In Defence of Quasi‐Contract
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00888.x |
| Author | Dan Priel |
| Date | 01 January 2012 |
| Published date | 01 January 2012 |
In Defence of Quasi-Contract
Dan Priel*
Restitution scholars are almost unanimous in rejecting the term quasi-contract. This essay chal-
lenges this view. It begins by demonstrating that many debates among restitution scholars are in
fact debates about the boundaries of consent-based liability.This serves as an introduction to the
main thesis advanced, which is that the idea of quasi-contract,which is supposed to cover cases in
which the parties would have made a contract if conditions allowed them to do so,helps to explain
the doctrine better than the conclusory language of unjust enrichment. The essay concludes by
situating the argument within the growing literature on the normative foundations of restitution.
It argues that quasi-contractual liability should be understood not as part of unjust enrichment, but
as a different basis of liability that can help us see what liability for unjust enrichment might be:
liability grounded in notions of fairness.
INTRODUCTION
The term ‘quasi-contract’, once used to describe the area of law now called
‘restitution’ or ‘unjust enrichment’, is now out of favour. Peter Birks, the pre-
eminent restitution scholar of his generation, explained why:
‘Quasi-contract’ says only that the matter is not contract. So far as it suggests that
there is a sort of contract, it deceives, unintelligibly.A quasi-sparrow is not a sparrow.
In what respect it might resemble sparrows is left to speculation ...A deceptive
name is a constant impediment.1
Talking about the close term of ‘implied contract’Andrew Burrows was equally
hostile.The notion, he argued,
was fictional and said nothing about why the promise should be implied.By masking
the underlying basis for recovery the theory obscured the important similarities and
differences between the cases reversing benefits received.Moreover it was contrary to
the rule of law for judges to reach decisions without properly explaining their
reasoning.2
*Assistant Professor, Osgoode Hall Law School, York University. I presented an earlier version of this
essay at a workshop in Osgoode Hall, and I thank participants there for their comments. For conver-
sations on some of the issues discussed in this essay I also thank Prince Saprai. Finally, I thank two
anonymous referees for the Modern Law Review for their comments.
1 P. Birks, Unjust Enrichment (Oxford: Oxford University Press, 2nd ed, 2005) 271 (Birks, Unjust
Enrichment). See also ibid, 57 where Birks talks about the ‘artificialities’ of the previously common
analysis of unrequested services using contractual terminology. In an earlier book Birks wrote
similarly that ‘[t]he trouble with language of this kind [ie of ‘quasi-contract’] is twofold.It displaces
the truth. And it introducesa lie.’P. Birks,An Introduction to the Law of Restitution (Oxford: Clarendon
Press, paperback ed, 1989) 22 (Birks, Introduction).
2 A. Bur rows,The Law of Restitution (Oxford: Oxford University Press,3rd ed, 2011) 28. For similar
criticisms of the term see M. McInnes, ‘The Canadian Principle of Unjust Enrichment: Compara-
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(1) MLR 54–77
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Strong words. But also, I think, quite problematic. One wonders, for instance,
about Birks and Burrows’s commitment to the elimination of fictions when both
frequently use the concept of ‘constructive trust’, which wears its fictional nature
on its sleeve. One wonders whether it is clarity of language that they are after
when they both frequently use the term ‘unjust enrichment’ – Birks even used
this term as the title of the book from which the quote comes – only to stress
elsewhere how little their topic has to do with justice, with Birks going so far as
to say that ‘[b]ut for the need to retain a trace of normativity, one might just as
well speak of pink enrichment’.3Burrows’s claim that judges who relied on this
term violated the rule of law by not explaining their reasoning is odder still. All
those judges who presumably obscured their real reasoning by using the concept
of ‘quasi-contract’instead of the principle that supposedly really explained their
decisions did so (one would think) according to their best understanding of the
law, indeed by following what the law by everyone’s reckoning at the time was.
How could doing so be a violation of the rule of law? Burrows faces a dilemma:
if there is a separate principle of unjust enrichment that was part of the law even
before it was endorsed by the courts, that would contradict his claim to be
describing the law of restitution as it is found in the ‘decided cases’.4But if the
principle was not part of the law at the time, then the courts were not violating
the rule of law by not following it.And if it is the obscur ity of the labels that
Burrows is worried about, violating the rule of law by making its content
incomprehensible to laypeople, one wonders how much sense the uninitiated
will make of terms like ‘negative benefit’, ‘incontrovertible benefit’,‘free accep-
tance’,‘subjective devaluation’ and a host of others that are stock in trade for the
contemporary restitution lawyer.
There is, however, perhaps a more plausible version of this criticism. In early
treatments of the subject now known as restitution or unjust enrichment it was
thought that the law of quasi-contract is filled by whatever is not contract and
tort, including obligations arising from statute or judgment.5But telling us only
that liability in this area should be treated ‘as if it had a contractual or igin’,6by
itself placed no constraint, not did it provide any guidance as to the content of the
obligation in question.For those who worr ied that terms like‘unjust enrichment’
tive Insights into the Law of Restitution’ (1999) 37 Alta L Rev 1, 4 (the term is ‘misleading’ and
based on ‘pure legal fiction’);G. Virgo, The Principles of the Law of Restitution (Oxford: Clarendon
Press, 2nd ed,2006) 21 (‘reliance on quasi-contractual reasoning should have no part to play in the
modern law of restitution’), 44 (the law used to be ‘founded on the fiction of implied contract . ..
[and] it is essential that such fictions do not reappear’).
3 Birks, Unjust Enrichment n 1 above, 275. Birks also says that‘[f]or the most part [the word ‘unjust’]
merely gathers up the law’s reasons, not being contracts or wrongs, why an enrichment should be
given up to a person at whose expense it was received’ ibid, 274. If anything, Burrows is even
stronger. He says that the law of unjust enrichment is ‘what the law regards as unjust enrichment’
and not what ‘any one individual or commentator may think is unjust enrichment’. Burrows,n 2
above 4; also ibid 26, 86. See also the text accompanying n 42 below.
4 See the words quoted in the previous note.
5 See eg W.A. Keener, A Treatise on the Law of Quasi-Contracts (NewYork: Baker,Voorhis, 1893) 16.
6Rhodes vRhodes (1890) LR 44 Ch D 94, 107 (CA).Similarly: Sinclair vBrougham [1914] 1 AC 398,
416 (HL) (‘the law is ready to imply a debt in such cases arising quasi ex contractu’); City of
Chattanooga,Tennessee vLouisville & Nashville Railroad Co 298 F Supp 1,9 (ED Tenn 1969) (‘the law
implies a promise to make restitution to the extent of the unjust enrichment’).
Dan Priel
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 55
(2012) 75(1) MLR 54–77
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