In law, a delict is a civil wrong in legal systems derived from Roman law, roughly equivalent to what common law countries call a tort. The word comes from the Latin delictum, meaning a wrongful act that causes harm to another person or their interests. When someone’s wrongful conduct injures you, your body, your property, your reputation, or your finances, delict is the branch of private law that lets you claim compensation, even if you and the wrongdoer had no contract between you.
The term is standard in Scotland, South Africa, France, Germany, and much of continental Europe and Latin America. If you encounter it in a legal text, it almost always points to the same basic situation: fault, harm, and a claim for redress.
Delict and Tort Are Close Cousins
Delict and tort cover essentially the same ground, but the two traditions approach the problem from opposite directions. Civil law systems build on a broad general principle: if your fault causes someone harm, you owe them compensation. France’s Civil Code captures this in a single sentence, stating that any act that causes damage to another obliges the person at fault to make it right. Germany’s Civil Code similarly imposes liability on anyone who intentionally or negligently injures another person’s life, body, health, freedom, property, or other protected rights.
Common law tort systems developed differently, as a collection of specific, named wrongs: trespass, battery, assault, false imprisonment, nuisance, defamation, negligence. Each evolved with its own rules. Over the twentieth century that gap narrowed, especially after English law recognized a general duty of care in negligence in the 1932 case Donoghue v. Stevenson. The structural difference still matters, though. Civil law starts from the general and carves out exceptions; common law builds from the specific and gradually generalizes.
Scotland sits between the two. Scots law uses “delict” rather than “tort” and takes a general approach that can accommodate new types of civil wrongs as society changes. If you’re reading a Scottish legal text and see delict, think tort and you’ll be in the right neighborhood.
Where Delict Law Applies
Delict is the standard framework for civil wrongs across most of continental Europe, much of Africa, parts of Asia, and Latin America. The concept traces back to Roman law, which classified private wrongs as delicta and created structured remedies for victims. When European scholars revived the Roman legal tradition after roughly 1100 CE, it became the foundation for the civil codes that now govern most of the world’s legal systems.
Some of the most developed delict systems today include:
- France, where Article 1240 of the Civil Code (formerly Article 1382) establishes a sweeping general principle of fault-based liability that has influenced dozens of other civil codes worldwide.
- Germany, where sections 823 through 826 of the Civil Code (BGB) list specific protected interests like life, bodily integrity, health, freedom, and property, with a catch-all for breaches of protective statutes.
- South Africa, with one of the most thoroughly developed delict systems, drawing on Roman-Dutch law with detailed rules for different categories of harm.
- Scotland, with a general approach rooted in the principle of damnum injuria datum (loss caused by a legal wrong).
Some systems also distinguish between delict and quasi-delict. In traditions influenced by Roman law, a quasi-delict typically refers to harm caused by fault or negligence where no pre-existing contractual relationship exists between the parties. The distinction matters less in practice than it once did, but you may still see the term in older texts or in certain civil code provisions.
What a Claimant Must Prove
Specifics vary between countries, but most delict systems require the same core elements. South African law provides the clearest framework, with five elements that must all be established before liability attaches. Other civil law systems use similar building blocks even if they organize or label them differently.
Conduct
The person must have done something, or failed to do something they were legally required to do. The conduct must be voluntary. An involuntary physical movement, like a reflex or an act performed while unconscious, doesn’t count. Both positive acts (hitting someone) and omissions (failing to warn of a known danger when you had a duty to do so) can qualify.
Wrongfulness
The conduct must have infringed on a legally recognized interest without justification. Courts typically ask two questions: did the conduct interfere with a protected interest, such as someone’s bodily safety, property, or dignity, and was that interference unreasonable or unlawful? If the answer to both is yes, the conduct is wrongful. Recognized justifications, discussed below, can negate wrongfulness entirely.
Fault
The person must be personally blameworthy. Fault comes in two forms. The first is intent (dolus), where someone deliberately causes harm or acts knowing harm is substantially certain to result. The second is negligence (culpa), where someone fails to exercise reasonable care. Civil law systems traditionally measure this against the standard of the bonus paterfamilias, a reasonable, diligent person in the same circumstances. The standard is functionally identical to the common law “reasonable person” test.
Causation
The wrongful conduct must have actually caused the harm. Most systems apply two tests. Factual causation asks whether the harm would have occurred without the conduct, the familiar but-for test. Legal causation then asks whether the connection between conduct and harm is close enough to fairly hold the person responsible. A car accident caused by a speeding driver has a clear causal link. A business that fails ten years later because its owner was distracted by injuries from that same accident has a much weaker one. Legal causation prevents liability from stretching to consequences that are too remote or unforeseeable.
Damage
The claimant must have suffered actual harm. Without real loss or injury there is no delictual claim, no matter how wrongful the conduct. Damage can be patrimonial (financial losses with a number attached, like medical bills or lost income) or non-patrimonial (pain, emotional distress, or injury to dignity). Both types are recoverable, through different mechanisms.
