673. Wilful interference with contract. 673. Damage to stranger by breach of contract. 674. Position of receiver of erroneous telegram: different views in THE LAW OF TORTS. Book I.- GENERAL PART. CHAPTER I. THE NATURE OF TORT IN GENERAL. What is a tort? Our first difficulty in dealing with the law of torts is to fix the contents and boundaries of the subject. If we are asked, What are torts? nothing seems easier than to answer by giving examples. Assault, libel, and deceit are torts. Trespass to land and wrongful dealing with goods by trespass, "conversion," or otherwise are torts. The creation of a nuisance to the special prejudice of any person is a tort. Causing harm by negligence is a tort. So is, in certain cases, the mere failure to prevent accidental harm arising from a state of things which one has brought about for one's own purposes. Default or miscarriage in certain occupations of a public nature is likewise a tort, although the same facts may constitute a breach of contract, and may, at the option of the aggrieved party, be treated as such. But we shall have no such easy task if we are required to answer the question, What is a tort?-in other words, what principle or element is common to all the classes of cases we have enumerated, or might enumerate, and also distinguishes them as a whole from other classes of facts giving rise to legal duties and liabilities? It is far from a simple matter to define a contract. But we have this much to start from, that there are two parties, of whom one agrees to terms offered by the other. There are variant and abnormal forms to be dealt with, but this is the normal one. In the law of torts we have no such starting-point, nothing (as it appears at first sight) but a heap of miscellaneous instances. The word itself will plainly not help us. Tort is nothing but the French equivalent of our English word wrong, and was freely used by Spenser as a poetical synonym for it. In common speech everything is a wrong, or wrongful, which is thought to do violence to any right. Manslaying, false witness, breach of covenant, are wrongs in this case. But thus we should include all breaches of all duties, and therefore should not even be on the road to any distinction that could serve as the base of a legal classification. History and limits of English classification. In the history of our law, and in its existing authorities, we may find some little help, but, considering the magnitude of the subject, singularly little. The ancient common law knew nothing of large classifications. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Restoration, we find a certain rough classification tending to prevail (a). It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This divi (a) Appendix A. sion is exclusive of the real actions for the recovery of land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we need not concern ourselves; in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action. Upon the other hand, they are distinguished in the modern law from criminal offences. In the medieval period the procedure whereby redress was obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi-criminal character, the defendant against whom judgment passed being liable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal offence. There are various acts which may give rise both to a civil action of tort and to a criminal prosecution, or to the one or the other, at the injured party's option; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of procedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of Westminster as they existed before the Judicature Acts. Therefore, the law of torts is necessarily confined by the limits within which those Courts exercised their jurisdiction. Divers and weighty affairs of mankind have been dealt with by other Courts in their own fashion of procedure and with their own terminology. These lie wholly outside the common law forms of action and all classifications founded upon them. According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay just compensation for saving a vessel in distress is a wrong. An order may be made compelling restitution from the defaulting trustee; a decree of judicial separation may be pronounced against the unfaithful wife or husband; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to the law formerly peculiar to the Chancellor's Court, the settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts; and the adjustment of salvage claims to the law formerly peculiar to the Admiral's Court. These things being unknown to the old common law, there can be no question of tort in the technical sense. Exclusive limits of "tort." Taking into account the fact that in this country the separation of courts and of forms of action has disappeared, though marks of the separate origin and history of every branch of jurisdiction remain, we may now say this much. A tort is an act or omission, giving rise, in virtue of the common law jurisdiction of the Court, to a civil remedy which is not an action of contract. To that extent we know what a tort is not. We are secured against a certain number of obvious errors. We shall not imagine (for example) that the Married Women's Property Act of 1882, by providing that husbands and wives cannot sue one another for a tort, has thrown doubt on the possibility of a judicial separation. But whether any definition can be given of a tort beyond the restrictive and negative one that it is a cause of action (that Exclusive limits of "tort." In Bishop on Non-Contract Law, the author presents a division of the grounds of legal liability into those based upon contract and those based upon relations not of contract. "The word 'tort' means nearly the same thing as the expression 'civil wrong.' It denotes an injury inflicted otherwise than by a mere breach of contract; or, to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract has established between the parties. Of course the wrong must be of a sort which the law redresses, not a mere infraction of good morals." Bishop on Non-Contract Law, § 4. |