Open main menu

Page:Harvard Law Review Volume 2.djvu/82

This page needs to be proofread.


64 HARVARD LAW REVIEW.

from obligations, the breach of which constitutes a tort, where the duty is negative, that is, to forbear. Inasmuch as it has been customary to regard all obligations as arising either ex contractu or ex delicto^ it is readily seen why obligations created by law should have been treated as contracts. These constructive duties are more aptly defined in the Roman law as obligations qtmsi ex contractu than by our ambiguous ** implied contracts." *

Quasi-contracts are founded (i) upon a record, (2) upon a statutory, official, or customary duty, or (3) upon the fundamental principle of justice that no one ought unjustly to enrich himself at the expense of another.

As Assumpsit cannot be brought upon a record, the first class of quasi-contracts need not be considered here. Many of the statutor}% official, or customary duties, also, e.g., the duty of the innkeeper to entertain,^ of the carrier to carry,* of the smith to shoe,* of the chaplain to read prayers, of the rector to keep the rectory in repair,^ of the fidei-commiss to maintain the estate,^ of the finder to keep with care,^ of the sheriff and other officers to perform the functions of their office,® of the ship- owner to keep medicines on his ship,® and the like, which are enforced by an action on the case, are beyond the scope of this essay, since Indebitatus Assumpsit lies only where the duty is to pay money. For the same reason we are not concerned here with a large class of duties growing out of the principle of unjust enrichment, namely, constructive or quasi trusts, which are en- forced, of course, only in equity.

Debt was originally the remedy for the enforcement of a statu- tory or customary duty for the payment of money. The right to sue in Indebitatus Assumpsit was gained only after a struggle. The assumpsit in such cases was a pure fiction. These cases were not, therefore, within the principle of Slade*s case, which required, as we have seen,^^ a genuine agreement. The authorities leave no room for doubt upon this point, although it is a common opinion

1 In Finch, Law, 150, they are called " as it were " contracts. « Keil. 50, pi. 4.

• Jackson v, Rogers, 2 Show. 327 ; Anon., 12 Mod. 3. < Steinson v. Heath, Lev. 400.

• Bryan v. Clay, i E. & B. 38. • Batthyany v. Walford, 36 Ch. Div. 269. 7 Story, Bailments (8 ed.), §§ 85-87. » 3 Bl. Com. 165.

• Couch V. Steel, 3 E. & B. 402. But sec Atkinson v. Newcastle Co., 2 Ex. Div. 441. w Supra, 55, 56.