TORT (Fr. for wrong, from Lat. tortus, twisted, participle of torquere)

This article appears in Volume V27, Page 65 of the Encyclopedia Britannica.

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TORT (Fr. for wrong, from Lat. tortus, twisted, participle of torquere) , the technical term, in the law of England, of those dominions and possessions of the British Empire where the common law has been received or practically adopted in civil affairs, and of the United States, for a civil wrong, i.e. the breach of a duty imposed by law, by which breach some person becomes entitled to sue for damages. A tort must, on theone hand, be an act which violates a general duty. The rule which it breaks must be one made by the law, not, as in the case of a mere breach of

contract

, a rule which the law protects because the parties have made it for themselves. On the other hand, a tort is essentially the source of a private right of action. An offence which is punishable, but for which no one can bring a civil action, is not a tort. It is quite possible for one and the same act to be a tort and a breach of

contract

, or a tort and a crime; it is even possible in one class of cases for the plaintiff to have the optionfor purposes of procedural advantageof treating a real tort as a fictitious contract; but there is no necessary or general connexion. Again, it is not the case that pecuniary damages are always or necessarily the only remedy for a tort; but the right to bring an action in common law jurisdiction, as distinct from equity, matrimonial or admiralty jurisdiction, with the consequent right to damages, is invariably present where a tort has been committed.
This technical use of the French word tort (which at one time was near becoming a synonym of wrong in literary English) is not very ancient, and anything like systematic treatment of the subject as a whole is very modern. Since about the middle of the 19th century there has been a current assumption that all civil causes of action must be founded on either contract or tort; but there is no historical foundation for this doctrine, though modified forms of the action of trespassactions in consimili casu, or " on the case " in the accustomed English phrasedid in practice largely supplant other more archaic forms of action by reason of their greater convenience. The old forms were designed as penal remedies for manifest breach of the peace or corruption of justice; and traces of the penal

element

ELEMENT (Lat. elementum)

remained in them long after the substance of the procedure had become private and merely civil. The transition belongs to the general history of English law.
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

SERIES (a Latin word from serere, to join)

of disconnected experiments with the various forms of action which seemed from time to time to promise the widest and most useful remedies. But there is no doubt that the duties enforced by the English law of torts are broadly those which the Roman institutional writers summed up in the precept Alterum non laedere. Every member of a civilized commonwealth is entitled to require of others a certain amount of respect for his person, reputation and property, and a certain amount of care and caution when they go about undertakings attended with

risk

RISK

to their neighbours. Under the modern law, it is submitted, the question arising when one man wilfully or recklessly harms another is not whether some technical form of action can be found in which he is liable, but whether he can justify or excuse himself. This view, at any rate, is countenanced by a judgment of the Supreme Court of the United States delivered in 1904. If it be right, the controverted question whether conspiracy is or is not a substantive cause of action seems to lose most of its importance. Instead of the doubtful proposition of law that some injuries become unlawful only when inflicted by concerted action, we shall have the plain proposition of fact that some kinds of injury cannot, as a rule, be inflicted by one person with such effect as to produce any damage worth suing for.
The precise amount of responsibility can be determined only by full consideration in each class of cases. It is important to observe, however, that a law of responsibility confined to a man's own personal acts and defaults would be of next to no

practical

PRACTICAL

use under the conditions of modern society. What makes the law of torts really effective, especially with regard to redress for harm suffered by negligence, is the universal rule of law that every one is answerable for the acts and defaults of his servants (that is, all persons acting under his direction and taking their orders from him or some one representing him) in the course of their employment. The person actually in fault is not the less answerable, but the remedy against him is very commonly not worth pursuing. But for this rule corporations could not be liable for any negligence of their servants, however disastrous
to innocent persons, except so far as it might happen to constitute a breach of some express undertaking. We have spoken of the rule as universal, but, in the case of one servant of the same employer being injured by the default of another, an unfortunate aberration of the courts, which started about two generations ago from small beginnings, was pushed to extreme results, and led to

great

GREAT

hardship. A partial remedy was applied in r88o by the Employers' Liability Act; and in 1897 a much bolder step was taken by the Workmen's Compensation Act (superseded by a more comprehensive act in 1906). But, as the common law and the two acts (which proceed on entirely different principles) cover different fields, with a good deal of overlapping, and the acts are full of complicated provisos and exceptions, and contain very

special

SPECIAL

provisions as to procedure, the improvement in substantial justice has been bought, so far, at the price of

great

GREAT

confusion in the form of the law, and considerable difficulty in ascertaining what it is in any but the most obvious cases. The Workmen's Compensation Act includes cases of pure accident, where there is no fault at all, or none that can be proved, and therefore goes beyond the reasons of liability with which the law of torts has to do. In fact, it establishes a kind of compulsory insurance, which can be justified only on wider grounds of policy. A novel and extraordinary exception to the rule of responsibility for agents was made in the case of trade combinations by the Trade Disputes Act 1906. This has no

interest

INTEREST

for law as a science.
There are kinds of cases, on the other hand, in which the law, without aid from legislation, has imposed on occupiers and other persons in analogous positions a duty stricter than that of being answerable for themselves and their servants. Duties of this kind have been called " duties of insuring safety." Gene-rally they extend to having the building, structure, or works in such order, having regard to the nature of the case, as not to create any danger to persons lawfully frequenting, using, or passing by them, which the exercise of reasonable care and skill could have avoided; but in some cases of " extra-hazardous "

risk

RISK

, even proof of all possible diligenceaccording to English authority, which is not unanimously accepted in Americawill not suffice. There has lately been a notable tendency to extend these principles to the duties incurred towards the public by local authorities who undertake public works. Positive duties created by statute are on a similar footing, so far as the breach of them is capable of giving rise to any private right of action.
The classification of actionable wrongs is perplexing, not because it is difficult to find a

scheme

SCHEME (Lat. schema, Gr. oxfjya, figure, form, from the root axe, seen in exeiv, to have, hold, to be of such shape, form, &c.)

of division, but because it is easier to find many than to adhere to any one of them. We may start either from the character of the defendant's act or omission, with regard to his knowledge, intention and otherwise; or from the character of the harm suffered by the plaintiff. Whichever of these we take as the primary line of distinction, the results can seldom be worked out without calling in the other. Taking first the defendant's position, the widest governing principle is that, apart from various recognized grounds of immunity, a man is answerable for the " natural and probable " consequences of his acts; i.e. such consequences as a reasonable man in his place should have foreseen as probable. Still more is he answer-able for what he did actually foresee and intend. Knowledge of particular facts may be necessary to make particular kinds of conduct wrongful. Such is the rule in the case of fraud and other allied wrongs, including what is rather unhappily called "

slander

SLANDER

of title," and what is now known as " unfair competition " in the matter of trade names and descriptions, short of actual piracy of trade-marks. But where an absolute right to security for a man's person, reputation or goods is interfered with, neither knowledge nor specific intention need be proved. In these cases we trespass altogether at our peril. It is in general the habit of the law to judge acts by their apparent tendency, and not by the actor's feelings or desires. I cannot excuse myself by good motives for infringing another man's rights, whatever other grounds of excuse may be available;

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