DELICTUM - The Law Mind Legal Dictionary

DELICTUMAuthored

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Definition

A Latin term from Roman law meaning a wrong, offense, or tort — an act (or omission) that violates a legal duty and gives rise to civil liability, criminal punishment, or both. In legal usage, delictum carries two related but distinct senses:

1. A civil wrong or tort. In this sense, delictum denotes conduct that injures another person and creates a private right of action. Roman law classified certain wrongs as delicta (plural) — sources of obligation enforceable by private suit, as distinguished from obligations arising from contract (ex contractu). Actions founded on such wrongs are called actions ex delicto.

2. Fault, culpability, or legal blameworthiness. In this sense, the term appears not as the name of an independent cause of action but as a measure of moral and legal responsibility — particularly in the maxim in pari delicto potior est conditio defendentis (or possidentis): where both parties are equally at fault, the position of the defendant, or the party in possession, is the stronger.

Common Confusion

Delictum is frequently used interchangeably with tort in modern legal writing, but the two are not synonymous. Tort is the common-law concept; delictum is the Roman and civil-law counterpart. The categories do not map perfectly. Roman delicta were a specific, enumerated class of civil wrongs — theft (furtum), robbery (rapina), damage to property (damnum injuria datum), and insult (injuria) being the principal four — whereas the common law of torts developed through a far more open-ended, case-by-case process. Using the terms as exact equivalents can mislead researchers working across civil-law and common-law sources.

Delictum should also be distinguished from crimen (a public wrong prosecuted by the state) and from quasi-delictum (a wrong giving rise to liability on grounds analogous to delict but without the element of intentional fault). The boundaries among these categories mattered significantly in Roman law and carry forward into civil-law jurisdictions.

Recognized Forms

/SUBTYPES

Roman jurisprudence recognized several categories within and around delictum:

- Delicta proprie dicta (delicts properly so called): the four classical private wrongs — furtum, rapina, damnum injuria datum, and injuria.
- Quasi-delicta: wrongs for which liability attached without clear intentional fault, on grounds of strict or presumed responsibility. Black's Law Dictionary (2nd ed.) identifies four recognized quasi-delicts, including the judge who made the suit his own (qui judex litem suam fecit) and the occupier of a building from which something was thrown or poured onto a public way (dejectum effusumve aliquid).
- Public delicta (delicta publica): wrongs sufficiently serious to attract state prosecution, overlapping with what later law called crimes.

Why It Matters in Research

Researchers encounter delictum in three distinct contexts, each with different implications:

First, in maxim research. The term appears most frequently in Anglo-American sources through the in pari delicto maxim, which survived the reception of Roman law into equity and remains a recognized defense in modern contract and restitution cases. When tracing the maxim across historical sources, note that pari delicto and the underlying concept of comparative fault appear in different forms across centuries — Black's, Burrill's, and Bouvier's each treat it under separate headings, and cross-referencing those entries is essential.

Second, in civil-law and mixed-jurisdiction research. Delictum is a live operative term, not a historical curiosity, in civil-law systems and in jurisdictions with mixed legal heritage (Louisiana, Quebec, Scotland, South Africa). Sources written for common-law audiences often understate this. When a historical treatise or digest uses delictum, determining whether the author is working from Roman sources, a civil-law tradition, or merely deploying classical vocabulary in a common-law context is essential to accurate interpretation.

Third, in pleading history. The distinction between actions ex delicto and actions ex contractu shaped the forms of action and influenced pleading rules well into the nineteenth century. Historical sources treating assumpsit, trover, case, or trespass will use ex delicto as a categorizing term; understanding what it includes (and excludes) is necessary to reading those sources accurately.

A practical trap: historical dictionaries sometimes define delictum as equivalent to crime or offense without clarifying that the term's primary Roman-law meaning is civil, not criminal. Burrill's is the most careful on this point, expressly noting the violation of either natural or positive law. Rapalje & Lawrence and Black's (1st ed.) treat the criminal sense more prominently, which can skew a researcher's understanding if those are the only sources consulted.

Historical Dictionary Support

The historical dictionaries converge on the core definition — a wrong, offense, or tort — but differ in emphasis and depth.

Burrill's Law Dictionary provides the fullest treatment, tracing the term through its Latin root (delinquere, to offend or transgress), distinguishing violations of natural versus positive law, and illustrating usage with the Magna Carta-derived principle that a freeman shall not be amerced except in proportion to the measure of his offense. This entry is the most useful for researchers working with medieval and early modern sources.

Black's Law Dictionary (1st ed.) gives a compact, practically oriented entry that emphasizes the maxim in pari delicto and the procedural context — specifically the challenge of a juror propter delictum (on account of crime or misdemeanor affecting competency). This reflects the term's most common appearance in nineteenth-century American practice materials.

Black's Law Dictionary (2nd ed.) adds the most substantive content on quasi-delicta, enumerating the four Roman categories with enough detail to be useful for civil-law research, though the entry is embedded in a larger discussion rather than standing alone as a primary definition.

Rapalje & Lawrence briefly equates delictum with crime, offense, tort, and fault, and cross-references the challenge context — useful for quick orientation but thin on analytical content.

Anderson's Dictionary of Law and Bouvier's, as reflected in the available excerpts, do not contribute meaningfully to the delictum entry itself; the Anderson passage concerns agency delegation, and the Bouvier excerpt addresses in pari materia rather than in pari delicto. Researchers should not rely on those sources for this term.

