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class was known to the law of procedure.”6 In Bryant v. Herbert ? the controversy arose under a statute making a distinction as to costs between actions founded on contract and actions founded on tort. Bramwell, L. J., said, page 390: “One may observe there is no middle term; the statute supposes all actions are founded either in contract or tort. So that it is tort if not contract, contract if not tort.'
At the present time we think it should be recognized that there are three great divisions of causes of personal action:
1. Breach of genuine contract. 2. Tort, in the sense of fault.
3. So-called “Absolute Liability” imposed by courts, where there is neither breach of genuine contract nor fault.'
Under this classification, the application of the term tort should be restricted to class 2.
The third class can be subdivided as follows: (a) Cases where recovery has heretofore been enforced in an action of tort; (6) cases where recovery has heretofore been enforced in an action of contract.10
What practical benefit from adopting the new classification and
• HEPBURN, DEVELOPMENT OF CODE PLEADING, § 26. Compare Professor Maitland's note in POLLOCK, TORTS, 10 ed., 587-94, Appendix A.
73 C. P. Div. 389 (1878).
8 By the present Pleading and Practice Act of Massachusetts, 1902, Rev. Laws, Ch. 173, § 1: “There shall be only three divisions of personal actions:
"First, Contract ...
“Second, Tort, which shall include actions formerly known as trespass, trespass on the case, trover and actions for penalties.
The above is a substantial reënactment of a statute originally passed in 1851 (Laws OF 1851, ch. 233, § 1) in accordance with the report of a very strong legal commission, of which Benjamin R. Curtis was chairman.
• Those who prefer an arrangement of the law based upon rights, instead of upon duties or liabilities, might substitute for “Absolute Liability" the phrase “Violations of Absolute Right,” or “Infringements of Absolute Right.” Rights and duties are very generally correlative to each other.
10 We have said that the existence of the three divisions should be recognized “at the present time.” Will their existence permanently continue? With a better idea of the essence of fault, will many cases now classed under 3 (a) be placed under 2?
3 Will modern legislation (e. 8., the Workmen's Compensation Acts) have such an effect upon public and judicial opinion as to induce the courts to repudiate the modern common law doctrine that fault is generally requisite to liability, and go back to the ancient doctrine that an innocent actor must answer for harm caused by his non-culpable conduct? See 27 Harv. L. REV. 365-68, and later discussion in this paper.
nomenclature above suggested? What disadvantage, what practical harm, from continuing to use the old division and nomenclature?
Two considerations may be mentioned:
1. The separation into class 2 and class 3 (a), instead of including both classes under the general head of tort, will necessitate searching inquiry into the essence of fault as a ground of liability, and also an inquiry into the reasons of policy for imposing liability in the absence of fault. These questions have not hitherto received the attention which their importance deserves.
2. No useful definition of tort can be framed if that term is used to cover all the cases under all the sub-topics formerly enumerated under this general head; in other words, if tort is used as including not only class 2, but also class 3 (a). The insufficiency of previous attempts to define tort, when used in this sense, is admitted by good authorities.
If the above classification — the separation of causes of personal action into three divisions — is correct, why has it not been generally adopted at an earlier date? The answer is found in the history of the law.
Formerly the law of procedure almost monopolized attention, so that questions of substantive law received very scant consideration. The form of procedure was considered the principal thing, and the substantive law was viewed as a mere incident to procedure.11 “The forms of action are given, the causes of action must be deduced therefrom." 12 "So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure." 13
Certain forms of personal action were recognized by the courts. A plaintiff had no remedy unless his case would fit into one of these forms.14 The relief afforded under the Statute of Westminster II was "only partial.” 15 Not only were forms of action rigid, but each procedural form contained its own rules of substantive law, which had grown up “independently of the law
11 See 1 ENCYCLOPÆDIA LAWS OF ENGLAND, 2 ed., Pollock's Introduction, 4.
14 See MAITLAND, EQUITY AND FORMS OF ACTION, 298–99; ODGERS, PRINCIPLES OF PLEADING, 5 ed., 185–86; Sir F. Pollock, 11 Harv. L. Rev. 424; Professor Bohlen, 59 U. PA. L. Rev. 306; HEPBURN, DEVELOPMENT OF CODE PLEADING, $ 21.
15 See HEPBURN, DEVELOPMENT OF CODE PLEADING, 68, 24.
administered in other forms." 16 “There were rules relating to each form of action, but no general law of torts.
Sometimes "old formulæ of actions were adapted to new cases by means of fictions."18 But while the legal fiction may, for the time being, have “served a useful function,” we agree with Professor Hepburn (§ 27) that “the price paid for it was very high.” The use of fictions has (along with other bad results) constituted an obstacle to systematic classification of legal doctrines.19
Forms of action are now abolished in many jurisdictions; while in some others a few simple forms are substituted for the old ones. Yet the ideas and phrases connected with the old forms still exert an influence.
