SUMMARY

Vestitive Facts Investitive Facts or Titles. Original Titles. Creation of Rights.
Derivative Titles. } Transfer of Rights.
Divestitive Facts. Alienative Facts.  }
Extinctive Facts. Destruction of Rights.
Vestitive Facts Acts of the law.
Acts in the law. Unilateral.
Bilateral, or Agreements.
Agreements. 1. Contracts—creating rights in personam.
2. Grants—creating rights of other descriptions.
3. Assignments—transferring rights.
4. Releases—extinguishing rights.
Grounds of the operation of agreements.
Comparison of agreement and legislation
Agreements. Valid.
Invalid. Void.
Voidable.
The causes of invalidity.
1. Incapacity.
2. Informality.
3. Illegality.
4. Error.
5. Coercion.
6. Want of consideration.

CHAPTER XVII.
LIABILITY.

§ 125. The Nature and Kinds of Liability.

He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought. It is the ultimatum of the law.[[322]]

The purpose of this chapter and of the two which follow it is to consider the general theory of liability. We shall investigate the leading principles which determine the existence, the incidence, and the measure of responsibility for wrongdoing. The special rules which relate exclusively to particular kinds of wrongs will be disregarded as irrelevant to the purpose of our inquiry.

Liability is in the first place either civil or criminal, and in the second place either remedial or penal. The nature of these distinctions has been already sufficiently considered in a previous chapter on the Administration of Justice. We there saw that civil liability is liability to civil proceedings, and that a civil proceeding is one whose direct purpose is the enforcement of a right vested in the plaintiff. Criminal liability, on the other hand, is liability to criminal proceedings, and a proceeding of this nature is one whose direct purpose is the punishment of a wrong committed by the defendant.[[323]]

We also saw that the law often punishes a wrong by creating and enforcing against the wrongdoer a new obligation; for example, that of paying a pecuniary penalty or damages. In such a case the direct purpose of the proceeding is the enforcement of the sanctioning right thus created, though its ulterior purpose is the punishment of the wrong in which this right has its source. Hence the necessity of the further distinction between penal and remedial liability. The former is that in which the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer; the latter is that in which the law has no such purpose at all, its sole intent being the enforcement of the plaintiff’s right, and the idea of punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial; that of the publisher of a libel to be imprisoned, or to pay damages to the person injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is sometimes penal and sometimes remedial.[[324]]

§ 126. The Theory of Remedial Liability.

The theory of remedial liability presents little difficulty. It may be laid down as a general principle, that, whenever the law creates a duty, it should enforce the specific fulfilment of it. The sole condition of the existence of remedial liability is the existence of a legal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. In law ought is normally equivalent to must, and obligation and remedial liability are in general coexistent. To this general principle, however, there are the following exceptions:—

1. In the first place, there are duties of imperfect obligation—duties the breach of which gives no cause of action, and creates no liability at all, either civil or criminal, penal or remedial. A debt barred by the statute of limitations, or due by the Crown, is a legal debt, but the payment of it cannot be compelled by any legal proceedings.[[325]]

2. Secondly, there are many duties which from their nature cannot be specifically enforced after having once been broken. When a libel has already been published, or an assault has already been committed, it is too late to compel the wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may be termed transitory; once committed, they belong to the irrevocable past. Others, however, are continuing; for example, the non-payment of a debt, the commission of a nuisance, or the detention of another’s property. In such cases the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it.

3. In the third place, even when the specific enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely through the criminal law, or through the creation and enforcement of a substituted sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the law will compel the specific performance of a contract, instead of the payment of damages for the breach of it.

§ 127. The Theory of Penal Liability.

We now proceed to the main subject of our inquiry, namely, the general principles of penal liability. We have to consider the legal theory of punishment, in its application both to the criminal law and to those portions of the civil law in which the idea of punishment is relevant and operative. We have already, in a former chapter, dealt with the purposes of punishment, and we there saw that its end is fourfold, being deterrent, disabling, retributive, and reformative. The first of these purposes, however, is primary and essential, the others being merely secondary. In our present investigation, therefore, we shall confine our attention to punishment as deterrent. The inquiry will fall into three divisions, relating (1) to the conditions, (2) to the incidence, and (3) to the measure of penal liability.

