Page:Harvard Law Review Volume 8.djvu/29

13 PRIVILEGE, MALICE, AND INTENT. 1 3 not.^ What I have called heretofore the privilege not to contract really is only the negative side of a privilege to make contracts. I stated it in the negative way in order to make the claim of an absolute privilege more plausible. But the right not to contract in a certain event, and to say that you will not, means nothing unless it is implied that you ofifer a contract, that is, an act on your part, in the other event. If no such oJfTer is understood, then you simply refuse to contract, whatever happens, which undoubtedly you may do. But there is no absolute privilege to make agreements which are not unlawful on their face, that is to say, which do not neces- sarily and always tend to produce a result that the law wishes to prevent. An agreement may be unlawful, because under the par- ticular circumstances it tends to produce such ar result, although in general harmless. The question has arisen, how close the connection must be between an agreement — for instance, a sale — and the result sought to be prevented, in order to make the sale unlawful. I presume that the same degree of connection which would have that effect would make the seller liable if the result in question was a tort. In Graves v. Johnson,^ where intoxicating liquor was found to have been sold in Massachusetts, " with a view to " an illegal resale by the purchaser in Maine, a majority of the court interpreted the words quoted as meaning that the seller intended that the buyer should resell unlawfully, and was understood by the latter to be acting in aid of that purpose, and held the sale unlawful. But it may be conjectured that the decision would have been different if the seller merely had known of the buyer's intent without encour- aging it or caring about it. In questions of privilege, the nature of the defendant's act, the nature of the consequences, and the closeness of the bond between them, may vary indefinitely. We may imagine the conduct to be of the most highly privileged kind, like the use of land, and to consist of imposing conditions upon the letting of rooms or the removal of a building cutting off a view. We may imagine the conditions to be stated with intent, but without any persuasion or advice, that they should be satisfied, and we may imagine them to be illegal acts anywhere from murder down to breach of a con- ^ Temperton v. Russell (1893), i Q. B. D. 715, mentioned above for a different point. In this case, there was the additional element of combination. See the other cases cited above, p. 8 n.
 * 156 Mass. 211.