Jurisdictional Note

In civil-law jurisdictions and mixed systems, delictum (or its vernacular equivalents — délit in French, delito in Spanish and Portuguese) remains the foundation of non-contractual liability law. The Louisiana Civil Code, for example, uses delictual liability as a formal category. Common-law researchers using sources that span both traditions should be alert to the fact that the term carries significantly more operative weight outside the Anglo-American common-law world.

DELICTUMmain

Black's Law Dictionary • 1891

Lat. A delict, tort, wrong, Actions ex delicto are injury, or offense. such as are founded on a tort, as distinguished H from actions on contract. Culpability, blameworthiness, or legal de- The word occurs in this sense in linquency. the maxim, "In pari delicto melior est con- ditio defendentis," (which see.) A challenge of a juror propter delictum is for some crime or misdemeanor that affects his credit and renders him infamous. 3 Bl. Comm. 363; 2 Kent, Comm. 241.

DELICTUMmain

Rapalje & Lawrence • 1888

-A crime or offence; a tort DELEGARE.-A person to whom a or wrong; guilt or fault. See CHALLENGE, 3; power, trust or authority is given to act on behalf or for the benefit of another, cannot delegate it-i. e. he cannot put another person in his place-unless he is authorized to do so. (See SUBSTITUTE.) The rule applies especially to persons acting under powers of attorney, to directors of companies, and to trustees, executors, &c. It must not, however, be understood of merely ministerial acts, which do not involve the exercise of discretion, and which the delegatus cannot reasonably be expected to perform himself. Therefore a trustee may employ a banker, steward or agent to receive or pay money or the like. Lewin Trusts 224. See AGENCY, 1. DELETERIOUS OR POISONOUS, (necessary in indictment for poisoning). 4 Car. & P. 571. DELF.-A quarry or mine. 31 Eliz. c. 7. Deliberandum est diu quod statuendum est semel (12 Co. 74): That which is to be resolved once for all, should be long deliberated upon.

DELICTUMmain

Anderson's Dictionary of Law • 1890

do the act authorized. But when it is not so extended it is limited to the person named. See DEPUTY. The utmost relaxation of the rule, in respect to mercantile persons, is, that a consignee or agent for the sale of merchandise may employ a broker, or a sub-agent, for the purpose, when such is the usual course of business.2 When the principal recognizes the validity of the services rendered by the subordinate of the appointed agent he cannot repudiate the acts of his employee and escape personal liability for the want of authority to employ him. Judicial power cannot be delegated. Nor can a legislature delegate its power to any commission or body except as to the functions of local self-government conferred upon municipal corporations, q. v.; and as to some matters of police regulation which the people of a locality may be permitted to accept or reject by vote, as, for example, local option laws. See OPTION, Local. L. A wrong, whether private or public: an offense, a civil injury or tort, a crime; also, simply a failing or fault, blame, guilt, culpability.6 Corpus delicto. The body of the offense; the fact of a crime. See further CORPUS, Delicti. Ex delicto. Out of fault or a fault; arising from a tort or wrong - misconduct, negligence, crime. Said of the actions of case, replevin, trespass, and trover. Opposed, ex contractu. See ACTION, 2. Flagrante delicto. The offense still burning; in the heat of the offense: in the very act of perpetrating a crime or the crime. Compare CRIMEN, Flagrans. 1 Summerman v. State, 14 Neb. 569 (1883), Lake, C. J.; Wharton, Homicide, 180. 2 Craft v. State, 3 Kan. 483 (1866), Crozier, C. J. 3 Keenan v. Commonwealth, 44 Pa. 57 (1862), Lowrie, Cooley, Const. Lim. 124, cases. See also CommonC. J. See 71 Mo. 220; 74 id. 219, 249, 256; 76 id. 104; 23 wealth v. Smith, 141 Mass. 140 (1886). Ind. 262. See generally 21 Am. Law Rev. 936-54 (1887), cases; 26 id. 74-94 (1888), cases. Smith, Contr. 14; Williams, R. P. 143. Addison, Torts, 765. • State v. Boyle, 28 Iowa, 524 (1870), Beck, J. • Commonwealth v. Drum, 58 Pa. 16 (1868), Agnew, J. • [Bouvier's Law Dict. From de-linquere, to leave a person or thing; then, to be wanting in a matter, fail in duty, offend, transgress. Compare MALUS, Malum. • See 3 Bl. Com. 363; 1 Kent, 552; 2 id. 241. See 4 Bl. Com. 307; 5 Cent. Law J. 380. 1 Barnes v. District of Columbia, 91 U. S. 551 (1875), cases; Weightman v. Corporation of Washington, 1 Black, 50 (1861). 2 City of Lafayette v. Timberlake, 88 Ind. 331 (1882), cases; Robinson v. City of Evansville, 87 id. 334 (1882), cases. 3 Urquhart v. City of Ogdensburg, 91 N. Y. 71 (1883), cases. 4 Wixon v. City of Newport, 13 R. I. 458-59 (1881), cases. Hart v. United States, 95 U. S. 318 (1877), cases. • Robertson v. Sichel, 127 U. S. 515 (1888), cases. Held, that the plaintiff, a collector of customs, was not personally liable for the negligence of a subordinate in leaving a trunk on a pier, where it was destroyed by fire: there being no evidence connecting plaintiff with the negligence, or that the subordinate was not competent. * Sherlock v. Alling, 93 U. S. 108 (1876). On assigning actions for torts, see 24 Am. Law Reg. 730-34 (1885), cases.

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