Quasi-Contractual Obligations, Study notes of Law

Download Quasi-Contractual Obligations and more Study notes Law in PDF only on Docsity! YALE LAW JOURNAL yol. XXI MAY, 1912 No. 7 QUASI-CONTRACTUAL OBLIGATIONS By Arthur Linton Corbin, Professor of Contracts, Yale Law School. For the perfect understanding of any one branch of the law, a knowledge of the whole field is required. The law is indeed "a seamless web." This is exceptionally true of quasi-contractual obligations. But no attempt can be made inthis article to classify law as a whole, or even to discuss at length the one great~field of obligations. An attempt will be made, however, to determine just what obligations may properly be called qua-si-contractual. Legal obligations form one large class, within which there are many different species. No doubt it serves a useful purpose to define these species and to treat them under separate headings and in separate volumes. So, obligations arising out of an agree- ment of two parties are called contractual, the fact of agreement and its expression being called a contract; and obligations arising from illegal acts causing injury to others are called delictual, the illegal act being called a tort. But our courts have long enforced other obligations that do not readily fall within the foregoing classes. Centuries before the time of Justinian, Roman jurists were referring to these obligations as quasi-contractual or quasi- delictual. From that day to this, however, jurists have very generally used these terms without drawing distinct lines between their various fields, and without showing any very clear bond of unity within the limits of any one field. This fact goes far to show, indeed, that the facts of life giving rise to obligations are so inter-related that it is exceedingly difficult to classify them. It HeinOnline -- 21 Yale L.J. 533 1911-1912 Yol. I , 1 .7 SI-C TR CT L I I By Arthur Linton orbin, rofessor f ntracts, l chool. For the perfect understanding f o knowledge of the hole field is required. l is i seamless web." This is exceptionally true f asi-c tract al obligations. ut no atte pt ca i 't i t l law as a whole, or even to discuss at length t e r t-fi l obligations. An atte pt ill be ade, e er, t t i just what obligations may properly be called quasi-contractual. Legal obligations for one large class, it i i t many different species. No doubt it serves a useful r s t define these species and to treat the under se arate i s and in separate volumes. So, obligations arising t f r ­ ment of two parties are called contractual, t e f t f r t and its expression being called a contract; and obligations risi from illegal acts causing injury to others are called elict al, t illegal act being called a tort. But our courts have l f r other obligations that do not readily fall it i t ing classes. Centuries before the ti e f J sti ia , were referring to these obligations as quasi-contractual r i­ delictual. From that day to this, ho ever, jurists r generally used these terms without dra ing distinct li es t een their various fields, and without showing any very clear nd f unity within the limits of anyone field. his fact es f r t show, indeed, that the facts of life giving rise to obligations are so inter-related that it is exceedingly difficult to classify the . It YALE LAW JOURNAL is universally agreed, however, that a contractual obligation arises out of an agreement of the parties, while a quasi-contractual obligation is independent of agreement. A few instances may serve to show that even this distinction does not in practice enable us to classify some cases with certainty. In a certain case A sent a telegram offering to sell lath to B at $2.IO per thousand, but the telegraph company delivered it to B reading $2.00 per thousand. B accepted the offer as delivered. There is no agreement of the parties, and yet it was held that A was bound to d-v-e-l at $2.00 per thousand.' It cannot be said that this obligation arises from an agreement, but it is said that there is a contract. Again, A offers to sell his land to B for $5,ooo and B accepts. A intended to sell for that price subject to a then existing mort- gage of which B knew nothing. The law holds A contrary to his intention.2 There is no agreement in the sense of a common intention or meeting of the minds; but the courts say that there is a contract. Of course there may be said to be an agreement in expression, but this is no meeting of the minds.3 In such cases as the above, the obligation is clearly contrary to the will of A. But it may be convenient to continue to classify such cases among contracts. This is the case, particularly because it is seldom possible to determine conclusively whether there was an agreement in intention or not; A- may be lying as to what his intention was. It is practicable, on the other hand, to attempt to determine whether or not there has been an agreement in expression. Such cases show that obligations arising from an agreement of the minds are not in practice distinctly separable from those arising otherwise. There is another large field, always included under the heading of contracts, where the same difficulty of classification exists. The law in regulating the performance of a contract and deter- mining liability for non-performance oftentimes construes an agreement in a way never dreamed of by the parties at the time they made it, "Conditions" are said to be implied by the law. When a contract is held to be conditional, although in its terms I Ayer v. West. U. Tel. Co., 79 Me., 493. 2Mansfield v. Hodgdon, 147 Mass., 304. 3 See further Holland, .uris., ed 10, p. 253; Anson, Cont., ed. 10, p. 9; O'Donnell v. Clinton, 145 Mass., 461-463. HeinOnline -- 21 Yale L.J. 534 1911-1912 534 YALE LAW JOURNAL is universally agreed, however, that a contractu l obligation arises out of an agreement of the parties, while a quasi-contr obligation is independent of agreement. A few instances may serve to show that even this distinction does not in practic enable us to classify som~ cases with certainty. In 'a certain case A sent a telegram offering to se l lath to B at $2.10 per thousand, but the telegraph company delivered it to B reading $2.00 per thousand. B accepted the o fer as delivered.. There is no agreement of the parties, and yet it was held that A was bou~todeliver~at $2.00 per thousand.1 It ~annot be said that this obligation arises from an agree ent, but it is said that there is a contract. Again, A offers to sell his land to for $5,000 and B accepts. A intended to sell for that price subject to a then existing ort­ gage of hich knew nothing. he l lds contrary t his intention.2 There is 110 agree ent in the nse of on intention or meeting of the inds; ut the courts say t t ere is a contract. f course there ay be id t e n agreement in expression, but this is no eeting f t e i .3 In such cases as the above, t e li ti l arly r ry the will of A. ut it ay e ient tinue l sify such cases a ong contracts. is is t e , rticularly cause it is seldom possible to deter ine ' l i l t er r s· an agreement in intention r t; t intention was. It is practicable, t t r , t t determine whether or not t ere t expression. Such cases sho t t li ti agreement of the inds are t i ti e rable from those arising other ise. There is another large field, al a s i l of contracts, here the sa e iffi lt i t . The law in regulating the erf r a ce f t t ­ mining liability for non-perfor ance ft ti agree ent in a ay never r f t t t they ade it, " onditions" r s i t i li t "\Then a contract is hel t iti l, alt i. it t 1 Ayer v. fiVest. U. cl. Co., 79 e., . Z ansfield v. odgdon, 147 ., 304. . 