The first and most important class of obligations consists of those which are created by contract. We have in a former chapter sufficiently considered the nature of a contract,[[461]] and we there saw that it is that kind of agreement which creates rights in personam between the parties to it. Now of rights in personam obligations are the most numerous and important kind, and of those which are not obligations comparatively few have their source in the agreement of the parties. The law of contract, therefore, is almost wholly comprised within the law of obligations, and for the practical purposes of legal classification it may be placed there with sufficient accuracy. The coincidence, indeed, is not logically complete: a promise of marriage, for example, being a contract which falls within the law of status, and not within that of obligations. Neglecting, however, this small class of personal contracts, the general theory of contract is simply a combination of the general theory of agreement with that of obligation, and does not call for any further examination in this place.[[462]]
§ 169. Obligations arising from Torts.
The second class of obligations consists of those which may be termed delictal, or in the language of Roman law obligationes ex delicto. By an obligation of this kind is meant the duty of making pecuniary satisfaction for that species of wrong which is known in English law as a tort. Etymologically this term is merely the French equivalent of the English wrong—tort (tortum), being that which is twisted, crooked, or wrong; just as right (rectum) is that which is straight. As a technical term of English law, however, tort has become specialised in meaning, and now includes merely one particular class of civil wrongs.
A tort may be defined as a civil wrong, for which the remedy is an action for damages, and which is not solely the breach of a contract or the breach of a trust or other merely equitable obligation. This definition contains four essential elements, there being four kinds of wrongs excluded by it from the sphere of tort.
1. A tort is a civil wrong; crimes are wrongs, but are not in themselves torts, though there is nothing to prevent the same act from belonging to both these classes at once.
2. Even a civil wrong is not a tort, unless the appropriate remedy for it is an action for damages. There are several other forms of civil remedy besides this; for example, injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the class of torts. The obstruction of a public highway, for example, is to be classed as a civil injury, inasmuch as it may give rise to civil proceedings instituted by the Attorney-General for an injunction; but although a civil injury, it is not a tort, save in those exceptional instances in which, by reason of special damage suffered by an individual, it gives rise to an action for damages at his suit.
3. No civil wrong is a tort, if it is exclusively the breach of a contract. The law of contracts stands by itself, as a separate department of our legal system, over against the law of torts; and to a large extent liability for breaches of contract and liability for torts are governed by different principles. It may well happen, however, that the same act is both a tort and a breach of contract, and this is so in at least two classes of cases.
(a) The first and simplest of these is that in which a man undertakes by contract the performance of a duty which lies on him already, independently of any contract. Thus he who refuses to return a borrowed chattel commits both a breach of contract and also the tort known as conversion: a breach of contract, because he promised expressly or impliedly to return the chattel; but not merely a breach of contract, and therefore also a tort, because he would have been equally liable for detaining another man’s property, even if he had made no such contract at all.
(b) The second class of cases is one which involves considerable difficulty, and the law on this point cannot yet be said to have been thoroughly developed. In certain instances the breach of a contract made with one person creates liability towards another person, who is no party to the contract. It is a fundamental principle, indeed, that no person can sue on an obligatio ex contractu, except a party to the contract; nevertheless it sometimes happens that one person can sue ex delicto for the breach of a contract which was not made with him, but from the breach of which he has suffered unlawful damage. That is to say, a man may take upon himself, by a contract with A., a duty which does not already or otherwise rest upon him, but which, when it has once been undertaken, he cannot break without doing such damage to B., a third person, as the law deems actionable. Thus, if X. lends his horse to Y., who delivers it to Z., a livery stablekeeper, to be looked after and fed, and the horse is injured or killed by insufficient feeding, presumably Z. is liable for this, not only in contract to Y., but also in tort to X., the owner of the horse. It is true that, apart from his contract with Y., Z. was under no obligation to feed the animal; apart from the contract, this was a mere omission to do an act which he was not bound to do. Yet having taken this duty upon himself, he has thereby put himself in such a situation that he cannot break the duty without inflicting on the owner of the horse damage of a kind which the law deems wrongful. The omission to feed the horse, therefore, although a breach of contract, is not exclusively such, and is therefore a tort, inasmuch as it can be sued on by a person who is no party to the contract. How far damage thus caused to one man by the breach of a duty undertaken by contract with another is actionable as a tort at the suit of the former, is a question to be determined by the detailed rules of the concrete legal system, and need not be here considered.[[463]]
Before the abolition of forms of action the relation between contract and tort was complicated and obscured by the existence of a class of fictitious torts—wrongs which were in reality pure breaches of contract and nothing more, and which nevertheless were remediable by delictal forms of action. Forms of action were classed as either contractual or delictal, but contractual actions were illogically allowed in cases in which there was no true contract, but only a quasi-contract; and delictal actions in cases in which there was no true tort, but a mere breach of contract. There seems to be no longer any occasion for recognising the existence of such quasi-torts, for they were merely a product of historical accident, which may and should be now eliminated from the law. They are a relic of the days when contractual remedies were so imperfectly developed that they had to be supplemented by the use of delictal remedies in cases of breach of contract. The contractual action of assumpsit is, in its origin, merely a variant of the delictal action of case. It is not surprising, therefore, that until the abolition of all forms of action, our law failed to draw with accuracy the line between torts and breaches of contract.[[464]]