Page:Harvard Law Review Volume 10.djvu/236

2IO HARVARD LAW REVIEW, and are in each case alternative with the more usual remedy of damages. The obligation of the search after truth is but meagrely met by purely destructive or negative criticism. Indeed, such criticism is available only for the purpose of pointing out internal error or self- contradiction. If other error is to be established, it must be through the application of extrinsically established principles, and the search after truth involves, therefore, an imperative obligation to search for these principles and to indicate their true applica- tions, an obligation which this article is an attempt to meet I. In his prefatory note the learned author says : " In substituting the term ' Quasi-Contract* for the term 'Contract Implied in Law ' the writer has only followed the lead of Sir Frederick Pol- lock and Sir William Anson. While under such leadership the propriety of the substitution does not admit of question, the neces- sity therefor will soon become apparent to the reader ; " but in the body of the book no formal explanation of the necessity is anywhere offered, and the reader can find it only by implication. There are given, however, two explanations for the choice of terms. The first is a quotation from Sir Henry Maine showing the use in Roman Law of the adjunct quasi^ in such expressions as quasi- contract {jquasi ex contractu) and quasi-delict {(juasi ex delicto) and pointing out that it negatives the notion of identity, but calls attention to an analogy. It is to be noted that so far as the Roman use of quasi is concerned, it was just as applicable in the case of an analogy to torts (delicts) as in the case of an analogy to con- tracts, and that the learned writer had therefore a choice of terms between quasi-contract and quasi-tort, a choice which would nor- mally be determined by the greater of the two analogies. The passage from Sir Henry Maine, however, affords no criterion for such a choice, nor does the author then indicate a reason for his preference. It is to be found in his second explanation on a later page, in which, after pointing out that the old common-law action of assumpsit, which in its essential nature was an action of con- tract, was by a fiction extended to what are usually called con- tracts implied in law, but are not contracts at all, the learned writer says : — 1 Keener on Quasi-Contracts, 6.