3 See further olland, J ris., e 10, p. ; lis , Oli f., ed. 10, p. 9; O'Dollnell v. Clinton, 145 : ass., 461-463. QUASI-CONTRACTUAL OBLIGATIONS contracts.1 2 It must be noted that any suit based upon a judg- ment is for the specific performance of the judgment, and is not for damages. STATUTORY, OFFICIAL, AND CUSTOMARY OBLIGATIONS. In certain cases an obligation may be put upon a party by reason of a statute or other law, or by custom, particularly where the party holds some office. It has been held that assumpsit lies to recover an amount due by custom for "Waiage," "Wharfage," "Cranage," and the like.'3 If a sheriff levies on goods under a writ of execution, but fails to return the proceeds into court, the judgment creditor may sue him in debt. 4 A statute may make it the duty of a,.shipowner to employ a certain pilot, and to pay him a certain fee in any case. The pilot may sue in admiralty for the fee, even though he rendered no service. 5 So also, where a statute provided that anyone might break a log jam, and recover the cost thereof from the owners of the logs, it was held that assumpsit lay.' 6 Such obligations as these are based on neither contract nor tort, and have been classified as quasi-contractual.'1 In all such cases the suit is for specific performance of the duty and not for damages, and the contractual forms of action are available. 1.2Ames, History of Assumpsit; Scott, Cases on Quasi-Contracts; Keener, Quasi-Contracts, p. 16. 13 City of London v. Goree, 3 Keble, 677. '1 Speake v. Richards, Hob., 206; King v. Moore, 6 Ala., 160. '5 The Francisco Garguilo, 14 Fed., 495; Steamship Co. v. Joliffe, 2 Wall, 450. 16 Woods v. Ayres, 39 Mich., 345. 17 Ames, Keener, and Scott, supra. These writers have also classified the obligation of an innkeeper to receive guests and to keep their property safely, and the like obligation of a common carrier, as quasi-contractual. With this the present writer disagrees. At the common law these obliga- tions have been treated as based on contract or on tort. The customary duty of the carrier, inn-keeper, farrier, surgeon, and the like, was to act rather than to forbear, it is true, and to act with the degree of care and skill customarily required; but the form of action was in tort, if based solely on the custom and not on an agreement, and the remedy was com- pensatory damages measured by the extent of the plaintiff's loss. This is just the same as where one is injured through the defendant's negligent failure to act. See also Holdsworth, History of English Law, Vol. 3, p. 331; Digest rust., 44, 7, 5, Sec. 5, per Gaius; Digest Just., 4, 9. HeinOnline -- 21 Yale L.J. 537 1911-1912 QUASI-CONTRACTUAL OBLIGATIONS 537 contracts.12 It must be noted that any suit based upon a judg­ ment is for the specific performance of the judgment, and is not for damages. ' STATUTORY, OFFICIAL, AND CUSTOMARY OBLIGATIONS. In certain cases an obligation may be put upon a party by reason of a statute or other law, or by custom, particularly where the party holds some office. It has been held that assumpsit lies to recover an amount due by custom for " aiage," "Wharfage," "Cranage," and the like.13 If a sheriff levies on goods under a writ of execution, but fails to return the proceeds into court, the judgment creditor may sue him in debt.14 A statute may make it the duty of a..shipowner to employ a certain pilot, and to pay hi a certain fee in any case. The pilot may sue in admiralty for the fee, even though he rendered no serviceY So also, here a statute provided that anyone might break a log ja , and recover the cost thereof from the owners of the logs, it was held that assumpsit lay.16 Such obligations as these are based on neither contract nor tort, and have been classified as quasi-contractuaI.17 In all such cases the suit is for specific performance of the duty and not for damages, and the contractual forms of action are available. 12 Ames, History of Assumpsit; Scott, Cases on Quasi-Contracts; Keener, Quasi-Contracts, p. 16. ]3 City of London v. Goree, 3 Keble, 677. 14 Speake v. Richards, Hob., 206; King v. Moore, 6 Ala., 160. 1:; The Francisco Garguilo, 14 Fed., 495; Steamship Co. v. Joliffe, Wall, 450. 16 Woods v. Ayres, 39 Mich., 345. 17 Ames, Keener, and Scott, supra. These writers have also classified the obligation of an innkeeper to receive guests and to keep their property safely~ and the like obligation of a common carrier, as quasi-contractual. With this the present writer disagrees. At the common law these obliga­ tions have been treated as based on contract or on tort. The custo ary duty of the carrier, inn-keeper, farrier, surgeon, and the like, was to act rather than to forbear, it is true, and to act with the degree of care and skill customarily required; but the form of action was in tort, if based solely on the custom and not on an agreement, and the remedy was co ­ pensatory damages measured by the extent of the plaintiff's loss. his is just the same as where one is injured through the defendant's negligent failure to act. See also Holdsworth, History of English Law, Vol. 3, p. 331; Digest Just., 44, 7, 5, Sec. 5, per Gaius; Digest Just., 4, 9. \ \ YALE LAW JOURNAL WAIVER OF TORT. At common law one who has suffered by the tort of another may, in many cases, choose between two sorts of remedies. He may sue in a tort action for compensatory damages, the recovery being in no way measured by the amount of profit secured by the defendant. Or he may, as it is said, waive the tort and sue in assumpsit, in which case his recovery is limited by the amount by which the defendant has been unjustly enriched. The obligation in this latter case has been said to be quasi-contractual. In such cases as this it must certainly be admitted that the obligation arises out of a tort. But for the defendant's tort, he would be under no obligation; and the plaintiff must allege and prove the com- mission of that tort in order to win his case, whether his action is in trover or trespass or assumpsit.' s But the obligation enforced by the law in a tort action is somewhat different from that enforced in assumpsit. In tort, it is measured by the amount of damage done to the plaintiff; in assumpsit, it is measured by the amount of the defendant's unjust enrichment. This differ- ence and the difference in the form of action, are the only reasons- for taking the obligation enforced in assumpsit out of the realnr of obligations ex delicto.'0 MONEY PAID BECAUSE OF FRAUD OR COMPULSION. One who obtains money or property from another by fraud or by duress of person or goods,2 , or by virtue of a judgment after- wards reversed," may be held liable in assumpsit. Taxes illegally assessed may sometimes be so recovered.2 2 Where one is compelled to pay money to a third person, which the defendant was legally bound to pay, the defendant must reimburse the one so paying.2 r Illustrations of this are found in the rights of contribution and indemnity in favor of a surety2 , or of a joint tort-feasor,25 in the 1s See Keener, Quasi-Contracts. 