is a concept of civil law
in which a willful wrong or an act of negligence gives rise to a legal obligation between parties even though there has been no contract between the parties. Due to the large number of civil law systems in the world, it is hard to state any generalities about the concept.
Delict as a Wilful Wrong
In the most narrowly construed sense, delict is a Latin
word and a legal term, which, in some civil law systems, signifies a wilful 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 infringment of rights whereas in common law
, there are many specific types of torts
It is to be differentiated from quasi-delict which is an unintentional wrong, similar though differing from the common law concept of negligence. The term is found particularly in Scots Law.
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.
The South African Legal System
also uses the law of delicts as opposed to torts. The Law of Delict is recognised as comprising of five generic elements that have to be satisfied before a claimant can be successful. They are:
- Conduct - which may consist of either a commission (positive action) or an omission (the failure to take required action).
- Wrongfulness - the conduct complained of must be legally reprehensible. This is usually assessed with reference to the legal convictions of the community.
- Fault - once the wrongfulness of the conduct is established, it is necessary to establish whether or not it is blameworthy.
- 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.
- 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.)
Scots Law of Delict
- For more information on the Law of Delict in South Africa see Neethling et al: Delict or McKerron: Delict.