Delict and tort
We have, so far, been referring rather indiscriminately to the notions of delict and tort. "Delict" (derived from "delinquere"—hence also the word "delinquent") is the civilian term generally used to designate a civil (as opposed to criminal) wrong.
Its common-law counterpart is "tort" which, in turn, has its etymological root in the Latin term "tortus", meaning "crooked" or "twisted".[4621] Delict and tort are functional equivalents, since both of them refer to certain wrongful acts which the law is prepared to redress, cither with a decree for restitution in kind[4622] or with an award of damages. But the approach adopted towards defining the scope and essence of such wrongful acts is entirely dissimilar.[4623] The continental law of delict presents the picture of a coherent body of rules based on general principles and abstract concepts; and though the inordinate amount of case law that can be found in any modern commentary on the topic[4624] considerably mars the neatness of this picture, the crisp provisions of the modern codes,[4625] still essentially shaping our ideas about delictual liability, are the result of a long and characteristic process of generalization, systematization and abstraction.[4626] Of prime importance, in this context, are the notions of causation, unlawfulness, fault and damages: they constitute the four essential features of the modern, actionable delict. Tort, by comparison,"is a bag of nuts and bolts. History can say how they came there, but science is pressed to rationalize their presence. It follows from the impossibility of discovering a highest common factor of contcntual quiddity that the common law should be said to know not tort but torts".[4627]
"Tort" does not constitute a coherent body of law, definable in general and abstract terms, but is no more than the sum total of a variety of individual torts that have developed, under the writ system, in characteristically casuistic and haphazard fashion.
Each of these specific torts is still regarded as an independent cause of liability, each has its own constituent elements, and each protects a special interest from being interfered with.[4628] That does not mean, however, that the English law of torts has become entirely petrified. For even though the courts do not approach the cases brought before them from the point of view of general requirements of tortious liability, but rather try to fit them into one of the existing pigeon-holes, they have never been reluctant to expand the scope of protection by adding yet another of these pigeon-holes:"(T]ortious liability is constantly expanding and there is ample evidence that a plaintiffs claim is not necessarily prejudiced because he is unable to find a specific label for the wrong of which he complains. New and innominate torts have been constantly emerging in the long course of our history and the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need of recognizing a new cause of action."4"
4.
More on the topic Delict and tort:
- In modern law a distinction is drawn between delict (or tort) and crime, or between the delictual (or tortious) and criminalaspects of an act.
- The subject called �obligations' is mostly about contract and delict. There are some other heads to be considered, but the right impression is given if we say that contract and delict between them occupy about ninety per cent of the ground.
- See Bauman, R. A., 'The Interface of Greek and Roman Law: Contract, Delict and Crime' (1996) 43 RIDA 3, 39-62 for an interesting discussion on delict and crime.
- II. DELICT AND QUASI-DELICT
- Delict and contract
- The Name of the Delict
- The Shape of the Delict
- Delict and crime
- DELICT AND THE FRENCH CODE
- 1. Causation in the Roman law of delict