RESTATEMENT OF THE LAW, SECOND, TORTS
Copyright 1965, American Law Institute
RULES AND PRINCIPLES
Division One - Intentional Harms to Persons, Land, and Chattels
Chapter 1 - Meaning of Terms Used Throughout the Restatement of Torts
§ 1 INTEREST
The word "interest" is used throughout the Restatement of this
Subject to denote the object of any human desire.
COMMENTS & ILLUSTRATIONS: Comment:
a. As defined in this Section, the word "interest" is used to denote anything which is the object of human desire. It carries no implication that the interest is or is not given legal protection, that is, that the realization of the desire is regarded as of sufficient social importance to lead the law to protect the interest by imposing liability on those who thwart its realization. Thus emotional tranquillity, for which the great mass of mankind feels a keen desire, is as much an "interest," as "interest" is defined in this Section, as is the interest in the possession of land or the security of one's person. While these are all "interests," they differ in that the former is given relatively little protection, while the common law from its very beginning has given the fullest protection to these latter interests.
The object of desire must be distinguished from the thing in respect to which the desire is entertained. Thus, everyone desires that his body shall be free from material harm. The object of this desire is the security of the body and not the body itself. The body, the security of which is desired, is the subject of the desire and not its object.
b. "Interest" as distinguished from "right." In so far as an "interest," as defined in this Section, is protected against any form of invasion, the interest becomes the subject matter of a "right" that either all the world or certain persons or classes of its inhabitants shall refrain from the conduct against which the interest is protected, or shall do such things as are required for its protection.
c. "Interest" and "desire." Society may regard a particular desire as improper and may, therefore, by common law or by statute impose criminal responsibility or civil liability upon an effort to satisfy the desire by realizing its object. On the other hand, society may recognize the desire as so far legitimate as to make criminally punishable or civilly liable those who defeat its realization. Between these two extremes there are two other types of desire: (1) those which are recognized as so far legitimate that one who acts for the purpose of satisfying them is protected from criminal responsibility or civil liability which would otherwise attach to his conduct, but which are not recognized as so important as to make the interference with their realization a criminal offense or a civil wrong; (2) those as to which the law stands completely neutral, neither protecting the interest nor recognizing it as creating a privilege to satisfy it without liability, nor on the other hand, imposing criminal responsibility or civil liability upon one who seeks to gratify the desire of which the interest is the object.
d. Legally protected interests. If society recognizes a desire as so far legitimate as to make one who interferes with its realization civilly liable, the interest is given legal protection, generally against all the world, so that everyone is under a duty not to invade the interest by interfering with the realization of the desire by certain forms of conduct. Thus the interest in bodily security is protected against not only intentional invasion but against negligent invasion or invasion by the mischances inseparable from an abnormally dangerous activity. Every man has a right, as against every other, not to have his interest in bodily security invaded in any of these manners. On the other hand, the interest in freedom from merely offensive bodily contacts is protected only against acts done with the intention stated as necessary in that part of the Restatement which deals with liability for such contacts. (See § 18.) Therefore, there is a right to freedom from only such contacts as are so caused, and there is no duty other than a duty not to cause offensive touchings by acts done with the intention there described.
e. Rationale. The entire history of the development of tort law shows a continuous tendency to recognize as worthy of legal protection interests which previously were not protected at all. Naturally, this tendency is not uniform in every common law jurisdiction. The interest of a wife in the consortium of her husband was not recognized at common law as worthy of protection even against acts intended to deprive the wife of such consortium. On the other hand, this interest was protected against intentional invasion in Ohio during the latter part of the last century, and within a few years thereafter substantially every American jurisdiction joined in so protecting it. In several recent decisions this interest has even been given protection against negligent conduct.
It is altogether unlikely that this tendency to give protection to hitherto unprotected interests and to extend a greater protection to those now infrequently protected has ceased. In the Restatement of Torts the word "interest" as defined in this Section readily lends itself to an analysis of tort liability which indicates the extent to which the law at present protects the realization of the desires of human beings. Because of the probability that the tendency to give legal protection to interests now unprotected and to increase the protection given to those now imperfectly protected will continue, the Restatement of this Subject contains numerous "Caveats." These call attention to the fact that the Institute takes no position as to whether the protection given to a particular interest by the rule stated in the Section to which the Caveat applies should or should not be extended to other analogous situations which have not been the subject of judicial consideration.
f. The word "interest" is used in the various Restatements in two senses: the one the sense here defined, the other denoting the beneficial side of legal relations, both generically to include the aggregate of "rights," "powers," "privileges," and "immunities," and distributively to mean any one of them. There is this fundamental difference between the two usages. As the word "interest" is used in this Restatement, it carries no implication as to whether it is legally recognized or not. When used in the second sense, the word "interest" denotes advantages which are legally recognized as incident to the possession or ownership of property and the like. Indeed "rights," "powers," "privileges," and "immunities" are not only recognized but created by law. For the reasons given in Comment e, it is necessary in restating the law of Torts to use the word "interest" in the sense here defined. In the Restatement of other Subjects, it is more convenient to use the word "interest" in the latter of the two senses. Occasionally it is necessary in the Restatement of this Subject to use the word "interest" in the sense of an aggregate of rights, powers, privileges, and immunities or any one of them. When the word is used in this sense, it is preceded by the adjective "legal" or the adjective "proprietary." (See §§ 160 and 161.) The adjective "proprietary" is not used unless it is desired to emphasize the fact that the person having the "interest" is a person commonly spoken of as owner of the thing in relation to which the interest exists.
The word "interest" is also used to indicate the rate of return on a loan of money, the context always indicating clearly this use.