Page:Harvard Law Review Volume 8.djvu/219

TRIPARTITE DIVISION OF TORTS. 203 present, the nexus still has no validity, — in other words, the con- siderations which allow the harm to be inflicted with impunity ; this we may term the Excuse or Justification element. This an- alysis results in a tripartite division of the Tort-nexus. We may now examine this division in detail with reference to the various topics dealt with in our law. No attempt will here be made (though a later occasion may be taken for this) to establish any further subdivisions within these three great groups. The object here is merely to illustrate and justify the above analysis by pointing out the place occupied within the above groups by the main topics recognized as belonging to the subject.* I. The Damage Element. — The question is here, what sorts of harm is it that the law recognizes as the subject of a claim for its protection? We have here nothing to do with the question, Who is responsible? or, Is X responsible? nor with the question. Is X, though responsible, here excusable? We may and do determine the limitations of the Damage element without regard to these questions. Of course, after determining that the one exists, we may then determine that the other does not ; and cases are fre- quent in which two or even all of the questions are disputable, and must be settled before a final determination can be reached as to the existence of a claim, i. e. a nexus. But, whenever there is a decision upon the Secondary or the Tertiary Hmitations, it neces- sarily involves, by assumption or otherwise, the sufficient existence of the other element or elements; nor can a claim be sanctioned by a favorable decision as to the Damage element without an assumption as to the existence of the other two. Under the Damage element, of course, are to be considered 1 The language in which Mr. Justice Holmes, in the above mentioned article, seems to show a belief in the propriety of this tripartite division is as follows, the passages being somewhat curtailed : — (i) " I should sum up the first part of the theory in a few words, as follows. Ac- tions of tort are brought for temporal damage. The law recognizes temporal damage as an evil which its object is to prevent or to redress, so far as is consistent with para- mount considerations to be mentioned." (2) " When it is shown that the defendant's act has had temporal damage to the plaintiff for its consequence, the next question is whether that consequence was one which the defendant might have foreseen." (3) "The first [next] question which presents itself is why the defendant is not liable without going further. The answer is suggested by the commonplace, that the inten- tional infliction of temporal damage, as the doing of an act manifestly likely to inflict such damage and inflicting it, is actionable if done without just cause. . . . There are various justifications. In these instances, the justification is that the defendant is privileged knowingly to inflict the damage complained of."