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29 Harv. L. Rev. 40 (1915-1916)

handle is hein.journals/hlr29 and id is 80 raw text is: HARVARD LAW REVIEW

N EGLIGENCE is often defined as consisting of a breach of duty.
That is wrong. The duty in such a case can be defined only
as a duty to use care, i. e., not to act negligently; and to define the
duty so, and then to define negligence as consisting of a breach of
the duty, is to define in a circle. The misconception has arisen from
a failure to distinguish between a negligent wrong, which, like all
wrongs, involves a breach of duty, and the negligence itself, which
is one element in the wrong. It is true that negligence which in
the particular case is not a breach of any legal duty is of no legal
importance; but that does not touch the question of its nature as
negligence. There are many cases where the law does not require
care, where therefore negligence is not legally wrong; but it is none
the less negligence. We must have a conception of negligence as it
is in itself, independent of the conception of duty, in order that we
may use it as a praecognoscendum in the definition of various duties.
The subject of this article is the nature of negligence, not duties to
use care.
There seems to be no difference in respect to its nature between
contributory negligence and negligence towards others, which may
be tortious. The latter, when wrongful, is a breach of a perfect
legal duty owed to some one else, for whose breach an action will
lie. The former may be regarded, when it has any legal effect, as a
breach of an imperfect legal duty to use care for the safety of one's
self or one's belongings in certain cases where some one else has an
interest in such safety. The duty is a legal duty, but an imperfect
duty only insomuch as no action will lie for its breach. Its sanction
consists in the refusal of a remedy which might otherwise have been
had for the other party's breach of duty.
Negligence is conduct which involves an unreasonably great risk
of causing damage. Due care is conduct which does not involve
such a risk.
Negligence is conduct, not a state of mind. It is most often
caused by carelessness or heedlessness; the actor does not advert
properly to the consequences that may follow his conduct, and
therefore fails to realize that his conduct is unreasonably danger

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