19 See on this whole topic 19 Y. L. 3., 221, Waiver of Tort. 20 Smith v. Broniley, 2 Doug., 696; Astley v. Reynolds, 2 Strange, 915; Tutt v. Ide, 3 Blatch., 249; Chandler v. Sanger, 114 Mass., 364. 2 1 Hosiner v. Barret, 2 Root, 156; Clark v. Pinney, 6 Cow., 297. 22 Atwell v. Zeluff, 26 Mich., 118; Preston v. Boston, 12 Pick., 7. 2 3 Brown v. Hodgson, 4 Taunton, 189. 24 Deering v. Winchelsea, 2 B. & P., 270; Appleton v. Bascon, 3 Metc., .169. 25 Bailey v. Bussing, 28 Conn., 455; Palmer v. Wick, L. R., 1894, Appeat Cases, 318. HeinOnline -- 21 Yale L.J. 538 1911-1912 YALE LAW JOURNAL WAIVER OF TORT. At common law one who has su fered by the tort of another may, in many cases, choose betw en two sorts of remedies. He may sue in a tort action for compensatory damages, the recovery being in no way measured by the amount of profit secured by the defendant. Or he may, as it is said, waive the tort and sue in assumpsit, in which case his recovery is limited by the amount b)r which the defendant has been unjustly enriched. The obligation in this latter case has been said to be quasi-contractual. In such cases as this it must 'Certainly be admitted that the obligation arises out of a tort. ut for the defendant's tort, he ould be under no obligation; and the plaintiff must a lege and prove the com­ missi9n of that tort in order to in his case, hether his action is in trover or trespass or assu psit.1s ut the obligation enforced by the law in a tort action is somewhat di ferent fro that enforced in assu psit. In t rt, it is asured by the ount of damage done to the lai tiff; in ss sit, it is easured y the a ount of the efendant's just rich ent. is iffer­ ence and the difference i t e f r f action, are t e l reasons for taking the obligation e forced i assu psit t f the realm of obligations e.'!: li t .19 }.fONEY P I SE SION. One ho obtains e r r erty r t r r by duress of person or s,zo. irtue t r­ wards reversed,zl ay l li l . s lly assessed ay so eti es e s r r .2 Q.mpe led to pay oney to a third rs , i t bound to pay, t i rse the one so paying.2S" Illustrations of this are f i t indemnity in favor f a surety2~ f asor,25 1S ll si-Contracts. 1 t . . J., , iver f Tort. it . mley, ; tl v. ey l s, 2 Strange, 915;- Tutt v. Ide, 3 latch., 249; halldler v. anger, 1 21 mer . ret, lark . i lley, 6 o ., 297. 22 t l . lll , 26 ic ., 1 ; reston . st ll, 12 Pick., 7. 23 ro n . odgson, a t , . • 2 eering . illclz lsea, 2 . ., 27 ; let lt v. ascom, 3 ete., .169.. 25 ailey v. ussing, 28 ., 455; almer v. i , L. ., 1894, ppeal Cases, 318. . QUASI-CONTRACTUAL OBLIGATIONS doctrine of general average in admiralty," and in the obligation of a divorced husband to reimburse his former wife for expenses incurred by her in the support of their children.27 The same obligation has been held to exist where one pays under compul- sion money that another ought to have paid, even though that other was not legally liable.28 BENEFITS CONFERRED WITHOUT REQUEST. In some instances where the plaintiff has voluntarily conferred a benefit upon the defendant without the latter's request, the defendant is obliged to reimburse the plaintiff. Such was the case in Roman law known as negotiorurn gestio, where one man- aged another's affairs in the latter's absence, and to the latter's benefit. 9 There is some authority that a finder of lost property is entitled to compensation for labor and expense in preserving and repairing the property. 0 The maritime law fully recognizes such an obligation in the matter of salvage. Compare also the claim of a warehouseman against the owner of goods that have been deposited with him without the owner's authority. So, if A pays B's debt, and B accepts the benefit of the payment, 31 "or A pays the funeral expenses of one for whose burial B is responsi- ble,3 2 or furnishes support for the wife or child of B 33 or for a person whom B has contracted to support,"4 B is liable iri debt or assumpsit to A. Where an occupant of land, honestly believing 26 Digest of Just., 14, 2, 1; Ralli v. Troop, 157 U. S., 386, 393. 27 See 21 YALE LAW JOURNAL, 397. 28 Great Northern Ry. v. Swaffeld, L. R. 9 Exch., 132; Lewis v. Camp- bell, 8 Man. Gr. & S., 541.20 Inst. Just., 3, 27; Dig. Just., 44, 7, 5; Birgerlichesgesetzbbuch, 677 to 687; Erskine Law of Scotland, ed. 20, p. 381; France, Code Civil, 1372 to 1375; Police Jury v. Hampton, 5 Martin N. S. (La.), 389; In Re Bryant's Estate, 180 Pa., 192. 30 Chase v. Corcoran, 106 Mass., 286; Nicholson v. Chapman, 2 H. BI., 254 (semble); Reeder v. Anderson, 4 Dana, 193. Weight of authority ,may be contra. Keener, Quasi-Contracts, 354; Falcke v. Scot. Imp. Ins., L. R. 34 Ch. Div., 234, 248; Bartholomew v. Jackson, 20 Johns., 28.31 Crumlish v. Cent. Imp. Co., 38 W. Va., 390, 395; Muir v. Craig, 3 Blackf., 293. 32Jenkins v. Tucker, 1 H. BI., 90; Patterson v. Patterson, 59 N. Y., 574; Keener, Quasi-Contracts, 341. 13 C-unningham v. Reardon, 98 Mass., 583. 34 Forsyth v. Ganson, 3 Wend., 558; contra Moody v. Moody, 14 Me., HeinOnline -- 21 Yale L.J. 539 1911-1912 QUASI-CONTRACTUAL OBLIGATIONS 539 .doctrine of general average in admiralty,26 and in the obligation of a divorced husband to reimburse his former wife for expenses incurred by her in the support of their children.27 The same obligation has been held to exist where one pays ~<:r ~omIlli.l­ §.im! money that another OZtght to have paid, even though that other was not legally liable.28 BENEFITS CONFERRED WITHOUT REQUEST. In some instances where the plaintiff has voluntarily conferred a benefit upon the defendant without the latter's request, the defendant is obliged to reimburse the plaintiff. Such was the case in Roman law known as negotiorum gestio, where one an­ aged another's affairs in the latter's absence, and to the latter's benefit.29 There is some authority that a finder of lost propert is entitled to compensation for labor and expense in preservi and repairing the property.30 The maritime la fully rec izes such an obligation in the matter of salvage. Co pare also t claim of a warehouseman against the owner of goods that been deposited with him without the owner's authority. , if pays B's debt, and B accepts the benefit of the pay ent,sl 'or pays the funeral expenses of one for whose burial B is responsi­ ble,32 or furnishes support for the wife or child of 33 r f r person whom B has contracted to support,34 B is liable iIi debt 'r assumpsit to A. Where an occupant of land, honestly elie i 26 Digest of Just., 14, 2, 1; Ralli v. Troop, 157 U. S., 386, 393. 27 See 21 YALE LAW JOURNAL, 397. 28 Great Northern Ry. v. Swaflield, L. R. 9 Exch., 132; Lewis v. Camp­ bell, 8 Man. Gr. & S., 541. 29IlIst. Just., 3, 27; Dig. Just., 44, 7, 5; Biirgerlicllesgeset::buch, 677 to 687; Erskine Law of Scotland, ed. 20, p. 381; France, Code Civil, 1372 to 1375; Police Jury v. Hampton, 5 Martin N. S. (La.), 389; III e ryant's Estate, 180 Pa., 192. . 