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Lecture note on tort law, specifically on Ethiopian extra contractual law, by yohanes tekle
Torts (LGST 312)
University of Maryland Global Campus
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Written by:
Yohannes Takele, Addis Ababa University, College of Law and Governance Studies, School of Law, 2003-2007 E.
Lectured by:
Mehari Redae , Lecturer at Addis Ababa University, College of Law and Governance Studies, School of Law
Lecture One
Liability is to mean accountability to one’s conduct. The conduct may be an action or an omission. When society expects one to do something and the latter fails to do so, this conduct is termed as omission. Then, the omitting party may be liable either criminally, contractually, extra contractually or in any other way. Conversely, an action is a positive act. An action is said to have been committed when society expects someone not to act in a certain way and he acts otherwise. Owing to This conduct, the actor may be held liable for his positive action either criminally, extra contractually, contractually or in any other way.
Liability may have multiple features. For example, people may think of them liable to a supernatural force. This is to mean, people may think that their deeds will be judged in the hereafter. However, as a lawyer, someone is and must be interested solely on the day-to-day life or the earthily deed of human beings. Therefore, we eventually limit our liability to one’s society or to one’s law. Even within its limit to one’s society or to one’s law, liability may still be armed with numerous features. In some cases, liability may take the form of political liability (liability through the political process). In other cases, there could be administrative liability (liability through the administrative process). Technically, these liabilities are not of purely legal, but of extra-legal characteristics. For example, the law that regulates the powers and responsibilities of parliamentarians provides that the electorate may recall a member of the parliament when they
lose confidence on him. This liability is theoretically political liability. Similarly, a certain political official may be removed from his post through a government decision due to his action or omission. Administrative organs may also have the power to hold someone administratively liable for his action or omission. For example, trade offices of Addis Ababa city administration may seal shopping centers that are found operating business short of a valid license. Such liabilities are, for the current purpose, outside the sphere of tortious liability. Therefore, we will limit ourselves to liabilities through the legal process whose execution depends solely upon the judicial process and that bases the law as a source of liability. This branch of liability may take the form of criminal liability in one side and contractual liability in the other and extra contractual liability somewhere in between.
What is the source of criminal liability? The source of criminal liability is the criminal law. Society has enacted criminal law to regulate certain actions or omissions as crime taking multiple considerations into account. Then, someone is held criminally liable if he violates not any law, but any of the criminal provisions in the criminal law.
What is the source of contractual liability? The source of contractual liability is breach of commitments entered into voluntarily. In the case of criminal liability, as long as the society prescribes certain actions or omissions as crime, the like or dislike by a member of the society of the law is immaterial. On the contrary, contract is a law or commitment people voluntarily entered into. However, even with voluntariness, if the person voluntarily entered into fails to stick to his commitment, he will be contractually liable.
What is the source of extra contractual liability? The source of extra contractual liability turns out to be violation of societal standard of conduct. Within a certain society, there are expected conducts even if they are not clearly stated in black and white. People living within such society are subject to certain expectation of how to behave with regard to those expected standards of conduct by the society. If a member of the society fails to meet that expectation and causes damage on another, he may be held tortiously liable of his blameworthy conduct (blameworthiness) in the eyes of the society, and not of individuals. In majority of the cases, tortious liabilities stem from negligent conducts. As said previously, society expects a certain standard of care that someone should observe in his interaction with members of the society. If anyone fails to observe such standard of care, he may be held negligent. From this we can
affected by the breach will institute an action against the other party who is said to have breached the commitment. In this case, no report of breach to the police is made; the action is a civil suit to be instituted before a civil bench; there will be court and lawyers fee to institute and win the suit. If the civil court found that the individual is really in breach, it will award the victim compensation. In the case of private proceedings, the state is involved only as a judge. However, if the parties reach an agreement, they can finalize the case through extra-judicial instrument, arbitration.
