Source: Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the Government of India, Fourth Edition (London: Stevens and Sons, 1895). CHAPTER I.: THE NATURE OF TORT IN GENERAL.
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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 sense. 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 . 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 division 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 is, of a “personal” action as above noted) which can be sued on in a court of common law without alleging a real or supposed contract, and what, if any, are the common positive characters of the causes of action that can be so sued upon:—these are matters on which our books, ransack them as we will, refuse to utter any certain sound whatever. If the collection of rules which we call the law of torts is founded on any general principles of duty and liability, those principles have nowhere been stated with authority. And, what is yet more remarkable, the want of authoritative principles appears to have been felt as a want by hardly anyone .
Are any general principles discoverable?
We have no right, perhaps, to assume that by fair means we shall discover any general principles at all. The history of English usage holds out, in itself, no great encouragement. In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent; a distinction important for a state of society where open violence is common, but of little use for the arrangement of modern law, though it is still prominent in Blackstone’s exposition . Later we find a more consciously and carefully made distinction between contracts and causes of action which are not contracts. This is very significant in so far as it marks the ever gaining importance of contract in men’s affairs. That which is of contract has come to fill so vast a bulk in the whole frame of modern law that it may, with a fair appearance of equality, be set over against everything which is independent of contract. But this unanalysed remainder is no more accounted for by the dichotomy of the Common Law Procedure Act than it was before. It may have elements of coherence within itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appropriate general principles, whether any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, or of real property, or of trusts, and when we make use of the name we mean nothing but a collection of miscellaneous topics which, through historical accidents, have never been brought into any real classification.
The genera of torts in English law.
The only way to satisfy ourselves on this matter is to examine what are the leading heads of the English law of torts as commonly received. If these point to any sort of common principle, and seem to furnish acceptable lines of construction, we may proceed in the directions indicated; well knowing, indeed, that excrescences, defects, and anomalies will occur, but having some guide for our judgment of what is normal and what is exceptional. Now the civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honour and reputation (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally: the word estate
being here understood in its widest sense, as when we speak of those who are “afflicted or distressed in mind, body, or estate.” There are other wrongs which affect specific property, or specific rights in the nature of property: property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the familiar and typical species of torts in groups, omitting for the present such as are obscure or of little practical moment.
1. Wrongs affecting safety and freedom of the person:Assault, battery, false imprisonment.
2. Wrongs affecting personal relations in the family:Seduction, enticing away of servants.
3. Wrongs affecting reputation:Slander and libel.
4. Wrongs affecting estate generally:Deceit, slander of title.Malicious prosecution, conspiracy.
Wrongs to property.
Wrongs to Property.
1. Trespass: (a) to land.(b) to goods.Conversion and unnamed wrongs ejusdem generis.Disturbance of easements, &c.
2. Interference with rights analogous to property, such as private franchises, patents, copyrights.
Wrongs affecting person and property.
Wrongs to Person, Estate, and Property generally.
3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence.
All the acts and omissions here specified are undoubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law Court, and governed by the rules of common law pleading .
We put aside for the moment the various grounds of justification or excuse which may be present, and if present must be allowed for. It will be seen by the student of Roman law that our list includes approximately the same matters as in the Roman system are dealt with (though much less fully than in our own) under the title of obligations ex delicto and quasi ex delicto. To pursue the comparison at this stage, however, would only be to add the difficulties of the Roman classification, which are considerable, to those already on our hands.
Character of wrongful acts, &c. under the several classes. Wilful wrongs.
The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. But they appear, on further examination, to have certain distinctive characters with reference to the nature of the act or omission itself. In Group A., generally speaking, the wrong is wilful or wanton. Either the act is intended to do harm, or, being an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men’s rights and dignity, which the Greeks called ὕβρις. Thus the legal wrongs are such as to be also the object of strong moral condemnation. It is needless to show by instances that violence, evil-speaking, and deceit, have been denounced by righteous men in all ages. If anyone desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border land of criminal and civil, public and private law.
Wrongs apparently unconnected with moral blame.
In Group B. this element is at first sight absent, or at any rate indifferent. Whatever may or might be the case in other legal systems, the intention to violate another’s rights, or even the knowledge that one is violating them, is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass—or of ejectment, which is a special form of trespass—has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil” . Nor is this all; for dealing with another man’s goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake . Still less will good intentions afford an excuse. I find a watch lying in the road; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour’s; but the law expects me at my peril to know what is my neighbour’s in every case. Reserving the explanation of this to be attempted afterwards, we pass on.
Wrongs of imprudence and omission.
In Group C. the acts or omissions complained of have a kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty, though without any intention to cause harm, can be and is, at best, not more favourably considered than imprudence if harm happens to come of it; and here too morality will not dissent. In some conditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing which the law condemns .
Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human affairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence.
Relation of the law of torts to the semi-ethical precept Alterum non laedere.
