Page:The Green Bag (1889–1914), Volume 17.pdf/401

 THE GREEN BAG follow as a matter resting wholly on the policy of law, that policy which protects the right of citizens from positive injury. Such duties, therefore, only arise when they are necessary to protect others from the consequences of acts, businesses, or uses of property beneficial to those who do them, engage in them, and use it. All affirmative duties may truly be termed assumptional and founded upon con sideration, whether to protect from injury or to confer a benefit. All were, as has been seen, originally enforced by action on the case on the assumpsit. Damage being the basis of such action, the actual loss of a legal right had to be shown. Save in exceptional pur suits, where service must be rendered to all alike, as carriers, innkeepers, etc., there was no legal right to such benefit. Nor did the early common law recognize any interest in the public that an expected benefit should be conferred. So in such case to show damage, the loss of the consideration had to be shown. Only he who had paid it could lose it, so only he who was a party to the consideration could maintain the action. Such purely beneficial assumption, expressly assumed, came, too, probably by analogy to the action of covenant, the preexisting remedy for similar obligations formally assumed, to be regarded as grants of the expected benefit. So the measure of dam ages was held to be the loss of the benefit to be derived from performance and not the value of the consideration paid. Such a grant, like that in a formal covenant, would be naturally held to extend only to the grantee and de pend in its extent on the will and consent of the grantor. Such obligations thus came to be regarded as resting wholly on the consent of the parties who had undertaken them and limited to those to whom they were assumed and enforceable only by parties to the consid eration. Such are the essential elements of purely contractual duties which separate and distinguish them into a distinct class of as sumptional obligations. The natural tendency to overwork a new discovery led the courts to treat as contractual even those assumptional duties which were imposed by the policy of law towards those who had in fact furnished the consideration on which they were founded. It is very usual for courts to speak of such .duties as are inevitably imposed for protec

tion from injury as incidents to the conduct of a business as resting upon an implied term in contracts made in their exercise. "This tendency has led to the unfortunate idea that when there is a contract between two persons, no one can be concerned with anything done in performance or breach thereof save the parties thereto, and that any action brought to recover, even for an actual injury by one not a party thereto, is an at tempt to sue on the contract. However, not withstanding the tendency of contract to usurp the place of tort even to-day, it will be found that acts probably injurious are regarded as solely tortious only; a failure to perform a duty voluntarily assumed, whereby a benefit is lost, is wholly a breach of contract. A failure to perform an obligation to avoid in jury assumed as the price of action is re garded as either at the election of the party injured if he be a party to the consideration, as a tort solely if he be not." The author then proceeds to apply these principles in analysis of the various actions of tort arising from the use or transfer of real or personal property. In regard to transfer of possession he says: "It may be safely said that, ist, one who furnishes an article or structure for use for a purpose in which he has an interest, direct or indirect, and from which he derives directly or indirectly a benefit, is bound to exercise care to have the structure or article fit for such use. "2d. Such obligations can extend no further than the ability to satisfy them. Where the possession of the article or structure is trans ferred, if it be at the time of transfer fit for the use for which it is designed, the transferee is alone responsible for any defects arising subsequently, since with the possession and control passes the power to inspect and re pair; he is alone able to observe and remedy such defects, and his alone is the duty of inspection and repair." If one does attempt actively to deal with a chattel in the performance of his calling he is bound to use due care independently of con tract. The author cites ancient cases to sup port this theory. The liability of a mere transferrer of title to property, however, is onlv for fraud or non-disclosure of known