LAW OF TORTS

ARTICLE REVIEW

The Basis of Affirmative Obligations in Law of Tort

Francis H Bohlen

13/12/2018

Submitted By

Prabhnoor Guliani

Class: 2018-2023 Programme of Study: BA.LLB Division: E

PRN: 18010223095

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University)

In

January, 2019

Under the guidance of

Mr. Ankur Sharma

Dr. C.J. Rawandle

Designation and official address of research guide

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 C E R T IF IC AT E

The Article review of the article having title ‘THE BASIS OF

AFFIRMATIVE OBLIGATION IN LAW OF TORTS’ authored by
Francis H Bohlen has been submitted to the Symbiosis Law
School, NOIDA for Law of Torts, MV Accident and Consumer
Protection Laws II as part of Internal assessment is based on my
original work carried out under the guidance of Mr. Ankur Sharma
and Dr. CJ Rawandle. The research work has not been submitted
elsewhere for award of any degree. The material borrowed from
other sources and incorporated in the research work has been
duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later
on.

Signature of the candidate

Date:

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 TABLE OF CONTENTS

Serial no. Heading Page number

1. Full Bibliographic Reference 4

2. Introduction 4-5

3. Brief Summary 5-7

4. Results 7

5. Contributions 8

6. Foundation 9-10

7. Synthesis With Concepts 9

8. Analysis 9

9. General Critique 10

10. Relevance/Impact 10-11

11. Questions 11

12. Annotated Bibliography 11

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 FULL BIBLIOGRAPHIC REFERENCE

The name of the article reviewed in this project is ‘The Basis of Affirmative
Obligation in Law of Torts’, authored by Francis H Bohlen. This article is
borrowed from ‘The American Law Register’ (1898-1907) Vol. 53, No. 4,
Volume 44 New Series (Apr., 1905), pp. 209-239. This article was published
by The University of Pennsylvania Law Review.

INTRODUCTION

The main objective of the article is to make the readers understand the
importance of affirmative actions and their origin and how they benefit us in
law of torts. Affirmative Obligation itself is a domain and a concept in itself in
law of torts.

To understand this article one should be familiar with the concept of

Affirmative Obligation. Affirmative Obligation in Law of Torts refers to
circumstances in which the defendant may owe duty of care towards the
plaintiff. Usually it refers to that type of duty where in addition to general
duty there is also due care that the defendant gets under the ‘reasonable
person’. It also rises out of actions of nonfeasance or the inability to perform
an act that was required by law or even negligence. In an instance where
the defendant has harmed the plaintiff by his action, he has been guilty of
positively making the plaintiff's status worse with the help of affirmative
measures so he has created a new risk of harm. But where the defendant's
alleged felony lies only in his unresponsiveness, he has merely failed to
benefit the plaintiff by interfering in the latter's affairs. Following are the
categories where the affirmative duties are brought to existence:

 Duties arising out of occupancy of land

 Duties arising out of manufacturing and supplying chattels

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 Duties of carriers to passengers and trespassers
 Duties arising out of gratuitous undertaking

The target audience of this article are legal practitioners, law students,
and the people who have enough knowledge to understand the evolution
of legal principles. In order to comprehend the article well, one must be
familiar with the definition of affirmative obligations, element of
negligence in law of torts, vis major, trespass, force majeure and many
other legal maxims and tortuous laws.

BRIEF SUMMARY

The author in this article has broadly described the jurisprudential idea of
affirmative duties in the law of torts. The article tells us how the history
of common law led to the creation of the legal principles of modern times
with regard to misfeasance and nonfeasance. The author through his
intensive study has tried to distinguish between misfeasance (active
misconduct) and nonfeasance (inactive misconduct). Furthermore the
article tries to trace back the gradual transition of rules of fixing liability
in torts by picking up common laws from ancient times and applying it in
our modern day to day practices. With the help of numerous case laws
and perspective of various judges and filling it with insights of many
jurists with the most prominent being Oliver Wendell Holmes has been
presented to the readers. One of the most suitable ways to understand
the concept of duty of care in law of torts is to classify the most
accustomed situations that deal with the affirmative obligation of care. It
is through this categorization that the author has made the concept of
basis of affirmative obligation in the field of law of torts logical and clear
to his audience.

