Kuwait Court of Cassation principle number 1095

Contractual liability and tortious liability. The legislature has 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 harm suffered by one of its parties because of the other party's failure to perform the contract. Its consequence. The provisions of the contract and the legal rules concerning it must be applied, and the rules of tortious liability, under which the injured party is not bound by a prior contractual relationship, may not be applied, so that the contractual provisions are not disregarded in a manner undermining its binding force. The exception. That it be established against either party that the act committed by him which harmed 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 designation of the nature of the liability upon which the injured party based his claim for compensation or the legal provision upon which he relied therein. The reason therefor. Such reliance is considered a means of defence in the compensation action which does not bind the court; rather, it must of its own motion identify the correct basis of liability and ascertain the legal rule applicable to the relationship between - 207 - Civil Procedure 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 rules of tortious liability to the appellant on the basis of her capacity as custodian of the electricity property that caused the fire, without recognizing that the rules of such 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 those circumstances. An error in the application of the law requiring cassation thereof.