Types of Delictual Claims
Systems that trace their lineage to Roman-Dutch law classify claims by the type of interest harmed. Two main categories have roots stretching back to Roman remedies.
The Aquilian Action
Named after the ancient Roman Lex Aquilia, this is the primary vehicle for recovering patrimonial loss. If someone’s wrongful conduct reduces your estate, destroys your property, or costs you money, the Aquilian action is how you seek compensation. The goal is restoration: putting you back in the financial position you would have been in had the wrong never occurred. The claimant must show that the loss is measurable in monetary terms, that the defendant’s conduct was wrongful, and that the defendant acted with either intent or negligence.
The Actio Iniuriarum
This action protects personality interests rather than financial ones. The Roman jurist Ulpian identified three core interests it guards: corpus (the body), fama (reputation), and dignitas (dignity). In modern usage, dignitas has become an expansive category covering a person’s right to be treated with basic respect. Assault, public humiliation, and invasion of privacy all fall here. Because the harm is to your person rather than your finances, damages are assessed differently. Courts evaluate both the objective severity of the infringement and its subjective impact on the particular claimant.
Some jurisdictions also recognize a third category, the action for pain and suffering. In systems influenced by French law the classification is less rigid, because the general principle in the Civil Code is broad enough to cover all types of harm without the claimant having to pick a specific Roman action.
Defenses That Can Defeat a Claim
A defendant doesn’t have to prove they did nothing. They can acknowledge the conduct but argue it was justified, which negates the wrongfulness element. Recognized defenses include:
- Self-defense: force used to protect yourself from an imminent threat, provided the response was proportionate to the danger.
- Necessity: acting to prevent a greater harm, even if the action would normally be wrongful. Swerving onto someone’s lawn to avoid hitting a pedestrian is the classic example.
- Consent: if the injured person voluntarily agreed to the risk of harm, the defendant’s conduct may not be wrongful. This applies in contact sports or medical procedures where the patient gave informed consent. Consent can be express or implied by conduct.
- Statutory authority: acting under a legal duty or authorization that permits the otherwise wrongful conduct, such as a police officer making a lawful arrest.
- Defense of property: reasonable force used to prevent intrusion on or damage to your property, though the permissible level of force is typically lower than in self-defense.
The claimant’s own conduct also matters. If the injured person was partly responsible for their own harm, most civil law systems reduce the damages proportionally rather than barring recovery entirely. A pedestrian who jaywalks and is hit by a speeding driver might bear 20 percent of the fault and recover only 80 percent of their losses. The approach is similar to comparative negligence in common law systems.
Liability Without Personal Fault
Not every delictual claim requires that the defendant personally be at fault. Two doctrines extend responsibility beyond the person who directly caused the harm.
Vicarious liability holds one person responsible for the wrongful acts of another, most commonly an employer for the conduct of an employee. Under respondeat superior (“let the master answer”), an employer can be liable for harm caused by an employee acting within the scope of their employment. Employers profit from their employees’ activities and are better positioned to absorb and distribute the costs of accidents those activities produce. The critical question is whether the employee was doing something connected to their job duties when the harm occurred. An employee running a work errand who causes a car accident creates vicarious liability. The same employee causing an accident on a personal detour likely does not.
Strict liability imposes responsibility regardless of fault. In most delict systems it applies in limited situations involving unusually dangerous activities or relationships: keeping wild or dangerous animals, operating inherently hazardous enterprises, and manufacturing defective products are the common triggers. Some activities create risks so significant that the person who profits from them should bear the costs when things go wrong, even if they took every reasonable precaution. Strict liability is an exception to the general rule, not the default. Most delictual claims still require proof of fault.
What a Successful Claimant Can Recover
The primary remedy in delict is compensation through damages, aimed at restoring the injured person as closely as possible to their position before the harm occurred. Damages fall into two broad categories.
Patrimonial damages (sometimes called special damages) cover quantifiable financial losses: medical expenses, lost earnings, repair costs, and other out-of-pocket expenditures. These are calculated from actual evidence such as bills, pay stubs, repair estimates, and expert projections of future losses. The claimant must prove each item with reasonable certainty.
Non-patrimonial damages (general damages) compensate for harm that doesn’t carry a price tag: pain and suffering, emotional distress, loss of enjoyment of life, and injury to dignity. There is no formula. Judges typically consider the severity and duration of the injury, the claimant’s age and circumstances, and comparable awards in similar cases.
Beyond money damages, courts in most delict systems can issue an interdict, the civil law equivalent of an injunction, ordering a person to stop ongoing wrongful conduct or to refrain from future harmful acts. The remedy is particularly useful when the harm is continuing, like a neighbor whose construction work keeps damaging your property, and money alone won’t solve the problem.