30 Chase v. Corcoralt, 106 Mass., 286; Nicholson v. Chapman, 2 .. I., 254 (semble); Reeder v. Anderson, 4 Dana, 193. Weight of authority .may be cOlltra. Keener, Quasi-Contracts, 354; Falcke v. Scot. Imp. Ins., L. R. 34 Ch. Div., 234, 248; Bartholomew v. Jackson, 20 Johns., 28. Sl Crumlish v. Cent. III/p. Co., 38 W. Va., 390, 395; Muir v. Craig, 3 Blackf., 293. 82 Jenkins v. Tucker, 1 H. Bl., 90; Patterson v. Pattersoll, 59 . ., 574; Keener, Quasi-Colltracts, 341. ss Cunllingham v. Reardoll, 98 Mass., 583. 34 Forsytlt v. Gansoll,3 Wend., 558; contra lJroody v. oody, 14 e., 307. YALE LAW JOURNAL is the same as (5) infra. If the plaintiff's breach is of a vital part of the contract, it deprives him of any remedy ex contractu against the defendant. His performance of that part was either an express condition precedent to the defendant's liability, or was a condition precedent implied by the law."1 In such cases, the plaintiff has no quasi-contractual remedy for the value of his part performance, according to the weight of authority.45 The determination of whether the breach is of a vital part or not, is made to depend in some measure on whether or not the breach was wilful. 46 (4) If the plaintiff has no remedy ex contractu because of the non-fulfilment of a condition precedent, but such non-fulfilment does not constitute' an actionable breach by the plaintiff, the defendant is under a quasi-contractual obligation to pay back the value of what he has receiveI. 47 Such is the case where further performance by the plaintiff has become impossible because of death and in some other cases."' (5) Where the defendant has broken his contract in a vital matter without excuse, the plaintiff has two remedies-ex con- tractu for damages, or quasi ex contractu by rescinding the con- tract and contenting himself with restitution of what the defend- ant has received, or its value.49 (6) If the contract is illegal, there can be no remedy ex con- tractu. But the law will construct a quasi-contractual obligation in favor of a plaintiff who is not in pari delicto.5 ° In such of the foregoing cases as give to the plaintiff a right of action on the contract, as in certain cases under (1), (3), and (5), it may seem that the so-called quasi-contractual right of res- titution is really only a remedy on the contract; but just as in the 44 See Shadforth v. Higgin, 3 Camp., 385; Worsley v. Wood, 6 T. R., 710; Norrington v. Wright, 115 U. S., 188. 45 Champlin v. Rowley, 18 Wend., 187; Stark v. Parker, 2 Pick, 267; Note in Scott's Cases, Quasi-Contracts, p. 741. Contra, Britton v. Turner, 6 N. H., 481; Oxendale v. Wetherell, 7 L. J., 264. 46 See Pincelws v. Swedish Church, 55 Conn., 183. 47 Wright v. Newton, 2 Cr. M. & R., 124. 48 Luke v. Lyde, 2 Burr., 882; N. Y. Life, Ins. Co. v. Statham, 93 U. S., 24; Butterfield v. Byron, 153 Mass., 517. 49 Dutch v. Warren, 1 Strange, 406; Clark v. Manchester, 51 N. H., 594. 50 Musson v. Fales, 16 Mass., 332; White v. Franklin Bank, 22 Pick, 181; but no contribution between highway robbers, The Highwayman's Case, Scott's Cases, Quasi-Contracts, p. 666. HeinOnline -- 21 Yale L.J. 542 1911-1912 542 YALE LAW JOURNAL is the same as (5) infra. If the plainti f's breach is of a vital part of the contract, it deprives him of any remedy e% contractu against the defendant. His performance of that part was either an express condItion precedent to the defendant's liability, or was a condition precedent implied by the law.44 In such cases, the plaintiff has no quasi-contractual remedy for the value of his part performance, according to the weight of aut .4G The determination of whether the breach is of a vital part or not, is ade to depend in so e measure on hether or not the breach was il J.46 (4) If the plaintiff has no remedy e% co t ttt because of the non-fulfilment ·of a co.ndition precedent, but such non-fulfilment does not constitute· an actionable breach by the plainti f, the defendant is under a quasi-contractual obligation to pay back the value of hat he has r i 9.47 uch is the ase ere further perfor ance by the laintiff has eco e i possible because f death and i e other cases.48 (5) here the defendant s roken is tract i a ital atter ithout excuse, t l i tiff s t o % con­ .tracttt for da ages, r si e% t t y s inding t e on­ ti-act and contenting i self ith tit tion at the fend­ ant s ived, r its l .49 (6) If the contract is ill l, t re e re edy % ­ t1'actu. ut the la ill tr t i- tractual ti n in favor iff is not in pari delicto. GO In such of the foregoing l i tiff i t f action on the contract, as i rt in er r), ), (5), it ay see t t t ll tractual ­ titution is really l r r ct; t f rt i gin, ; 710; orrington v. riglzt, . . ha pli . rker, ; Note in Scott's ases, uasi-Contracts, . . Olltra, ritt mer, 6 N. H., 481; xendale v. t erell, . ., hes hllrch, 47 right v. e t , r. . 48 Luke v. Lyde, 2 urr., ; . . ife- s. o: . , 24; Butterfield v. r , ., 49 t v. arren, 1 t ; lark v. ll ester, . ., 594. GO usson v. ales, ss., ; hit . ranklin k, Pick, 181; but no contribution bet ee i r , The i y an's Case, Scott's ases, uasi-Contracts, p. 666. QUASI-CONTRACTUAL OBLIGATIONS case of waiver of tort; the plaintiff has the option.of putting the defendantunder an obligation other than the one created by the agreement. It may be said that an obligation to pay damages for breach of contract is created. by the law and not by the agree- ment, the contractual obligation being to perform, not to pay damages for non-performance. The truth of this must be admitted; but to enforce the obligation to pay damages, the plain- tiff must prove the contract and its breach, as a part of his cause of action, whereas this is not the case if he has rightfully rescinded the contract and is merely suing for restitution. In the latter case he could sue on the common counts in assumpsit, though no doubt the defendant could take steps that would require the plaintiff to show that he had rightfully rescinded the contract. In addition there is also the difference in the measure of recovery. It must be admitted that this distinction is a narrow one, and that' both the obligation to pay damages and the obligation to restore the value received are secondary, remedial obligations created by the law to right the wrong done to the plaintiff. Neither one of them is of the same character as the primary contractual obliga- tion to perform. MISTAKE. Where money is paid under the mistaken belief that it was due, when in fact nothing was due, an action will lie to recover it.1 This was true also under the Roman law -5 2 and it is true under all the civil codes based on the Roman law. 3 The general principles allowing recovery are the same whether there was an agreement between the parties or not. If there was an agree- ment, the mistake must be such as to vitiate it or there will be no quasi-contractual obligation. The obligation to repay in cases of mistake is certainly not based on agreement, and therefore cannot be said to be contrac- tual.5 4 On the other hand, the party to whom the money was paid was not a tort-feasor in receiving it. He is not liable in damages, but only for the exact sum that he received. The obli- 51 Lady Cavendish v. Middleton, 3 Cro. Car., 141 ; Mayer v. N. Y., 63 N. Y., 455. The English and most of the American courts have improp- erly drawn a distinction between mistakes of law and mistakes of fact. See Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunton, 144; Note in Scott's Cases, Quasi-Contracts, p. 365; Contra, Culbreath v. Cui- breath, 7 Ga., 64, and Mansfield v. Lynch, 59 Conn., 320.5 2 Inst. Just., 3, 27; Inst. Gaius, 3, 91 ; Dig. Just., 12, 6; Codex 4, 5. 