Delict

In civil law, a delict is an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no contract between them. Due to the large number of civil law systems in the world, it is hard to state any generalities about the concept. Moreover in some civil law countries (e.g.: Italy, Spain etc.) delicts are most serious crimes, similar to felonies in common law countries, whereas in other states (e.g.: France, Belgium, Switzerland etc.), they are crimes of intermediate seriousness (less serious than those termed crimes).

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 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

The South African Legal System 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.

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

References

• For more information on the Law of Delict in South Africa see Neethling et al.: Delict or McKerron: Delict.