91. (I) Prospective Contracts of Employment.... 92. (II) Prospective Contracts Not of Employment. 1. A tort is an unlawful violation of a private legal right, Derivation The word "tort" (taken directly from the French) is de- rived from the Latin "torquere" to twist; "tortus" twisted duct is conduct which is crooked,1 not straight. As a synonym for "wrong" the word was at one time in common use.3 Other Definitions A satisfactory definition of a tort has yet to be found. The dificulty, it has been well said, is due to the fact that "there is no such thing as a typical tort, an actual tort; that is to say, which contains all the elements entering into the rest. One tort is as perfect as another, and each tort differs from the others in its legal constituents." The elements necessary to constitute a cause of action for such wrongs as assault, defamation, deceit, and negligence are so radically different that it is difficult at first to perceive what they can possibly have in common, and although there are underlying principles common to all, yet a study of this subject must, to a large extent, require an examination into the specific rules applicable to each particular tort. A favorite definition is "a wrong independent of contract." Others are "an act or omission, not a mere breach 1 Cf. the colloquial "crook." 2 Speaking of the law of Continental Europe, Professor Holland has observed that, "since conduct which is straightforward came to be spoken of eulogistically as being 'rectum,' 'directum' (whence 'droit'), 'recht,' and 'right,' conduct of the opposite character naturally came to be expressed by the terms 'delictum,' 'délit,' as deviat ing from the right path, and 'wrong' or 'tort,' as twisted out of the straight line." Holland on Jurisprudence (10th Ed.) 318. 8 Thus we find it employed by Spenser in the "Faërie Queene" in the following passage in the fourth book: "The lyon there did with the lamb consort, And eke the dove sate by the faulcons side; Ne each of other feared fraud or tort But did in safe security abide." * • Bigelow on Torts, 64. In 1882 Judge Finch, of the New York Court of Appeals, in RICH v. NEW YORK CENT. & H. R. R. CO., 87 N. Y. 382, 390, Chapin Cas. Torts, 1, observed: "We have been unable to find any accurate and perfect definition of a tort. The text-writers either avoid a definition entirely, or frame one plainly imperfect, or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes." Bouvier, L. Dict.; and see Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 176; Denning v. State, 123 Cal. 316, 323, 55 Pac. 1000; Louisville & N. R. Co. v. Spinks, 104 Ga. 692, 694, 30 S. E. 968; Barkley v. Williams, 30 Misc. Rep. 687, 688, 64 N. Y. Supp. 318. BA of contract, and producing injury to another, in the absence of any existing lawful relation of which the said act or omission is a natural outgrowth or incident." " "An act or omission giving rise, by virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action on a contract." "An act or omission which unlawfully violates a person's right created by the law, and for which the appropriate remedy is a common-law action for damages by the injured person." 998 Now it is evident that each of the foregoing, as well as the definition which we have given, invites rather than answers inquiry; but it will likewise be observed that all of them lay stress upon one or two important facts, which will now be considered. The remainder of this chapter will amount to but little else than an analysis and explanation of the definition which has been selected. ANALYSIS OF THE TORT CONCEPT 2. This definition, when analyzed, will be found to require a cor.sideration of the following: (a) The nature and source of the right violated. (b) The method of its violation. (c) The method of redress. NATURE AND SOURCE OF THE VIOLATED RIGHT 3. For a tort to exist it is essential that the wrongdoer should have failed to observe a duty which (a) He owed to the injured party, and (b) Which was imposed by law. • "A proposed new definition of a tort," by F. H. Cooke, 12 Har vard L. Rev. 335, 336. 7 Jaggard on Torts, 2. 8 Burdick on Torts (3d Ed.) 12. |