Quasi‐Contract
| Author | J. A. Clarence Smith |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00359.x |
| Date | 01 May 1956 |
| Published date | 01 May 1956 |
QUASI-CONTRACT
A
NEW
CLASSIFICATION
IT
is a commonplace that Quasi-Contract is a waste paper basket
for the disposal of a
‘(
heterogeneous collection
of
cases
”
’
defying
orthodox methods of classification; but
it
is hoped to show in the
succeeding paragraphs that the situation is not
so
bad as that-
that, although there is
no
“
Rationale
of
Quasi-Contract,”
’
there
are yet
no
more than three clearly classifiable groups in the
basket which, when separated from each other, can be linked up
to “other heads
of
the law
”:
these are the liabilities to submit
to a false claim because estopped by one’s own wrong; to pay for
goods
or
services not requested; and to restore money because
it
belongs to the plaintiff.J There is little in common between the
three except that Assumpsit came to be the remedy for all of
them; that in none is there any real contract; and that they are
all based
on
justice. The last characteristic is shared with most
of the rest
of
the law, and the other two points provide inadequate
reason for grouping the three classes together.
ESTOPPELS
It
is the estoppels which have caused most of the dil€iculty
in
classification
:
when they are collected and segregated the picture
becomes clearer. The first is the Quasi-Contractual extension
of
quantum meruit,
the basis
of
which
is
an
“implied contract”
which both parties knew was not being made.
If
a man orders a
1
Cheshire and Fifoot
9:
Contract,
3rd ed.,
.
637. Winfield
also
(Prooince
of
Tort,
p.
118)
says:
It
is
no
man’s Ian:, not
in
the sense that there
are
constant battles for
it
but that nobod wants
it,”
and
on
p.
166
refers
to
the
“
hetero enems topics falling un&r each main head.” Munkman, in
The
Law
of
Quasi-Contract.*,
p.
1,
says that It
is
only by degrees that
contract and tort have diffcrentiated themselves from
the
general body
of
the
common law.
In
this process
of
differentiation they have left behind
a
residue
of cases where the common law gave
a
remedy, but which did not fall under
the heading of either contract or tort.”
2
The title of Section
I1
of
Cheshire and Fifoot’s chaptef, on Quasi-Contract.
The learned authors
say
on this point (at p. 637) that the attempts made
from time
to
time
to
tame the refractory material have provoked acute con-
troversy, and it certain1 cannot be said that they have
as
yet achieved
success.” It
is
submitteg that the never will,
so
long
as
the attempt
is
to
find
a
single explanation for the wiole
of
quasi-contract.
8
Such
B
division is not altogether novel: Munkman, in
The
LQW
oj
Quasi-
Contracts,
pp.
19-20,
also
classified quasi-contracts
into
three groups, of which
the first, Restitution, corresponds exactly with the last suggested above. The
whole
of
this second group, Reimbursement, falls within the second froup
abovc; and his third group, Recompense, falls partly in that and party
in
the
first above: he does not differentiate the Eabppela.
255
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