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Delict 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.

Contents 1 Delict as a Willful Wrong 2 German speaking countries 3 South Africa 4 Chile 5 References

[edit] Delict as a Willful 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 infringement of rights whereas in common law, there are many specific types of torts.

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 criterion that has 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.

[edit] 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.

[edit] South Africa

The South African Legal System also uses the law of delicts as opposed to torts. The Law of Delict is recognised as consisting of five generic elements that have to be satisfied before a claimant can be successful. They are:

1. Conduct - which may consist of either a commission (positive action) or an omission (the failure to take required action).
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 - once the wrongfulness of the conduct is established, it is necessary to establish whether or not it is blameworthy.
4. 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.
5. 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.)

Ths is identified more clearly in the Latin maxim, Damnum Injuria Datum. There must be a loss (damnum) and there must be wrong doing (injuria) and there must finally be a link, causation (datum) between the two. If it cannot be shown that the wrongful act of one resulted in or contributed to the loss of the other than there can not be a case of delict.

[edit] Chile

In recent years the delicts commited by Mapuche activists have been prosecuted under counter-terrorism legislation originally introduced by the military dictatorship of Augusto Pinochet. The law allows prosecutors to withhold evidence from the defense for up to six months and to conceal the identity of witnesses, who may give evidence in court behind screens. There are several violent activist groups, such as the Coordinadora Arauco Malleco, which utilize tactics including burning of structures and pastures, and death threats against people and their families. Protesters from Mapuche communities have used these tactics against multinational forestry corporations and private individuals.^[1]

[edit] References

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