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The author has drawn a very thin line between active misconduct and
passive misconduct. Active misconduct means working on positive injury
to others and passive misconduct is maybe performed by the defendant
which means the failure to take appropriate steps to benefit or to protect
others from a harm that was not intentionally done by the defendant or
maybe was not a result of a conduct of the defendant. To add to his
research, the author studied the case of Heaven vs Pender LR II, Q.B.D.
503. Here the judge of the case, MR Brett attempted to form a general
rule with respect to the assumption of affirmative duties. With the help of
the general principle formed it became easy for the defendant in case of
his affirmative duty and fix his liability of misfeasance or nonfeasance.
There have been many cases in the past as well which have given rise to
the concept of pseudo-misfeasance where the actions of the defendant is
classified as nonfeasance but if the concept of misfeasance and
affirmative obligation is studied then with the careful analysis of the
application of affirmative duty the defendant can be held liable for
misfeasance or active misconduct. The issue although that still arises
here is that the defendant here can take advantage of nonfeasance
because the general principle of affirmative duty is not so clear and needs
to be read between the lines to understand if the defendant was at fault
or not.

In order to do away with the ambiguity many cases have been cited
where the judgements are provided to make the readers understand as
well as rules are also beautifully explained to support the judgement and
the arguments presented. Many of the real life cases and hypothetical
situations have been presented in the article which offer a concrete
solution to the problem stated above. The author has given hypothetical
examples of occupancy of land, manufacture and supply of chattels,
duties imposed by party of a contract while performing their part of

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obligation. The author has very intelligently applied the principle of MR
Brett in each case and example mentioned in the article and correctly
explained the way to approach cases of liability. As contract law and tort
diverged, the element of consideration remained as an essential factor in
breach of contract suits due to nonperformance or omission to act but the
element of consideration became unnecessary to be put forward as a
focal point of any case of tort. Consideration is the reason due to which
the benefit principle comes into picture while deciding the assumption of
affirmative duties in tort. Benefit principle is nothing but a method of
ascertaining the nature of relationship between the plaintiff and
defendant. Therefore, even in torts the fact that there remained some
benefit to an obligor (defendant) was considered and hence the cases in
which a liability for nonfeasance was imposed were the cases where some
beneficial relationship existed between the plaintiff and the defendant.

RESULTS

In the article reviewed above we can easily conclude that there are many
cases and hypothetical situations cited by the author in order to gain
insight of affirmative duties in tort law and how there is a thin line
difference between active misconduct and passive misconduct. This article
has raised many questions regarding the position of the defendant
whether to be held liable or not and under which kind of misconduct. The
author has used the judgement of MR Brett who is mentioned in the
article to have laid down the general principle of affirmative duties and it
is through his judgement that the writer is deciding the position of the
defendant in various situations. There are also many case laws mentioned
that have played a significant role in making the readers understand the
concept well.

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 CONTRIBUTIONS

This article has greatly contributed to the study of law of torts. It has
covered up a domain that is of great importance in the jurisprudential
sense. From this article we have learnt a lot about the tort law including
negligence, vis major, force majeure and many other legal maxims and
tort laws that have served as a basis for affirmative obligation in tort law.
It has presented a new way to look at the problem and new ways to
decide whether the defendant will be guilty or not and also under which
grounds of misconduct. This article has done a very good job of
synthesizing the concept very well in the mind of the reader. From the
many case laws cited in the article it can be evidently said that this
concept of affirmative duty and benefit principle have a practical
application to the working of laws and its impact although has been less,
as also mentioned in the article nut they have definitely be used in USA to
solve cases and pass off judgements and also use them as precedents.

