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.