The trouble with many cases of negligence is, that they are of a
kind not frequently recurring, so as to enable any given judge to
profit by long experience with juries to lay down rules, and that
the elements are so complex that courts are glad to leave the
whole matter in a lump for the jury's determination.
I reserve the relation between negligent and other torts for the
next Lecture.
LECTURE IV.
FRAUD, MALICE, AND INTENT.- THE THEORY OF TORTS.
[130] The next subjects to be considered are fraud, malice, and
intent. In the discussion of unintentional wrongs, the greatest
difficulty to be overcome was found to be the doctrine that a man
acts always at his peril. In what follows, on the other hand, the
difficulty will be to prove that actual wickedness of the kind
described by the several words just mentioned is not an element
in the civil wrongs to which those words are applied.
It has been shown, in dealing with the criminal law, that, when
we call an act malicious in common speech, we mean that harm to
another person was intended to come of it, and that such harm was
desired for its own sake as an end in itself. For the purposes of
the criminal law, however, intent alone was found to be
important, and to have the same consequences as intent with
malevolence superadded.
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