Causation in Tort Law: The Mecelle (Articles 90-93), Comparative Law, and International Trade

The Mecelle (Mecelle-i Ahkâm-ı Adliye) is the first civil code of the Ottoman Empire, drafted between 1868 and 1876 by a commission headed by Ahmet Cevdet Pasha. It codified the rules of Islamic law (specifically Hanafi jurisprudence) concerning obligations, property, and trial procedure using a modern codification technique. Comprising 1,851 articles—the first 100 of which are dedicated to the general principles of Islamic jurisprudence (qawa’id al-fiqhiyya)—the Mecelle provides a magnificent logical framework that guides the theories of causation, liability, and fault, remaining a cornerstone not only for its era but also for contemporary comparative tort and obligations law.

In this article we try to analyze the Mecelle provisions regarding tort law liability. The determination of who is liable to compensate for the damage arising from a tortious act (itlaf), under what conditions, and to what extent, is built upon a magnificent architecture of causation in Articles 90, 91, 92, and 93 of the Mecelle. This architecture is shaped not only by the legal outcome of the act but also by its “physical mode of realization” and the “will of the actor.”

1. Basic Rules in the Majalla’s Systematic Approach

The Mecelle divides tortfeasors into two categories based on their physical attributes and the manner in which they execute the act, drawing very strict lines for their degrees of liability:

• Article 92 (Strict Liability of the Direct Actor / Mübâşir): “The direct actor is liable to make compensation, even if he did not act intentionally.” The person who physically executes the act and directly causes the damage through his own action (mübâşir) pays for the damage, even if it was a mere accident. No fault is required here; per the principle of personal liability, the one who physically commits the act pays the bill.
• Article 93 (Fault Requirement for the Indirect Actor / Mütesebbib): “The indirect actor is not liable unless he acted intentionally.” The person who causes the damage indirectly, rather than by a direct physical act, is only liable if he acted with intent (müteammid).
• Ali Haydar Efendi’s Analysis: In his commentary Dürerü’l-Hükkâm, the concept of “intent” (taammüd) here is defined not merely as desiring the outcome, but as engaging in transgression (ta’addî – active fault/exceeding limits) or negligence (taksir – passive fault/omission) while committing the act. A person who digs an unauthorized well on a public road, even without intending to kill a horse, is legally deemed intentional (müteammid) for committing a transgression (ta’addî) and becomes liable (zâmin).

Severance of the Causal Link and the “Es-sebebü Ke’l-Fâil” Exception

• Article 90 (Concurrence of Causes): “Where the direct actor and the indirect actor concur, the legal ruling is attributed to the direct actor.” In an incident involving both an indirect cause and a direct perpetrator, the rule is that all liability falls on the direct actor (mübâşir). An intervening free and independent will severs the causal link of the indirect actor.
• Exception (Vitiation of Will): If the fault of the indirect actor is so severe that it vitiates the free will of the direct actor, turning them into a mere “instrument/tool,” the rule is reversed. As in Ali Haydar Efendi’s example of the “rider falling into a well in the dark”; since the darkness nullifies the direct actor’s (the rider’s) ability to foresee and avoid the hazard, the law applies the rule “Es-sebebü ke’l-fâil” (The indirect cause is treated as the direct perpetrator). The rider is exonerated, the causal link is not severed, and the liability is directly imposed on the grossly negligent indirect actor (the one who dug the well).

Legal Justification

• Article 91: “Legal permission negates liability.” An act permitted by law (lawful justification) does not give rise to compensation. As long as an indirect actor (e.g., someone digging a well on their own private land) acts lawfully (cevaz-ı şer’î), they are completely absolved from liability (zamân) even if damage occurs.

2. Comparative Modern Law Perspective

Modern legal systems have abandoned the Majalla’s physical distinction of “direct vs. indirect actor,” but achieve the same balance of justice through different umbrella concepts.

