Page:Harvard Law Review Volume 10.djvu/525

KEENER ON QUASI-CONTRACTS. 499 consensual rights as of others. A breach is, so far as the defend- ant is concerned, inconsistent with his obUgation, and the plaintiff may take him at his word and himself regard the right as non- existent. This in the case of contracts is called rescission. In some cases, however, the right is called into existence upon the delivery from the plaintiff to the defendant of something valuable in return for the right, and what is so delivered — which, it is to be n^^ted, may be either property or services — is called a considera- tion. An undoing of the obligation will in such a case be com- plete only when the defendant returns the consideration which he has received. If under such circumstances the defendant both refuses to perform his obligation and also to return the considera- tion, the two positions are inconsistent, being at once an affirmance and a denial of the contract, and they immediately afford the plain- tiff an alternative. He may enforce the obligation by way of either specific reparation or damages, as the case may be, or he may declare the obligation at an end and recover his consideration. The latter, then, is alternative to damages, and between the two the plaintiff has an election. The right of rescission is not limited to a recovery of the con- sideration, in the strict and technical sense of the word in our law. It extends to whatever property or advantage the defendant has received from the plaintiff upon the faith of the obligation, even though it cannot in strictness be called a consideration. Whatever it be called, upon a rescission of the obligation, the defendant is under a duty to restore what he has gained or its value, and the plaintiff has his remedy of restitution. The gain may be restored in its original specific form, in which case the plaintiff will have specific restitution, or its worth may be restored, in which case the plaintiff will have restitution in value. These various possible remedies may now be re-grouped, not according to the rights from which they spring, but according to their form and quantitative value, and this re-grouping may be diagrammatically represented as follows : — A. Reparation. 1. Specific. (Possible if the obligation is positive.) 2. In Value. (Possible in all cases.) B. Restitution. I. Specific. (Possible if the defendant has obtained pro-