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INTRODUCTION

The Article which is being reviewed here is written by a Prominent Lawyer

and American Jurist Jeremiah Smith. He was the governor of New
Hampshire and also a famous politician. He was a pass out from Harvard
University. This article was published in Harvard Law Review in the year
1917 wherein he inducted the thought of absolute liability and torts
qualification by understanding the meaning of both the terms in relation
to the basic elements of the torts.

The article has the following objectives- First, to determine causes under
personal action. Second, to discuss the torts and its meaning in modern
and old doctrine and its relation to absolute liability. Third, to determine
the category of Absolute Liability under law of torts, and to discuss the
doctrine of absolute liability and torts.

Through this article, the author has tried to put together all the aspects of
a tort and liability by picking on the basic terms of fault, rights and duties
that define the spectrum of torts and herein the importance of
nomenclature comes into play. The abstract idea of author to find a
meaning to the absolute liability is a new concept. The article can only be
addressed to the audience of legal researchers, judges, and law students
to understand the changes in the system and adapt to them as suggested
through the way of making it more adaptive.

BIBLIOGRAPHICAL REFERENCE

Smith, J. (1917). Tort and Absolute Liability: Suggested Changes in

Classification. Harvard Law Review, 30(3), 241-262.
doi:10.2307/1327776
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SUMMARY

The article has the main objective to point on the subject of Absolute
Liability by defining the wrong nomenclature standards at first that is
adapted by the masses over a long period of time. The writer has also
found out that there can be dislocation of changing of existing
nomenclature and how it will take time to enhance the legal terminologies
which are distorted by the courts by use of misleading words. Thus,
clarity of concept can only be seen when there will be developments
adopted in court of Law which in turn be criticized by the coming
generations to refine such complex definitions. The author has traced
down the history of private rights and its classification and divided it upon
two approaches. Those approaches were the Modern Approach and the
Old Approach. The old approach is a traditional differentiation between
contracts as breach of private rights and the general wrongs of torts and
that there is no action lying between these two kinds. The modern
approach on the common law states that apart from the traditional form
of torts there exists the middle term that does not lay either on the
obligation regarding others and obligation certain members of the society.
There are liabilities imposed without any fault on the part of defendant
which are known to be absolute liabilities. The author wants to say that
Absolute Liability has no head in torts or contract law if the basic
difference between torts and contract law is the fault of the defendant.

The Absolute Liability definition can be and its categorization can be

calculated by looking at the classification under Tort Law. In Tort Law,
there are five legs of principle that ascertain the categorization of the kind
of tort. The classification is done on the basis of the remedies seek for
that action. It is also distinguished on the basis of the rights violated or
omitted to be performed. The author suggests that the classification the
bases of defendant’s conduct and conduct that imposes liability without
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any fault. Though there is a duty to be imposed by the law on the person
to be performed but breach of that duty because of no fault of the
defendant cannot be proved unless there is evidence that is brought by
the defendant himself. The issue of the placement of absolute liability
under the common law and especially torts follow back to the definition of
the law of torts that does not define the obligation of not to do a specific
kind of act. The author states a hypothesis that if there is no fault there is
subsequently n duty and then that duty will not impose the liability and
hence, there is no existence of Absolute Liability. This flaw in the
definition can be omitted by the way of abolishing the only two distinct
criteria of private rights of Tort and Contract and placing the three heads
distinctly with the inclusion of absolute liability. According to the Modern
view towards the law, the only important element torts is not adjudged on
the basis of the damage that cause harm to the plaintiff but whether the
act of defendant is so ethically wrong that is purview under the
boundaries of moral wrong. The old view that man brings liability on his
own wrong is not valid in modern law of torts. According to the author, it
includes cases which cannot be categorized under the general torts. It is
no statutory breach and is imposed by law as it states one party to
perform their obligation when there is harm caused even though there is
no fault of the party. It becomes imperative for legal machineries
whenever there is damage to the plaintiff by the acts of the tortfeasor.

