Page:Harvard Law Review Volume 5.djvu/239

223 GRATUITOUS UNDERTAKINGS. 22$ all relationships, except so far as they are superseded by the ex- press provisions of some contract. There is no technical name for these rights. In the old law, action for the breach of such a right was induced by an assumpsit, or, as it should be translated in such a case, he undertook} Following this old use, which is by no means uncommon to-day, I shall call a right of this sort an undertaking. The subject naturally falls into two parts : first, is there such a third division of rights, distinct from rights ex con- tractu and rights ex delicto ? second, what are the principles gov- erning gratuitous undertakings? I. An undertaking is the entrance of two parties into such rela- tionship as that one party, on account of the bare relationship unaided by any agreement, has a new duty to perform toward the other; he undertakes a new duty. The definition may be rendered clearer by some examples of gratuitous undertaking. A's sheep falls into the river; B, seeing it, undertakes to rescue it. Before the undertaking, B has no duty toward A in the matter ; but as soon as he actually enters upon the task of rescue, he must per- form it with proper diligence. Any negligence by which the sheep is injured would render him liable to A ; so would a negli- gent abandonment of the rescue when it was almost certain to succeed. A falls senseless in the street; B, a passing physician, undertakes to cure him. B might have passed by and left A to his fate ; but having undertaken the work, he is liable for any negligence, either of commission or of omission. C sends a message to A by the B telegraph company. If the company receives the message to transmit, it is liable to A for any damage caused by negligent transmission. C pays A's fare on the cars of the B railroad company; the company negligently allows a robber to steal A's pocketbook. The company is liable for its failure to guard A. All these are cases where the relationship between the parties was voluntary; in none of them is there any contract, and in most of them the liability of B could not arise from any tort, 1 " Assumpsit does not only signify a future agreement, but in such a case as this it signifies an actual entry upon the thing, and taking the trust upon himself." Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 909, 919.