53 Code Civil, 1376 to 1381; B. G. B., 812 to 822.54 Inst. Just., 3, 27, 6; Dig., 44, 7, 5, Sec. 3, per Gaius. HeinOnline -- 21 Yale L.J. 543 1911-1912 QUASI-CONTRACTUAL OBLIGATIONS 543 case of waiver of tort; the plaintiff has the option .of putting the defendant· under an obligation other than the one created by the agreement. It may be said that an obligation to pay damages for breach of contract is created· by the law and not by the agree­ ment, the contractual obligation being to perform, not to pay damages for non-performance. The truth of this must be admitted; but to enforce the obligation to pay damages, the plain­ tiff must prove the contract and its breach, as a part of his cause of action, whereas this is not the case if he has rightfully rescinded the contract and is merely suing for restitution. In the latter case he could sue on the common counts in assumpsit, though no doubt the defendant could take steps that would require the plaintiff to show that he had rightfully rescinded the contract. .In addition there is also the difference in the measure of recovery_ It must be admitted that this distinction is a narrow one, and that' both the obligation to pay damages and the obligation to restore the value received are secondary, remedial obligations created b the law to right the wrong done to the plaintiff. Neither one of them is of the same character a.s the primary contractual obliga­ tion to perform. ISTAKE. Where money is paid under the mistaken belief that it due, when in fact nothing was due, an action will lie to recover it.51 This was true also under the Roman law52 and it is true under all the civil codes based on the Roman law.53 The general principles allowing recovery are the same whether there was an agreement between the parties or not. If there was an agree­ ment, the mistake must be such as to vitiate it or there will be no quasi-contractual obligation. The obligation to repay in cases of mistake is certainly not based on agreement, and therefore cannot be said to be contrac­ tuaJ.5~ On the other hand, the party to whom the oney as paid was not a tort-feasor in receiving it. He is not liable in damages, but only for the exact sum that he received. The obli- 51Lady Cavendish v. Middleton, 3 Cro. Car., 141; Mayer v. N. Y.,63 N. Y., 455. The English and most of the American courts have i prop­ erly drawn a distinction between mistakes of law and mistakes of fact. See Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunton, 144;' Note in Scotfs Cases, Quasi-Contracts, p. 365; Contra, Ctelbreath v. Ctll­ breath, 7 Ga., 64, and Mansfield v. Lynch, 59 Conn., 320. 52 Inst. Just., 3, 27; I1lst. Gaius, 3, 91; Dig. l1est., 12, 6; Code~ 4, 5. 53 Code Civil, 1376 to 1381; B. G. B., 812 to 822. 5~ Inst. Just., 3, 27, 6; Dig., 44, 7, 5, Sec. 3, per Gaius. .544 YALE LAW JOURNAL gation to repay has been said to be quasi-contractual, from the time of Cicero to the present, and in many countries. In the Roman law the form of action for the enforcement of this obliga- tion was called condictio indebiti. Under the common law, the form of actioh was assumpsit for money had and received. Under this heading many difficult questions have arisen, and there is much conflict, most of it unnecessary and unreasonable.' 5 A few other specific classes of obligations have been called quasi-contractual, but they will be found to be included under some of the foregoing heads. The mutual rights and obligations as between guardian and ward50 are many of them based on neither contract nor tort. The guardian's obligation to account may be regarded as official. His breach of duty is often d tort. His right to compensation and indemnity from the estate of the ward is for benefits conferred, and is often statutory. The mutual rights and obligations of tenants in common and joint heirs5 7 are based upon benefits received, though the common law differs from the civil law in just what those rights and obligations are. The obligation of an heir to pay a legacy charged against the estate is classified as quasi-contractual in the Roman law. 8 The rights and obligations of a trustee, like those of a guardian, may be regarded in many instances as quasi-contractual, the fact that the remedies are chiefly equitable being an immaterial fact in this classification. In the case of constructive trusts, the character of the obligation is very similar to that in the case of waiver of tort.5 It will readily appear from the foregoing survey that the term quasi-contract is not in all respects a fortunate term. It sug- gests a relation and an analogy between contract and quasi-con- tract. 0 The relation is distant and the analogy slight. The 55 In particular, in cases involving negotiable instruments and the rights of two innocent parties. Price v. Neal, 3 Burr., 1354; Ellis v. Ohio Life Ins. Co., 4 Oh. St.,, 628; Keener, Quasi-Contracts, Chap. 2. 56 Inst. Just., 3, 27, Howe, Studies in the Civil Law, 274. 57 Inst. Just., 3, 27. 58 Inst. Just., -3, 27, Dig., 44, 7, 5, Sec. 2, per Gaius. 59 Holland, Juris. ed. 10, p. 238, 241, classified all fiduciary rights among those arising ex lege. 60 "The word quasi, 'prefixed to a term of Roman Law, implies that the conception to which it serves as an index is connected with the concep- tion with which the comparison is instituted, by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the HeinOnline -- 21 Yale L.J. 544 1911-1912 ·544 YALE LAW JOURNAL gation to repay has been said to be quasi-contractual, from the time of Cicero to the present, and in many countries. In the Roman law the form of action for the enforcement of this obliga­ tion was called condictio indebiti. Under the co mon law, the form of action was assumpsit for money had and received. Under this heading many difficult questions have arisen, and there is much conflict, most of it unnecessary and unreasonable. 5 A few other specific classes of obligations have b en called quasi-contractual, but they will be found to be induded; under some of the foregoing heads. The mutual rights and obligations as between guardian and ward56 are many of them based on neither contract nor tort. The guardian's obligation to a count may be regarded as official. His breach of duty is often a tort. His right to compensation and indemnity from the estate of the ward is for benefits conferred, and is often statutory. The mutual rights and obligations of tenants in common and joint heirs57 are based upon benefits received, though the common law differs from the civil law in just hat those rights and obligations are. The obligation of an heir to pay a legacy charged against the estate is classified as quasi-contractual in the o an l .58 The rights and obligations of a trustee, like those f uardian, may be regarded in many instances as quasi-contractual, the ct that the remedies are chiefly equitable eing n t rial ct in this classification. In the case f structive tr sts, t e character of the obligation is very si ilar t t t t e f waiver of tort.59 It will readily appear from the foregoing quasi-contract is not in all respects a f rt ate ­ gests a relation and an analogy bet een tr t ­ tract.60 The relation is distant and the analogy sli t. 55 In particular, in cases involving negotiable i t t rights of two innocent parties. Price v. eal, ., 1 li . io Life Ins. Co., 4 Dh. St." 628; Keener, lIasi-Co1!tracts, . . 