Delict

Delict (from Latin dēlictum, past participle of dēlinquere ‘to be at fault, offend’) is a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another. Other civil wrongs include breach of contract and breach of trust. Liability is imposed on the basis of moral responsibility, i.e. a duty of care or to act, and fault (culpa) is the main element of liability. The term is used in mixed legal systems such as Scotland, South Africa, Louisiana and the Philippines, but tort is the equivalent legal term used in common law jurisdictions.

The exact meaning of delict varies between legal systems but it is always centred on the Roman law idea of wrongful conduct.

In Spanish law, delito is any breach of criminal law (similar to criminal offence). In Italian law, delitto penale is the same concept, but delitto civile, like delict in Scots law, is an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no contract between them, akin to common-law tort. German-speaking countries use the word Delikt to refer to criminality (similar to English deliquency), but unerlaubte Handlung is a delict while Deliktsrecht is a branch of civil law (similar to tort law). In French law, délit penal is a misdemeanor (between contravention ‘petty offence’ and crime ‘felony; major indictable offence’), while délit civil, again, is a tort. Because of this, French law prefers to speak in terms of responsabilité civile ‘delictual liability’.

Scots law: delict as a willful wrong

In the most narrowly construed sense, delict is a Latin word (delictum ‘offence, wrong’) and a legal term, which, in some civil law systems, signifies a willful wrong, similar to the common law concept of tort though differing in many substantive ways. The law of delicts in civil law countries is usually a general statute passed by the legislature whereas tort law in common law countries arises from case law. In addition, a delict is defined abstractly in terms of infringement of rights whereas in common law, there are many specific types of torts (English terminology).

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. When considering pursuing a claim under delict, in Scots law, there are three criteria that have to be met: firstly you have to establish that you were owed a duty of care, secondly you have to prove that that duty of care has been breached and lastly you have to show a causal link between the breach of care and the loss you have suffered.

German-speaking countries

By contrast, the civil law of German-speaking countries does not differentiate between delict (Delikt) and quasi-delict (Quasidelikt) as do French and Roman law. Under German Deliktsrecht, or ‘law of delict’, claims for damages can arise from either fault-based liability (Verschuldenshaftung), i.e. with intention (Vorsatz) or through negligence (Fahrlässigkeit), or strict liability (Gefährdungshaftung). Under § 823 BGB, damages can be based on harm inflicted either on an erga omnes right (absolute Rechtgut) such as life, bodily integrity, health, freedom and ownership, or on the violation of a law protecting a certain legal interest.

However, § 826 BGB (and the similar Austrian § 1295(2) ABGB) compare closely to delict. Under this provision, someone who intentionally inflicts harm on another person contra bonos mores (gegen die gute Sitten) is liable for damages. This widens the scope of delictual liability not just to the infringement of rights (as in French law) but also to pure economic loss (echter/reiner Vermögensschaden).[1]

South Africa and Sri Lanka

South African law and Sri Lanka also use the law of delict as opposed to torts. The South African common law elaborates a set of general principles in terms of which liability for loss is allocated. This should be seen in contrast to the Anglo-American common law approach which has distinct tort actions, each with their own peculiar elements which require satisfaction before an action is founded. The delictual elements that have to be satisfied before a claimant can be successful are:

  1. Conduct - which may consist of either a commission (positive action) or an omission (the failure to take required action), though liability for an omission will arise only where there is a duty to act.
  2. Wrongfulness - the conduct complained of must be legally reprehensible. This is usually assessed with reference to the legal convictions of the community.
  3. Fault - save in limited cases where liability is 'strict' (i.e. where neither intention nor negligence is required for liability) once the wrongfulness of the conduct is established, it is necessary to establish whether the person being sued acted intentionally or negligently, either of which is sufficient for liability to attach.
  4. Damage - finally the conduct must have resulted in some form of loss or harm to the claimant in order for them to have a claim. This damage can take the form of patrimonial loss (a reduction in a person's financial position, such as is the case where the claimant incurred medical expenses) or non-patrimonial damages (damages that cannot be related to a person's financial estate, but compensation for something like pain and suffering).
  5. Causation - the conduct that the claimant complains of must have caused damage, in this regard both factual causation and legal causation are assessed. The purpose of legal causation is to limit the scope of factual causation, if the consequence of the action is too remote to have been foreseen by an objective, reasonable person the defendant will escape liability.

It is possible that a single set of facts may give rise to both a contractual and a delictual claim. The definition of animus contrahendi[2] states an intention to contract.[3]

Public policy considerations are evident in the setting of the limits to each of the requirements.[4]

See also

References

  1. ↑ Cees van Dam, European Tort Law, 2nd edn. (Oxford: Oxford UP, 2013), 229.
  2. ↑ "Legal definition of animus contrahendi". legal-glossary.org. Retrieved 2013-06-18.
  3. ↑ Mal Kam-u-riwo dissertation, p. 12.
  4. ↑ malvin kay journal article, vol 1, p. 54.
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