sidered from the point of view of breach of duty. But as there are duties the breach of which does not create a tort, it becomes necessary to adopt a classification which shall make the discrimination. Now there are two ways (and perhaps more than two) of looking at the subject. 6 You may ask whether the person who has transgressed did an act, as by making a misrepresentation, by which the other party was misled; if he did, you may accordingly say that the duty is recusable,' that is, in effect, actually or presumptively consensual. You will then have one class of duties, of which contract is the type and the chief. If no such act was done, the duty will be irrecusable,' that is, paramount. This will be the domain of tort. Such is the classification of Mr. Harriman in his masterly work on Contracts. Or, instead of looking forward to see whether an act done by one person has misled another, you may stop short and ask the question whether the very doing of an act likely to mislead is not a breach of duty to one misled by it; if it is, the duty will be paramount, for it is assumed that there is nothing of consent at this stage of the case. But the question may at the outset be broadened and made general, thus: whether the doing or omitting an act, in the like case of want of consent, is not a breach of duty; if it is, the duty is paramount. The result is, the duties with which the law of torts is concerned. Such is the classification adopted in this book. - The practical difference between the two classifications is that, by the first-named, the subject of deceit is thrown out of the category of torts - from duties paramount to duties consensual; for in deceit there is an act- misrepresentation by the wrongdoer which has misled the other party. Other subjects, perhaps, would have to follow deceit. It is suggested that the duties of innkeepers and carriers to the public would be of the number; but that may not be so. There must be a duty before you can classify duties, and there is no duty to become or not to become an innkeeper or a carrier. Becoming innkeeper or carrier creates duty with regard to future conduct; it is not in itself a matter of conduct, as is misrepresentation; hence it is not doing an act within the meaning of the classification. The classification of Mr. Harriman shows the spirit and the hand of the reformer; it shows a desire to turn the law, wherever practicable, from haphazard and devious lines into a straight-forward course. In other words, it has logic in view as an object to be approached as nearly as possible. Notwithstanding the dangers of it, I am not willing to allow it to appear that I am not in sympathy with such an aim, however closely my own work may follow the beaten pathways. Torts, it may be added, are mostly common law wrongs; and all are consummated wrongs, redressible (in damages) only in courts of the common law. Wrongs not consummated but only apprehended, wrongs cognizable only in admiralty, and wrongs, if there be such, which are cognizable only in equity, are not within the scope of this book. The name tort can be applied to such wrongs only with a modifying term; some of them deserve the name 'quasitort.' BOSTON, August 2, 1896. M. M. B. NOTE. The citation Cases,' or 'Cases on Torts, means Bigelow's Cases on Torts, Students' Series, Boston, 1895; the citation L. C. Torts,' Bigelow's Leading Cases on Torts, Boston, 1875. CASES CITED CONTENTS. PAGE XV Of Persons: Persons in Executive, Legislative, or Judicial Position; Persons under Disability; Cor- porations; Master and Servant; Principal and Agent; Independent Contractors Of Legal Cause: Contributory Fault 66 |