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handle is hein.ali/relwtrts0214 and id is 1 raw text is: )

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.. ope  ofCourse ..,                        
I, The qcesation Of uiltimate liaility fd6 any Injurious oocurrence may
be divided into four question's'..
A, Was the oceurenoe a legal wrorg?
i, This question is treated in the courses on ,Torts and priminal
B. Granted that it was a wrong,. to -,w at human act can the wrong be
l,,This question is treated in' this course.
0. Hdving traced, the wrong, to a huMan. act, is the offender responsibl
1. This question is treated in the courdes' on .Torts pnd Oriminal
Do -Granted that the offender is responsible, has he such excuse as to
rant him immunity from liability?
,This question in treated in this course.
E, Thus, in general, the principles of liability *common to both Torts
and Criminal Law-are treated in this course; the principles pecu-.
liar to each are treated respectively, in those courses,
Liability Based Upon Act.
I* Nature' .of an act;.
A. An act is the external manifestation of the exertion of the will.,
: (E,'l.)
. i That is, there must be both a physical element and. a wil to
constitute an act; neither alone is sufficient,
a. But, motion in not necessary to an act; if inEl, W, willin.
to kill deceased, had held his knife absolutely motionless
in such a position that deceased would fall on it, W woul4:
have committed that act of killing deceased.
2, Thus, merely having a' thing in possession' is not an act becaus'
the physical element is lacking, (E 4, overruling E 3).
a. No change in result is accomplished by having a thin .in
possession: nothing is done that is.
b. But if it is alleged that person has procured the thing whic
he has in his possession, liability may then be .based on
the-art of procuring the things. (E 5).
II, Omission of a Legal Duty as an'Act.
A. A man may become liable for something less than an. act; viz., a'
violation, or neglect of a legal duty. (E 7).
1. Beale says that it is immaterial to whom the legal duty is
owed; that the violation of a legal duty cqnstitutbd a bases.
for liability no matter to whom the duty is owed; and that,
therefore, decision ih E 8 i.s wrong.
a, But, Beale's theory isj absolutely contrary, in this reapoc.
to everything that we have had in Torts, etc.#
2. The duty, the violation of which is the basis of liability,.
may be either a common law or a statutory duty. (E 9)    * .
as The common law iA   few rare cases, imposes an affirmative
duty based on th ,re eation between the defendant and the
•     person  injuredc,ss, :p'      '                    '
b. Or a statute ma, In other oaseS, impose affirativ duties.
3. Or the duty may b   abased on contract. (E lo  E If).
at In E 10, thereN,,a', only a passive or implied contract,
Beale says.  f     '.,.          '.
(1) I think t at B' le's theory of E 10 is wrong; that th.
duty in  10 ws imposed by common law, becauee of th
relation betwety, the two; and court's opinion is put
clearly  n that ground.
b. In E 11, lial lity! .as based on the neglect of a contract
duty. to'.act6.| •: ' '

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