Civil Liability in Morocco
If you have caused harm to someone, or if you have suffered it, the Code of Obligations and Contracts (the DOC) decides who pays and on what conditions. Three main mechanisms coexist: liability for your personal act, liability for the things in your keeping, and liability for the acts of others. Understanding which one applies changes everything.
The essentials in brief
Civil liability in Morocco rests on a simple idea: whoever causes harm must make it good. The DOC distinguishes harm caused knowingly and intentionally [Art. 77] from harm that results from mere fault, that is, from negligence or carelessness [Art. 78]. You may also be answerable for the things in your keeping [Art. 88] and for the persons for whom you must answer [Art. 85]. Force majeure and self-defence release you [Art. 95]. Reparation and proof remain at the heart of everything.
Personal fault: the foundation of the system
Let us start with the most intuitive case. You act, you cause harm, you make it good.
The DOC lays down two distinct bases. The first concerns the intentional act: any act of a person who, without the authority of the law, knowingly and intentionally causes material or moral harm to another obliges its author to make it good, provided it is established that this act is the direct cause of it [Art. 77]. The second basis is broader, and this is where people often go wrong. You are liable not only for your act, but for your fault, when it is established that this fault is the direct cause of the harm [Art. 78].
What exactly is a fault? The text is clear. Fault consists either in omitting what one was bound to do, or in doing what one was bound to refrain from doing, without the intention of causing harm [Art. 78]. In other words, you do not need to have wanted to do harm. Inattention is enough.
Three conditions recur constantly: a fault, harm, and a direct causal link between the two. The harm may be material or moral [Art. 77]. The word "direct" is not decorative. If the cause-and-effect link is too remote or is broken by another event, liability falls away.
Honestly, remember this: wanting to do harm is not required. A lack of care is already enough.
When you are not liable
Not every harmful act engages your liability. The DOC provides several exits.
First, the exercise of a right. There is no civil liability where a person, without the intention of doing harm, has done what they had the right to do [Art. 94]. The nuance matters. If the exercise of that right causes notable harm to another and that harm could have been avoided or removed without serious inconvenience to you, liability revives once you have failed to do what was necessary to prevent it or bring it to an end [Art. 94]. A right does not cover abuse.
Next, self-defence and force majeure. There is no civil liability in the case of self-defence, or where the harm was produced by a purely fortuitous cause or by force majeure, which was neither preceded nor accompanied by an act attributable to the defendant [Art. 95]. Self-defence is defined: it is the case where one is forced to act to repel an imminent and unjust aggression directed against the person or the property of the one defending themselves, or of another person [Art. 95].
A word on discernment. Deaf-mutes and the disabled are answerable for the harm resulting from their act or their fault if they possess the degree of discernment necessary to appreciate the consequences of their acts [Art. 97]. The capacity to understand what one is doing conditions liability.
The lesson? An external cause that is entirely beyond your control puts you in the clear — but it is up to you to prove it.
Liability for the acts of things
You keep a thing. That thing injures someone or damages property. Are you liable?
The DOC answers yes, in principle. Everyone must answer for the harm caused by the things in their keeping, where it is shown that those things are the direct cause of the harm [Art. 88]. This is a formidable mechanism for the keeper, because the victim does not have to prove your fault: it is enough for them to establish that the thing directly caused the harm.
You can, however, release yourself. The text opens two cumulative conditions. You must show, first, that you did everything necessary to prevent the harm; and, second, that the harm depends either on a fortuitous event, on force majeure, or on the fault of the victim themselves [Art. 88]. Note the "and." Both proofs are required, not one of the two at your choice.
It is frankly heavier than it appears. The keeper of a thing starts from an unfavourable position and must rebuild their innocence.
Answering for others: the acts of others
One may also have to make good harm one did not cause oneself. One is liable not only for the harm caused by one's own act, but also for that caused by the act of the persons for whom one must answer [Art. 85].
The DOC lists several situations. The father and the mother, after the death of the husband, answer for the harm caused by their minor children living with them [Art. 85]. Masters and principals answer for the harm caused by their servants and employees in the functions for which they employed them [Art. 85]. Craftsmen answer for the harm caused by their apprentices during the time they are under their supervision [Art. 85]. Finally, the father, the mother, and other relatives or spouses answer for the harm caused by the insane and other persons of unsound mind, even adults, living with them [Art. 85].
This liability is not without escape. Fathers, mothers, and craftsmen escape reparation if they prove that they could not prevent the act giving rise to it [Art. 85]. For the insane, exoneration requires having exercised all necessary supervision, having been unaware of the dangerous nature of the illness, or that the accident occurred through the fault of the victim [Art. 85]. The same rule applies to those who undertake by contract the upkeep or supervision of such persons [Art. 85].
Contract too makes one answer for the acts of others. The keeper of an inn or other public establishment answers for the acts of the travellers and clients they receive [Art. 678]. And the contractor of work or services answers not only for their act, but for their negligence, their imprudence, and their lack of skill [Art. 737]. Supervision and competence: two requirements the DOC does not let go of.
Reparation, multiple authors, and clauses
There remains the practical question. What happens when several persons are involved, and can one set aside one's liability by contract?
When harm is caused by several persons acting in concert, each is jointly and severally liable for the consequences, without distinguishing whether they acted as instigator, accomplice, or principal author [Art. 99]. Joint and several liability means the victim can claim the whole from any of the co-authors. Convenient for them, formidable for you.
Can one exonerate oneself in advance? In tort matters, no. Any stipulation contrary to the principle of reparation has no effect [Art. 77] [Art. 78]. And even within a contractual framework, the DOC sets a firm limit: one cannot stipulate in advance that one will not be liable for one's gross fault or one's wilful misconduct [Art. 232]. The exonerating clause always runs up against serious fault and dishonesty.
This logic is found in particular contracts. The depositary answers for the loss or deterioration of the thing caused by their act or by their negligence, and any stipulation to the contrary has no effect [Art. 806]. The tenant, for their part, answers for the loss and the deterioration of the thing caused by their act, by their fault, or by the misuse of the thing rented [Art. 678].
So, do you really believe that a well-drafted clause will protect you from your own gross fault? The DOC says no, and it is as much a protection for the victim as a warning for you.
References
- Article 77 — Code of Obligations and Contracts (DOC)
- Article 78 — Code of Obligations and Contracts (DOC)
- Article 85 — Code of Obligations and Contracts (DOC)
- Article 88 — Code of Obligations and Contracts (DOC)
- Article 94 — Code of Obligations and Contracts (DOC)
- Article 95 — Code of Obligations and Contracts (DOC)
- Article 97 — Code of Obligations and Contracts (DOC)
- Article 99 — Code of Obligations and Contracts (DOC)
- Article 232 — Code of Obligations and Contracts (DOC)
- Article 678 — Code of Obligations and Contracts (DOC)
- Article 737 — Code of Obligations and Contracts (DOC)
- Article 806 — Code of Obligations and Contracts (DOC)
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