A. Swiss Law (OR) and Turkish Code of Obligations (TBK) – Civil Law System

• Adequate Causation and Fault: It does not matter whether the perpetrator caused the damage directly or indirectly. The law examines whether the act is objectively capable of producing the damage in the ordinary course of life (adequate causation) and looks at the “fault” of the perpetrator.
• Apportionment of Liability (Joint and Several Liability): While the Majalla mandates either apportioning the damage in shares among perpetrators or assigning the entire bill to a single person (the Direct Actor) based on the principle of personal liability (Article 90), Swiss and Turkish Law (TBK Art. 61) hold all at-fault parties jointly and severally liable (müteselsil sorumluluk) to protect the victim.
• Fault in Bailment (Ta’addî): In Swiss Law, a person who exceeds the limits of a loan for use (Gebrauchsleihe) falls into the position of a “Usurper” (Gâsıp) under the Majalla, becoming strictly liable (Kausalhaftung) even for unexpected events/force majeure.

B. English Law (Common Law System)

• Novus Actus Interveniens: This is the exact equivalent of Majalla Article 90. When an independent and new actor intervenes in the chain of events, the “intervening new act” breaks the chain of causation of the initial tortfeasor.
• Innocent Agent: This perfectly mirrors the Mecelle’s “Es-sebebü ke’l-fâil” logic. If the intervening direct actor is an innocent agent who has been deceived, threatened, or lacks knowledge, the chain of causation is not broken, and the original indirect actor (mütesebbib) is held liable.
• Deviation and Bailment: In English law, exceeding the authorized use in a bailment contract (Deviation) instantly places the bailee in the status of an Insurer, triggering Strict Liability.

3. Reflections in International Trade and Islamic Law (Mecelle) Solutions

The Mecelle’s system of causation and fault provides flawless, predictable, and equitable resolution mechanisms when applied to modern international trade law (Lex Mercatoria) disputes.

Case 1: Deviation in Logistics and Maritime Transport

• Scenario: A commercial cargo (under bailment/trust status) sent from Türkiye to the UK is lost at sea when the ship’s captain unauthorizedly deviates from the contractual route for personal business and encounters an unforeseeable storm. The carrier argues, “I have no fault in the storm; it is a force majeure.”
• Solution According to the Mecelle: In this incident, the direct actor (mübâşir) that physically destroys the cargo is nature itself (the storm). However, by deliberately changing the route (ta’addî), the carrier (mütesebbib) exceeded the limits of preservation (hıfz), losing the status of a bailee and falling into the position of a tortfeasor/usurper. Since the carrier acted with intent/gross fault (Article 93), nature intervening as the direct actor does not sever the causal link. Under the principle of “Es-sebebü ke’l-fâil”, the carrier is obliged to compensate the full market value of the cargo.

Case 2: Concurrence of Direct and Indirect Actors in the Supply Chain

• Scenario: A German manufacturer produces a defective sensor for industrial machinery (Indirect Actor). An assembly plant in Türkiye integrates this sensor into the main machine, neglecting quality control procedures (Direct Actor). The machine explodes at the end-user’s facility, causing damage.
• Solution According to the Mecelle: Article 90 comes into play. The defective production is an indirect cause (tesebbüb), but the assembly plant in Türkiye, which integrates the part and has the final testing obligation, is the “Direct Actor” (mübâşir) that physically executes the act. The free will and quality control negligence (taksir) of the assembly plant act as a new intervening act, severing the causal link from the German manufacturer. The end-user collects the entire compensation from the Turkish company (mübâşir). The Turkish company may later file a recourse claim against the German company based on their purchasing contract, but tort liability rests with the direct actor.
• Modern Law and the Deep Pocket Theory Difference: In modern Western law, to protect the victim, the “Deep Pocket Theory” comes into play. The German manufacturer and the Turkish assembly firm can be held jointly and severally liable to allow the victim to reach the institutions with the highest payment capacity. The Mecelle, however, dictates that “the ruling is attributed to the direct actor”, imposing the bill directly on the mübâşir within the framework of the principle of personal liability.

