1902 Encyclopedia > Tort


TORT, as a word of art in the law of England and the United States, is the name of civil wrongs (not being merely breaches of contract) for which there is a remedy by action in courts of common law jurisdiction. It may be said to correspond approximately to the term " delict " in Roman law and the systems derived from it. But this is only a rough approximation. For in English usage tort includes, not only those matters which in Roman .law are classed under obligations quasi ex delicto, but various others which Roman or modern Continental lawyers would refer to the law of ownership or real rights, and not to any such head as "delict." The truth is that the actual development of tort as a legal genus has been purely historical and to no small extent accidental. Nothing can be learnt, of course, from the word itself. It is merely the French word for "wrong," specialized into a technical meaning by a process which was completed only in the latter years of the 17th century and the earlier of the 18th.

The early common law had no theory of obligations in the Roman sense, and hardly any theory of contract. Its remedies were directed either to the restitution of some-thing which the defendant unjustly detained from the plaintiff—were it land, goods, or money—or to the repres-sion of violent wrongdoing. Only the former class of remedies was purely civil; the latter included a penal element of which formal traces remained long after the substance had vanished. A man who trespassed on his neighbour with force and arms offended the king as well as his neighbour, and was liable not only to pay damages to his neighbour but to make a fine to the king. Gradu-ally the category of " force and arms " was held to include all manner of direct injuries to person, land, or goods, though the force might consist in nothing more than the bare setting foot without lawful cause on the soil pos-sessed by one's neighbour. But this was still a long way from making room for the modern growth of the law of torts. The decisive opening was given by the Statute of Westminster, which enabled actions to be framed " on the case "—in consimili casu,—that is, allowed legal remedies to be extended by analogy to the forms of action already recognized. Now those forms and their incidents were archaic and inelastic : the procedure was cumbrous, and plaintiffs were liable in many ways to irrational and irreparable discomfiture. The more modern action on the case was free from these drawbacks. Hence it was the aim of ingenious pleaders to extend the action on the case as much as possible ; and so successful was this movement that in the 16th century a special form of " trespass on the case" became, under the name of assumpsit, the common and normal method of enforcing contracts not made by deed, and remained so till the middle of the present century. It still holds its place in those American States where the old forms of action have not been abolished. Note that "assumpsit" had become a sub-stantive title of the law, and was consciously referred to its proper genus of contract, before the genus or order of torts was formed. Meanwhile other actions on the case, framed mostly on the analogy of trespass, but partly on that of other generically similar remedies of the old law, were applied to the redress of miscellaneous injuries to person or property which for one and another reason could not be touched, or could not be conveniently dealt with, by the old action of trespass itself. Some of these actions on the case acquired fixed forms of their own and became distinct species; others did not; there remained (and there still remains in theory) an undefined region of possible new actions applying the principles of legal right and duty to new exigencies of fact.

The extension of forms of remedy grounded on trespass caused those forms which were grounded on restitution to fall into the background, with the curious result that in the modern common law nothing is left answering to the vindicatio of the Roman law. We have an elaborate law of property, but when it comes to the practical protection of our rights we find that we can recover our property only by complaining of a wrong done to our possession or right to possession. The law puts the actual possessor in the first line, and allows an owner definitely out of posses-sion to sue only for " injury to the reversion," though an owner who can resume possession at will is indeed more favourably treated. Its remedies are made efficient, but at the cost of straining the theory at various points. Hence many difficulties of detail and much obscurity of principle. The distinction between dominium and obli-gatio exists, of course, in English law, but it is peculiarly hard for an English lawyer, with the usual unsystematic training, to grasp it with certainty or trace it with accuracy.

There is also a region of considerable obscurity about the points of contact between contract and tort. The questions thus raised are too technical for discussion here. Since pleadings have ceased to be formal they are much less likely to arise ; on the other hand, they are more likely, in the exceptional cases where they may still arise, to be unexpected and baffling.

For the practical purposes of modern law we may divide torts into three groups,—wrongs of a personal character, wrongs affecting property, and wrongs affecting person and property, either or both. Under the first group come the wrongs of physical violence and restraint, namely, assault and false imprisonment; then the wrong done to men's good name by libel and slander, in which kind there are sundry curious and not wholly rational distinctions; and we must here rather than elsewhere count deceit, and a somewhat ill-defined class of wrongs of a like nature, of which the generic mark is the necessary presence of a fraudulent intention, or at least reck-less disregard of good faith. In one case, that of malicious prosecution, evil motive must be shown ; in fact, the much-tormented word "malice" has very nearly its natural and ordinary meaning. So-called slander of title belongs to this class, being in truth a special form of deceit. Wilful interference with the exercise of public or private rights may be an actionable wrong, though the competitive exercise of like rights is none; and it is held, though not without doubt, that procuring a person to break his contract for one's own advantage (for example, a singer engaged by a rival opera manager, or a specially skilled workman in a rival factory) is on this principle a wrong to the other contracting party.

With regard to property the broad rule of the common law is that a man meddles with whatever belongs to others at his peril. This has been established and worked out only through a series of intricate formal distinctions. But the result is that, special excep-tions excepted, even the most innocent assumption of dominion without a real title makes one liable to the true owner.

