GENERAL

As a first step in the comparison of the English tort and the Roman delict it is reasonable to describe the two institutions, i.e. to provide answers to the questions: What is a tort? What is a delict? But this is a difficult business. Common lawyers are not yet clear on the question whether there is a general conception of tort and still endeavour to frame their definition after examining all the phenomena known to be torts and searching for a quality common to these and not found elsewhere. The result is not as yet very satisfying. That it is a breach of a duty primarily fixed by law, that it is a breach of a ius in rem, that it is a wrong which can be brought within the purview of certain ancient writs, all these have been maintained and rejected.

The procedural difficulty in defining tort, namely, the fact that there are certain wrongs remediable elsewhere than in common law jurisdictions and otherwise than by an action in tort, need not detain us, for it did not arise in Roman law. But there is a difficulty or apparent difficulty of substance which requires a few words. Sir Percy Winfield tells us that he has reluctantly abandoned the definition of a tort as ‘a civil wrong which infringes a right in rem and is remediable by an action for damages’, and that his substantial reasons for doing so are that there are some torts which are not breaches of iura in rem, and that the definition ‘will not include some wrongs which are, or ought to be, reckoned as torts, but which are breaches of rights in personam’.