There have been a lot of works other cited by the author to justify and
prove the problem. The concept of fault under a third liability of absolute
nature has been defined by the author by citing various other authors. In
his book Cases on the law of torts it is explained fault as a conduct
involving culpable intention or culpable inadvertence. The fault being a
requisite for torts actionable per se, this view is concurred by Austin’s
view also. The definitions have a negative affirmation which does not
define the duty of the tortfeasor but rather define the term on which the
tortfeasor is not liable.
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RESULT

The final outcome of this research article is the detailed discussion of all
the definition of law of torts and how these definitions majorly define
what is wrong about the torts and not what tort is. There is no complete
definition of law of torts and subsequently fails to define the whole
concept of Absolute liability. Other cases of no-fault liability do not have
any stand to hook to in the terms of their placement under the head of
law of torts. In modern times, they are dealt separately as a kind of
liability. The authors are of an opinion oriented fact that through that
there is no specification of no fault liability which is supportive of above
stated features and validations; it is thus admission to the torts with fault
can be considered under the head of negligence and absolute liability
should be kept as an exception to the negligence.

FOUNDATION

The article has not been written upon any past research work. Various
works of many Jurists and Legal Philosophers have been cited in this
journal article. There have been mentions of Markby, Hepburn in this
article.

CONTRIBUTIONS AND ANALYSIS

As the article was written in 1917, the concept has become rudimental to
the absolute liability and these have solidified in the current times as the
author has mentioned about the loopholes in the definition of tort and
also about highlighting the absolute liability under a different head. It also
shows the finesse in the development of new concept in the earlier times
that have lead on to be true to its nature till present times.
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SYNTHESIS AND CONCEPTS

Through this article, the author has talked that the fault makes the
person affect liable to prove that defendant’s acts have caused damage to
him because of the fault the committed. The article talks about the
difference between concept of personal rights and public rights. The
definition of law of torts have also been based upon the right in rem (right
that can be enforced against the world at large) and right in personam
(right that can be enforced only against an individual). The primary
element that prima facie justifies an action of torts is as the intention to
cause harm or damage or intention to cause legal injury. The intention if
not present and even though the duty is performed by the defendant after
taking all the reasonable care, are not to be included under law of torts.

The action under law of Torts is such that occur without any justified
cause or excuse are inflicted upon others willfully and intentionally. If a
man without any incapacity on his part to perform, after having a relative
foresight of the events at hand and doing the best he can do, then the
court will take on to his relation with the subject matter that is object that
causes such harm. The court will apply its principle of justice, equity and
good conscience to the admittance of a judgment to be fair or not if the
court feels that the harm is done is of a serious nature but more than
that if it is enough to hold tortfeasor liable of his acts in case of no faults.

GENERAL CRITIQUE

The article has a view of taking inferences from definitions of tort and the
context of nomenclature and legal refinement that could be seen when
they are adjudged jurisprudentially. The classification and nomenclature
of torts while making this article are somewhat rooted to the basic idea o
the word that are already in existence of the supposed old words.
Moreover, there has been a great general presumption in common law
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that the judges make the law. It becomes obvious that there must be
many other interpretations already in place of the previously defined
words and thus they do not need any more of substantive change.

The author also coincides with the unfeasible implementation of the

changes in the definitions as it is difficult to debar the previous
precedential cited words from common law jurisprudence and place new
definitions and meaning on those lines. It is equivalent to erasing
previously drawn merged lines and drawing one bold and definite line its
place.

IMPACT/RELEVANCE

This article has been a part of the jurisprudential aspect of the absolute
liability as it is before the introduction of the concept in different legal
system that the current article was published and it is sure to have an
impact over the development of the concept itself. Moreover given its
importance as it is a prestigious paper written by an American Governor,
Jeremiah Smith, its contribution to the field of law and politics is to be
considered of great importance. The article was published in Harvard Law
Review.

QUESTIONS

 Have we been able to achieve a uniform common definition of Tort

globally?

 Has the shift in focus from procedural to substantive law produced

desired results?
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BIBLIOGRAPHY

 Winfield. P & Jolowicz. A. (2015) Winfield and Jolowicz on Torts.

Editors: W. Edwin Peel & James Goudcamp. ed.19th.

 Clerk. K. (2013).Clerk & Lindsell on Torts. Sweet & Maxwell,

London. Ed.20.
 Murphy, John. (2007). The Law of Tort. Lexis Nexis. Editor: Ken
Oliphant. Ed.2.

 Salmond, J. W. & Heuston. R.F.V. (1910). Salmond on the Law of

Torts. London, Sweet & Maxwell. ed. 4
 Markby, W. (1874). Elements of Law considered with reference to
principles of general Jurisprudence. Oxford Clarendon press. Ed.3.

 Pollock, F. (1923). The Law Of Torts: A treatise on the principle of

obligation arising from civil wrongs in the common law. ed. 7. 556-
557