Page:Harvard Law Review Volume 8.djvu/393

377 A GENERAL ANALYSIS OF TORT-RELATIONS. 177 A GENERAL ANALYSIS OF TORT- RELATIONS. IN a former article in this Review,^ an attempt was made by the writer to set forth briefly the tripartite division of the tort- relation, as embodying the prime elements in every so-called tort. This analysis distinguished : first, the Damage element, i. e. the various kinds of harm, corporal, social, proprietary, and other, which the law recognizes as the subject of a recovery; secondly^ the Responsibility element, i. e. the principles which determine whether, under given circumstances, a particular person is to be held responsible for the infliction of one of these kinds of legal harm ; and thirdly, the Excuse or Justification element, /. e. the conditions in which no legal liability is recognized, even though there may exist a conceded or assumed responsibility for a con- ceded or assumed harm. With a reference to that article for an exposition of this general grouping, a further attempt will here be made to analyze the different groupings within these broad divi- sions, and to illustrate and test their validity by noting the appro- priate place of the detailed and concrete sub-topics. It must be said in advance: i. That there is no intention of indicating the solution of any doubtful problems, or of assuming the correctness of any view of what the particular rule is or ought to be ; the aim is merely that of marking out the field : 2. That the analysis is necessarily rough and often tentative only, and space often compels a disregard of minor qualifications : 3. That, as to method, the fundamental idea is, not to follow fancy nor to force a symmetrical grouping, but, neglecting accidents of appear- ance and surface differences, to examine reasons and causes, to ascertain the intrinsic meaning of principles and the considera- tions actually treated as controlling decisions, and thus at once to reach a scientific and natural basis of grouping, as well as to indicate the true lines of argument and discussion on which the development of principles must proceed. We take first the Damage element. ^ Vol. viii. p. 200.