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YALEYALE LAWLAW JOURNALJOURNAL Yol.yol. XXIXXI MAY,MAY, 19121912 No.7No. 7 QUASI-CONTRACTUALQUASI-CONTRACTUAL OBLIGATIONSOBLIGATIONS ByBy Arthur Linton Corbin,Corbin, ProfessorProfessor ofof Contracts,Contracts, YaleYale LawLaw School.School. ForFor thethe perfect understanding ofof anyoneany one branchbranch of thethe law,law, aa knowledge of thethe whole fieldfield isis required. The law isis indeedindeed "a"a seamless web."web." ThisThis isis exceptionallyexceptionally truetrue ofof quasi-contractual obligations. But no attempt can be made in'thisinthis articlearticle toto classifyclassify law as a whole, or even toto discuss at lengthlength the one great-fieldgreat~field ofof obligations. An attempt will be made, however, toto determine just what obligations may properly be called quasi-contractual.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-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 thatthat do not readilyreadily fall within the foregoingforegoing classes. Centuries before thethe time of Justinian, Roman jurists were referring toto thesethese obligations as quasi-contractual or quasi-quasi­ delictual. From thatthat day toto this,this, however, juristsjurists have very generally used thesethese terms without drawing distinct lineslines betweenbetween theirtheir variousvarious fields, and withoutwithout showing anyany veryvery clear bondbond of unityunity withinwithin thethe limitslimits of anyanyone one field.field. ThisThis factfact goesgoes farfar toto show,show, indeed,indeed, thatthat thethe facts of lifelife giving riserise toto obligationsobligations areare soso inter-relatedinter-related thatthat itit isis exceedinglyexceedingly difficultdifficult toto classifyclassify them.them. ItIt HeinOnline -- 21 Yale L.J. 533 1911-1912 534 YALEYALE LAWLAW JOURNALJOURNAL isis universallyuniversally agreed,agreed, however,however, thatthat aa contractualcontractual obligationobligation arisesarises outout ofof anan agreementagreement ofof thethe parties,parties, whilewhile aa quasi-contractualquasi-contractual obligationobligation isis independentindependent ofof agreement.agreement. AA fewfew instancesinstances maymay serveserve toto showshow thatthat eveneven thisthis distinctiondistinction doesdoes notnot inin practicepractice som~ enableenable usus toto classifyclassify some casescases withwith certainty.certainty. InIn a'a certaincertain casecase AA sentsent aa telegramtelegram offeringoffering toto sellsell lathlath toto BB atat $2.IO$2.10 perper thousand,thousand, butbut thethe telegraphtelegraph companycompany delivereddelivered itit toto BB readingreading $2.00$2.00 perper thousand.thousand. BB acceptedaccepted thethe offeroffer asas delivered.delivered.. ThereThere isis nono agreementagreement ofof thethe parties,parties, andand yetyet itit waswas heldheld thatthat AA bou~to deliver~ 1 ~annot waswas bound to d-v-e-l atat $2.00$2.00 perper thousand.'thousand. ItIt cannot bebe saidsaid thatthat thisthis obligationobligation arisesarises fromfrom anan agreement,agreement, butbut itit isis saidsaid thatthat therethere isis aa contract.contract. Again,Again, AA offersoffers toto sellsell hishis landland toto BB forfor $5,ooo$5,000 andand BB accepts.accepts. AA intendedintended toto sellsell forfor thatthat priceprice subjectsubject toto aa thenthen existingexisting mort-mort­ gagegage ofof whichwhich BB knewknew nothing.nothing. TheThe lawlaw holdsholds AA contrarycontrary toto hishis 2 intention.intention.2 ThereThere isis no110 agreementagreement inin thethe sensesense ofof aa commoncommon intentionintention oror meetingmeeting ofof thethe minds; butbut thethe courtscourts saysay thatthat therethere isis a contract.contract. OfOf coursecourse therethere maymay bebe saidsaid toto bebe anan agreementagreement 33 in expression, but thisthis isis nono meetingmeeting of thethe minds. In such cases as the above,above, thethe obligation is clearlyclearly contrary to the will of A. But itit maymay bebe convenient to continuecontinue toto classify such cases among contracts. This is thethe case, particularlyparticularly becausebecause itit is seldom possible toto determine 'conclusivelyconclusively whether there waswas· an agreement in intention or not; A-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 thethe minds are not in practice distinctly separable from those arising otherwise. There isis another large field, always includedincluded under the heading of contracts,contracts, wherewhere