We have, then, three main divisions of the law of torts. In one of them, which may be said to have a quasi-criminal character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less manifestly so. Can we find any category of human duties that will approximately cover them all, and bring them into relation with any single principle? Let us turn to one of the best-known sentences in the introductory chapter of the Institutes, copied from a lost work of Ulpian. “Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.” Honeste vivere
is a vague phrase enough; it may mean refraining from criminal offences, or possibly general good behaviour in social and family relations. Suum cuique tribuere
seems to fit pretty well with the law of property and contract. And what of alterum non laedere?
“Thou shalt do no hurt to thy neighbour.” Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of this precept . This exhibits it, no doubt, as the technical working out of a moral idea by positive law, rather than the systematic application of any distinctly legal conception. But all positive law must pre-suppose a moral standard, and at times more or less openly refer to it; and the more so in proportion as it has or approaches to having a penal character.
Historical anomaly of law of trespass and conversion.
The real difficulty of ascribing any rational unity to our law of torts is made by the wide extent of the liabilities mentioned under Group B., and their want of intelligible relation to any moral conception.
A right of property is interfered with “at the peril of the person interfering with it, and whether his interference be for his own use or that of anybody else” .
And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same.
Early division of forms of action.
The truth is that we have here one of the historical anomalies that abound in English law. Formerly we had a clear distinction in the forms of procedure (the only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. Of course the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked.
Writs of right and writs of trespass: restitution or punishment.
For assertion of title to land there was the writ of right; and the writ of debt, with its somewhat later variety, the writ of detinue, asserted a plaintiff’s title to money or goods in a closely corresponding form . Injuries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the 13th century onwards) the later and more comprehensive writ of trespass on the case . In the former kind of process, restitution is the object sought; in the latter, some redress or compensation which, there is great reason to believe, was originally understood to be a substitute for private vengeance . Now the writs of restitution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize—forms of possessory real action which are a sort of link between the writ of right and the writ of trespass—and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case . In this way the distinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor’s intention; hence the archaic law of injuries is a law of absolute liabilty for the direct consequences of a man’s acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trying what were really questions of absolute right; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all ; an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion.
Rationalized version of law of trespass.
We are now independent of forms of action. Trespass and trover have become historical landmarks, and the question whether detinue is, or was, an action founded on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts . It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law of trespass to property in the English system. It appears morally unreasonable, at first sight, to require a man at his peril to know what land and goods are his neighbour’s. But it is not so evidently unreasonable to expect him to know what is his own, which is only the statement of the same rule from the other side. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guilty trespasses in legal classification.
Analogy of the Roman obligations ex delicto.
We may now turn with profit to the comparison of the Roman system with our own. There we find strongly marked the distinction between restitution and penalty, which was apparent in our old forms of action, but became obsolete in the manner above shown. Mr. Moyle thus describes the specific character of obligations ex delicto.
“Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes; they give rise, it is true, to a right of action, but a right of action is a different thing from an obligatio ex delicto; they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting; they always involve dolus or culpa; and the remedies by which they are redressed are penal.”
Dolus and culpa.
The Latin dolus,
as a technical term, is not properly rendered by “fraud” in English; its meaning is much wider, and answers to what we generally signify by “unlawful intention.” Culpa
is exactly what we mean by “negligence,” the falling short of that care and circumspection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Roman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest “ad legem Aquiliam,” a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we put aside the English treatment of rights of property as being accounted for by historical accidents, we find that the Roman conception of delict altogether supports (and by a perfectly independent analogy) the conception that appears really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus
), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa
). We have,
Liability quasi ex delicto.
moreover, apart from the law of trespass, an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group C of our provisional scheme. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk . This kind of liability has its parallel in Roman law, and the obligation is said to be not ex delicto,
since true delict involves either dolus
but quasi ex delicto
. Whether to avoid the difficulty of proving negligence, or in order to sharpen men’s precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. Whatever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of policy governing the modern class of cases of which Rylands
is the type and leading authority; by such reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all.
On the whole, the result seems to be partly negative, but also not to be barren. It is hardly possible to frame a definition of a tort that will satisfy all the meanings in which the term has been used by persons and in documents of more or less authority in our law, and will at the same time not be wider than any of the authorities warrant. But it appears that this difficulty or impossibility is due to particular anomalies, and not to a total want of general principles. Disregarding those anomalies, we may try to sum up the normal idea of tort somewhat as follows:—
Tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways:—
(a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
(b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
(c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and prevented.
(d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, absolutely or within limits, to avoid or prevent.
A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to negligence.
In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do.
Connected in principle with these special liabilities, but running through the whole subject, and of constant occurrence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment.
This is indication rather than definition: but to have guiding principles indicated is something. We are entitled, and in a manner bound, not to rush forthwith into a detailed enumeration of the several classes of torts, but to seek first the common principles of liability, and then the common principles of immunity which are known as matter of justification and excuse. There are also special conditions and exceptions belonging only to particular branches, and to be considered, therefore, in the places appropriate to those branches.