Wrongs of the mixed kind affecting both person and property arise from the use of one's own property, or the doing of acts lawful in themselves, in a manner inconsistent with the safety and con-venience of others. The accustomed heads of such wrongs are nuisance and negligence. Generally some failure in due diligence is involved; but in some cases the law has, on grounds of general policy, imposed an absolute or all but absolute duty of avoiding harmful results. One must do certain things at one's peril, if at all, though the doing of them is not in itself unlawful; others are done not at one's peril, and yet under a wider responsibility than the common run of lawful acts. It is not wroug to make an artificial reservoir of water on one's own land ; but the landowner who does so must answer for all damage, though no failure in due diligence be shown, if the water escapes by any cause which reason-able human care could possibly have provided against. Again, the occupier of a place of business must keep it in safe repair, for the benefit of customers and others lawfully coming there; and, if harm is done through the want of repair, it is no excuse for him to say that he had engaged an apparently competent person to keep things in order. These are modern principles in the law, and seem to have hardly yet reached their full development. The doctrine of negligence is also mostly modern. Questions of much interest and difficulty are raised by " contributory negligence," i.e., when it is alleged by way of defence that the party complaining suffered wholly or mainly by his own want of care. The true principle appears to be that, if under the circumstances the harm suffered by the plaintiff was the natural and probable consequence of the defendant's want of care, the defendant is liable,—and this whether the plaintiff, or some third person, has or has not in any degree contributed to the final result by want of care on his own part, or even by a voluntary act, provided that the act be such as might have been foreseen and expected. But if the plaintiff has done something which, though induced by the defendant's default, was not a natural and probable consequence of it, or if the harm suffered is due to some act of a third person which could not have been reasonably foreseen or expected, then the defendant will not be liable.

A great number of special duties have been imposed on different classes of persons—public officers, undertakers of public occupa-tions, and so forth—by modern Acts of Parliament, and are enforc-able by penalties. In some cases the breach of such a duty confers a separate right of action upon a person who thereby suffers damage, in others not, according to what appears to be the inten-tion of the enactment. No general rule can be laid down.

In practice, a large proportion of actionable injuries, especially injuries by negligence, are due to the acts or defaults of servants or workmen, from whom no substantial redress could be obtained or expected. It is held in the common law, and appears to be held in all modern systems, that a master is liable for the acts and defaults of the servants employed by him, provided those acts or defaults occur in the course of the servant's employment, that is, while the servant is about the master's business, and acting with a view to the master's interest, and not for some different private purpose of his own. But a man is not generally liable for the conduct of an "independent contractor"—a person who under-takes to do or get done certain work, but not to be under the employer's control as to the manner of doing it. One may be so liable, however, in virtue of special duties attached to particular situations by positive rules of law. When a servant is injured by the act or default of another servant working under the same employer, the general rule of liability has been largely modified in the employer's favour, on grounds which have neither been con-sistently expounded nor generally received as satisfactory. The Employers' Liability Act of 1880 has remedied the most obvious hardships consequent on the decisions, but only by way of particu-lar exceptions, so that the law as a whole, if more just than it was, is much more intricate, and does not appear to rest on any intel-ligible principle. The Scottish courts were in a way to develop a more rational doctrine, but the House of Lords, instead of adopting it, forced the law of Scotland into conformity with judgments which were still of only recent authority in England. The subject, however, has given trouble everywhere, and legislative experiments have been tried in many Continental countries. See. Parliamentary Papers, Commercial, No. 21, 1886.

Literature.—There are several modern English and American text-books on the law of torts:—C. G. Addison, Wrongs and their Remedies, being a Treatise on the Law of Torts, 6th ed., by Horace Smith, London, 1887, la. 8vo; M. M. Bigelow. Leading Cases on the Law of Torts, Boston, Mass., 1875, la. Svo; Id., Elements of the Law of Torts, 3d ed., Boston, Mass., 1886, sm. Svo; C. Collett, Manual of the Law of forts and of the Measure of Damages, 6th ed., Madras, 1SS6, Svo ; T. M. Cooley, A Treatise on the Law of forts, Chicago, 1880, 8vo ; S. Hastings, A Treatise on Torts, London, 18S5, la. Svo; F. Milliard, The Law of Torts or Private Wrongs, 4th ed., Boston, Mass., 1874, la. Svo, 2 vols ; F. T. Piggott, Principles of the Law of Torts, London, 1885, 8vo ; F. Pollock, The Law of Torts, London, 1887, 8vo; A. Underbill, A Summary of the Law of Torts, 3d ed., London, 1881, 8vo. There are also well-known works of a wider scope which touch on many parts of the subject, such as that of Mayne on Damages; and monographs on special parts, such as those on Negligence by Campbell, Horace Smith, Shearman and Redfield, and Wharton, and those on Libel arid Slander by Starkie (recent ed. by Folkard) and Blake Odgers. The Government of India has taken steps to codify the law of civil wrongs (Whitley Stokes, The Anglo-Indian Codes). The general Institutional books (Blackstone and Kent, and the later adaptations of Blackstone in England) are of little use, as in almost every branch the law has been largely developed and modified by the decisions of the last fifty years. (F. PO.)

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