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Delict (fromLatindēlictum,past participle ofdēlinquere ‘to be at fault, offend’) is a term incivil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.
InScots and Roman Dutch law, it always refers to atort, which can be defined as acivil wrong consisting of an intentional or negligent breach ofduty of care that inflicts loss or harm and which triggerslegal liability for the wrongdoer. Other civil wrongs includebreach of contract andbreach 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 asLouisiana and thePhilippines, buttort is the equivalent legal term used incommon law jurisdictions and in general discussions of non-contractual liability.
InSpanish law,delito is any breach ofcriminal law, i.e. acriminal offence. InItalian law,delitto penale is the same concept, butillecito civile extracontrattuale (ordelitto civile), like delict inScots law, is an intentional ornegligent act which gives rise to alegal obligation between parties even though there has been nocontract between them, akin to common-lawtort. German-speaking countries use the wordDelikt for crime andunerlaubte Handlung for delict, butDeliktsrecht is a branch ofcivil law (similar totort law). InFrench law,délit penal is 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.
In the most narrowly construed sense, delict is aLatin word (delictum ‘offence, wrong’) and a legal term, which, in some civil law systems, signifiesa willful wrong, similar to thecommon law concept oftort though 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:firstly one must demonstrate that the pursuer was owed a duty of care,secondly one must prove that the defender breached this duty of care andlastly one 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]
By contrast, the civil law ofGerman-speaking countries does 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 omnes right (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 African law andSri 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:
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]
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.
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