Page:Harvard Law Review Volume 8.djvu/406

390 390 HARVARD LAW REVIEW. III. In the Excuse or Justification element, a general agreement as to the inter-groupings of the various topics has not yet been reached — has indeed been little canvassed. The idea of the following attempt is to ignore superficial resemblances, and to take as the basis of grouping the essential policy of the excuse, — that which gives it character, and explains its varying application by the courts. To begin with, then, we find three broad groupings, {a) We notice that in one group the excuse finds its reason solely in the condition, conduct, or other circumstances of the plaintiff, the one suffering the harm. Excuses resting on the consent, the con- tributory fault, the illegal conduct, the need of assistance, of the plaintiff are thus characterized, and are governed by considera- tions more or less associated. {F) At the other extreme, we find certain excuses starting from the interest of others than the plain- tiff. These include the excuses resting on the needs of public justice, and the excuses resting on the interests of the community in general or of the defendant in particular, defining the limits of competition for commercial profit, the extent of injury by nuisances, etc. The general problem is to determine how far such opposing interests justify the harm done to a plaintiff himself innocent of fault, {c) Intermediate, lies a class in which both these elements enter, — being in the main the various limitations called for by the requirements of self-defence and self-redress. Here we find the former element, in that the plaintiff is supposed to' be in some way to blame ; while the latter element is also present, in that the defendant has by hypothesis some interest of his own to protect; the general problem being in effect to determine the total effect to be given to these considerations. A. I. Taking the first general group, we find that Consent (Leave and License) is generally recognized as limiting the right and taking away the claim for harm done. There are, of course, a few exceptions to be marked. 2. Next to a direct consent of the plaintiff to bear a specific harm, we may place that conduct which, in several more or less distinct forms, amounts to the Assumption of a Risk of harm. The three leading varieties are: («) the wilful rushing upon harm, — chiefly the doctrine of avoidable damage, — Contribu- tory Wilfulness, it may perhaps be termed ; {b) Contributory