“The forms of action we have buried, but they still rule us from their graves.
"... The substantive obligations imposed by law are still influenced by the old forms.'
“Forms of action are dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling. In earlier days they filled the law with formalism and fiction, confusion and complexity, and though most of the mischief which they did has been buried with them, some portion of it remains inherent in the law of the present day. Thus if we open a book on the law of torts, howsoever modern and rationalized, we can still hear the echoes of the old controversies concerning the contents and boundaries of trespass and detinue and trover and case, and we are still called upon to observe distinctions and subtleties that have no substance or justification in them, but are nothing more than an evil inheritance from the days when forms of action and of pleading held the legal system in their clutches." 22
Professor Wigmore calls attention to "the necessity, every day drawing nearer, of adjusting the treatment of our substantive law to the abolition, already largely accomplished, of the forms of action and classes of rits in tort. . . ." 23
16 See MAITLAND, 298. Compare Professor Williston, 24 Harv. L. REV. 415. 17 Prof. Geo. D. Watrous, in Two CENTURIES GROWTH OF AMERICAN LAW, 86. 18 See HEPBURN, $8 24, 25.
19 “Now legal fictions are the greatest of obstacles to a symmetrical classification.” MAINE, ANCIENT Law, 1 Eng. ed., 27.
20 MAITLAND, EQUITY AND FORMS OF ACTIONS, 296.
23 8 Harv. L. Rev. 209.
Professor Maitland says that now "the attention is freed from the complexity of conflicting and overlapping systems of precedents and can be directed to the real problem of what are the rights between man and man, what is the substantive law.” 24
In the former days when substantive law was dominated by procedure,25 the leading doctrines of substantive law were evolved very slowly; and this was especially true as to the subject of torts. In a very recent work, it is said that, in tort,“the generalizing process” “has as yet developed much less than in the corresponding department of Contract.' Professor Burdick, speaking of a book published in 1920, says
a “that the rules of English law relating to torts had not then been systematized, and that neither the bench nor the bar had any conception of a Law of torts.'
Judge Doe says: "Formerly, in England, there seems to have been no well-defined test of an actionable tort. There were precedents, established upon superficial, crude, and undigested notions; but no application of the general system of legal reason to this subject."28
In 1895 Judge Jaggard, in the Preface to his work on Torts,49 says: "Specific Torts were among the earliest subjects of judicial cognizance." “But only within very recent times has the process of generalization been applied to them.”
In 1886 Sir Frederick Pollock, in the Introduction to the first edition of his work on Torts (after stating that “the purpose of this book is to show that there really is a Law of Torts, not merely a number of rules of law about various kinds of torts”), says: "It is not surprising in any case, that a complete theory of Torts is yet to seek, for the subject is altogether modern. ... The really scientific treatment of principles begins only with the decisions of the last fifty years.
24 MAITLAND, EQUITY AND FORMS OF ACTIONS, 375.
25 “During the period when the substantive law was controlled by the forms of procedure. . » Professor Corbin, 21 YALE L. J. 536.
26 JENKS, DIGEST OF ENGLISH LAW, Book II, Part 3, Preface, p. xi. 27 BURDICK, Torts, 2 ed., 2. 28 Brown v. Collins, 53 N. H. 442, 445 (1873;. 29 Pages v and vi.
30 Page vii.
Elsewhere Pollock says:
“In England the general scope of the law of torts has never been formulated by authority, the law having in fact been developed by a series of disconnected experiments with the various forms of action which seemed from time to time to promise the widest and most useful remedies."
So late as 1853 Dr. Joel P. Bishop, who had just achieved a high reputation as a legal author, could find no law-book publisher in the United States willing to bring out a book on the Law of Torts. The publishers all said “that there was no call for a work on that subject, and there could be no sale for it." 32
As to the existing classifications and definitions of tort:
When courts and lawyers were professedly proceeding on the assumption that all causes of personal action (except contract) should be placed under the head of tort, what was the usual method of subdividing the various causes of action thus grouped under that general head?
Holland, using the term “wrongful acts” in its literal sense as including breaking of contract,83 says: “Wrongful acts may be, and are, classified on five different principles at
To the five different methods of classification there enumerated, at least two more may be added.
27 ENCYCL. BRIT., II ed., 64. “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 ve 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.” POLLOCK, TORTS, 2 ed., 4, 5.
32 BISHOP, NON-CONTRACT Law, published in 1889, $ 3, note 2.
33 “To break a contract is an unlawful act, or in the language of Lord Watson in Allen v. Flood ([1898) A. C., at p. 96),ʻa breach of contract is in itself a legal wrong.'” Lord Lindley, (1905] A. C. 253.
34 HOLLAND, JURISPRUDENCE, 8 ed., 291-92.