The issue of compensation for moral damages garners significant attention in legal and religious circles, as it is a matter that has sparked continuous debates and differences in approach between legal jurisprudence and judicial jurisprudence. This topic serves as the focal point of research and scholarly papers, as ink has been spilled discussing the legitimacy of compensating for moral damages and the possibility of assessing it according to specific legal standards.
The content of moral damage, also referred to as moral harm, is defined in legal jurisprudence as encroachment upon a non-financial interest or right. Dr. Abdel Razek Al-Sanhouri, in his book “Al-Wasit fi Sharh Al-Qanoon Al-Madani” (The Intermediate in Explaining Civil Law), mentions that moral damage can manifest in various forms such as damage to one’s reputation, honor, and esteem.
Thus, moral damage does not entail financial harm to an individual’s entity but rather concerns its ethical aspect. The most prominent example of this is evident in crimes such as defamation, slander, defamation of character, and other damages that do not affect a person’s financial assets.
The Saudi legislator’s stance on compensating for moral damages was unclear until recently, specifically before the issuance of the new Civil Transactions System in 2023. The Saudi system did not have a clear provision for compensating moral damages, and the judiciary did not address this issue due to the difficulty in assessing the extent of such damage unlike material damages. However, with the issuance of the Civil Transactions System, the Saudi regulator’s position became clear regarding the right to compensation for moral damages.
The issue of assessing compensation: The Saudi legislator granted discretionary power to the court to assess compensation for moral damages and established some criteria for the court to consider when determining compensation. Paragraph four of Article 138 of the system states that: “The court estimates the moral damage suffered by the affected party, taking into account the type and nature of the moral damage and the personality of the affected party.”
It is worth noting in this context that the Civil Transactions System is the third judicial project launched by His Royal Highness Prince Mohammed bin Salman bin Abdulaziz Al Saud, which represents a qualitative leap in Saudi legislative field and an asset for judicial bodies.
The Civil Transactions System aims to regulate the provisions of contracts and financial transactions between individuals and to identify the sources from which a person’s obligation to another arises. This system includes provisions for compensation for damages in cases where an act causes harm to others, such as damage to property or personal injury, and it specifies the rules for determining the compensation due to the affected party.
The system has clarified that compensation should fully remedy the damage, by restoring the affected party to the position they were in or could have been in had the damage not occurred. The damage for which the responsible party is liable to compensate is assessed based on the losses suffered by the affected party and the profits they have missed out on, if it is a natural consequence of the harmful act. It is also assessed if the affected party could not have avoided it by making reasonable efforts and taking care to prevent the harm.
It should be noted that compensation for moral damages falls under the liability for harmful acts, encompassing the harm inflicted on a natural person, whether sensory or psychological, due to infringement upon their body, freedom, property, reputation, or social status. The right to compensation for moral damages does not transfer to others unless its value is determined by a legal provision, agreement, or judicial decision. The court assesses the moral damage suffered by the affected party, considering the type and nature of the moral damage and the personality of the affected party.
Compensation for damages is based on the principles of the guaranteed rule established in Islamic jurisprudence, which have been addressed by contemporary systems and legislation under the name “tort liability.” Damage is divided into two types: material damage, which is the most common and consists of actual losses suffered by the affected party, and moral damage, which, unlike material damage, is not measured by actual financial loss or missed gains but rather has a specific evaluative nature. The Saudi legislator has taken a clear stance on the issue of compensating for moral damages within the framework of the Civil Transactions System. The system regulates the issue of harmful acts from Article 118 to Article 143, specifically in the fourth section titled “Compensation for Damages.” Article 136 stipulates that: “Compensation should fully remedy the damage by restoring the affected party to the position they were in or could have been in had the damage not occurred.” Article 137 states that the damage for which the responsible party is liable to compensate is assessed based on the losses suffered by the affected party and the profits they have missed out on, if it is a natural consequence of the harmful act. It is also assessed if the affected party could not have avoided it by making reasonable efforts and taking care to prevent the harm.
In this context, the system elucidates its approach to the issue of moral damage in Article 138, stating that compensation for harmful acts includes compensation for moral damages. Moral damage includes harm inflicted on a natural person, whether sensory or psychological, due to infringement upon their body, freedom, property, reputation, or social status.
The right to compensation for moral damages does not transfer to others unless its value is determined by a legal provision, agreement, or judicial decision. The court assesses the moral damage suffered by the affected party, considering the type and nature of the moral damage and the personality of the affected party.
According to the system, compensation is assessed in cash, but the court may, depending on the circumstances and upon the request of the affected party, order compensation in kind or restitution to the previous state, or issue a specific order related to the harmful act.
It is noteworthy that the statute of limitations for compensation claims does not expire within three years from the date the affected party becomes aware of the damage or within ten years from the date of the occurrence of the damage unless the claim arises from a crime and is not precluded from being heard if the criminal claim is not precluded from being heard.
Based on the foregoing, we can say that compensation for moral damages in the Saudi system has become certain, and the right to it is no longer subject to the discretionary power of the court. However, a distinction should be made between the discretionary power granted to the court in assessing compensation and the absence of discretionary power in proving the right to compensation for moral damages, as the right to compensation for moral damages has become certain by explicit statutory provision.
