Legal Right and Legal Duty, Damage and Damages, and the Rights in Rem That Tort Law Protects

Three pairs of words carry most of the confusion in this part of the subject. Right and duty are correlative: neither exists without the other, and the duty in tort is fixed by law and owed to persons generally. Damage and damages are not the same thing at all: damage is the harm, which is a question of fact, and damages are the money, which is a remedy. And right in rem and right in personam divide the field: tort law protects rights in rem, available against the world at large, which is exactly why the duty is owed to everybody and why privity has no place in it.

The three pairs, and the order in which the questions must be asked

1. Legal Right

• Salmond's definition is the standard one: a legal right is an interest recognised and protected by a rule of legal justice, and it is an interest the violation of which would be a legal wrong.
• Every legal right has five elements: a person in whom it is vested, a person against whom it avails, an act or omission that is its content, a subject matter to which it relates, and a title by which it was acquired.
• It is the jus in ubi jus ibi remedium, and the injuria in injuria sine damno is its violation.
• Not every interest is a right. A trader has an interest in keeping his customers and no right to them, which is the whole of damnum sine injuria.
• The rights tort law protects are bodily security and liberty, the enjoyment of property, reputation, and, more narrowly, economic and family interests.

2. Legal Duty

• Right and duty are correlative. Where one person has a right, some other person has a duty answering to it. There is no right without a corresponding duty, and no duty in this sense without a corresponding right.
• In tort the duty is imposed by law, and the defendant is bound whether he agreed to be or not.
• It is owed to persons generally, and not to a determinate person. The duty to drive carefully is owed to everyone who may foreseeably be affected.
• In contract the duty is fixed by the parties, and owed to the other contracting party alone, which is why privity confines a contract action and does not confine a tort action.
• Its breach is the wrongful act, and that is the first of the three essential elements of a tort.
• Duties may be positive or negative. Most tort duties are negative, duties to refrain; positive duties to act arise only from a relationship, an undertaking, control of a danger, or the defendant's own creation of the risk.

3. Damage and Damages

• General damage is presumed by law and need not be specifically pleaded; special damage must be pleaded and proved.
• The distinction decides cases regularly. A plaintiff may prove heavy damage and recover nothing because no right of his was violated; and he may prove no damage and recover because a right was violated.
• He may also prove heavy damage and recover little, because part of it was too remote, or because he failed to take reasonable steps to mitigate.

4. Right in Rem and Right in Personam

• Tort law protects rights in rem. That single proposition explains why the duty in tort is owed to persons generally, why anybody who foreseeably suffers may sue, and why the absence of a contract is no answer.
• Donoghue v. Stevenson turns on exactly this. The consumer had no right in personam against the manufacturer, having no contract with him. She had a right in rem to bodily security, and that was enough.
• The same facts may violate both. A surgeon who operates carelessly violates the patient's right in rem to bodily security and his right in personam under the contract of engagement.
• The distinction is Roman in origin, and in its original sense concerned actions relating to a thing as against actions against a person, but its modern use is as described here.

5. Putting Them in Order

1. What right does the plaintiff assert? If none can be identified, the enquiry stops: the case is damnum sine injuria.

2. Is it a right in rem? If it arises only from a contract or a trust, the claim belongs elsewhere.

3. What duty corresponds to it, and did it bind this defendant? In tort the duty is fixed by law and owed to persons generally, so the absence of any relationship between the parties is not an answer.

4. Was the duty broken? That is the wrongful act or omission, and it must be without lawful justification or excuse.

5. Was there damage? Necessary in negligence and the other torts requiring it; unnecessary in the torts actionable per se.

6. And only then, what damages? The measure is restitutio in integrum, subject to remoteness, mitigation and the rules on the various kinds of damages.

7. A failure at any of the first four steps ends the case, and no amount of damage repairs it.

6. Where the Words Are Misused

7. The Position Stated Shortly

1. A legal right is an interest recognised and protected by law, the violation of which is a legal wrong.

2. Right and duty are correlative: neither exists without the other.

3. In tort the duty is fixed by law and owed to persons generally; in contract it is fixed by the parties and owed to a determinate person.

4. The breach of that duty is the wrongful act, and it is the first essential element of a tort.

5. Damage is the harm suffered, a question of fact; damages are the money awarded, a remedy of the court.

6. Damage is essential in negligence and the torts requiring it, and unnecessary in the torts actionable per se.

7. Damages in tort are always unliquidated, and their kinds are nominal, contemptuous, compensatory, aggravated and exemplary.

8. A right in rem avails against the world at large; a right in personam against a determinate person.

9. The law of torts protects rights in rem, which is why the duty is owed to persons generally and why privity has no place in it.

10. The order of enquiry is: what right, whose duty, was it broken, what damage, and only then what damages.