Delict

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Delict (from lat. to fail, commit a fault) is a term in civil law jurisdictions for some kind of legal wrong, but its meaning is very different from one jurisdiction to another. Aside from mixed common law systems such as Scotland, South Africa and Zimbabwe, delict is generally not a 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 Scottish 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 Deliktsrecht is a branch of civil law (similar to tort law). In French law, délit penal is an intentional wrong of intermediate seriousness (between contravention and crime), while délit civil, again, is a tort-like wrong.

Delict as a willful wrong – Scots law[edit]

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[edit]

By contrast, the civil law of German-speaking countries does not differentiate between delict and quasi-delict in the sense described above. Under German Deliktsrecht, referring to damages arising outside contract, claims to damages can arise from either intentional or negligent infliction of harm. Under § 823 BGB, damages can either be based on harm inflicted either on an object protected by law (Rechtsgut) such as life, health or property, or on the violation of a law protecting a certain legal interest.

However, § 826 BGB (and the similar Austrian § 1295 Abs 2 ABGB) compare closely to delict. Under this provision, someone who intentionally inflicts harm on another person in a way violating morality (gute Sitten) is liable for damages.

South Africa and Sri Lanka[edit]

South African law and Sri Lanka also uses 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 [1] states an intention to contract. (see Mal Kam-u-riwo dissertation page 12)

Public policy considerations are evident in the setting of the limits to each of the requirements. (see malvin kay journal article) vol 1 pg54

See also[edit]

References[edit]

  1. ^ "Legal definition of animus contrahendi". legal-glossary.org. Retrieved 2013-06-18. 
  • For more information on the Law of Delict in South Africa see Neethling et al.: Delict or McKerron: Delict.