Copyright 1965, American Law Institute
§ 263 PRIVILEGE CREATED BY PRIVATE NECESSITY
(1) One is privileged to commit an act which would
be a trespass to the chattel of another or a conversion of it, if it is
or is reasonably believed to be reasonable and necessary to protect the
person or property of the actor, the other or a third person from
harm, unless the actor knows that the person for whose benefit he acts
is unwilling that he shall do so.
(2) Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
COMMENTS & ILLUSTRATIONS: Comment:
a. The rule stated in this Section is applicable only where the threat of harm to the actor or a third person is not caused by the possessor of the chattel. In case the threatened danger is caused by the latter, the rule stated in § 261 is applicable.
Comment on Subsection (1):
b. The statement in this Subsection is analogous in part to the privilege to enter land in the possession of another for the protection of person or property as stated in § 197. The rule stated in that Section affords a privilege to enter land for the protection of any person, including the actor, or for the preservation of land or chattels, whether of the actor, or of a third person. If the entry upon the land is made for the protection of the actor or his land or chattels, however, such person is subject to liability to the possessor of the land for actual harm to his legally protected interests, however done. If the entry is made for the protection of a third person or his property, the actor is likewise liable for harm actually done by the invasion. (Compare Subsection (2) of § 197.) Since one is not liable in any event for a harmless intermeddling with chattels in the possession of another (see § 218), the principle of the incomplete privilege to enter land stated in § 197 is of no significance with respect to the actor's liability to the possessor of chattels. The principle is important, however, to render the actor immune from the exercise of the privilege which the possessor of a chattel would otherwise have to use reasonable force to defend his exclusive possession. (See § 77.) Since the actor does not become a trespasser when making reasonable use of or otherwise intermeddling with another's chattel to protect himself or another, such intermeddling cannot be resisted by the possessor of the chattel.
c. The statement in this Subsection is applicable although the danger to the actor is the result of his own tortious act. In such case, however, the actor is required to pay for any resulting harm, as stated in Subsection (2).
d. Reasonableness of actor's conduct. In determining whether the actor's dealing with the chattel is reasonable, it is necessary that the harm which it is intended and likely to prevent, and the likelihood that such dealing will be effective to prevent it, be weighed against the harm to the chattel or the interference with the possessor's use which is likely to result. Thus, an actor is privileged to deal with a chattel in the possession of another so as to cause even its certain destruction when he cannot otherwise protect himself or a third person from death or serious bodily harm, although a dealing with a chattel which threatens only substantial harm to it is not privileged merely to protect the actor or a third person from a threat of trivial harm.
The act must not only appear to be necessary for the protection of person or property, but must also be reasonable for that purpose, in the light of the threatened harm and the damage to be inflicted. Thus one whose chattel of small value is threatened with serious harm or even with complete destruction may not be privileged to destroy a far more valuable chattel of another in order to protect it.
Comment on Subsection (2):
e. Duty of compensation. Where the dealing with the chattel of another is for the protection of the other, the privilege is complete and the actor is subject to no liability. But where the dealing with another's chattel is for the purpose of protecting the actor or a third person, the privilege is incomplete, and the actor is subject to liability for actual harm done to the chattel. Since the actor thus avoids harm in no way threatened by the conduct of the other, he is not entitled to commandeer the use of the other's goods for his own protection, or that of a third person, without making good any loss thus caused.
1. A is seriously hurt in an automobile accident. While waiting for an ambulance, he uses B's scarf, over B's objection, as a tourniquet. A is privileged to use the scarf, but is subject to liability to B for the harm caused to it by the blood.
2. A, a pharmacist, refuses to sell B a bottle of medicine available only from A and necessary to save the life of B. B takes the medicine and uses it. B is privileged to do so, but is subject to liability to A for the value of the medicine.
3. The same facts as in Illustration 2, except that B is a physician
who takes the medicine to save the life of his patient. B is privileged
to do so, but is liable to A for the value of the medicine.
REPORTERS NOTES: This Section has been changed from the first Restatement by broadening it to include other acts of trespass or conversion in addition to use of the chattel or intermeddling it. The Caveats to the old Section have been eliminated, and the Section now includes the protection of property. See McKeesport Sawmill Co. v. Pennsylvania R. R., 122 F. 184 (W.D. Pa. 1903). The Section also includes the protection of the person or property of third persons, in line with § 76.
There is scarcely any authority to support the principle stated in this Section, and it must rest largely upon the analogy to the corresponding privilege to interfere with the exclusive possession of land, stated in § 197.
See, however, Mouse's Case, 12 Co. Rep. 63, 77 Eng. Rep. 1341 (1609), recognizing the privilege to jettison cargo from a boat in a storm to save the passengers.