56 Inst. hest., 3, 27; Howe, Stlldies in the ivil , 74. 57 Inst. JlIst., 3, 27. 58 Inst. JlIst., ·3, 27, Dig., 44, 7, 5, Sec. 2, per aius. 59 Holland, JlIris. ed. 10, p. 238, 241, classified all fiduci r ri t a those arising ex lege. 60 "The word quasi, prefixed to a ter of o Law, i plies that the conception to which it serves as an index is connecte with the conc ­ tion with which the comparison is instituted, by a strong superfici l analogy or resemblance. It does not denote that the two conceptions are the QUASI-CONTRACTUAL OBLIGATIONS based upon a real agreement of the parties. It differs from an express contractonly in the evidence necessary to establish its existence and its terms. In reality a contract implied in fact is an express contract, for intentions can be expressed as clearly by actions as by words. Where there has been no expression of intention to agree, either by words or by acts, there is no contract whatever; and in cases like this courts have sometimes refused a remedy on the erroneous supposition that there can be no remedy unless there is a contract express or implied.69 In numberless instances the courts have said that where the parties have made an express contract the law will never imply a different one. This is quite true, if a contract implied in fact is meant; for where the agreement has been put into express words, those words are con- clusive as to the intention of the parties. But many cases have been shown above where the law will create an enforcible obliga- tion, other than the contractual one, despite the fact that the par- ties have made an express contract. (3) The term contract implied in law came to be used in the common law because obligations neither contractual nor delictual were enforced in the so-called actions ex contractu, debt, account, and assumpsit. This fact makes the term quasi-contract seem somewhat less unnatural than it otherwise would, and is perhaps a reason for retaining it. The action of debt was originally used for the purpose of enforcing a property right or right in rem, and such other rights as the primitive mind pictures in his imagination as a property right. A debt was regarded as a different thing from a contract. The thing owed was some specific thing that had been granted to the creditor. So the action of debt was an action for the specific enforcement of a legal duty, often quasi-contractual in character rather than contractual. The earlier legal mind conceived of a right to a specific sum of money as being of the same character as a right to any other specific property,0 and debt lay to recover this specific sum because the plaintiff owned it, not because the defendant had promised it. So, specific sums due by statute, custom, or judgment, or by unilateral contracts where the quid pro quo had passed to the defendant,71 were collectible in debt. 69 Kellogg v. Turpie, 93 IIl., 265; Ferguson v. Carrington, 9 Barn. & C., 59; Rayburn v. Comstock, 80 Mich., 448 (last paragraph). 70 See Maitland, Lectures on Equity and Forms of Action, 357. 71 Salmond, Essays in Juris., 181-182; Holdsworth, History of English Law, Vol. 3, p. 283, 326. HeinOnline -- 21 Yale L.J. 547 1911-1912 I- I 547 u r agr t rti . I if fr a r ss c ntract.o l i t e i e t est its e iste ce its t r . r lit a c t i i i r Olin- t, f r i t x ressed as actions as r s. r t r i intention to agree, eit er r s r t , t r is t t t r; i li t i r re edy on the erroneous s siti t t t r unless there is a contract e ress r i li .60 I ~erl instances the courts have said t at ere t rti s express contract t e la ill r i l iff r t . is quite tr e, if a tr t i li i f t i t; t agree ent as ee t i t r ss r , t ­ clusive as to the i te ti f t rti s. t been sho n above here the la ill create a f r i l li ­ tion, other than the c tract al , s it t f t t t t ­ ties r t t. ( ) t r tr t i li i l coin on la because obligations eit er c tract al r li t l ere enforced in the so-called actions ex c tr ctu, t, t, and assu psit. his fact akes the ter asi-c tract so e hat less unnatural than it t er ise l , i r s r t i i it. The action of debt as originally se f r t rpos; f enforcing a property right r ri t i r , t i t as the pri itive ind pictures i is i i ti r rt right. debt as regarded as a different t i fr tr t. The thing o ed as so e specific t i t at r t to the creditor. o t e acti f t s ti f r t i i enforce ent of a legal duty, fte asi-c tract al i cter rather than contractual. he earlier legal i c cei e f right to a specific su of oney as ei f t s r cter as a ri t t a t r s ifi r rty,70 t er this specific su because the plaintiff e it, t se t defendant had pro ised it. , s ifi s s t t t , custo , or judg ent, or by unilateral tr ts r t i pro quo had passed to the defendant,71 ere c llecti le i t. 60 Kellogg v. T1wpie, 93 III., 265; Fergusoll v. Carri1lgton,9 Barn. & C., 59; Rayburn v. o stock, 80 ich., 448 (last aragraph). 70 See Maitland, Lectures 011 Equity a1ld Forms of Actioll, 357. 71 Salmond, Essays ill l1Iris., 181-182; Holdsworth, istory f 1lglish a , ol. 3, p. 283, . YALE LAW JOURNAL The action is a contractual action in the last case, where there was a true agreement; in the other cases it is not. But the action of debt came to be called contractual, because in the majority of cases where it was used there was in fact an agreement, and a debt came to be called a contract. So in English history we do not need so much to explain why quasi-contractual obligations came to be enforced in the action of debt, as to explain why debt came to be called a contractual form of action.7 2 The action of account had a. similar history, being first of a quasi-contractual character and founded upon property rights,7 3 its use becoming proper also where there was an agreement, until finally it was superseded by assumpsit and by a bill in equity. The use of the action of assumpsit to enforce quasi-contractual obligations has been well explained.7 4 But inasmuch as debt and true indebitatus assumpsit are nearly identical, it was natural enough for the latter to replace the former in quasi-contractual cases as well as in contractual ones. Further, assumpsit is of tort parentage, and it does not seem unnatural to use it in cases of waiver of tort. The action on the case was the action most easily extensible to new obligations which society acting through its courts might desire to create and enforce. However, assumpsit is used to enforce quasi-contractual obligations only in those cases where it is being used as a substitute for debt. Express assumpsit, an action upon a special promise, is always more of the common counts that are used. However, there is ex contractu, and the measure of recovery is the damage suffered by the promisee in not getting the thing promised. The common counts also may be used to enforce an express agreement, but it is only in cases where debt also would lie, where there is a specific sum of money due from the defendant, or where the contract was not wholly express and the law creates a partly quasi-contractual obligation to pay a reasonable sum. When assumpsit is brought to enforce a quasi-contractual obligation, it is generally one or more of the common counts that are used. However, there is no objection to a plaintiff's stating a quasi-contractual obligation in the form of a special (uncommon) count.7" It therefore 72 See Anson, Contracts, chapter on quasi-contracts. 