The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, Actus non facit reum, nisi mens sit rea—The act alone does not amount to guilt; it must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed, and we may conveniently distinguish these as the material and the formal conditions of liability. The material condition is the doing of some act by the person to be held liable. A man is to be accounted responsible only for what he himself does, not for what other persons do, or for events independent of human activity altogether. The formal condition, on the other hand, is the mens rea or guilty mind with which the act is done. It is not enough that a man has done some act which on account of its mischievous results the law prohibits; before the law can justly punish the act, an inquiry must be made into the mental attitude of the doer. For although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent.

We shall see later that the mens rea or guilty mind includes two, and only two, distinct mental attitudes of the doer towards the deed. These are intention and negligence. Generally speaking, a man is penally responsible only for those wrongful acts which he does either wilfully or negligently. Then and only then is the actus accompanied by the mens rea. Then and then only do the two conditions of liability, the material and the formal, coexist. In this case only is punishment justifiable, for it is in this case alone that it can be effective. Inevitable accident or mistake—the absence both of wrongful intention and of culpable negligence—is in general a sufficient ground of exemption from penal responsibility. Impunitus est, said the Romans, qui sine culpa et dolo malo casu quodam damnum committit.[[326]]

We shall consider separately these two conditions of liability, analysing first the conception of an act, and secondly that of mens rea in its two forms of intention and negligence.[[327]]

§ 128. Acts.

The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will. Such a definition is, indeed, not ultimate, but it is sufficient for the purpose of the law. As to the nature of the will and of the control exercised by it, it is not for lawyers to dispute, this being a problem of psychology or physiology, not of jurisprudence.

(1) Positive and Negative Acts. Of acts as so defined there are various species. In the first place, they are either positive or negative, either acts of commission or acts of omission. A wrongdoer either does that which he ought not to do, or leaves undone that which he ought to do. The term act is often used in a narrow sense to include merely positive acts, and is then opposed to omissions or forbearances instead of including them. This restriction, however, is inconvenient. Adopting the generic sense, we can easily distinguish the two species as positive and negative; but if we restrict the term to acts of commission, we leave ourselves without a name for the genus, and are compelled to resort to an enumeration of the species.

(2) Internal and external acts. In the second place, acts are either internal or external. The former are acts of the mind, while the latter are acts of the body. In each case the act may be either positive or negative, lying either in bodily activity or passivity, or in mental activity or passivity. To think is an internal act; to speak is an external act. To work out an arithmetical problem in one’s head is an act of the mind; to work it out on paper is an act of the body. Every external act involves an internal act which is related to it; but the converse is not true, for there are many acts of the mind which never realise themselves in acts of the body. The term act is very commonly restricted to external acts, but this is inconvenient for the reason already given in respect of the distinction between positive and negative acts.

(3) Intentional and unintentional acts. Acts are further distinguishable as being either intentional or unintentional. The nature of intention is a matter to which particular attention will be devoted later, and it is sufficient to say here that an act is intended or intentional when it is the outcome of a determination of the actor’s will directed to that end. In other words, it is intentional when it was foreseen and desired by the doer, and this foresight and desire realised themselves in the act through the operation of the will. It is unintentional, on the other hand, when, and in so far as, it is not the result of any determination of the will towards a desired issue.

In both cases the act may be either internal or external, positive or negative. The term omission, while often used in a wide sense to include all negative acts, is also used in a narrower signification to include merely unintentional negative acts. It is then opposed to a forbearance, which is an intentional negative act. If I fail to keep an appointment through forgetfulness, my act is unintentional and negative; that is to say, an omission. But if I remember the appointment, and resolve not to keep it, my act is intentional and negative; that is to say, a forbearance.

The term act is very commonly restricted to intentional acts, but this restriction is inadmissible in law. Intention is not a necessary condition of legal liability, and therefore cannot be an essential element in those acts which produce such liability. An act is an event subject to the control of the will; but it is not essential that this control should be actually exercised; there need be no actual determination of the will, for it is enough that such control or determination is possible. If the control of the will is actually exercised, the act is intentional; if the will is dormant, the act is unintentional; but in each case, by virtue of the existence of the power of control, the event is equally an act. The movements of a man’s limbs are acts; those of his heart are not. Not to move his arms is an act; not to move his ears is not. To meditate is an act; to dream is not. It is the power possessed by me of determining the issue otherwise which makes any event my act, and is the ground of my responsibility for it.