FOUNDATION

The article does not build up over any foundation research but is
definitely used as a basis for research by other researchers who use
secondary sources to gather information for their journal or article. This
includes the Yale Law Journal which has used this article to write a
research paper called ‘Affirmative Tort Duties’ written by Harold. F
Mcniece and John V Thornton. As a foundation of the study of new

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domain this article is written exceptionally well and really makes the
readers understand the concepts presented in the paper.

SYNTHESIS WITH CONCEPTS

There were many basic concepts that were related to affirmative duties
like trespass, negligence, force majeure and vis major. These are the
very basic topics that are taught in the law of tort and are synthesized in
the topic of affirmative duties and obligations.

ANALYSIS

This article was written in April, 1905 and a lot has changed since then.
In the modern affirmative obligations there is also a duty to rescue
people as cited in the case of Buch vs Amory Manufacturing Co. there is
also a change in the way we approach towards the cases. Earlier we used
to use the classical approach where some jurisdictions used to follow the
traditional tripartite system which categorizes the duty of the landowner
with respect to whether the guest was an invitee, licensed or a
trespasser. Today there is a more reformed modern approach towards a
case where jurisdictions make no distinction in the three categories
mentioned above and apply the rule of reasonable care under the
situations to anybody on the landowner’s property. This approach
however has been more modified where the jurisdictions now, continue to
treat trespassers as a distinct group but now apply the rule of reasonable
care under the circumstances to other people who came onto landowner’s
property.

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 GENERAL CRITIQUE

The article titled ‘The Basis of Affirmative Obligation’ authored by Francis

H Bohlen was a wonderful piece that has had its impact on readers since
1905 and explains it so well regarding the concept of affirmative
obligations and duties that it always keeps the readers engaged. The
insights of various judges and jurists add more to the interest of the
readers as it explains very well the concept of affirmative duty. It also
marks the difference between misfeasance and nonfeasance and decides
on which grounds the plaintiff would be held guilty and for which kind of
misconduct.

The concept of demarcation between active and passive intolerance is

was very thin and offer was not enough to administer justice to its people
that is why many amendments and modifications needed to be brought
into this concept which have made the concept much clearer than the
article reviewed in this project. Though many case laws and examples
were cited they still proved to be inadequate because they all use the
ideas of the same judge MR Brett who laid down the first general
principle.

RELEVANCE/IMPACT

This article though explains a very important topic of law of tort but this
article is very old and explains the initial form of affirmative duties and
how the topic came into existence but since we live in a modern world we
need to understand this topic in a much more broader sense and we can’t
rely on an article that is more than hundred years old. There is more to
the topic of affirmative obligations and its practicality in the modern world

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that we have failed to see. But still this article has served a great purpose
to make the readers understand the concept and also is worthy enough to
be used as a secondary source of information for research students.

QUESTIONS

Q1. Why do we have to classify the defendant according to the form of

misconduct (active/passive or misfeasance/nonfeasance) when both the
acts proves him to be guilty?

Q2. Were the judgements mentioned in the article appropriate enough to

administer justice to people?

ANNOTATED BIOGRAPHY

 https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=ht
tps://www.google.com/&httpsredir=1&article=4840&context=ylj
 https://s3-ap-southeast-1.amazonaws.com/curiosity-library/SLS-
1/6.%20The%20Basis%20of%20Affirmative%20Obligations%20in
%20the%20Law%20of%20Tort.pdf?AWSAccessKeyId=AKIAIP4INA
65T2LDRW2Q&Expires=1548337203&Signature=fKrUpV%2BMlRYpF
Rl0W4B4VwKf4do%3D
 http://www.wyolaw.org/outlines/LaMar%20Jost%20(2002)/lamar_j
ost_torts_ii.PDF

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