Delict
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Delict (from
In
In
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 delict 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. 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 for damnum 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 and lastly 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 Roman actio injuriarum.[1]
German-speaking countries
By contrast, the civil law of
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).[2]
South Africa and Sri Lanka
- 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 of animus 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
In the Canon 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.
See also
- Delictum gravius
- Quasi-delict
References
Further reading
- For more information on the Law of Delict in South Africa, see Neethling et al.: Delict or McKerron: Delict.
- Joe Sampson. The Historical Foundations of Grotius’ Analysis of Delict. Leiden/Boston: Brill Nijhoff, 2018.