Every act is made up of three distinct factors or constituent parts. These are (1) its origin in some mental or bodily activity or passivity of the doer, (2) its circumstances, and (3) its consequences. Let us suppose that in practising with a rifle I shoot some person by accident. The material elements of my act are the following: its origin or primary stage, namely a series of muscular contractions, by which the rifle is raised and the trigger pulled; secondly, the circumstances, the chief of which are the facts that the rifle is loaded and in working order, and that the person killed is in the line of fire; thirdly, the consequences, the chief of which are the fall of the trigger, the explosion of the powder, the discharge of the bullet, its passage through the body of the man killed, and his death. A similar analysis will apply to all acts for which a man is legally responsible. Whatever act the law prohibits as being wrongful is so prohibited in respect of its origin, its circumstances, and its consequences. For unless it has its origin in some mental or physical activity or passivity of the defendant, it is not his act at all; and apart from its circumstances and results it cannot be wrongful. All acts are, in respect of their origin, indifferent. No bodily motion is in itself illegal. To crook one’s finger may be a crime, if the finger is in contact with the trigger of a loaded pistol; but in itself it is not a matter which the law is in any way concerned to take notice of.

Circumstances and consequences are of two kinds, according as they are relevant or irrelevant to the question of liability. Out of the infinite array of circumstances and the endless chain of consequences the law selects some few as material. They and they alone are constituent parts of the wrongful act. All the others are irrelevant and without legal significance. They have no bearing or influence on the guilt of the doer. It is for the law, at its own good pleasure, to select and define the relevant and material facts in each particular species of wrong. In theft the hour of the day is irrelevant; in burglary it is material.

An act has no natural boundaries, any more than an event or a place has. Its limits must be artificially defined for the purpose in hand for the time being. It is for the law to determine, in each particular case, what circumstances and what consequences shall be counted within the compass of the act with which it is concerned. To ask what act a man has done is like asking in what place he lives.

By some writers the term act is limited to that part of the act which we have distinguished as its origin. According to this opinion the only acts, properly so called, are movements of the body. “An act,” it has been said,[[328]] “is always a voluntary muscular contraction and nothing else.” That is to say, the circumstances and consequences of an act are not part of it, but are wholly external to it. This limitation, however, seems no less inadmissible in law than contrary to the common usage of speech. We habitually and rightly include all material and relevant circumstances and consequences under the name of the act. The act of the murderer is the shooting or poisoning of his victim, not merely the muscular contractions by which this result is effected. To trespass on another man’s land is a wrongful act; but the act includes the circumstance that the land belongs to another man, no less than the bodily movements by which the trespasser enters upon it.[[329]]

It may be suggested that although an act must be taken to include some of its consequences, it does not include all of them, but only those which are direct or immediate. Any such distinction, however, between direct and indirect, proximate and remote consequences, is nothing more than an indeterminate difference of degree, and cannot be made the basis of any logical definition. The distinction between an act and its consequences, between doing a thing and causing a thing, is a merely verbal one; it is a matter of convenience of speech, and not the product of any scientific analysis of the conceptions involved. There is no logical distinction between the act of killing a man and the act of doing something which results (however remotely) in his death.[[330]]

§ 129. Two Classes of Wrongful Acts.

Every wrong is an act which is mischievous in the eye of the law—an act to which the law attributes harmful consequences. These consequences, however, are of two kinds, being either actual or merely anticipated. In other words, an act may be mischievous in two ways—either in its actual results or in its tendencies. Hence it is, that legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of accomplished harm which in fact ensues from it. The second consists of those in which the act is wrongful by reason of its mischievous tendencies, as recognised by the law, irrespective of the actual issue. In the first case there is no wrong or cause of action without proof of actual damage; in the second case it is sufficient to prove the act itself, even though in the event no harm has followed it.

