scope of this Section.
Where a person is required to return property which has been in his possession for some time, his rights and obligations arising out of any modifications he may have made to the property shall, unless otherwise provided for by law or contract, be subject to the provisions of the following Articles.
Art. 2169 – Necessary expenses.
The person who is required to make restitution shall be entitled to the reimbursement of the expenses he has incurred in preventing the loss or deterioration of the property, unless the expenses were not useful or were rendered necessary by the person’s own fault or by the fault of another person for whom he is liable.
Art. 2170 – Cost of upkeep.
The person who is required to make restitution shall not be entitled to any indemnity for the cost of maintaining the property r in respect of taxes he has paid as a consequence of his possessing it.
Art. 2171- Value added to the property.
(1) Where expenses incurred on the property have increased its value, the person required to make restitution shall be entitled to their reimbursement.
(2) He may not claim more than the increase in value calculated at the time of restitution, resulting from the expenses he has incurred.
Art. 2172 – Bad faith.
(1) The court may, where equity so requires, reduce or refuse any indemnity as provided in Art. 2171 where, at the time when he incurred the expense, the defendant knew or ought to have known of his liability to return the property.
(2) The court may, where equity so requires, grant the plaintiff a period of grace not exceeding two years for payment of the indemnity provided in Art. 2171.
Art. 2173 – Jus tollendi.
A person who is required to make restitution may before returning any part of the property remove anything he has joined to it which can be separated without appreciable damage to the property.
Art. 2174 – Right of retention.
(1) The person required to make restitution may refuse to return the property until he has received payment of the indemnity due to him under the terms of the preceding Articles or until he has received adequate security for its payment on the day on which it is due.
(2) The right of retention may not be invoked by a thief or by a person who, at the time when he took possession of the property, knew that he had no legal right, or right deriving from a valid contract, to it.
Art. 2175 – Deterioration.
(1) The person required to make restitution shall indemnify the true owner where the former has caused the property to deteriorate.
(2) He shall be liable for any deterioration of the property, even where caused by force majeure, where, at the time when it occurred, he knew that he had no legal right, or right, or right deriving from a valid contract, to the property.
Art. 2176 – Loss of the property.
(1) The provisions of Art. 2175 shall apply in the case of total or partial loss of the property.
(2) They shall apply where for any reason whatsoever the property cannot be returned in kind to the person entitled to it.
Art. 2177 – Extent of indemnity.
(1) The indemnity due shall be equal to the value of the property at the time at which it becomes impossible to return it in kind.
(2) Where the person required to make restitution knew at that time that he had no legal right, or right deriving from a valid contract, to the property, additional damages may be claimed from him.
(3) In such case, the person entitled to restitution shall be placed in the position he would have been in, had he retained uninterrupted possession of his property.
Art. 2178 – Fruits.
(1) The person required to make restitution shall retain the fruits of the property he has received.
(2) He shall pay to the plaintiff their value where he knew at the time of taking possession of the property that he had no legal right, or right deriving from a valid contract, to it