7 See Holdsworth, History of English Law, Vol. 3, p. 323; Vol. 2, Pol. & Mait., 219. 74 Ames, 4-istory of Assunpsit. 7' Bachelder v. Fisk, 17 Mass., 464; Merchants Ins. Co. v. Abbott, 131 Mass., 397; Reina v. Cross, 6 Calif., 29; Knowlnan v. Bluett, L. R., 9 Exch., 307. HeinOnline -- 21 Yale L.J. 548 1911-1912 YALE LAW J RNAL he action is a contractual action in the last case, here there as a true agreement; in the ther cases it is n t. ut the action f ebt ca e to be called c tractual, ecause in the jority of cases ere it as sed there as in fact n ree ent, and a debt a e to be lled a tract. o in English istory e do ot need s ch to explain hy si-contractual ligations ca e to e forced in the ction of debt, s to explain hy t ca e t be lled tractual form f action.72 e tion f account ad , i ilar istor , eing first f a si-contractual racter d ed r perty ri ,78 its s ing roper lso here there s n r ent, until i ll it as rseded y ssu psit d ill in it . e se f action f sit to enforce quasi-contractual li ations ll l i e .74 t i as uch s t d ,true i ebitatus ssu psit re rly ti l, t s atural h r tt r t l e the r asi-contractual s s s ll i t t al s. sit f t t e, it t atural se t s iver . t e t e i t il t i le ti s ich iety r h it rts t ire r ate r . , psit ed r e tr tual i ti ns h~ i ~d it te . s i , s t , s , f r e t i on ts l e r s r ific , r t tractual li ti t l ht t al , l r r t j ti ' t l ti i t on) 5 tracts, . 8 t ry lI lish , . Ff y sslt1ll . ~ chelder . isk, 1 hallts lIs. . . tt, ., ill . ss, li . ll lm ll . l ett, . , . QUASI-CONTRACTUAL OBLIGATIONS appears that the character of the cause of action, as to its being contract or quasi-contract, cannot be determined from the form of the plaintiff's count in assumpsit. It depends upon the facts and the proof. The action is contractual if the plaintiff proves a real agreement, express or implied in fact, and asks for damages for its breach. Assumpsit in any other case is quasi-contractual. The same may be said of debt, of account, of a bill in 6quity, of a libel in admiralty, of a case brought before an arbitrator, of a civil action under the codes Any of them may be used to enforce either a contract or a quasi-contract. The distinction is one of substance, not of form, and depends upon the facts and the proof.78 A quasi-contract has been defined as a legal obliga- tion enforced by contractual remedies. This is a correct state- ment, but it is not a definition for the reason that it does not enable us to know a quasi-contract when we see it. All obliga- tions are legal obligations and all courts give contractual remedies. If it means "contractual remedies at common law," the definition is altogether too limited, and it would mean nothing in States that have adopted the civil action as the universal form. For'many reasons, the definition of quasi-contract cannot be made to depend upon the form of pleading. Our courts, now that they have equitable jurisdiction and have the civil action at their command, must not refuse to enforce a quasi-contractual obligation merely because they cannot find a precedent in debt or assumpsit, or merely because some court of common law held that debt or assumpsit would not lie. Maitland has said: "The forms of action we have buried, but they still rule us from their graves. '" 77 It is time for us to lay their ghosts. The civil action, with the Lord Chancellor on its right band and the Lord Chief Justice on its left, need not be frightened at the apparition of assumpsit or debt, any more than we now tremble before inort d'ancestor or novel desseisin whose ghosts are laid. It has been made to appear above that obligations may be classified according as they arise ex contractu, ex delicto, and otherwise (ex variis causarurn figuris) .78 This third class is 70 Williams v. Jones, 13 M. & W., 628 (debt); Lockwood v. Kelsea, 41 N. H., 185 (assumpsit for money had and received); The Francisco Garguilo, 14 Fed., 495 (libel in admiralty) ;Bright v. Boyd, 1 Story, 478, 2 Story, 605 (bill in equity). 77 Lect. on Eq. and Forms of Action, 296. 78 Gains, Dig., 44, 7, 1. HeinOnline -- 21 Yale L.J. 549 1911-1912 L 549 i tr t r i- tr t, t t i t r f t l i tiff's t i it. t t t . ti t r l r t, r i li i f t, f r its r . ss sit i t r i i- tr t l. i t, t, ct<:luit , li l , i il ti r t .' t f r it t t . f s st , t f f r , t t th r f.76 i t t i ­ ti e f rce tr t l r i s. i i t t t ­ ent, but it is not a definition f r t e reas t at it s t enable us t a si- tr t it. ll li ­ ti r l l li ti ll t t t l ti is lt t r t li it , it l t i i t t have adopted t e ci il acti as t e i rs l f r . r' reasons, the efi iti f asi-c tract t t t f r l i . t , it l j i i ti st t ref se t f r si- tr t al li ti r l because t e ca t fi a rece e t i t r ss sit, r erel eca se s rt f l l t t t r ss sit l t li . itl i : ti e have buried, but they still rule us fro their graves."11 It is ti f r t l t ir t . i il ti , it t ord hancellor its ri t ha a t r i f J sti its left, ee t e fri t t t riti f it t, t m stor l ss isi s sts r l i . It t r t t li ti s i tr ct t, t J t nvi ii tt m tt is) .1 76 Williams v. Jones, 13 M. & W., 628 (debt); Lockwood v. Kelsea, . ., ( sit i ed); isco ltiloJ ., li l r lty) i lzt t r , ( ill i ity). 11 Leet. Oil q. alld or s f ti ll, . 78 Gaius, Dig., 44, 7, 1. YALE LAW JOURNAL pendently of agreement, and is either specifically enforcible or measured by the amount of the defendant's enrichment. A quasi-contract cannot be distinguished from a contract or tort on the ground that the obligation is created by the law. All enforcible obligations are created by the law.s0 One is under an obligation when he is subject to compulsion. In all cases the c6mpulsion is from society, acting through the courts as its agents. Society may exert its force through other agents, but we are not now concerned with them. If a party makes a valid contract to convey land, society may enforce this primary obligation specifi- cally in equity, or it may substitute a secondary obligation to pay damages and enforce that, or under some circumstances it may permit a rescission and compel restitution of the price paid. The last alternative is quasi-contractual; but the obligation is societal and legal in all three cases. The same is true of torts. Society may specifically order us by injunction not to destroy property; or society may create and enforce a secondary obligation to pay for all damage caused by the tort. In either case the obligation is legal, the compulsion is societal.8 ' It has been said that the courts extended contractual remedies to enforce quasi-contractual obligations, because "to discharge the obligation imposed by quasi-contract one must act," "while to so "An obligation is a legal bond, with which we are