Page:The Green Bag (1889–1914), Volume 22.pdf/532

 The Green Bag I 504 than to get at the same result indirectly under the form of exceptions to duties. The same is true in a few other cases. In the above deﬁnition of a duty the

word “act" is used in its strict and nar row sense, Austin's sense, to denote a

volitional bodily movement and no more. In ordinary use, and often in legal use, there is a wider sense in which the word covers some of the more

immediate consequences of the bodily movement, what are called in the law

of trespass its direct consequences. The act of shooting a man, lation' sensu,

includes not merely the bodily move ments by which the gun is sighted and the trigger pulled, but also the resulting movements of the parts of the gun, the

explosion of the powder, the ﬂight of

or reasonableness; since probability in law means reasonable probability, either name is appropriate. Here the deﬁnitional consequences are probable. The duty is to act or abstain from acting when certain consequences will probably follow. Duties to use due care are of this sort. Negligence is conduct that is unreasonably likely to produce a cer tain harmful result. The essence of negligence is unreasonableness in view of probable harm. Negligent conduct is one species of unreasonable conduct.

Unreasonable conduct is usually due to some bad state of mind, most often carelessness. But it is the conduct, not the bad state of mind, which is its cause, that legally constitutes the negligence. A person may act negligently by a. mere

the bullet and its impact on the body

error of judgment after having given

of the person shot. But an act in the strict sense, a mere

the most careful consideration.

bodily

as

such

commanded or forbidden by law.

movement,

is

never

The

law deﬁnes the acts which may or may not be done by reference to their actual

or possible consequences.

It is in fact

only the consequences that are of any importance. These may be called the deﬁnitional consequences of the act or of the duty whose content the act is.

Hence a threefold division of duties: (1) Duties of actuality, which I have

elsewhere called peremptory duties, where the deﬁnitional consequences are actual. The duty is to act or abstain from acting so as actually to produce or not to produce the consequences. It is not enough that the person uses due care to produce the required result,

or does his best; he must produce it at his peril. The duty to pay a debt, to prevent a ﬁerce dog which one knowingly keeps from biting any one, not to take possession of another’s property, or not to commit a battery, is of this sort. (2) Duties of probability

(3)

Duties of intention, where the deﬁni tional consequences are intended con sequences. The duty is not to act with the intention to produce the conse quences, e.g., not to make a false repre

sentation with an intent thereby to deceive and defraud another. In this class of duties only is the actor's state

of mind per se important.

Intention is

either simple intention to produce a

certain result, or culpable intention, which is simple intention plus knowl edge of the facts—not of the law-that make the act wrongfu1.- For example, if A, cutting timber on his own land, by

mistake cuts over on to B's land, does he intend to cut B's trees? If simple intention is meant, yes. He intends to out certain trees, which are B's. If culpable intention is meant, no. He does not know the fact that makes his conduct wrongful, the position of the

boundary line. Much confusion has arisen from not distinguishing between these two kinds of intention. Malice. actual malice, means for most purposes