Extra contractual liability is a gray area between criminal liability and contractual liability. It consists of the traits of both criminal and contractual liabilities. In majority of the cases, criminal liability may simultaneously give rise to extra contractual liability, of course, subject to exceptions with which criminal liability does not bring about tortious liability. Another similarity in between is that both criminal and tortious liability may be imposed irrespective of the will and whim of the wrong doer. The wrong doer may not approve the criminal provision or the societal status. It is rather simply an expectation to confirm to the standard of conduct by the society.
Both contractual and extra contractual liabilities are civil liability, liability towards private individuals (the victims). In both cases, no one can be sent to jail for his failure to observe the standard of conduct or commitment, of course, subject to exceptions. The maximum thing required of the violator is to compensate the victim or specifically perform what is promised.
Imagine that Ato Belachew is judged to make good the damage he caused against Ato Degu. In this case, if Ato Belachew has nothing to give at hand, Ato Degu remains to be judgment creditor. However, if Ato Belachew, having the means to make good the damage, creates obstacle only to do away with execution of judgment, he may be sent to prison. In dealing with this exception, we need to determine two things, inability to pay and unwillingness to pay. Note must be taken that despite unwillingness to pay, if the unwilling judgment debtor is not challenged for uninterrupted period of ten years, even the exception may be set aside by period of limitation.
Traditionally, there was not as such distinction between criminal and extra contractual liabilities. In traditional society, even the criminal case was to be privately handled through private taking
of revenge against or conciliation made with the offender. In modern society, despite conciliation or any private measure, the criminal process will continue however.
A clear demarcation between criminal and extra contractual liabilities comes at a later time in human history. Currently, they are distinct branches of liability. Criminal liability usually regulates unacceptable and intentionally committed individual conduct while extra contractual liability predominantly regulates unacceptable and negligently committed individual conduct.
Title 13 of the civil code is dedicated for extra contractual liability and unlawful enrichment. Article 2027 lays the foundation for sources of extra contractual liability. It reads as follows:
Art. 2027. — Sources of extra-contractual liability. [Translation that was missed is inserted in square brackets]. (1) Irrespective of any undertaking on his part, [apart from any promise of his,] a person shall be liable for the damage he causes to another by an offence [by his fault].
(2) [Apart from any fault of his] 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 [a fault] or resulting from the law.
This article consists of three sub-articles regulating three sources of extra contractual liabilities. According to George Krzeczunowich, the term “offence” is a mistranslation of the French version for the term “fault”. Unlike the term “fault” the term “offence” is a criminal law terminology.
The phrases in brackets do not substantially change the content of the article; rather give much clarification for the discussion in question. Note must be taken that prior to title 13, extra- contractual liability and unlawful enrichment, title 12, contracts in general, has been dealing with promise and possible breach of promise. Therefore, immediately after the coming into an end of title 12, contracts in general, title 13 under article 2027 (1) should have begun “apart from any promise of his“(contractual liabilities). Under the latter title, the law maker is trying to tell us that even if there is no contractual breach, there may be still liability. Even if one is performing his promise, he may still be held liable for the damage he causes to another by his fault. Whether or
with this source, we find the victim, the wrong doer (principal offender), and the individual answerable to the wrong doer (vicarious offender). It is not one’s fault or activity or property that causes damage to another and makes him liable under sub-article (3) of Art. 2027. It is rather the action of another individual (principal offender) to whom he (vicarious offender) is answerable. Vicarious liability under sub-article (3) of Art. 2027 is further elaborated by Arts. 2124-2136 of the civil code. In the case of strict and vicarious liabilities, liability arises only when the law expressly provides. However, in the case of fault-based liability, so long as the elements of fault are satisfied, liability will follow for the reason that faulty conduct is not an expectation of society upon individuals.
