Rather than adhere to the common law of tort, civil law jurisdictions sustain a unique response to unlawful and intentional harm caused by others, which it calls a delict (in French, the term is délit); all directly from the Roman law concept of delict, one of the two great varieties of obligations (the other, contract).
Later, in Justinian's Institutes, Roman law added a further distinction, the quasi-delict.
In his 1761 book on Le Traité des Obligations, Robert-Joseph Pothier defined a delict as:
"... the act of a person, by fault or maliciously, which harms or otherwise causes damage to another."
In reference to an English term for délit, some civil law jurisdictions prefer wrong (France) or offence (Québec). It is no coincidence that the common law word tort is derived from the French tort, which means a wrong.
Civil law systems distinguish between civil law delicts and criminal law delicts (such as, for example, an assault or battery). The civil law also, generally, provides for civil liability for delicts caused (1) by oneself, (2) by the actions of others under one's supervison, or (3) by animals or other things under a person's control.
Further, the civil law distiguishes between delicts and quasi-delicts which are the rough equivalents of the common law's intentional tort and those arising from a person's negligence.
Delicts, in the civil law, and as categorized in Roman law, is one of the two branches of the law of obligations; the other being contracts.
The 1804 Civil Code of France defined a delict at §1382, §1383 and §1384 as:
"Everyone is liable for the damage he causes not ony by his acts, but also by his negligence or imprudence (and) ... also for that causes by the acts of persons for whom he is responsible or of things that he has under his guard."
The official English language version of the 2009 Civil Code of France, §1382-1384:
"Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.
"Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.
"A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.... "
The 1990 Civil Code of Germany:
"A person who, wilfully or negligently, unlawfully injures the life, body, health, reedom, property or other right of another is bound to compensate him for any damage arising therefrom."
The key section of the Quebec Civil Code in regards to civil liability (responsabilité civile) is at §1457:
"Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
"Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
"He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody."
Thus, for there to be the equivalent of civil liability in civil law, under §1457 of the Quebec Civil Code, there has to be:
Fault but which, in Quebec can be understood as arising from the breach of a duty imposed by law.... Allegedly wrongful conduct will crystallize into a fault where it falls short of the conduct expected of a normaly prudent and reasonable person acting under identical circumstance;1
Causation; "sufficient casual connection between the fault and the harm or loss caused"1; and
A defendant "endowed with reason" (i.e. not mentally disabled).
- Buckland, W. and McNair, A., Roman Law and Common Law (Cambridge: University Press, 1965), page 193.
- Civil Code of Quebec, published at canlii.org/qc/laws/sta/ccq/index.html
- Duhaime, Lloyd, Legal Definition of Quasi-Delict
- 1Linden, A., Canadian Tort Law (Toronto: Butterworths, 2001), p.736 and 739.
- Mehren, A. and Gordley, J., The Civil Law System (Boston: Little, Brown and Company, 1977), pages 555.
- Pothier, Robert-Joseph, Le Traité des Obligations, Paris, 1761(" ... On appelle délit, le fait par lequel une personne, par dol ou malignité, cause du dommage ou quelque tort à un autre.").