rule as to negligence is in such general terms as to allow the growth of the whole law of torts. Thus in Porto Rico the American precedents have been imported.65

66

In the Spanish Civil Law, therefore, we find on a Roman foundation Gothic, Moslem, local and maritime elements which, nevertheless, make up a harmonious whole, the outgrowth of Spanish history. This Civil Law is gradually receiving through local legislation the modifications needed to fit it to the wants of half the world; for her widespread colonies continue her civilization after Spain herself has ceased to rule. In this Spanish history is like to that of Rome. And doubtless the Spanish law is the better fitted for its mission that it contains many compromises and admits of

more.

The modern nations best representing Rome are Italy, France, and Spain, and their line is gone out throughout all the new world. The triad may be said to represent their original in different ways— Italy in Art, France in Letters, and Spain in Law. Each is influential: but, as law is the underlying force holding society together, we may say of social bonds, as Paul said of a principle in religion, that the greatest of these is Law.

DISTRICT COURT OF THE UNITED STATES

FOR PORTO RICO.

Peter J. Hamilton.

65 CIVIL CODE, Art. 1902: "A person who by act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done."

66 The number of codifications necessitated a law of prelation, which dwarfs Valentinian's on citation of the jurisconsults. SOHM, INST. ROMAN LAW, 122; Law II, tit. I, Liber III, of the NOVISIMA RECOPILACION. Other legislation is noted in I ESCRICHE, DICCIONARIO, S. v. Fuero Municipal.

TORT AND ABSOLUTE LIABILITY -SUGGESTED CHANGES IN CLASSIFICATION

AS

II

SSUMING that the term "tort" is generally to be used as including only cases of fault, and further assuming that "fault" involves wrong intention or culpable inadvertence, what specific kinds of injuries heretofore grouped under the general head of torts should continue to be classed under that head? Where, for instance, should we class Assault, or Deceit, or Defamation? Under tort, as involving fault as an essential requisite, or in the third class, where the law imposes absolute liability in the absence of fault?

In what specific kinds of injury is fault, generally, a requisite to liability?

A full discussion of this question would require us to go behind conventional names (such as Assault or Deceit) and consider the precise nature of the right to be protected or the duty to be enforced. But we can here deal with the question only in outline.

If we take up, one by one, the various specific torts, which are usually designated by conventional titles and are named according to the nature of the right affected or the harm done, we shall find two things:

1. In most, though not in all, of these specific torts fault is, as a general rule, requisite to liability.

2. But, although fault is generally requisite, yet there are exceptional instances of absolute liability in the absence of fault. And such instances are not confined to any one or two of these various kinds of tort, but are liable to occasionally occur in any or all of them (except Malicious Prosecution). Under the classification suggested in this article, such instances would belong, not under torts, but under the third class of absolute liability.

1 As to "Unnamed Wrongs," or injuries outside of "the known causes of action which have received names," see BISHOP, NON-CONTRACT LAW, §§ 485-94; Sir F. Pollock, 14 ENCYCLOPEDIA OF LAWS OF ENGLAND, 2 ed., 135, paragraph 2: Judge Swayze, 25 YALE L. J. 1.

Before enumerating the so-called "specific torts" as to which fault in some form is, generally, a requisite to liability, it must be noted that there is a difference as to the kind, or grade, of fault required in various cases. Rights or interests which receive some protection from law are not all equally protected. Some are protected more highly than others. Thus, a right may be protected only against a violation proceeding from bad motive. In other words, bad motive may be one of the essential requisites to an action (e. g., malicious prosecution). Or a right may be protected against intentional wrongdoing, but not against harm due to merely negligent conduct. Or another right may be protected against harm caused negligently. And, in some cases, where it is conceded that fault is essential, there may be a controversy as to exactly what kind or species of fault is requisite.

In the following so-called "specific torts" it is the general rule that fault, in some form or other, is requisite to (primâ facie) liability: Assault, Battery, Imprisonment, Malicious Prosecution, Injurious Falsehood, and Deceit.3

In Defamation, heretofore usually classed under the general head of tort, fault, though as a matter of fact it is generally present, is not an essential requisite to making out a primâ facie case. Hence, under our proposed reclassification, Defamation would come within the third class.5

In "Slander of Title," so-called, fault is not requisite to sustain an action against a stranger; but it is essential in an action against a rival claimant." It would seem that this general topic (Slander of Title), heretofore treated as a unit, must be separated into two

2 See this species of tort distinguished from both Deceit and Defamation, in SALMOND, TORTS, 4 ed., 504.

3 It has sometimes been thought that False Representation should be dealt with under, or as a branch of, the Law of Contract rather than the Law of Tort. See Professor Wigmore, 8 HARV. L. REV. 395.

iii.

Compare POLLOCK, TORTS, 10 ed., 293-94; 1 BOHLEN, CASES ON TORTS, Preface,

4 See fuller statement by the present writer in 60 U. PA. L. REV. 468–72. See also Lord Herschell, in Allen v. Flood, [1898] A. C. 125-26. Sir F. Pollock, though recognizing the law to be now established as above stated, evidently entertains some doubt as to its beneficial operation. See 60 U. PA. L. REV. 468, n. 23; 472, n. 31.