For example, if A. breaks his contract with B, it is not necessary for B. to prove that he was thereby disappointed in his reasonable expectations, or otherwise suffered actual loss, for the law takes notice of the fact that breach of contract is an act of mischievous tendency, and therefore treats it as wrongful irrespective of the actual issue. The loss, if any, incurred by B. is relevant to the measure of damages, but not to the existence of a cause of action. So if I walk across another man’s field, or publish a libel upon him, I am responsible for the act without any proof of actual harm resulting from it. For trespass and libel belong to the class of acts which are judged wrongful in respect of their tendencies, and not merely in respect of their results. In other cases, on the contrary, actual damage is essential to the cause of action. Slander, for example, is in general not actionable without proof of some loss sustained by the plaintiff, although libel is actionable per se. So if by negligent driving I expose others to the risk of being run over, I am not deemed guilty of any wrong until an accident actually happens. The dangerous tendency of the act is not in this case considered a sufficient ground of liability.

With respect to this distinction between wrongs which do and those which do not, require proof of actual damage, it is to be noticed that criminal wrongs commonly belong to the latter class. Criminal liability is usually sufficiently established by proof of some act which the law deems dangerous in its tendencies, even though the issue is in fact harmless. The formula of the criminal law is usually: “If you do this, you will be held liable in all events,” and not: “If you do this you will be held liable if any harm ensues.” An unsuccessful attempt is a ground of criminal liability, no less than a completed offence. This, however, is not invariably so, for criminal responsibility, like civil, sometimes depends on the accident of the event. If I am negligent in the use of firearms, and kill some one in consequence, I am criminally liable for manslaughter; but if by good luck my negligence results in no accomplished mischief, I am free from all responsibility.

As to civil liability, no corresponding general principle can be laid down. In some cases proof of actual damage is required, while in other cases there is no such necessity; and the matter pertains to the detailed exposition of the law, rather than to legal theory. It is to be noted, however, that whenever this requirement exists, it imports into the administration of civil justice an element of capriciousness from which the criminal law is commonly free. In point of criminal responsibility men are judged by their acts and by the mischievous tendencies of them, but in point of civil liability they are often judged by the actual event. If I attempt to execute a wrongful purpose, I am criminally responsible whether I succeed or not; but my civil liability will often depend upon the accident of the result. Failure in a guilty endeavour amounts to innocence. Instead of saying: “Do this, and you will be held accountable for it,” the civil law often says: “Do this if you wish, but remember that you do it at your peril, and if evil consequences chance to follow, you will be answerable for them.”

§ 130. Damnum sine Injuria.

Although all wrongs are, in fact or in legal theory, mischievous acts, the converse is not true. All damage done is not wrongful. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Harm of this description—mischief that is not wrongful because it does not fulfil even the material conditions of responsibility—is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law (in jus), not in its modern and corrupt sense of harm.

Cases of damnum sine injuria fall under two heads. There are, in the first place, instances in which the harm done to the individual is nevertheless a gain to society at large. The wrongs of individuals are such only because, and only so far as, they are at the same time the wrongs of the whole community; and so far as this coincidence is imperfect, the harm done to an individual is damnum sine injuria. The special result of competition in trade may be ruin to many; but the general result is, or is deemed to be, a gain to society as a whole. Competitors, therefore, do each other harm but not injury. So a landowner may do many things on his own land, which are detrimental to the interests of adjoining proprietors. He may so excavate his land as to withdraw the support required by the buildings on the adjoining property; he may prevent the access of light to the windows of those buildings; he may drain away the water which supplies his neighbour’s well. These things are harmful to individuals; but it is held to serve the public interest to allow a man, within wide limits, to do as he pleases with his own.

The second head of damnum sine injuria includes all those cases in which, although real harm is done to the community, yet owing to its triviality, or to the difficulty of proof, or to any other reason, it is considered inexpedient to attempt its prevention by the law. The mischief is of such a nature that the legal remedy would be worse than the disease.

§ 131. The Place and Time of an Act.

Chiefly, though not exclusively, in consequence of the territorial limits of the jurisdiction of courts, it is often material to determine the place in which an act is done. In general this inquiry presents no difficulty, but there are two cases which require special consideration. The first is that in which the act is done partly in one place and partly in another. If a man standing on the English side of the Border fires at and kills a man on the Scottish side, has he committed murder in England or in Scotland? If a contract is made by correspondence between a merchant in London and another in Paris, is the contract made in England or in France? If by false representations made in Melbourne a man obtains goods in Sydney, is the offence of obtaining goods by false pretences committed in Victoria or in New South Wales? As a matter of fact and of strict logic the correct answer in all these cases is that the act is not done either in the one place or in the other. He who in England shoots a man in Scotland commits murder in Great Britain, regarded as a unity, but not in either of its parts taken in isolation. But no such answer is allowable in law; for, so long as distinct territorial areas of jurisdiction are recognised, the law must assume that it is possible to determine with respect to every act the particular area within which it is committed.

