Malice in Law of Torts
MALICE IN THE LAW OF TORTS
I
MR. JUBTICE MCCARDIoEn ce complained about the word “ malice ” that it had been the subject of “ a regrettable exuberance of definition.”’ There can be little doubt that this complaint was justified. Despite the well-known division and discussion by
Bayley J. of “ malice in fact ” and “ malice in law,” ’ which can be taken as the starting point of modern analysis of malice, other judges have not hesitated to enlarge upon the possible meanings of malice, until it seems that there must be judicial authority for any or almost any meaning that a writer wishes to attribute to the word. However, these various interpretations can be grouped under four main headings: (1) spite or ill-will; (2) any improper motive;
(8) the intent to do a wrongful act; (4) the intent to inflict injury without just cause or excuse.
It is quite clear that in this sense the word is being used colloquially, not as a term of art. “Malice in common acceptance,” said Parker
C.J. in 1718’ “is a desire of revenge or settled anger against a particular person.” A hundred years later, in a famous passage in
Bromage v. Prosser, Bayley J. called this ‘‘ malice in fact ” and said it meant “ill-will against a person.” The effect of later authorities was summed up by McCardie J.’s expression “ vindictive feeling.” When used in this sense, therefore, malice involved the desire to satisfy a personal grudge and thereby to benefit the person who acted from malice.
But the older idea of vengeance, which as just seen involved at least emotional benefit to the malicious person, tended in the latter part of the nineteenth century to become absorbed in a broader notion of any motive which was regarded as undesirable by the courts of approval and encouragement. As a result, “malice ” came to mean any improper motive. To quote McCardie J. once again, ‘‘ the jurist . . . enlarged the layman’s notion of malice.” ’
Thus in 1858 it was said that there was ‘‘
I
MR. JUBTICE MCCARDIoEn ce complained about the word “ malice ” that it had been the subject of “ a regrettable exuberance of definition.”’ There can be little doubt that this complaint was justified. Despite the well-known division and discussion by
Bayley J. of “ malice in fact ” and “ malice in law,” ’ which can be taken as the starting point of modern analysis of malice, other judges have not hesitated to enlarge upon the possible meanings of malice, until it seems that there must be judicial authority for any or almost any meaning that a writer wishes to attribute to the word. However, these various interpretations can be grouped under four main headings: (1) spite or ill-will; (2) any improper motive;
(8) the intent to do a wrongful act; (4) the intent to inflict injury without just cause or excuse.
It is quite clear that in this sense the word is being used colloquially, not as a term of art. “Malice in common acceptance,” said Parker
C.J. in 1718’ “is a desire of revenge or settled anger against a particular person.” A hundred years later, in a famous passage in
Bromage v. Prosser, Bayley J. called this ‘‘ malice in fact ” and said it meant “ill-will against a person.” The effect of later authorities was summed up by McCardie J.’s expression “ vindictive feeling.” When used in this sense, therefore, malice involved the desire to satisfy a personal grudge and thereby to benefit the person who acted from malice.
But the older idea of vengeance, which as just seen involved at least emotional benefit to the malicious person, tended in the latter part of the nineteenth century to become absorbed in a broader notion of any motive which was regarded as undesirable by the courts of approval and encouragement. As a result, “malice ” came to mean any improper motive. To quote McCardie J. once again, ‘‘ the jurist . . . enlarged the layman’s notion of malice.” ’
Thus in 1858 it was said that there was ‘‘