thethe samesame difficulty of classification exists.exists. The lawlaw inin regulating thethe performance ofof a contractcontract and deter­deter- mining liabilityliability forfor non-performancenon-performance oftentimes construes anan agreementagreement inin aa way nevernever dreamed ofof by thethe partiesparties atat thethe timetime theythey made it,it, "Conditions""Conditions" areare saidsaid toto bebe impliedimplied byby thethe law.law. "\ThenWhen aa contractcontract isis heldheld toto bebe conditional,conditional, althoughalthough i.nin itsits termsterms 1I AyerAyer v.v. fiVest.West. U.U. TTel.cl. Co.,Co., 7979 Me.,Me., 493.493. Z2MansfieldMansfield v.v. Hodgdon,Hodgdon, 147147 Mass.,Mass., 304.304. 33See See furtherfurther Holland,Holland,Juris., .uris., eded 10,10, p.p. 253;253; Alison,Anson, COliCont.,f., ed.ed. 10,10, p.p. 9;9; O'DollnellO'Donnellv. v. Clinton,Clinton,145 145 :Mass.,Mass., 461-463.461-463. HeinOnline -- 21 Yale L.J. 534 1911-1912 QUASI-CONTRACTUALQUASI-CONTRACTUAL OBLIGATIONSOBLIGATIONS 535 itit appearsappears toto bebe unconditional,unconditional, thethe enforcibleenforcible obligationobligation doesdoes notnot seemseem toto arisearise entirelyentirely outout ofof agreement,agreement, eithereither ofof intentionintention oror ofof expression.expression. ThusThus wherewhere AA promisespromises toto deliverdeliver goodsgoods andand BB promisespromises inin returnreturn toto paypay thethe price,price, thethe promisespromises areare thethe considerationconsideration forfor eacheach otherother andand areare bothboth binding.binding. TheThe contractcontract doesdoes notnot expressexpress thatthat BB shallshall notnot bebe liableliable toto suitsuit unlessunless AA tenderstenders aa deliverydelivery ofof thethe goods,goods, andand thethe partiesparties maymay notnot havehave thoughtthought aboutabout itit atat all.all. 4 ButBut thethe lawlaw sayssays it.it. TenderTender isis mademade aa conditioncondition precedenUprecedent. OfOf suchsuch conditionsconditions ProfessorProfessor Holland says:says: "Supposing"Supposing aa contractcontract toto havehave beenbeen dulyduly formed,formed, whatwhat isis itsits result?result? AnAn obliga­obliga- tiontion hashas beenbeen createdcreated betweenbetween thethe contractingcontracting parties,parties, byby whichwhich rightsrights areare conferr~dconferred uponupon thethe oneone andand dutiesduties areare imposedimposed upon thethe other, partly stipulatedstipulated forfor inin thethe agreement,agreement, butbut-partlypartly alsoalso impliedimplied byby law,law, which, asas BenthamBentham observes (works,(works, III,III, p. 190)19o ) 'has'has thusthus inin everyevery country suppliedsupplied thethe shortsightednessshortsightedness ofof indi­indi- viduals by doing forfor them whatwhat theythey would havehave donedone for them­them- selves,selves, if theirtheir imagination had anticipatedanticipated thethe coursecourse of nature.'nature.' "0"5 SoSo also, when an agreementagreement isis by itsits termsterms expresslyexpressly made conditional, but the Court for some reasonreason enforces'enforces it though thethe condition has not been fulfilled,fulfilled, thethe defendant'sdefendant's obligation cer­cer- tainly does not wholly tainly does not wholly arise from an agreement,agreement, either of inten-inten- t tiontion or of "expression.expression. An insurance company issued a policy, in which it was provided thatthat inin case of dispute thethe liability of thethe company should cease unless suit shouldshould be brought within one year. The Civil \iVarWar broke out after the loss occurred, making it exceedingly difficult for the insured, a resident of Mississippi, to bring a suit within the year. He sued after the war for the amount of the policy, and his suit was sustained.sustained."6 "AA contractor agreed to build a house, and in return the owner promised to pay a certain sum after the architect's certificate of exact performance should be produced, The work was not very well done andan<;l the architect refused to give his certificate. Never-Never­ theless thethe contractor was allowed toto maintain suit on the owner's 7 promise, thethe owner being allowed merely toto counterclaim.counterclaim.' Similar difficulties arise in distinguishing between a quasi- contract and a tort. A torttort is said to be a civilcivil wrong independentindependent 4 Morton v. 4 M ortoll v. Lamb, 7 . R., 125. 5.uris.,;; Juris., ed. 10, p. 8. 6Semmes v.
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