begin with the wants or claims involved in civilized society--as it
has been put, with the jural postulates of civilized society. One such
postulate, I think we should agree, is that in civilized society men
must be able to assume that others will do them no intended
injury--that others will commit no intentional aggressions upon them.
The savage must move stealthily, avoid the sky-line and go armed. The
civilized man assumes that no one will attack him and so moves among
his fellow men openly and unarmed, going about his business in a
minute division of labor. Otherwise there could be no division of
labor beyond the differentiation of men of fighting age, as we see it
in a primitive society. This postulate is at the foundation of
civilized society. Everywhere _dolus_ is first dealt with. The system
of nominate delicts or nominate torts, both in Roman law and in our
law, proceeds on this postulate.
Is it not another such postulate that in civilized society men must be
able to assume that their fellow men, when they act affirmatively,
will do so with due care, that is with the care which the ordinary
understanding and moral sense of the community exacts, with respect to
consequences that may reasonably be anticipated? Such a postulate is
the basis of delictal _culpa_, using _culpa_ in the narrower sense,
and of our doctrine of negligence. In Roman law and at one time in our
law attempts were made to develop this postulate contractually. If in
a transaction involving good faith--that is an informal legal
transaction--one's conduct fell short of action to which the other
party was justified by the understanding of upright men in expecting
him to adhere, there was contractual _culpa_; there was a violation of
a promise implied in the transaction and consequent liability. We
borrowed something of this mode of thought from the Romans in our law
of bailments and hence think indifferently in terms of tort or
contract in that connection, although historically our action for such
cases is delictal. In other connections also our law for a time sought
to develop this postulate contractually by means of an "implied
undertaking to use skill" for which one must answer if his skill fell
short of that which the legal standard of affirmative conduct called
for under the circumstances. Also in the Year Books an undertaking
implied in certain relations or callings to use the skill or diligence
which the relation or calling demanded is often made the basis of
liability. But here the basis of liability must be found in a
relation. The fiction of an undertaking to use the skill or diligence
involved in a relation or calling is a juristic way of saying that one
who deals with another in such a relation or with another who
professes such a calling is justified in assuming the skill and
diligence ordinarily involved therein, so that the law holds those in
the relation or engaged in the calling to that standard in order to
maintain the general security. In other words another, though closely
related, postulate of civilized society is involved.
It is worth a moment's digression to suggest that such things show how
little the historical categories of delict and contract represent any
essential or inherent need of legal thinking. Austin thought that "the
distinction of obligations (or of duties corresponding to rights
against persons specifically determined) into obligations which arise
from contracts, obligations which arise from injuries, and obligations
which arise from incidents which are neither contracts nor injuries,"
was a "necessary distinction," without which a "system of law evolved
in a refined community" could not be conceived. This "necessary"
systematic scheme, which must be "a constituent part" of any
imaginable developed legal system, is but the Roman division into
obligations _ex contractu_, obligations _ex delicto_ and obligations
_ex uariis causarum figuris_, in which the third category is obviously
a catch-all. In trying to fit our law into this necessary scheme, we
find three types of cases must go in the third: (a) Duties or
liabilities attached by law to a relation, (b) duties imposed by law
to prevent unjust enrichment, (c) duties involved in an office or
calling. In the third of these our Anglo-American procedure allows
recovery either _ex delicto_ or _ex contractu_. In the second our law
sometimes goes on a property theory of constructive trust. In the
first duties are sometimes sanctioned affirmatively by conferring
legal powers or negatively by legal non-restraint of natural powers,
as in the law of domestic relations, where the wife has a power to
pledge the husband's credit for necessaries and the law does not
interfere with the parent's administering reasonable "correction" to
the child. Are we to say that these dogmatic departures of our law
from the Roman scheme are inconceivable or that because of them our
law is not matured or was not "evolved in a refined community?" Or are
we to say that Austin derived his systematic ideas, not from
scientific study of English law, but from scientific study of Roman
law in a German university? Are we to say that we cannot "imagine
coherently" a system of law which enforces warranties indifferently
_ex contractu_ or _ex delicto_ as our law does, or which goes further
and applies the contract measure of damage _ex delicto_ as does the
law of Massachusetts? But enough of this. What we have here is not any
necessary distinction. It is rather what Austin calls a "pervading
notion," to be found generally in the systematic ideas of developed
legal systems by derivation from the Roman books. Roman law may have a
contractual conception of obligation _ex delicto_--thinking of the
delict as giving rise to a debt--and the common law a delictual
conception of liability upon contract--thinking in terms of recovery
of damages for the wrong of breaking a promise--without much
difference in the ultimate results. The fundamental things are not
tort and contract but justifiable assumptions as to the mode in which
one's fellow men will act in civilized society in many different
situations of which aggression and undertaking are but two common
types.
