Delict

Delict(fromLatindēlictum,past participleofdēlinquere‘to be at fault, offend’) is a term inciviland mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

InScotsand Roman Dutch law, it always refers to atort,which can be defined as acivil wrongconsisting of an intentional or negligent breach ofduty of carethat inflicts loss or harm and which triggerslegal liabilityfor the wrongdoer. Other civil wrongs includebreach of contractandbreach 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 similarly used in a handful of other English speaking jurisdictions which derive their private law from French or Spanish law, such asLouisianaand thePhilippines,buttortis the equivalent legal term used incommon lawjurisdictions and in general discussions of non-contractual liability.

InSpanish law,delitois any breach ofcriminal law,i.e. acriminal offence.InItalian law,delitto penaleis the same concept, butillecito civile extracontrattuale(ordelitto civile), like delict inScots law,is an intentional ornegligentact which gives rise to alegal obligationbetween parties even though there has been nocontractbetween them, akin to common-lawtort.German-speaking countries use the wordDeliktfor crime andunerlaubte Handlungfor delict, butDeliktsrechtis a branch ofcivil law(similar totort law). InFrench law,délit penalis amisdemeanor(betweencontravention‘petty offence’ andcrime‘felony; major indictable offence’), whiledélit civil,again, is a tort. Because of this, French law prefers to speak in terms ofresponsabilité civile(‘civil liability’). In thecanon law of the Catholic Church,a delict is a crime.

Scots law: delict as a willful wrong[edit]

In the most narrowly construed sense, delict is aLatinword (delictum‘offence, wrong’) and a legal term, which, in some civil law systems, signifiesa willful wrong,similar to thecommon lawconcept oftortthough differing in many substantive ways. The law of delict in civil law countries is usually a general statute passed by the legislature whereas tort law in common law countries arises fromcase law.In addition, a delict is defined abstractly in terms of infringement of rights whereas incommon law,there are many specific types oftorts(English terminology).

Delict deals with the righting of legal wrongs in civil law. In modern times much of the literature on delict, and most case law heard before the courts, deals with issues arising from negligence. Insofar as liability for negligent wrongdoing is concerned, the principle of liability is based on reparation fordamnum injuria,or loss caused by wrongful conduct. When considering pursuing such a claim, one must prove, in addition to the existence of some recognised form of loss, that three additional criteria have been met:firstlyone must demonstrate that the pursuer was owed a duty of care,secondlyone must prove that the defender breached this duty of care andlastlyone must show a causal link between the defender's breach of the duty of care and the loss complained of by the pursuer.

In addition to comprising rules pertaining to reparation for loss caused by negligent conduct, discussed above, the Scots law of delict is also concerned with affording remedy in cases which concern non-patrimonial injury, wilful interference with property rights and the commission of nominate delicts (such as, e.g., defamation). The rules for establishing liability in such cases differ from the 'duty of care' analysis discussed above, although the principles of reparation for property damage remain based on the general principle that reparation should be afforded where there has been loss caused by wrongful conduct. The requirements to establish liability for nominate delicts will depend on bespoke rules, while reparation for non-patrimonial injury (e.g., affront caused by intentional wrongdoing) is afforded in line with the principles of the Romanactio injuriarum.^[1]

German-speaking countries[edit]

By contrast, the civil law ofGerman-speaking countriesdoes not differentiate between delict (Delikt) and quasi-delict (Quasidelikt) as do French and Roman law. Under GermanDeliktsrecht,or ‘law of delict’, claims for damages can arise from either fault-based liability (Verschuldenshaftung), i.e. with intention (Vorsatz) or throughnegligence(Fahrlässigkeit), orstrict liability(Gefährdungshaftung). Under § 823BGB,damages can be based on harm inflicted either on anerga omnesright (absolute Rechtgut) such as life, bodily autonomy, 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 personcontra 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).^[2]

South Africa and Sri Lanka[edit]

South African lawandSri Lankaalso 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:

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.
Unlawfulness– the conduct complained of must be legally reprehensible. This is usually assessed with reference to the legal convictions of the community.
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.
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).
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 ofanimus contrahendi^[3]states an intention to contract.^[4]

Public policy considerations are evident in the setting of the limits to each of the requirements.^[5]

Canon law[edit]

In theCanon law of the Catholic Church,a delict is the canonical equivalent of a crime. A delict is distinct from a sin, even a mortal sin. One can be legally guilty of a delict and not be morally culpable for a sin, while one can be culpable for a sin and not legally guilty of a delict.

References[edit]

^Stevens v Yorkhill NHS Trust2006 889, at para.63
^Cees van Dam,European Tort Law,2nd edn. (Oxford: Oxford UP, 2013), 229.
^"Legal definition of animus contrahendi".legal-glossary.org.Retrieved2013-06-18.
^Mal Kam-u-riwo dissertation, p. 12.
^malvin kay journal article, vol 1, p. 54.