Page:Harvard Law Review Volume 8.djvu/217

TRIPARTITE DIVISION OF TORTS. 201 Recusable, — for the same reason. The latter sort includes Contracts (in the narrow sense), and some few varieties not here important. The former includes Torts (so called), Enrichment (a part of Quasi-Contracts as now treated), and a few minor ones. The permanent justification for this division, it may be said, will be found in the deep-rooted instinct of the Anglo-American legal spirit, which is strikingly backward in imposing or enlarging an irrecusable nexus, but gives the freest scope for the voluntary assumption (Recusable) of nexus of any content.^ Dividing further the former sort, we find (a) many imposed universally, i. e. on all other members of the community in favor of myself; and (Jb) a few imposed on particular classes of persons by reason of special cir- cumstances. Of the latter sort the duty of a child to support a parent, as recognized in Continental and other law, is an example; but the most important group is found in parts at least of the subject known in Roman law as Quasi- Contract, in modern French and German jurisprudence as enrichissetnent indu and BereicJierung^ and with us to-day as Quasi-Contract. As the feature which dis- tinguishes this sort (<^) from the former (rt) is that the nexus is im- posed in the one case on all persons whatever, but in the other on those particular persons only of whom special facts are true, the natural terms of distinction are, for the one, Universal Irrecusable Nexus ; for the other, Particular Irrecusable Nexus. The subject of Tort, then, deals with the large group of relations here termed Universal Irrecusable Nexus. But the failure of the reader to accept the analysis thus briefly set forth need not prejudice the validity of what is now to be said, for it has been given only that the scope of the relations included by the writer under Torts may not be misunderstood. The next question is. What is the content of the rights and duties included under this head? Here, of course, we get nothing from mere analysis ; we must look to judicial practice and legis- lation, as embodying the established results of the community's sense of systematic justice. We have seen, however, that the starting- point of the analysis is the tendency of Anglo-American peoples to 1 Compare Holmes, " Common Law," 77 : " The liabilities . . . arising from a tort are independent of any previous consent of the wrongdoer to bear the loss occasioned by his act. . . . He does a harm which he has never consented to bear, and if the law makes him pay for it, the reason for so doing must be found in some general view of the conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not."