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COMPENSATION

SECTION I.

Compensation in respect to use.

Article 596. If a person uses any property without the permission of the owner thereof, this amounts to wrongful appropriation, and he is not obliged to pay for the use thereof. If, however, the property has been dedicated to pious purposes, or is the property of a minor, an estimated rent must be paid in any case. If it is property prepared for hire and is not claimed to be property owned in absolute ownership, nor as a result of contract, payment for use must be made; that is, an estimated rent must be paid.

Examples:

(1) A lives in B’s house for a certain period without concluding a contract of hire. He is not obliged to pay rent. But if the house has been dedicated to pious purposes or is the property of a minor, an- estimated rent must be paid in respect to the period during which it has been inhabited, whether it is claimed to be property held in absolute ownership, or as a result of contract.

(2) In the case of a house for hire, an estimated rent must be paid if it is not claimed to be property held in absolute ownership nor as a result of contract.

(3) A takes B’s horse, which B lets out on hire, and uses it for a certain period without the permission of B. An estimated sum by way of hire must be paid.

 

Article 597. If property is used which is claimed to be property owned in absolute ownership, even though it is prepared for hire, nothing need be paid in respect to such use.

Example:- One of the joint owners of a piece of jointly owned property uses such property for a certain period independently and without the consent of the other joint owner, asserting that it is his own property owned in absolute ownership. The other joint owner cannot claim rent in respect to his share, even though it is property prepared for hire. Article 598. If use is made of property which is claimed to be owned as a result of contract, even though it is prepared for hire, nothing need be paid in respect to such use.

Examples:

(1) A is joint owner of a shop and sells such shop to B without the permission of the other joint-owner. B holds such shop for a certain period. The other joint-owner does not give his assent to the sale and seizes his share. He cannot claim rent in respect to his share, however much the shop may have been prepared for giving on hire, because the purchaser, having asserted that he has used it as an owner, his ownership being claimed to be based upon a contract, that is to say, upon a contract of sale, is not obliged to pay for the benefit received.

(2) A sells and delivers his mill to B which he asserts is his own property held in absolute ownership. After having held it for a certain period, another person appears claiming the mill and after proving his case and obtaining judgment, takes it from the purchaser. Such person cannot claim anything from B in the way of rent in respect to that period, since this is claimed to be based on a contract.

Article 599. If any person employs a minor without the consent of his tutor, such minor is entitled to receive an estimated wage for his services upon his reaching the age of puberty. If the minor dies, his heirs may claim an estimated wage from the employer in respect to the period of the employment.

SECTION II.

Compensation by the person faking the thing on hire.

Article 600. Whether the contract of hire is valid or not, the thing taken on hire is on trust while in the possession of the person taking such thing on hire.

Article 601. If the thing taken on hire is destroyed while in the possession of the person taking such thing on hire, the latter may not be called upon to make good the loss, unless he has committed some wrongful act, or negligence, or performed any act which he is not authorized to do.

Article 602. If the thing hired is destroyed by reason of the wrongful act of the person taking the thing on hire, or the value thereof is diminished, such person must make good the loss.

Example:- The person taking an animal on hire beats it and it dies, or is destroyed by reason of his brutal and violent driving. Such person must make good the loss.

Article 603. If the person taking the thing on hire acts in a way contrary to what is customary, such act is wrongful and he must make good any damage or loss resulting there from.

Examples:-

(1) Clothes which are taken on hire are used in a way contrary to what is customary and become tattered. The loss must be made good.

(2) A fire breaks out in a house which has been hired by reason of a fire being lighted which is larger than what is customary and the house, is burnt. The loss must be made good.

 

Article 604. If the thing hired is destroyed owing to the failure of the person taking the thing on hire to take proper care, or the value thereof is decreased, the loss must be made good.

Example:  A person takes an animal on hire and drives it into a deserted place so that it is lost, He must make good the loss.

Article 605. If the person taking the thing on hire goes beyond what he has agreed to do, acting in contravention of what he has been authorized to do, he must make good any loss caused thereby. But if his act in contravention results in something equivalent to or less than what he has agreed to do, he incurs no liability.

Example:- A takes an animal on hire to load so many okes of oil and instead loads the same number of okes of iron upon it and the animal is destroyed. A must make good the loss. But if a load equal to or lighter than oil is loaded and the animal is destroyed, there is no liability to make good the loss.

Article 606. On the expiration of the contract of hire, the thing hired remains on trust in the possession of the person taking the thing on hire for safe keeping. Consequently, if the person taking the thing on hire uses such thing on the expiration of the period of hire and such thing is destroyed, he must make good the loss. Again, if the person giving the thing on hire asks for his property to be returned on the termination of the contract of- hire, and the person taking the thing on hire fails to do so, he must make good the loss if such property is destroyed.

SECTION III.

Loss caused by employees.

Article 607. If the thing entrusted to an employee to work upon is destroyed by the wrongful act or negligence of such person, the latter must make good the loss.

Article 608. A wrongful act of an employee consists of any act or conduct contrary to the express or implied order of his employer.

Examples:

(1) A instructs his shepherd who is his private employee to pasture his flock in a certain place and no other, the shepherd takes the flock to another place. He has committed a wrongful act, and if the animals are destroyed while in that place, the shepherd must make good the loss.

(2) A hands cloth to a tailor instructing him to cut it and make him a long coat there from; if the cloth is sufficient. The tailor tells him that it is sufficient. If it turns out after the cloth is cut up that it is not sufficient for the purpose, A can claim to have the loss made good by the tailor.

 

Article 609. Negligence of the employee consists of any fault of his of which he is guilty without excuse in the preservation of the thing entrusted to him on account of his employment.

Example:- An animal strays from the flock and is lost purely on account of the neglect of the shepherd to come and catch such animal. The shepherd must make good the loss. He is not liable, however, if his failure to go alter the animal arose out of the probability that in so doing he would lose the other animals.

Article 610. A private employee is a trustee. Consequently, he is under no obligation to make good any loss arising out of the destruction of property in his possession not caused by any act of his. Similarly, if property is destroyed by his own act without his fault he is not liable to make good the loss.

Article 611. A public employee is liable to make good any damage or loss incurred by his own act, whether resulting from any wrongful act or negligence of his or not.

Promulgated by Royal Iradah 6th. Zil Qada, 1286.