work without compensation, B is liable to A for the fair value of such services. Although nothing was mentioned as to the amount of the salary, from B's conduct it is implied that as a matter of fact he expected to pay A. This example illustrates a contract implied in fact. There is a contract, but its expressed terms are incomplete and other terms must be implied from the fact that B employed A.12 But, if A, in making change, by mistake gives B ten dollars instead of five dollars, it is clearly unjust that B retain the extra five dollars. There is, however, no contract, express or implied, between A and B for the return of that money. Neither from the circumstances nor in any other way can any sort of contract be found. But now the law steps in and imposes an obligation on B to return the five dollars, for he is unjustly enriched at the expense of A. This doctrine of unjust enrichment is the fundamental basis of the subject of quasi-contracts, and illustrates the differences between that subject and contracts implied in fact. In this text the term "implied contracts" is used to mean contracts made by the parties, but not expressed, and the term "quasi-contracts," to cover those obligations not necessarily intended by the parties, but which the law imposes.13 The general distinction between express and implied contracts is in the mode of proof. An express contract is proved by evidence of the words used or 12 Fogg v. Portsmouth Athenæum, 44 N. H. 115, LEADING ILLUSTRATIVE CASES. 13 See subject, QUASI-CONTRACTS; Highway Commissioners v. Bloomington, 253 Ill. 164, LEADING ILLUSTRATIVE CASES. writing executed. In implied contracts the intention of the parties is determined by proving the facts and circumstances surrounding them. But when a contract is established in either of these ways, it is of the same validity and effect, and the consequences of a breach of the contract are the same.14 There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.15 This rule only applies, however, where the two contracts relate to the same subject matter, and where the provisions of the express contract would supersede those of the other. 7. Same subject-Executed and executory contracts. A contract that is fully performed by the parties is known as an executed contract. Thus if A agrees to sell B his horse for $100, and B actually purchases and receives the horse and pays over the money, the contract has been performed and is executed. If performance is incomplete, the contract is executory. If B in the case just given has not received the horse nor paid the purchase price, and neither side has performed, the contract is executory. Consequently, a contract which has been performed by A, but not by B, is executed as to A and executory as to B.16 8. Same subject-Bilateral and unilateral contracts. A bilateral contract is one where there are reciprocal promises, so that there is something to be 14 Harris v. Smith, 79 Mich. 54, LEADING ILLUSTRATIVE Cases. 15 Walker v. Brown, 28 Ill. 378. 16 2 Blackstone, Commentaries, p. 443; Fletcher v. Peck, 6 Cranch 87, 136 (U.S.). done or forborne on both sides. Such a contract consists of mutual executory promises. Thus where A promises to sell B his horse for $100, and B promises to purchase the horse for that figure, there is a bilateral contract. A unilateral contract is one in which there is a promise on one side only. Thus where the consideration is executed on one side and executory on the other, the contract is unilateral. B promises to pay A a dollar if he will deliver a package to B. There is no obligation upon A to deliver the package, but if A delivers the package to B, he obtains the promise of B to pay the dollar. The contract is executed as to A and executory as to B. Examples of unilateral contracts are promissory notes.17 19 9. Contracts in civil law. The term "commutative contract" is used in the civil law to designate a contract in which each of the contracting parties gives and receives an equivalent.18 In Louisiana,1 commutative contracts are declared to be "those in which what is done, given or promised by one party, is considered as equivalent to, or a consideration for, what is done, given or promised by the other." 20 10. Terminology.-There are certain terms which require special attention because they are frequently used with insufficient precision and because they signify very real differences in the rights arising out of contract. These terms are: void, voidable and unenforcible. 17 Langdell, Summary of Contracts, §§ 183-187. 18 Burrill, Law Dictionary. 19 Civil law state. 20 Louisiana, Civil Code, art. 1768. (1) Void.contracts. Such contracts are of no legal effect whatsoever, as an agreement to commit a crime. They can create no legal rights. (2) Voidable contracts. Such contracts a party may affirm or reject. In short, the contract has a flaw, but it may be enforced if the party so desires, or he may reject the contract. An example is the contract of a minor for something other than necessaries. (3) Unenforcible contracts. The difference between what is voidable and what is unenforcible is mainly a difference between substance and procedure. A contract may exist, but may be incapable of proof because the Statute of Limitations, for instance, has run against it. Or, the Statute of Frauds may require the contract to be in writing, as for the sale of land. If it is not in writing, the contract may not be proved. In these cases, the contracts are neither void nor voidable, but merely unenforcible. 11. History of contract. The idea of contractual obligation has not always existed in English jurisprudence. The development of the doctrines underlying the subject of contracts is interwoven with the history of procedure. Only recently has historical research indicated the progress of the steps in thought from the early law to the modern conception of contracts. In the early English law, the trial of a law suit did not involve a judicial determination of the merits of the case upon the evidence offered by the parties. It was merely a proceeding between the parties, carried on publicly under forms which the community oversaw." 21 The old forms of trial were not based on `modern ideas of jurisprudence, and have been treated in the article on Law, Its Nature, Origin and Development.22 Justice in the King's Court was administered by means of the royal writ, directing the sheriff to summon the defendant to appear before the court. In modern times, the idea prevails that, if a man has a legal right, he must have a legal remedy to enforce that right. In early days, however, a man's rights in the king's courts were limited by these writs which he could get from chancery, whence the writs were issued. These were few in number, and their history and nature will be briefly discussed. 12. Same subject Forms of action.-Actions ex contractu have been as follows: Debt. The action of debt was brought on an ascertained or liquidated claim. At early common law it was a specific sum of money or a fixed amount of chattels due from the debtor to the creditor. To-day the term is applied only where money is due. The thing from the receipt of which a debt arose came to be termed quid pro quo, which was always some benefit rendered by the creditor to the debtor. Covenant. The writ of covenant was the commonlaw action on a sealed instrument or specialty, and was used to enforce a covenant or promise. The rule requiring a seal to every covenant prevented the writ of covenant from becoming a general remedy for the enforcement of contracts. 21 5 Harvard Law Review 46. 22 See also Bigelow, History of Procedure, p. 308. |