Lecture two
In our previous class, as provided under article 2027, we’ve dealing with the sources of tortious liability, fault-based liability, strict liability and vicarious liability. When is someone held liable for his faulty conduct? Fault-based liability is provided from 2028-2065 of the civil code. The principle for fault-based liability is given under article 2028. It reads, whosoever causes damage to another by an offence shall make it good. Under fault-based liability, for someone to be held liable, his faulty conduct must be shown first. Secondly, certain damage must be sustained by the plaintiff. Thirdly, there must be a causal link between the faulty conduct and the damage sustained; i. it must be shown to the satisfaction of the court that the reason for the damage sustained is the faulty conduct of the defendant. What is fault? What is damage? How is causation established? In the case of contractual liability, article 1791 (1) reads, the party who fails to perform his obligations shall be liable to pay damages notwithstanding that he is not at fault. How is this article similar with or different from article 2028? Firstly, both articles deal with liabilities; however, article 1791 speaks about contractual damage while article 2028 deals with extra-contractual one. In terms of remedy, both aim at making the damage good. However, existence of commitment is an important element for article 1791 while it is not of the same meaning for article 2028. For fault-based liability (2028), fault is an essential element while for contractual liability (1791), fault, unlike non-performance and loss, is not necessarily the same. This is to mean, the party who has been victimized by a certain breach of commitment is not required to show fault. So long as he is able to show non-performance and loss, he can strictly hold the other party liable.
The law tries to state types of fault from the aspect of mental and physical element. From mental point of view, someone may be at fault intentionally or negligently; i. fault may consist of an intentional act or mere negligence. From the physical (conduct) aspect, fault may consist of a positive act or forbearance; i. it could be action or omission. In the case of criminal liability, intention and negligence are dealt with under articles 58-59 of the criminal code. Article 58 (2) provides that intentional crime is always punishable. On the other hand, article 59 (2) provides that negligence is punishable if it is expressly stated by law. In short, criminal liability through intention is the principle while criminal liability through negligence is the exception. In the case of extra-contractual liability however, intention and negligence are simply alternative. Both of them may equally bring extra-contractual liability. This makes extra-contractual liability different from criminal liability as the major concern for criminal law is punishing criminal intention. Article 58 provides as:
(1) A person is deemed to have committed a crime intentionally where:
(a) He performs an unlawful and punishable act with full knowledge (full knowledge of its consequences or its criminality) and intent in order to achieve a given result. [Technically, we call it direct intention.]
Or (b) he being aware that his act may cause illegal and punishable consequences, commits the act regardless that such consequences may follow. [This is to mean, he may not have a full knowledge that his act may be punishable or result in punishment. He may anticipate that it may cause; but, he acts anyways. Technically, it is called indirect intention.]
(2) An intentional crime is always punishable save in cases of justification or excuse expressly provided by law (Arts. 68-81). (3) No person shall be convicted for what he neither knew of an intended, nor for what goes beyond what he intended either directly or as a possibility, subject to the provisions governing negligence. Article 59 reads, (1) a person is deemed to have committed a criminal act negligently where he acts. (a) By imprudence or in disregard of the possible consequences of his act while he was aware that his act may cause illegal and punishable consequences. Or (b) by a criminal lack of foresight or without consideration while he should or could have been aware that his act may cause illegal and punishable consequences. A person is guilty of criminal negligence when, having regard to his personal circumstances, particularly to
of damage. Therefore, damage should be broadly understood from the tangible (for example, loss to property) to the intangible (moral damage). The other associated issue turns out to be ‘making the damage good’. In the case of property, it is easy to make the damage good. The same does not go true for other types of damage. In the case of loss to property, the expense to repair the item could serve as one way of assessing the damage. However, the problem arises to compensate damage to life, person or moral having no market value. In previous times, there was no concept of moral damage as such. Recognition was only for material or personal damage. With the development of society however, moral right came into the picture; and as a quantification of moral right, moral damage came to be recognized.
The third element under article 2028 turns out to be “cause-effect relationship”. The reason for the damage, be it material, personal, moral or all, should be the faulty conduct of the defendant. There must be two incidences, one receiving the other. Under normal circumstances, where a preceding incident happens and is followed by the other incident, it may said that the one is cause to the other; and hence, cause-effect relationship. Note must be taken that the law is not interested in an abnormal circumstances. Someone may shoot at another and the latter may die. The same person may insult another and the latter may die. In both cases, there is a preceding incident and subsequent reality. From time immemorial, human being has noted that shooting at someone results in death. In the case of the second scenario however, under normal circumstances, insulting does not entail death. If it happens, it is an abnormal; therefore, one cannot establish cause and effect basing his claim on abnormal circumstances. Indeed, the civil code doesn’t have a principle of how to establish cause and effect. The reverse is true for criminal code. The second paragraph of article 24 (1) provides that “This relationship of cause and effect shall be presumed to exist when the act within the provisions of the law would, in the normal course of things, produce the result charged”. From this, we can apprehend that Causation is to be established by referring to “normal course of things” or “social reality”. In general, for someone to base his claim on this article, the three requirements should be cumulatively satisfied. Fault, damage and connection in between must be necessarily shown by the plaintiff. In the case of criminal liability however, damage may not necessarily be sustained. Good example is attempted crime. A driver was driving his car despite the red traffic light. A passenger, surprised of the driver’s action, fell down and was broken his leg while staring at the
driver. In the case at hand, there is fault (that of the driver); there is damage (that of the passenger); but, there is no connection in between in the normal circumstances.
Lecture 3
What are essential elements of fault-based liability seen in the previous class? The first element tends to be duty of care. Indeed, duty of care is not expressly stated under article 2028. It is rather an implied duty in the sense that when someone lives in society, he is expected to have a certain behavioral duty towards another. Some countries try to make it express; and the duty someone will have to another depends on the circumstance. Therefore, the defendant, under normal circumstances, owes the plaintiff a duty to confirm his conduct to a standard necessary to avoid the unreasonable risk of harm to others. Whether an owner of a property has a duty of care to another who wants to steal his property is controversial.
The second element turns out to be breach of that duty (fault). Whether the defendant’s conduct by way of positive action or omission falls below the applicable standard of care set by law should be answered by the element, breach of duty. The third element turns out to be causation. In this element, whether the defendant’s failure to meet the applicable standard of care is casually connected to the plaintiff’s harm should be proved. The fourth element turns out to be occurrence of damage sustained by the plaintiff. In this element, whether the plaintiff really suffers harm or an injury should be dealt with. Under article 2028, the phrase “whosoever” implies that the article is applicable to everyone who commits fault and by his fault, causes damage to another. However, article 2137 provides the exception to article 2028. It reads, No action for liability based on an offence committed by Him may be brought against His Majesty the Emperor of Ethiopia. The then prevailing political system tries to put the emperor above the law. He was believed to be fountain of justice; therefore, impossible to impose liability against him. The Amharic saying, “nigus ayikeses, semay ayitares”, was even incorporated in the emperial constitution. The same principle was enshrined in the civil code. Is article 2137 applicable to the current president? According to the rules of interpretation, exceptions should be interpreted very narrowly. Article 2028 is the general rule, which says that everyone is liable; and article 2137 is the exception which says that his majesty, the emperor, is not liable for any wrong doings. If it is an exception, it must be interpreted very narrowly. Since the provision says, “his majesty emperor of Ethiopia, it should be limited to the emperor himself. Had the provision been drafted to include other presidents, it would have inserted the phrase, heads of state, in place
fault, he will be assessed by an ordinary prudence of reasonable child. The Ethiopian legislator makes use of a single parameter without taking age or mental condition into account. Some people tend to argue that the position of Ethiopian legislator in this regard is harsh. This is because, it is not fault- based liability, but strict liability at the level of minors and mentally deficient persons. Such position is taken by the legislator in order to strike a balance between the minor wrong doer and the innocent victim. If the minor is going to be held liable, the foregoing outcome will be that the guardian will take the necessary care to shape the behavior of the minor. Therefore, the message of article 2030 (3) is mainly to make guardians and tutors cautious enough towards their minor. Secondly, if minors and persons with mental deficiency are not to be held liable, people may be actively involved in evidence falsification with regard to their age and mental condition. This situation may be worsened in countries such as Ethiopia where the law of birth registration and certificate remained to be paper tiger. Thirdly, the innocent victim should not remain uncompensated with a view to counter- balancing the interests on both sides. Fourthly, Even if, in the case of assessment of liability, age and mental condition is not taken into account, in the case of assessment of damage however, it is taken into account; i. the rigid standard will be mitigated at the time of assessing damage caused by the persons in question. Fifthly, the liability in question is a civil liability. Therefore, if the minor or the mentally deficient person has the economic capacity, he should pay compensation. If he does not have the economic capacity, he will not be detained for not having discharged the obligation. In social reality, fault is not ordinary only. There are people from whom society expects a different standard of their profession due to the knowledge and skill they acquire through time. The law puts a different standard for these people under article 2031. The parameter is a little bit different from that applicable to ordinary people. Article 2031 reads, (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. In professions, be it in Medicine, law or driving, there is a conduct that is expected to be observed. Many of these codes of conduct could be written; and few of them could be unwritten or developed through practice and recognized from time immemorial. Whether someone is at fault is to be assessed against these professional codes of conduct. In other words, a faulty professional is to be assessed against reasonable professional in the profession. Doctor’s mal-practice is a substantial case in the case of professional fault. Sometimes, to determine whether a certain professional was negligent or not, it is said that “the act speaks for itself”. For example, if a doctor forgets a surgery material within the body of the patient, in this case, the act speaks for itself. In each
profession, there are certain minimum quality expectations. Among the professional people, there is what we call “conspiracy of silence”; i. a certain professional wouldn’t testify against another professional. They would like to protect one another for the reason that none of them knows who will be on call for the next trial. In order to counterbalance the conspiracy of silence principle, in some countries such as USA, they do not fully rely on testimony of experts in the same field. If the act is very obvious that gross negligence has got involved in it, whether the professionals testify in its favor or against it, the court prioritizes “the act speaks for itself” principle. This principle comes into the picture for the reason that there is a certain degree of unwillingness among professionals to testify against one another. Driving is another profession where extra-contractual cases become common. Drivers, as a professional, have a duty towards the passengers, pedestrians or other drivers. In this case too, their act will be assessed against the code of conduct applicable to drivers. Whether a reasonable driver acts in that particular way will be the parameter to assess whether he was professionally at fault or not. In case of assessment, no difference is made between new and experienced drivers. Nb. In a case, there may be cause in fact and adequate or approximate cause. However, the type of cause taken into account is the latter one. This is because, adequate or approximate cause is recognized under 2028 as a cause bringing about that result under normal circumstances. Lecture 4
Sociologists define fault as:
Fault is a peace of conduct which wouldn’t have been pursued by prudent person placed in the same external circumstance as the author of damage. Prudent person for sociologists is what lawyers call as reasonable man. Nb. Conduct is broader than action for the reason that the former embraces both action and omission. Economists state as:
A person is at fault where he fails to take precaution in cases where the cost of accident prevention is lower than the cost of accident if it occurs. For economists, cost turns out to be important. For economists, a person will be relieved if the cost of accident prevention is higher than the cost of accident if it occurs. This is to mean, society will be better off if the damage sustained than prevented.
In law of contract, age and mental condition are taken into account under certain circumstances; and every contracting party is not assessed by a reasonable man standard. His subjective condition will be somehow taken into account. Age and mental condition are also taken into account to determine criminal liability. For criminal law, professional fault must be grave enough to warrant punishment; i. unlike extra-contractual law, mere professional fault is not sufficient enough to
injure the judgment creditor. He is not there to gain personal advantage, but to cause the judgment creditor to incur unnecessary cost of court fee, lawyerly fee and so on. In this case, the action turns out to be an abuse of right. Article 2032 (2) provides that a person commits an offence where, with full knowledge of the fact, he causes substantial damage to another in seeking personal gain disproportionate to the damage caused. In addition to intent to injure another without gaining personal advantage, article 2032 tries to deal with another related issue; i. it is similar; but, the gain he gets and the loss to the other party are disproportionate. A person is gaining 100 birr; but, due to his action, another person is losing 150 birr. Such disproportionate effect makes one’s conduct blameworthy.
A person may be given power to exercise on another’s behalf. If he exercises that power in a manner that is not intended to its purpose, the act will be presumed to be fault.
Lecture 5
In our previous classes, we’ve seen that fault is an essential element within fault- based liability. We’ve also tried to define and assess fault through reasonable person’s standard. We’ve also started dealing with another standard of assessing fault, presumed fault; i. fault will be presumed if a certain action or omission specified by law is committed. Whether or not the action or omission is committed by a reasonable man is immaterial. In general, the reasonable person parameter doesn’t serve as a defense for actions or omissions under articles 2032-2033, 2035 -2036 and 2038-2065. The fact that these articles are violated will be sufficient to presume fault. This is a gray area towards strict liability. Even if we begin with fault-based liability, we tend to move towards the approach of strict liability.
We’ve started discussing about intent to injure another. The fact that a member of society has the determination to injure another member of society turns out to be morally offendable. If someone is to injure another without gaining benefit or obtaining proportional advantage, he will be said to have socially unacceptable disposition. Theoretically, a reasonable person wouldn’t do that behavior. In some cases however, it may be possible. For example, in traditional society, a member of a certain clan may intentionally injure a member of another clan. According to a reasonable man standard within that locality, we may say that a reasonable person would do that. Irrespective of a reasonable man standard, the very commission of an act or omission is sufficient to hold the individual faulty provided that the other requirements are fulfilled. Note must be taken however that the fact that someone is at fault doesn’t mean that he is extra-contractually liable. The requirements under article 2028, fault, causation and damage, should be satisfied. At this level,
we are simply establishing fault from different perspectives, reasonable man perspective, reasonable professional perspective and presumption of fault.
What is the difference between right and power? Right is an entitlement accorded by law to the holder to enjoy it to his own advantage. If someone has a power to do it, he has the right in it. Sometimes, power could be to exercise for oneself or in the interest of another. Power is an authority or a functional prerogative conferred in the interest of another. Power may be sourced of laws (public or private laws), court order, contract (example, agency) or will. Article 2033 reads, (1) a person commits an offence where he turns to his own advantage powers conferred upon him in 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. The first sub-article is about private law while the second sub-article turns out to be about public law. Guardian- minor relationship turns out to be a good example for cases to fall under sub-article one. For agent-principal relationship, since the relationship is contractual, the liability will be contractual. Therefore, extra-contractual liability will be limited to those sources emanating from laws, court order or will. In the case of 2033 (2), the power is basically conferred upon him for the benefit of the public; but, unfortunately, he diverted it either to himself or to a third party. In criminal law, if it is committed intentionally, it is going to be corruption. For purpose of extra- contractual liability however, even negligent action is sufficient to make the individual at fault. This is because, in extra-contractual law, both intention and negligence have equal position to be sources of liability. In general, as in the case of article 2032, in the case of article 2033 too, fault is presumed. Under sub-article 1 of article 2033, it is read only as “where he turns to his own advantage”. When we read sub-article (2) of article 2033 however, it is read as “where he turns to his own advantage or to the advantage of another individual”. There are two elements in this case, to his own advantage or to the advantage of another. So long as the right holder is adversely affected by the action of the holder of the power, whether the diversion is to his own advantage or to the advantage of another will be immaterial. Therefore, there cannot be logical distinction between sub-article 1 and 2 other than poor drafting of sub-article 1 or slip of pen thereon by the legislator.
Other than these limitations, everyone is free of exercising his rights. Article 203 4 is not there to state fault; i. it is there rather to state what is not fault. It reads, Subject to the 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. Whether or not someone exercises his right in a socially or economically meaningful manner is not the concern of another so long as there is no intent to injure other individuals. For example, a land holder may put his land idle. If anyone can show that the land was made idle with a view to intent to injure
public good, it shouldn’t have been left to the free market price. Reading a private newspaper is not a duty; but, reading a negarit gazette is a duty due to the principle enshrined under article 2035 (2).
Another issue turns out to be the issue of superior-subordinate relationship or chain of command. The subordinate is required to obey the order of his superior. For example, the subordinate, as a member of society, is required to obey the law as given under article 2035. Under administrative law however, as a subordinate, he is required to obey the order of his superior. When the order is lawful, it may not be an issue. The problem comes into the picture when the order is unlawful. Literatures provide three approaches to this problem. The approaches are the rule of law approach, the strict obedience approach and the intermediate approach. The Nazi criminals used to strongly raise the defense of strict obedience approach. The same used to be raised by the Derg officials. According to the rule of law approach, law must always prevail over orders; and therefore, the existence of superior’s order should never constitute a defense to a tort action against the subordinate. In short, the approach says, obey the law; disregard the order if it is unlawful. The problem is however, if the subordinate is required to check every order against the law, state machinery cannot move in a smooth and orderly manner. In such a case, delay may inevitably come into the scene. Especially, if we apply to the military, everything would be defeated for the reason that in military, exigency or quick action is required. According to the strict obedience approach, for subordinates, orders ought to prevail over laws; and therefore, the existence of the superior’s specific order which was unerringly executed should constitute a defense for tort action against the subordinate. This approach places the subordinate as a tool to the superior, which is against human dignity. Note must be taken that the subordinate is a human being with full mental faculties. Sometimes, the subordinate could be more intelligent than the superior. Therefore, even if this approach tends to be good efficiency of state machinery, the approach does dehumanize the subordinate. The intermediate approach is placed in between with a view to reconciling the two extremes. According to this approach, the subordinate should execute the order if it is clearly legal or its illegality is doubtful. He should decline to execute the order if it is manifestly illegal. In the case of manifested illegality, the act will speak for itself.
Lecture 6
Which approach is adopted by the Ethiopian legislator? Article 2036 provides that (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. If someone, despite understanding that the order is illegal, acts anyways, he will be at fault. If someone is aware that his superior has no power to give the order and if he acts in accordance with the order, he will be at fault. If someone is aware that the order given is to commit a criminal act, and if he keeps on complying with the order, he will be at fault. However, if someone is not aware of the order’s illegality, or the fact that the superior has no power to giver that order or that the order is criminal, he will not be at fault. In this case, the first impression is important; i. it is important to check whether the subordinate understands the manifested illegality of the order at that particular moment. This turns out to be a sort of intermediate approach. Sub-article 1 of article 2036 appears to be a strong rule of law approach. However, when we look into sub-articles 2 and 3 in particular, the strength of the approach under sub- article (1) is diluted. Therefore, in general, we can say that the Ethiopian law is trying to adopt an intermediate approach. Even if the subordinate knows that the order is illegal ; or that his superior doesn’t have such power; or that the order is criminal, he can still comply with the order if he is not in a position to challenge it. According to sub-article (2), if the subordinate knows that the order is illegal, he should not comply with that. Sub-article 3 however tries to take into account the circumstances. In military circumstances, the order may be given to the subordinate at gun point. Indeed, when look into the article very thoroughly, it tends to give emphasis for order compliance. Note must be taken that the chain of command principle is applicable only to public and military service. This can be inferred from the phrase “ exigencies of public service or military discipline” under sub-article (3). Of course, there is a hierarchical order in the private sector as well. The employee has the duty to obey the order of his superior. However, since what has been involved is the private interest, the law doesn’t give that immunity for the wrong doer. Therefore, the applicability of 2036 turns out to be in the public interest only.
What is the difference between higher in rank and higher in authority? The fact that someone is higher in rank doesn’t mean that he is higher in authority. For example, the state minister in the ministry of finance is higher in rank than the department head in the ministry of health. However, the former cannot have the authority to give order to the latter. Therefore, the department head in the ministry of finance cannot invoke the defense of superior order. In order to invoke the defense of superior order, it must be shown that both the superior and the subordinate are structurally related. The other thing is that the act must be done by the order specific to the superior. If the order given is general and the subordinate translates it into specific, it will not serve as a defense. Assume that the military has occupied a certain enemy territory. The commander has given an order to the subordinate to
Lecture note on tort law, specifically on Ethiopian extra contractual law, by yohanes tekle
Course: Torts (LGST 312)
University: University of Maryland Global Campus
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