bound by a neces- sity of performing some act according to the laws of our State." Inst. of Just., 3, 13. "An obligation, as its etymology denotes, is a tie, whereby one person is bound to perform some act for the benefit of another. In some cases the two parties agree thus to be bound together, in other cases they are bound without their consent. In every case it is the law which ties the knot, and its untying, 'solutio', is competent only to the same authority." Holland, Juris., ed. 10, p. 236. "Si l'on consid~re la force juridique de l'obligatiofn, l'action qui en fait un vinculum jinis, toute obligation vieint de la loi: car c'est la loi qui, dans tous les cas possibles, organise les moyens de coercition sans lesquels il ne peut y avoir que les obligations naturelles. Sous ce rapport, aucune distinction n'est possible: toutes les obligations viennent de la loi." F. Mourlon, Code Civil, Vol. II, Sec. 1660. Se also Baudry-Lacantinerie and Barde, Droit Civil, Vol. III des obligations, p. 1040; Savigny, Obligation- enrecht, p. 4: 81 Holland (Iuris., ed. 10, p. 238) having classified quasi-contractual rights among antecedent rights in personain, further defines them as rights ex lege, in opposition to rights ex contractu. This description is defec- tive, because, as he himself has shown, all obligations are ex ,lege. HeinOnline -- 21 Yale L.J. 552 1911-1912 552 LE J AL e dently f r t, and i ither s ecifica ly e forcible r s red y t e unt f the fendant's ric ent. si-contract not e istinguished fro tract r t rt n t e round t t e li tion is ted the ll forcible li ations re reated the l .so der n bligation is ject to lsion. In ll ses t o lsion iety, ting t rough t e t s its e ts. i t rt r e r gh r t , t e re ot cerned ith . f t es li tract vey l , t force i i ry li ation ifi­ ally i it , r t it te ry ti to e r r irc stances t r it i si d el ti f . t ti e i i-contractual; ti t l d l ll ree . e f t y ifica ly r er tion t tr r erty; i t te rce ary e li tion , i ietaJ.81 t i t rts ed tr ctual i s i-contractual i , se arge t , l s li ti is a le al , ith hich e are bound by a neces­ f r ing i s . lll t. f ., t , rson t t t l ti ', t llI i ., e i e ligatio , t ft tris, i rel es. i ti ti ' t t il, , tinerie ; it il, . ti n­ recht, . : ' Sl olland (hris., ed. 10, p. 238) having classified quasi-contractual t m, , ctu. ­ ti , , ' ' ll l g iio~sa~e' . : ' , QUASI-CONTRACTUAL OBLIGATIONS avoid committing a tort one need only to forbear."' 2 This comes near to indicating a distinction upon which a definition may be based; but it does not afford a certain test. Most contracts, it is true, require positive action rather than forbearance; but Very large number require forbearance. Furthermore, it is not true that all torts are breaches of a duty to forbear. Surely the tort of negligence is generally the breach of a duty to act. 83 Therefore, it would not do to define a quasi-contract as a breach of a duty to act, arising independently of agreement. It is readily to be seen from the foregoing survey and attempt at definition, that the term quasi-contract is not at all a fortunately chosen term. But there are indeed inherent difficulties, due to the great variety of obligations to be described, that made the choosing of a better term difficult two thousand years ago, and make it still difficult to-day.84 Arthur L. Corbin. Yale Law School. 82 Keener, Quasi-Contracts, p. 15. "It resembles the true contract, however, in one important particular. The duty of the obligor is a posi- tive one, that is, to act." Ames, Hist. of Assumpsit. s3 Negligence is defined by Austin (Lectures, II, p. 103) as the inad- vertent omission to act as one ought, distinguishing it from heedlessness and rashness. "The omission to do something which a reasonable man would do, or the doing of something which a reasonable man would not do." Alder- son, B., in Blyth v. Birmingham W. Co., 11 Ex., 781. "Negligence may consist either in faciendo or in non faciendo, being indeed either non-performance, or inadequate performance of a legal duty." Holland, Iurs., ed. 10, p. 111. 84 The use of the term quasi-contract in the French Civil Code is now severely criticised in France, but the commentators must perforce use the term. "L'ide de quasi-contrat est particuli~rement critiquable. Aucun fait n'a un caract~re presque contractuel. Ceux que l'on d6signe sous le nom de quasi-contrats, ne sont nullement comparable a des contrats. En effet, les obligations y prennent naissance ind~pendamment de tout accord de volont6s, et mEme, du moins dans certains cas, sans la volont6 du d6biteur, Ces faits sont, par consequent, d~pourvus de l'616ment qui est de l'essence -mnme des contrats." )Baudry-Lacantinerie and Barde, Droit Civil, des Obligations, Vol. III, pp. 1040, 1041. To the same effect, Girard, Droit Ronzain, ed. 4, p. 389. Of the term quasi-contract, Rambaud (II Droit Romain, 300) says: "Cette d6signation ne se trouve pas, il est vrai, dans les textes, mais elle a &6 employ6 par Pothier et reproduite par notre Code civil, et nous nous en servirons 6galement pour ]a commodit6 du langage." See also Bry, Droit Romain, ed. 5, p. 459; and G. May, Droit Romain, ed. 8, p. 238. HeinOnline -- 21 Yale L.J. 553 1911-1912 I- TRACTUAL I S 553 id co itting a t rt e eed l t f ."82 is co es ear t i icating isti ction ich i iti e sed; t it s t afford a t in st tr ts, it tr , r ire itive ti ther f r earance; t av ry l rge er ire f r earance. rther ore, it is t r e t at ll t rts re r ches f ty t rely t e tort ligence ll t e reach f ty t. 3 erefore, it l t fi e i-c ntract ch f ty i i endently f t. t il t t e f regoing r ey t pt fi ition, t t t r i- tract t t ll t l t r . tJ:1ere t i i lti s, t at t f i ti ns ' ri ed, t at sing f tt r t r , d it i lt t - a .84 in. , ontracts, . . t r l s t tr e c tract, e er, i i rtant . t li r i­ ti , t t , t." , t. 83 li ence fl , 3) ­ vertent issiOI1 t t , i r lessness . i i t t i i l r t e i f t ing i le r­ . ligence ist r 1~ ll , i g i it r ce, t ce , J1t i , tract s r l riti ise i , t rs . 'ide t lie t . ' r ter e Oll tllel. 1'0 e I i- tr t , t e t e e oi te e . it , , e ele meme . Baudry-Lacanti , it l, li ations, , it mai , . , . t it i , e t i1 t l ete e t , e l e l r it ain, . , P. ; . , r it (llII ll, 554 YALE LAW JOURNAL The definition in the French code is entirely inadequate. Art. 1371. "Les quasi-contrats sont les faits purement volontaires de l'homme, dont il r~sulte un engagement quelconque envers un tiers, et quelquefois un engagement r~ciproque de's deux parties." See F. Mourlon, Code Civil, Vol. II, 1660, 1661. This definition is repeated in the Louisiana code, merely limiting it by adding the adjective "lawful." Howe, Civil Law, 269. Bracton defined quasi-contracts as those "quae nee omnino ex pacto, neb omninoex-maleficio (oriuntur), sed tamen majorem cum pactis habent aflfinitatem, quam cum maleficiis." His illustrations are identical with those given in the Izstitutes of Justinian. See Gfiterbock, Bracton and His. Relation to the "Roman Law. HeinOnline -- 21 Yale L.J. 554 1911-1912 554 I , l t . " . i- tr ts t l it t l t i l' , t l e t i t e ... l. , , . i i iti l li iti ." . t i i t ts c ·c- a..ex..malefici t r), t finit . ti ' n lI tilliall. i e ll ll / tj lt · omall