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separately.52 1. Where liability is due to fault. 2. Where the court imposes liability notwithstanding the absence of fault. 58
System 2. Retain Torts as one of the general titles of the law. But include under it only cases where liability is due to fault.
Use Absolute Liability as a distinct title, not as describing a mere division or class under Torts. Under Absolute Liability include (inter alia) cases heretofore usually classed under Torts but in which there was no fault.
System 3. Reject altogether the term Tort as a general title in the law.54
Substitute the term General Rights, or Actionable Violations of General Right. 56
The phrase General Rights might be understood as including all rights which inhere in the community generally, whether such rights are available against all the world or only against certain determinate persons.
Divide Actionable Violations of General Rights into two classes:
52 In the Introduction to HEPBURN, CASES ON TORTS, 21, 22, the learned editor divides Torts into two classes:
(1) "Torts through Acts of Absolute Liability."
(2) includes “Torts through Negligence and Torts through Acts of Intentional Harm."
63 Under System 1, how should we define Tort - how state the essential requisites to an action of tort?
The definition would have to be in an alternative form, substantially as follows:
There must be the infliction of damage on the plaintiff by reason of the conduct of the defendant.
Either (1) where defendant's conduct is culpable (other than a mere breach of contract),
Or (2) in exceptional cases where, although defendant's conduct is non-culpable, yet there are especial reasons of policy for imposing on defendant absolute liability for the results of his conduct.
We have previously said that, according to the common definition of tort, the 'damage” must be of a kind recoverable in a court of common law jurisdiction; and that in some cases the law will allow an action for infringement of right' without actual pecuniary loss.
. . proscribe, expel, and banish the obnoxious term 'Tort,' as the title of the subject.” Preface to 1 WIGMORE, SELECT CASES ON TORTs, vii.
55 “Names enough could be found. Let us agree for the moment on 'General Rights. WIGMORE, ubi supra.
66 See ante, 252.
1. Where there is fault. 2. Where the court imposes liability notwithstanding the absence of fault.
As to the comparative advantages and disadvantages of the three different systems just suggested.
As to System 1. The two distinct classes are both placed where lawyers are now likely to look for them, viz., under the general head of Torts. Using System i does not require so radical or general a rewriting of existing textbooks as might be found desirable under System 2 or 3. It closely resembles, in substance, the classification of Mr. Salmond. 57
Per contra: The term Torts, when used to include Class 2 (under System I), is a misnomer, and such use requires elaborate explanation. It gives the word Torts a meaning in law different from (indeed exactly contrary to) its meaning in popular speech.
As to System 2. This system corresponds more nearly with facts: it does not use the word Torts in any extraordinary or strained meaning But it might require a practitioner (when looking up the law of his case) to examine two treatises instead of one as heretofore; or, at least, to look into two different parts of a textbook to find what heretofore was contained in one part. It would render advisable much rewriting and rearrangement of existing textbooks, if, indeed, it did not require the preparation of two separate books where only one was used hitherto.
As to System 3. By discarding altogether the term Torts we get rid of the troublesome question whether that term, if it were retained, should be used as a general title with its former wide scope, or whether it should be used as a limited title describing only a particular class. This system substitutes for Torts the phrase General Rights, which, though not a new term in law, is comparatively new, in this connection, as a leading title. Hence many practitioners might not understand what was here covered by this term, and might not look under this title to find the law of their case. System 3 may be thought more logical and clear-cut than System 1 or 2. But a long time might be required for the profession to get accustomed to the term (as a substitute for Torts), and there might be much confusion ad interim.
67 TORTS, 1 ed., Ch. 1, 88 2, 3.
What advantage from adopting any one of the three systems, even System 1, the least radical, of the suggested changes?
Even System i would
(a) necessitate a more thorough examination of the essence of fault (i. e., in the legal sense);
and (b) a more thorough examination of the reasons, the expediency, of sometimes adopting (imposing in certain cases), the stringent rule of absolute liability.
Neither of these inquiries, neither a nor b, have yet been subjected to such a searching examination or analysis as their importance demands.
The probable result of close investigation would be: (1) to transfer some cases some states of fact — from the class of absolute liability to the class of cases where liability must be founded on fault; and (2) to allow immunity in some cases, where liability has heretofore been imposed.
Systems 2 and 3 would have the additional recommendation of using legal terms more nearly in accord with the meaning affixed to those terms in ordinary speech. This is desirable wherever practicable. The old law used tort in a sense quite different from its meaning in ordinary speech on non-legal topics. System I still uses the word tort, as a general title, in a manner open to this objection. The subdivision of System i into classes removes to some extent, this objection; but that subdivision is, semble, inconsistent with the use of tort as a general title under which to include both classes.
