Page:Harvard Law Review Volume 8.djvu/397

A GENERAL ANALYSIS OF TORT-RELATIONS. 381 Coming now to the societary rights (rights to social relations) in general, we find as the generic feature a right to be protected against the stoppage or diversion of benefits of various sorts to be gained from social and commercial relations with third persons. In this field there is as yet no accepted grouping, and it is, indeed, in connection with the Excuse element that the circumstances giv- ing rise to the proper distinctions are suggested to us. A rough grouping of the relations may be made into (i) Domestic, (2) Con- tractual, and (3) Sundry Voluntary relations. The question here is, What sorts of relations may become the subject of a right against interference? Taking first the general class last men- tioned, we find that there is a broad distinction between («) the diversion of patronage by the reproduction of private literary and industrial inventions, and {b) the diversion of patronage by any other means. The latter it will be better to look at first. 7. The commonest questions that strictly belong here are two : (l) whether the relation in issue is the subject of a claim (it is said e. g. that it must be the source of some pecuniary or other material benefit) ^; (2) whether the relation is the source of a benefit suffi- ciently constant or certain to be worth considering.^ But we find under the Excuse element that certain kinds of interference, e. sr. peaceable individual suasion, are concededly exempt from recovery, and that certain other kinds, e. g. defamatory or fraudulent inter- ference, are concededly unexcused and actionable ; and accordingly, for the better protection of the latter sort of right, certain additional " prophylactic " rights have been sanctioned ; these we now come to. (3) Written defamation (" calculated to bring the plaintiff into hatred, ridicule, or contempt") and oral defamation (imputing a crime, a loathsome contagious disease, or a professional incapacity) are ipso facto and apart from actual damage protected against ; for such conduct is regarded as almost inevitably bringing social harm, positive but more or less difficult to prove, and therefore worth forbidding at the threshold.^ Of the whole law of libel and 1 E.g. Davies v. Solomon, L. R. 9 Q. B. 112, where the loss of hospitality of friends was regarded as a sufficiently substantial harm. 2 E.g. Dudley z/. Briggs, 141 Mass. 582, where the single issue of a directory was held not to show sufficiently the existence of a good-will or market alleged to have been destroyed by the defendant. 3 The cases on damages show that this right is intended to protect, not merely against social ostracism, but also against the feelings of shame and humiliation which also follow the publication of such false charges. It is this element of mental suffering which points to the present right as occupying the transition place between corporal and societary rights.