Kuwait Court of Cassation principle number 3500

Contractual liability and tortious liability. The legislature assigned each provisions independent of the other and defined the scope of each. - The existence of a legal relationship defined as to its parties and scope, and injury to one of its parties because of the other party’s breach of performance of the contract. Its consequence. The provisions of the contract and the rules prescribed by law concerning it must be applied, and the provisions of tortious liability, under which the injured person is not bound by a prior contractual relationship, may not be applied, so that the provisions of the contract are not disregarded - 646 - Obligation, thereby impairing its binding force. The exception. Proof against either party that the act committed by that party, which injured the other party, constitutes a crime or amounts to fraud or gross fault giving rise to tortious liability. - The trial court is not bound by the characterization of the liability upon which the injured person relied in claiming compensation or the statutory provision relied upon in that regard. The reason. Such reliance constitutes a means of defense in the compensation action by which the court is not bound; rather, it must, of its own motion, determine the correct basis of liability and ascertain the legal rule applicable to the relationship between the parties to the compensation action. This does not constitute a change to the cause or subject matter of the action. - The judgment’s application of the provisions of tortious liability to the appellant on the basis of its status as custodian of the electricity property that caused the fire, without recognizing that these provisions of liability are resorted to only when the act committed by either party constitutes a crime or amounts to fraud or gross fault, and without addressing the existence of any of these cases. An error in the application of the law requiring its cassation. Determining the legal basis of liability: