The Justification for Vicarious Liability: A New Proposal

Document Type : Original Article

Authors

1 Associate Professor of Law, Ilam University, Iran

2 Professor of law Dep. FUU. UKM Malaysia - Professor of law, Faculty of Law, University of Kufa, Iraq

3 Professor of Faculty of law, University of Babylon, Iraq

4 Professor of Al-Mustaqbal University College, Hillah, Iraq

5 Ph.D candidate, faculty of law, ukm, Malaysia

10.22091/ijicl.2022.8212.1037

Abstract

Vicarious liability has lacked the agreeable and undisputable rationale which can legally justify imposing this liability. The main obstacle which all justifications have been confronted with is that this liability is imposed regardless of any fault or negligence on the part of the employer. This distinguishing characteristic apparently conflicts with the foundations of tort law which is fault-based. In this paper, the authors discuss the absence of agreeable justification for vicarious liability and try to offer a solution. But first, the historical background of this kind of liability should be reviewed, which will help to understand rationales offered during historical periods. Secondly, the research will try to analyse current theories according to which scholars try to justify imposing this liability so that we can find the reason of their failure in giving an acceptable reason for imposing vicarious liability. Reference is made to the English law (common law) and the Iraqi law (civil law) as two various systems in a comparative way. However, to hold an employer liable, some prerequisites must be satisfied that will be discussed in this article.

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Iranian Journal of International and Comparative Law

Articles in Press, Accepted Manuscript
Available Online from 21 October 2022

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History

  • Receive Date: 14 May 2022
  • Revise Date: 27 August 2022
  • Accept Date: 21 October 2022
  • First Publish Date: 21 October 2022

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