Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/37

52 offerer and that of an option-giver. It has indeed been usual to assert that such a party is (generally speaking) under a present duty to all other parties; but this is believed to be erroneous. Thus, Professor Wyman, in his work on Public Service Companies, says:

"The duty placed upon every one exercising a public calling is primarily a duty to serve every man who is a member of the public. * * * It is somewhat difficult to place this exceptional duty in our legal system. * * * The truth of the matter is that the obligation resting upon one who has undertaken the performance of public duty is sui generis."

It is submitted that the learned writer's difficulties arise primarily from a failure to see that the innkeeper, the common carrier and others similarly "holding out" are under present liabilities rather than present duties. Correlatively to those liabilities are the respective powers of the various members of the public. Thus, for example, a travelling member of the public has the legal power, by making proper application and sufficient tender, to impose a duty on the innkeeper to receive him as a guest. For breach of the duty thus created an action would of course lie. It would therefore seem that the innkeeper is, to some extent, like one who had given an option to every travelling member of the public. He differs, as regards net legal effect, only because he can extinguish his present liabilities and the correlative powers of the travelling members of the public by going out of business. Yet, on the other hand, his liabilities are more onerous than that of an ordinary contractual offerer, for be cannot extinguish his liabilities by any simple performance akin to revocation of offer.

As regards all the "legal powers" thus far considered, possibly some caution is necessary. If, for example, we consider the ordinary property owner's power of alienation, it is necessary to distinguish carefully between the legal power, the physical power to do the things necessary for the "exercise" of the legal power, and, finally, the privilege of doing these things—that is, if such privilege does really exist. It may or may not. Thus, if X, a landowner, has contracted with Y that the former will not alienate to Z, the acts of X necessary to exercise the power of alienating to Z are privileged as between X and every party other than Y; but, obviously, as between X and Y, the former has no