What locality, therefore, does the law attribute to acts which thus fall partly within one territorial division and partly within another? There are three possible answers. It may be said that the act is committed in both places, or solely in that in which it has its commencement, or solely in that in which it is completed. The law is free to choose such one of these three alternatives as it thinks fit in the particular case. The last of them seems to be that which is adopted for most purposes. It has been held that murder is committed in the place in which the death occurs,[[331]] and not also in the place in which the act causing the death is done,[[332]] but the law on these points is not free from doubt.[[333]] A contract is made in the place where it is completed, that is to say, where the offer is accepted[[334]] or the last necessary signature to the document is affixed.[[335]] The offence of obtaining goods by false pretences is committed in the place in which the goods are obtained[[336]] and not in the place where the false pretence is made.[[337]]

A second case in which the determination of the locality of an act gives rise to difficulty is that of negative acts. In what place does a man omit to pay a debt or to perform a contract? The true answer is apparently that a negative act takes place where the corresponding positive act ought to have taken place. An omission to pay a debt occurs in the place where the debt is payable.[[338]] If I make in England a contract to be performed in France, my failure to perform it takes place in France and not in England. The presence of a negative act is the absence of the corresponding positive act, and the positive act is absent from the place in which it ought to have been present.

The time of an act. The position of an act in time is determined by the same considerations as its position in space. An act which begins to-day and is completed to-morrow is in truth done neither to-day nor to-morrow, but in that space of time which includes both. But if necessary the law may date it from its commencement, or from its completion, or may regard it as continuing through both periods. For most purposes the date of an act is the date of its completion, just as its place is the place of its completion.[[339]]

A negative act is done at the time at which the corresponding positive act ought to have been done. The date of the non-payment of a debt is the day on which it becomes payable.

§ 132. Mens Rea.

We have seen that the conditions of penal liability are sufficiently indicated by the maxim, Actus non facit reum, nisi mens sit rea. A man is responsible not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. Before imposing punishment, whether civilly or criminally, the law must be satisfied of two things: first, that an act has been done which by reason of its harmful tendencies or results is fit to be repressed by way of penal discipline; and secondly, that the mental attitude of the doer towards his deed was such as to render punishment effective as a deterrent for the future, and therefore just. The first is the material, the second is the formal condition of liability. The mens rea may assume one or other of two distinct forms, namely wrongful intention or culpable negligence. The offender may either have done the wrongful act on purpose, or he may have done it carelessly, and in each case the mental attitude of the doer is such as to make punishment effective. If he intentionally chose the wrong, penal discipline will furnish him with a sufficient motive to choose the right instead for the future. If, on the other hand, he committed the forbidden act without wrongful intent, but yet for want of sufficient care devoted to the avoidance of it, punishment will be an effective inducement to carefulness in the future. But if his act is neither intentional nor negligent, if he not only did not intend it, but did his best as a reasonable man to avoid it, there can be no good purpose fulfilled in ordinary cases by holding him liable for it.

Yet there are exceptional cases in which, for sufficient or insufficient reasons, the law sees fit to break through the rule as to mens rea. It disregards the formal condition of liability, and is satisfied with the material condition alone. It holds a man responsible for his acts, independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus independent of mens rea may be distinguished as wrongs of absolute liability.

It follows that in respect of the requirement of mens rea wrongs are of three kinds:

(1) Intentional or Wilful Wrongs, in which the mens rea amounts to intention, purpose, or design.

(2) Wrongs of Negligence, in which the mens rea assumes the less serious form of mere carelessness, as opposed to wrongful intent.

(3) Wrongs of Absolute Liability, in which the mens rea is not required, neither wrongful intent not culpable negligence being recognised as a necessary condition of responsibility.

We shall deal with these three classes of wrongs, and these three forms of liability, in the order mentioned.