Returning to our second postulate of due care in affirmative courses
of conduct, we may note that in the society of today it is no less
fundamental than the postulate of no intentional aggression.
Aggression is the chief if not the only form of anti-social conduct in
a primitive society. Indeed, a Greek writer on law and politics of the
fifth century B. C. knew of no other subject of legal precepts. But
with the development of machinery and consequent increase in human
powers of action, the general security comes to be threatened quite as
much by the way in which one does things as by what he does.
Carelessness becomes a more frequent and more serious source of danger
to the general security than aggression. Hence a set of nominate
delicts requiring _dolus_ is supplemented by a theory of _culpa_.
Hence a set of nominate torts, characterized by intentional
aggression, is supplemented by liability for negligence, and the
latter becomes the more important source of legal liability in
practice.
Must we not recognize also a third postulate, namely, that men must
be able to assume that others, who keep things or maintain conditions
or employ agencies that are likely to get out of hand or escape and do
damage, will restrain them or keep them within proper bounds? Just as
we may not go effectively about our several businesses in a society
dependent on a minute division of labor if we must constantly be on
guard against the aggressions or the want of forethought of our
neighbor, so our complex social order based on division of labor may
not function effectively if each of us must stay his activities
through fear of the breaking loose or getting out of hand of something
which his neighbor harbors or maintains. There is danger to the
general security not only in what men do and the way in which they do
it, but also in what they fail to do in not restraining things they
maintain or agencies they employ which may do injury if not kept
strictly in hand. The general security is threatened by wilful
aggression, by affirmative action without due regard for others in the
mode of conducting it, and by harboring and maintaining things and
employing agencies likely to escape or to go out of bounds and do
damage. Looked at in this way, the ultimate basis of delictal
liability is the social interest in the general security. This
interest is threatened or infringed in three ways: (1) Intentional
aggression, (2) negligent action, (3) failure to restrain potentially
dangerous things which one maintains or potentially dangerous agencies
which one employs. Accordingly these three are the immediate bases of
delictal liability.
Controversial cases of liability without fault involve the third
postulate. Systematic writers have found no difficulty in reconciling
the law of negligence with the will theory of liability and the
doctrine of no liability without fault. Yet they must use the term
fault in a strained sense in order to fit our law of negligence with
its objective standard of due care, or the Roman cases of liability
for _culpa_ judged by the abstract standard, into any theory of moral
blameworthiness. The doctrine of liability for fault and for fault
only has its roots in the stage of equity and natural law, when the
moral and the legal are identified, and means that one shall respond
for injuries due to morally blameworthy conduct upon his part. As Ames
puts it, "the unmoral standard of acting at one's peril" is replaced
by the question, "Was the act blameworthy?" But is an act blameworthy
because the actor has a slow reaction time or was born impulsive or is
naturally timid or is easily "rattled" and hence in an emergency does
not come up to the standard of what a reasonably prudent man would do
in such an emergency, as applied _ex post facto_ by twelve average men
in the jury box? If our use of "culpable" here were not, as it were,
Pickwickian, we should allow the defendant in such cases to show what
sort of man nature had made him and to call for individualization with
respect to his character and temperament as well as with respect to
the circumstances under which he acted. As the Romanist would say, we
should apply a concrete standard of _culpa_. But what the law is
really regarding is not his culpable exercise of his will but the
danger to the general security if he and his fellows act affirmatively
without coming up to the standard imposed to maintain that security.
If he acts, he must measure up to that standard at his peril of
answering for injurious consequences. Whenever a case of negligence
calls for sharp application of the objective standard, fault is as
much a dogmatic fiction as is representation in the liability of the
master for the torts of his servant. In each case the exigencies of
the will theory lead us to cover up a liability irrespective of fault,
imposed to maintain the general security, by a conclusive imputation
of fault to one who may be morally blameless. This is no less true of
cases where we speak of "negligence _per se_."
Reconciliation of common-law absolute liabilities for the getting out
of hand of things likely to escape and do damage with the doctrine of
no liability without fault has been sought by means of a fiction of
negligence, by pronouncing them disappearing historical anomalies, by
an economic interpretation that regards them as results of class
interest distorting the law, and by a theory of _res ipsa loquitur_.
