ll we
begin with the wants or claims involved in civilized society--as it
has been put, with the jural postulates of civilized society. One such
postulate, I think we should agree, is that in civilized society men
must be able to assume that others will do them no intended
injury--that others will commit no intentional aggressions upon them.
The savage must move stealthily, avoid the sky-line and go armed. The
civilized man assumes that no one will attack him and so moves among
his fellow men openly and unarmed, going about his business in a
minute division of labor. Otherwise there could be no division of
labor beyond the differentiation of men of fighting age, as we see it
in a primitive society. This postulate is at the foundation of
civilized society. Everywhere _dolus_ is first dealt with. The system
of nominate delicts or nominate torts, both in Roman law and in our
law, proceeds on this postulate.

Is it not another such postulate that in civilized society men must be
able to assume that their fellow men, when they act affirmatively,
will do so with due care, that is with the care which the ordinary
understanding and moral sense of the community exacts, with respect to
consequences that may reasonably be anticipated? Such a postulate is
the basis of delictal _culpa_, using _culpa_ in the narrower sense,
and of our doctrine of negligence. In Roman law and at one time in our
law attempts were made to develop this postulate contractually. If in
a transaction involving good faith--that is an informal legal
transaction--one's conduct fell short of action to which the other
party was justified by the understanding of upright men in expecting
him to adhere, there was contractual _culpa_; there was a violation of
a promise implied in the transaction and consequent liability. We
borrowed something of this mode of thought from the Romans in our law
of bailments and hence think indifferently in terms of tort or
contract in that connection, although historically our action for such
cases is delictal. In other connections also our law for a time sought
to develop this postulate contractually by means of an "implied
undertaking to use skill" for which one must answer if his skill fell
short of that which the legal standard of affirmative conduct called
for under the circumstances. Also in the Year Books an undertaking
implied in certain relations or callings to use the skill or diligence
which the relation or calling demanded