Which of these three systems are most likely to be adopted by legal writers, who agree that it is desirable to make some change from the old classification?
The answer may depend upon the point of view of the individual writer, upon the immediate object which he is attempting to accomplish. The maker of an index-digest or the author of a textbook for handy use by practitioners may be more likely to adopt System 1. The author of a work on jurisprudence, or the framer of a draft of a general code, may be more likely to prefer System 2 or 3 to System 1. If there were no existing system and classification and nomenclature were now to be considered for the first time some jurists might prefer System 3 to System 2.
Teachers of law may not agree among themselves as to what course to adopt.58
Those instructors who agree on the principle of a general scheme may differ widely as to how specific subjects should be treated in detail.59 Most teachers are likely to try experiments with their classes before settling upon a permanent method. One troublesome matter may here be briefly alluded to.
Assume that the instructor will take up one by one the different kinds of specific injuries heretofore grouped under torts and classified in the textbooks according to the sort of particular harm inflicted or the nature of the particular right infringed. Shall he, in dealing with each separate subject and before passing to another distinct subject, discuss both the question (1) when liability is imposed on account of actual fault, and the question (2) when the law imposes absolute liability in the absence of fault? Or shall he first go over the different kinds of specific injuries, considering solely (as to each) the question when liability is imposed on account of actual fault, and then, taking up for the first time the subject of absolute liability, go over again the different kinds of specific injuries and consider (as to each) when the law imposes absolute liability in the absence of fault? Or can some third method be devised which would be preferable to either of the above alternatives?
As heretofore stated, the third class comprising cases of absolute liability is made up mainly of two sets of subjects.
We have been considering only one of these divisions, viz., cases where recovery has heretofore been enforced in an action of tort, but where there is, in fact, no actual fault on the part of the defendant.
68 Professor Wigmore, at the end of his essay on “The Tripartite Division of Torts,” says: “No opinion is expressed, it should be added, as to whether it is possible or desirable to teach the law of Torts to-day according to the above grouping." 8 HARV. L. Rev. 210. And again, at the end of his “General Analysis of Tort Relations,” he says: “The writer expresses no opinion as to whether it is possible or desirable to follow the above order of topics in conducting instruction in Torts.” 8 Harv. L. REV. 395.
Professor Bohlen, in the Preface to his recently published CASES ON THE LAW of Torts, gives practical reasons why the editor of such a work should hesitate to reject entirely the popular method of arrangement, or to adopt a "very novel classification.” See Preface, iv.
50 See Judge Holmes, 5 Am. L. Rev. 4.
We now advert briefly to the other division, viz., cases where recovery has heretofore been enforced in an action of contract, but where there is in fact no real contract, only a fiction contract invented for the sake of allowing a remedy.
Most of the cases in this division are usually grouped under the head of Quasi-Contract, an infelicitous term. The subtopics usually comprised under this general head are very numerous. “Some of them have little in common with others," and "in the past, in treatises upon the common law, they have generally been handled under diverse headings.” “During the period when the substantive law was controlled by the forms of procedure, they were classified as contractual or delictual in accordance with the form of action maintainable to enforce
Upon this subject of Quasi-Contract there are now two elaborate treatises, one by Professor Keener published in 1893, and another by Professor Woodward in 1913. The term, used in its broadest sense, applies “to all non-contractual obligations which are treated, for the purpose of affording a remedy, as if they were contracts.” 61 Keener and Woodward agree on the point which especially concerns us here. They both affirm that, in all the cases grouped under this head of Quasi-Contract, there is no genuine agreement or assent; and that the “contract” heretofore alleged in the declaration is a
"The question naturally arises, why a classification productive of so much confusion was ever adopted. The answer to this question is to be sought, not in the substantive law, but in the law of remedies.
“The only forms of action known to the common law were actions of tort and contract. If the wrong complained of would not sustain an action, either in contract or tort, then the plaintiff was without redress, unless the facts would support a bill in equity.
60 Professor Corbin, 21 YALE L. J. 536. 61 See WOODWARD, 8 1.
62 See WOODWARD, $ 4; KEENER, 5, 6; MAINE, ANCIENT LAW, 3 Am. ed., 332; Ames, LECTURES ON LEGAL History, 160; Judge Swayze, 25 YALE L. J. 4. “... the implied contract is a mere fiction, devised by the courts of law to enable them to do justice where justice is impossible on the strict conception of contract or tort.
we have come to allow a recovery where money ought to be paid ex aequo et bono upon the fiction of a contract that never existed.” Professor Corbin says the term quasi-contract “suggests a relation and an analogy between contract and quasicontract. The relation is distant and the analogy slight. The differences are greater than the similarities." 21 YALE L. J. 544.