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Page:Harvard Law Review Volume 1.djvu/65

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Relative rights differ from absolute rights in this, that the former add nothing to the sum or aggregate of human rights; for what an obligation confers upon the obligee is precisely commensurate with what it takes from the obligor. Absolute rights, therefore, make up the entire sum of human rights.

Every violation of a right is either a tort or a breach of obligation. Every violation of an absolute right is, therefore, a tort. So is every violation of a right arising from an obligation (i.e., of a relative right) which does not consist of a breach of the obligation. Hence every act committed by any person in violation of a right created by a real obligation is a tort; for such an act cannot be a breach of the obligation.

Whether a right created by a personal obligation can be violated by an act which constitutes a tort, i.e., by an act which does not consist of a breach of the obligation, is a question involved in much doubt and difficulty. In Lumley v. Gye,[1] and in Bowen v. Hall,[2] this question was decided broadly in the afiirmative; for it was held in each of those cases that it was a tort maliciously to procure an obligor to break his obligation. In each of them, however, the Court was divided; in Lumley v. Gye there was a very powerful dissenting opinion, which was fully adopted by one of the judges in Bowen v. Hall; and, though the writer is not at present prepared to say that the decisions were wrong, yet neither is he prepared to admit that they were right.[3]

An obligation may, however, be so framed as to make it possible for the obligor or a third person to destroy the obligation before the time for its performance arrives. For example, if the performance of an obligation be made conditional upon the happening of an event which is subject to human control, any act which prevents the happening of that event will destroy the obligation; and there can be no doubt that such an act, if done for the purpose of destroying the obligation, will constitute a

  1. 2 El. & Bl. 216.
  2. 6 Q. B. D. 333.
  3. “N. B. Any prevention of the completion of an obligation (stricto sensu) caused by a third party would be no violation of a right in the obligee, or, if it would, would be a violation of a distinct right. A stranger who employs a builder to undertake an extensive work, or wounds or maims him (thereby, in either case, preventing him from completing a previous contract with myself) violates no right in me; and my remedy is against the builder for the breach of contract with myself. A stranger who inveigles my servant violates, not my jus ad rem under the contract, but my jus in re. The servant himself, indeed, does; and for this breach of his obligation (stricto sensu) I may sue him on the eontract.”—Austin, Jurisprudence (4th ed.), Vol. 1, p. 402, note