Kuwait Court of Cassation principle number 1301

Contractual liability and tortious liability. The legislature has assigned each its own provisions, independent legal regime and defined scope for its provisions. The implication of this. The existence of a contractual relationship defined by its parties and scope. Injury to one contracting party through the other party's breach of his obligation requires application of the contractual provisions as those governing the relationship between its parties; the provisions of tortious liability do not apply unless it is established that the act committed by one party gives rise to tortious liability. The reason: he is prohibited from committing that act whether or not he is a contracting party. - The judgment's failure to examine a material defence raised by a party. Its effect. Deficiency in its reasons, invalidating it. - The appellant bank's contention that its relationship with the respondent is a contractual relationship governed and regulated by the contract for use of the ATM card, and that the contract provides that the bank is not obliged to stop its use until the date it is notified of its loss or theft. The judgment's disregarding this material defence and ordering the bank - 204 - Civil Procedure - to pay the amount claimed pursuant to the provisions of tortious liability. Vitiates it and requires its cassation.