Of course questions of fault may arise in rebutting the defense of conditional privilege.

• Better substitute "Disparagement" for "Slander." See 13 COL. L. Rev. 13. 7 See article by the present writer, 13 COL. L. REV. 29-31.

divisions. Slander of Title against a rival claimant remains under tort. Slander of Title against a stranger belongs under the third class.

As to intermeddling with, or damage to, personal property, we believe that fault is now, as a general rule, requisite to liability.R As to entry upon, or actual damage to, real estate:

Because the law does not require a plaintiff, in an action for entry upon real estate, to prove that he suffered actual damage (in the sense of pecuniary loss), it sometimes seems to be supposed that plaintiff need not prove that defendant was guilty of actual fault. It seems to be virtually argued that the commission of actual fault by the defendant is not requisite any more than the suffering of actual pecuniary damage by the plaintiff. This reasoning is erroneous. As already suggested, the two questions of damage and fault are entirely distinct from each other.

That one entering upon real estate is not liable in the absence of fault is, we believe, the prevailing rule to-day. It is subject to an exception of large scope and great importance, but it constitutes the general rule.

But we think that an intentional entry standing alone and unexplained involves fault. The defendant has consciously infringed the plaintiff's right to have his land free from invasion. In the

But this rule is subject to an exception of great scope and importance, which prevents exoneration in many cases of non-culpable conduct. That exception is the doctrine that a bonâ fide and non-negligent mistake as to title in the property does not generally furnish a bar to liability. This doctrine, which also applies to real estate, is referred to post under Absolute Liability.

This exception is, however, itself subject to an exception in the case where the articles of property are in the shape of currency. One who, in good faith and for value, receives currency which did not in fact belong to the person from whom he received it, becomes the owner of such currency, and does not become a wrongdoer because he asserts the rights of ownership. As to the reason for this doctrine, see 2 PARSONS, BILLS AND NOTES, 110.

• Of course the doing of physical harm to the land itself is not the only way of violating the owner's rights. His right of beneficially using the land may be substantially impaired without doing harm to the soil. And the owner's right of user necessarily includes the right and power of excluding others from using the land. "For a power of indefinite user would be utterly nugatory, unless it were coupled with a corresponding power of excluding others generally from any participation in the use.

"... Violations of the right of exclusion (when perfectly harmless in themselves) are treated as injuries or offences by reason of their probable effect on the rights of user and exclusion. A harmless violation of the right of exclusion, if it passed with perfect impunity, might lead, by the force of example, to such numerous violations of the right as would render both rights merely nugatory." 2 AUSTIN, JUR., 3 ed., 836, 837.

absence of any special justification 10 the defendant's intentional entry is faulty and tortious. In one case proof of the absence of fault will not exonerate the defendant, viz., where the defendant's intention was due to a non-negligent, but mistaken, belief as to the title to the land. Mr. Salmond, apparently, would not confine the exception to the case of mistake as to title, but would go so far as to hold that an inevitable mistake on any subject whatever will not exonerate the defendant." The question will be referred to later under the head of Absolute Liability.

As to unintentional entry: the view that it is not actionable in the absence of fault is sustained by the weight of modern authority. It "is not actionable unless due to negligence." 12 Of course this modern view involves a total departure from the old days when a man was held liable, "quite irrespective of moral fault," for harm "whether to another person, personal property, or real estate," which his act had caused.13 At the present time, when unintentional harm is done to the person or to personal property, "the rigor of the early law" has been relaxed, and recovery must gen

It is common to say that the action in such a case is allowed because the law "presumes" damage. The presumption is a fiction, and it is unnecessary to resort to it. Stated without fiction, the law is that a voluntary entry on land is primâ facie actionable, even though, in the particular instance, it has done the plaintiff not the slightest harm. "The explanation of these cases in which a right of action is conferred on a person who has sustained no harm is to be found in the fact that certain acts are so likely to result in harm that the law prohibits them absolutely and irrespective of the actual issue." See SALMOND, TORTS, 4 ed., 12.

Judge Wells, in Walker v. Old Colony, etc. Ry. Co., 103 Mass. 10, 14, pronounced the right of exclusion to be "one of the valuable incidents of the ownership of land." This right of exclusion is a property right, protected by the constitutional prohibition against taking property for private use or without compensation. The Vermont Act of 1892, No. 80, Section 31, provides that "no action shall be maintained against any person for crossing uncultivated land to reach public waters for the purpose of taking fish, unless actual damage has been sustained." In Trout & Salmon Club v. Mather, 68 Vt. 338 (1895), this act was held unconstitutional.

10 As to various justifications of entry on land, see BIGELOW, TORTS, 7 ed., §§ 47889.

11 SALMOND, TORTS, 4 ed., 186.

12 Ibid., 186. The learned! author adds: "No action will lie against a defendant whose horse runs away with him on a public highway and carries him without any negligence of his upon the adjoining land of the plaintiff." For this statement he cites, in note 4, two actions of trespass to the person, adding, "but there is no reason to doubt that the principle applies generally to all forms of trespass." An authority more directly in point is found in Brown v. Collins, 53 N. H. 442 (1873).

13 See Professor Bohlen, 59 U. PA. L. REV. 309, 310.