Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/11

26 example, in the creation of a contractual obligation between A and B, the affirmative operative facts are, inter alia, that each of the parties is a human being, that each of them has lived for not less than a certain period of time, (is not "under age"), that A has made an "offer," that B has "accepted" it, etc. It is sometimes necessary to consider, also, what may, from the particular point of view, be regarded as negative operative facts. Thus, e.g., the fact that A did not wilfully misrepresent an important matter to B, and the fact that A had not "revoked" his offer, must really be included as parts of the totality of operative facts in the case already put.

Taking another example,—this time from the general field of torts—if X commits an assault on Y by putting the latter in fear of bodily harm, this particular group of facts immediately create in Y the privilege of self-defense,—that is, the privilege of using sufficient force to repel X's attack; or, correlatively, the otherwise existing duty of Y to refrain from the application of force to the person of X is, by virtue of the special operative facts, immediately terminated or extinguished.

In passing, it may not be amiss to notice that the term, "facts in issue," is sometimes used in the present connection. If, as is usual, the term means "facts put in issue by the pleadings," the expression is an unfortuante [sic] one. The operative facts alleged by the pleadings are more or less generic in character; and if the pleadings be sufficient, only such generic operative facts are "put in issue." The operative facts of real life are, on the other hand, very specific. That being so, it is clear that the real and specific facts finally relied on are comparatively seldom put in issue by the pleadings. Thus, if, in an action of tort, the declaration of A alleges that he was, through the carelessness, etc., of B, bitten by the latter's dog, the fact alleged is generic in character, and it matters not whether it was dog Jim or dog Dick that did the biting. Even assuming, therefore, that the biting was done by Jim, (rather than by Dick), it could not be said that this specific fact was put in issue by the pleadings. Similarly, and more obviously, the pleading in an ordinary action involving so-called negligence, is usually very generic in character, so