Blackstone resorted to the first of these. "A man is answerable,"
he said, "for not only his own trespass but for that of his cattle
also; for if by his negligent keeping they stray upon the land of
another ... this is a trespass for which the owner must answer in
damages." But note that the negligence here is a dogmatic fiction. No
proof of negligence is required of the plaintiff, nor may the
defendant show that there was in fact no negligence. The negligence is
established by the liability, not the liability by the negligence.
In the last century it was usual to refer to absolute liability for
trespassing animals, for injuries by wild animals and for injuries by
domestic animals, known to be vicious, as disappearing rudiments of
the old liability to make composition. The common American doctrine as
to cattle running at large upon uncultivated lands seemed to confirm
this. Yet one need but look beneath the surface to see that the
English rule was rejected for a time in America, not because it was
in conflict with a fundamental principle of no liability without
fault, but because it presupposed a settled community, where it was
contrary to the general security to turn cattle out to graze, whereas
in pioneer American communities of the past vacant lands which were
owned and those which were not owned could not be distinguished and
the grazing resources of the community were often its most important
resources. The common-law rule, without regard to its basis, was for a
time inapplicable to local conditions. It is significant that as the
conditions that made the rule inapplicable have come to an end the
rule has generally re-established itself. In England it is in full
vigor so that the owner of trespassing animals is held for disease
communicated by them although he had no knowledge or reason to suppose
they were diseased. A rule that can re-establish itself and extend its
scope in this way is not moribund. It must have behind it some basis
in the securing of social interests. Nor have the attempts of some
American courts to narrow common-law liability for injuries by known
vicious animals to cases of negligent keeping made much headway. The
weight of American authority remains with the common-law rule and in
England the Court of Appeal has carried the rule out to the extent of
holding the owner notwithstanding the animal was turned loose by the
wrongful act of an intermeddling third person. Nor have the
predictions that the doctrine of _Rylands_ v. _Fletcher_ would
disappear from the law through the courts' smothering it with
exceptions--predictions commonly made at the end of the last
century--been verified in the event. In 1914 the English courts
refused to limit the doctrine to adjacent free-holders and they have
since extended it to new situations. Moreover in America, where we had
been told it was decisively rejected, it has been applied in the past
decade by more than one court. The leading American cases that profess
to reject the doctrine did not involve it nor did they involve the
postulate of civilized society on which, as I think, it is based. Also
the Court of Appeals of New York, the leading exponent of no
liability without fault, had theretofore imposed a liability without
regard to negligence in the case of blasting.
An ingenious explanation of the doctrine of _Rylands_ v. _Fletcher_ by
means of the economic interpretation of legal history demands more
notice. We are told that the English courts were manned by landowners
or by judges drawn from the land-owning class; that the doctrine of
_Rylands_ v. _Fletcher_ is a doctrine for landowners and so was not
accepted by artisans in the United States. But consider which states
applied the rule and which rejected it. It was applied in
Massachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West
Virginia in 1911, in Missouri in 1913, in Texas in 1916. It was
rejected by New Hampshire in 1873, by New York in 1873, by New Jersey
in 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky
in 1903, by Indiana in 1911. Is New York a community of artisans but
Massachusetts a community of landowners? Did the United States begin
to change from a country of artisans to one of landowners about the
year 1910 so that a drift toward the doctrine began at that time after
a steady rejection of it between 1873 and 1896? _Rylands_ v.
_Fletcher_ was decided in 1867 and is connected with the movement
Dicey calls collectivism, which, he says, began in 1865. It is a
reaction from the notion of liability merely as a corollary of
culpability. It restrains the use of land in the interest of the
general security. If this view is well taken, if it was an attempt to
take account of the social interest in the general security in a
crowded country, this may explain the reluctance with which it was
received in the United States at first, where pioneer ideas,
appropriate to a less crowded agricultural country, lingered at least
to the end of the nineteenth century. In the actual American
decisions, some follow _Rylands_ v. _Fletcher_ as an authoritative
statement of the common law. Other cases go rather on the principle
that liability flows from culpability. Agricultural states and
industrial states alike divide along these doctrinal lines.
Massachusetts and Pennsylvania, both industrial states, are on
opposite sides. So are Texas and Kentucky, which are agricultural
states. Massachusetts and New Jersey, each with an appointive bench,
are on opposite sides, and so are Ohio and New York, each with an
elective bench. In truth the Massachusetts court followed authority.