Case 3: Customs Delays and Legal Permission (Article 91)

• Scenario: An international shipment is delayed for 2 weeks at the destination customs due to a legal inspection by state authorities. During this time, the refrigerated container malfunctions, and the food products spoil. The buyer sues the customs administration and the carrier for damages.
• Solution According to the Mecelle: Article 91 states; “Legal permission negates liability” (Cevaz-ı şer’î zamânı münâfîdir). The customs administration delayed the goods not arbitrarily, but in accordance with public order and the law (legal permission). Here, there is neither a will for direct action (mübâşeret) nor an unlawful indirect cause (mütesebbib). Liability cannot be imposed on the customs administration; the damage/risk rests on the party holding the property rights of the goods or the insurer (takaful).

Case 4: Port Loading Crane Accident and Employer’s Liability

• Scenario: Highly sensitive devices awaiting export are being loaded onto a ship by a crane operator at the port; the container slips from the crane’s hook, crashing to the ground and shattering. The operator claims, “I did not do it intentionally, the sling broke, I have no fault.”
• Solution According to the Mecelle (Article 92 – Principle of Personal Liability): The crane operator is the direct actor (mübâşir) because he physically moved the load via the crane mechanism and his act led to its fall. Under Article 92, “The direct actor is liable to make compensation, even if he did not act intentionally.” Even if the damage is the result of an accident, the strict liability principle requires the worker himself to pay the bill. The Majalla does not hold the port authority (the employer) directly liable.
• Solution According to Modern Law (TBK Art. 66 – Vicarious Liability): Protecting the victim is essential. The port authority is held “strictly liable” for the actions of its employee. The cargo owner collects the compensation from the giant port company. The port company then seeks recourse from the worker internally.

Case 5: Cyber Piracy, Defective API, and Leaving the Door Open (Article 90)

• Scenario: A software firm (Indirect Actor) installs a defective payment API containing a security vulnerability for an e-commerce site (Indirect Actor). A cyber pirate on the internet (Direct Actor) exploits this vulnerability, manipulates the system, and steals funds from customers’ accounts.
• Solution According to the Mecelle (Tort and Bailment Exception):
  • Roles: The Cyber Pirate who personally and with free will manipulates the system to steal the money is the Direct Actor (Mübâşir). The Software Firm that wrote the vulnerable code and the E-Commerce Company that integrated this code into its system—digitally “leaving the door open”—are the Indirect Actors (Mütesebbib).
  • Application of Article 90: Under Majalla Article 90, the ruling is attributed to the direct actor. Even though the software/company left the door open, it is the pirate who stole the money with free will. The primary addressee of the tort is the pirate.
  • Bailment (Vedî’a) and Negligence Exception: The security of the customers’ funds is a trust (emanet) in the hands of the e-commerce site. By using a defective API, the e-commerce site committed negligence (taksir) in its duty of preservation (hıfz). The customer collects their money from the e-commerce site for breaching the contract.
  • Recourse: After compensating the damage, the e-commerce site seeks recourse against the Software Firm, which caused the damage “intentionally” (müteammid) under Article 93 by writing defective and deficient code.

Case 6: Power Outage in Cold Chain Logistics (Article 92 vs. Article 93)

• Scenario: A medical drug container shipped from Türkiye is waiting at a customs warehouse; the warehouse attendant (Direct Actor) flips the breaker switch for cleaning purposes and forgets to turn it back on when finished. Concurrently, the technical service company (Indirect Actor), which failed to maintain the warehouse’s generators, has neglected its duty. The container warms up, and the drugs spoil.
• Solution According to the Mecelle: In this incident, the warehouse attendant who commits gross negligence by forgetting to turn the switch back on is the Direct Actor (Mübâşir). The technical service that failed to maintain the generator is the Indirect Actor (Mütesebbib) for causing the system to fail. Under Majalla Article 90, although the technical service is at fault, the warehouse attendant’s act of “forgetting to turn on the switch” (as a new act/negligence) severs the causal link. The ruling is attributed to the direct actor, and the liability to compensate falls squarely on the warehouse party that forgot the switch.