In New Hampshire Chief Justice Doe was not willing to go on mere
authority and decided on the general principle that liability must
flow from fault.
Another view is that the doctrine of _Rylands_ v. _Fletcher_ is a
crude attempt, when negligence and the doctrine of _res ipsa loquitur_
were none too well understood, to apply the principle of the latter
doctrine, and that those doctrines will suffice to reach the actual
result. No doubt _res ipsa loquitur_ gives a possible mode of treating
cases where one maintains something likely to get out of hand and do
injury. For four possible solutions may be found for such cases. One
is absolute liability, as in _Rylands_ v. _Fletcher_. Another is to
put the burden of proof of due care on the defendant, as French law
does in some cases and as is done by some American decisions and some
statutes in case of fires set by locomotives. A third is to apply the
doctrine of _res ipsa loquitur_. A fourth would be to require the
plaintiff to prove negligence, as is done by the Supreme Court of New
Jersey where a known vicious animal breaks loose. That the fourth,
which is the solution required by the theory of no liability without
fault, has found but two courts to uphold it, and that only in the
case of vicious domestic animals, is suggestive. _Res ipsa loquitur_
may easily run into a dogmatic fiction, and must do so, if made to
achieve the result of the doctrine of _Rylands_ v. _Fletcher_, which
does not permit the defendant to go forward with proof, short of _vis
maior_ or the unanticipated unlawful act of a third person beyond
defendant's control. The vitality and persistence of the doctrine
against theoretical assault for more than a generation show that it is
more than a historical anomaly or a dogmatic blunder.
Another type of common-law liability without fault, the so-called
liability of the carrier as an insurer and the liability of the
innkeeper, is relational and depends upon a different postulate.
Nineteenth-century courts in the United States endeavored to hold down
the former, restricting it because of its inconsistency with the
doctrine of liability as a corollary of fault. But it has proved to
have abundant vitality, has been extended by legislation in some
states to carriers of passengers and has been upheld by recent
legislation everywhere.
Two other types of liability, contractual and relational, must receive
brief notice. The former has long done valiant service for the will
theory. Not only liability arising from legal transactions but
liability attached to an office or calling, liability attached to
relations and liability to restitution in case of unjust enrichment
have been referred to express or implied undertaking and hence to the
will of the person held. But beneath the surface the so-called
contract by estoppel, the cases of acceptance of a wrongly transmitted
offer, the doctrine that a public utility has no general power of
contract as to facilities or rates except to liquidate the terms of
its relational duties in certain doubtful cases, and cases of
imposition of duties on husband or wife after marriage by change of
law, have caused persistent and recurring difficulties and call
everywhere for a revision of our ideas. Also the objective theory of
contract has undermined the very citadel of the will theory. May we
not refer these phenomena, not to the will of the person bound, but to
another postulate of civilized society and its corollaries? May we not
say that in civilized society men must be able to assume that those
with whom they deal in the general intercourse of society will act in
good faith? If so, four corollaries will serve as the bases of four
types of liability. For it will follow that they must be able to
assume (a) that their fellow men will make good reasonable
expectations created by their promises or other conduct, (b) that they
will carry out their undertakings according to the expectation which
the moral sentiment of the community attaches thereto, (c) that they
will conduct themselves with zeal and fidelity in relations, offices
and callings, and (d) that they will restore in specie or by
equivalent what comes to them by mistake or unanticipated situation
whereby they receive what they could not have expected reasonably to
receive under such circumstances. Thus we come back to the idea of
good faith, the idea of the classical Roman jurists and of the
philosophical jurists of the seventeenth century, out of which the
will theory was but a metaphysical development. Only we give it a
basis in social philosophy where they sought a basis in theories of
the nature of transactions or of the nature of man as a moral
creature.
Looking back over the whole subject, shall we not explain more
phenomena and explain them better by saying that the law enforces the
reasonable expectations arising out of conduct, relations and
situations, instead of that it proceeds upon willed action and willed
action only, enforcing the willed consequences of declared intention,
enforcing reparation for willed aggression and enforcing reparation
for culpable carrying on of willed conduct? If we explain more and
explain it more completely by saying that the ultimate thing in the
theory of liability is justifiable reliance under the conditions of
civilized society than by saying that it is free will, we shall have
done all that we may hope to do by any theory.
V
Property