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It is important to distinguish between quasi-contracts and contracts implied in fact, not only because it is desirable for clear theoretical analysis, but also because of the differing results which may follow when an obligation is a true contract from those which follow from a quasi-contract. In the first place as quasi-contractual obligations are imposed by the law for the purpose of bringing about justice without reference to the intention of the parties, the only limit upon the power of the law to create such obligations is that they must be of such a sort as to be capable of enforcement in a contractual action; while a true contract cannot exist, however desirable it might be to have one, unless there is an expression of assent to the making of a promise. Furthermore, the measure of damages appropriate to contractual and quasi-contractual obligations differs.8

Quasi-contractual obligations are often assumed to be confined to obligations for the payment of money enforceable under common-law procedure by the common counts. There are, however, unquestionably obligations imposed by law without reference to mutual assent and enforceable only in special assumpsit as if they were actual contracts. Accuracy of reasoning requires a recognition of such obligations also as quasi-contracts.9

It is also true that quasi-contractual obligations are not so universally based on unjust enrichment or benefit as is sometimes supposed. There are many cases where the law enforces in a contractual action a duty to restore the plaintiff to a former status-not merely to surrender the benefit which the defendant has received. This is true wherever the plaintiff has a right to rescind a transaction because of the defendant's wrong, whether fraud, duress or breach of contract; and

Co. v. Gaffney, 65 Ohio St. 104, 61
N. E. 152."

See also People v. Dummer, 274 Ill. 637, 113 N. E. 934; W. A. Snow Iron Works v. Chadwick, 227 Mass. 382, 116 N. E. 801; Anderson v. Caldwell, 242 Mo. 201, 146 S. W. 444; Miller v. Schloss, 218 N. Y. 400, 113 N. E. 337; Morse v. Kenney, 87 Vt. 445, 89

Atl. 865; Wojahn v. Nat. Union Bank, 144 Wis. 646, 129 N. W. 1068; Underhill v. Rutland R., 90 Vt. 462, 98 Atl. 1017.

8 See infra, §§ 1470-1473.

An illustration of such an obligation may be found in the law of implied warranty.

though the amount of the defendant's enrichment will frequently be identical with the amount necessary to restore the plaintiff to his former condition this is by no means always the case. 10

§ 4. Formal contracts.

There are in our system of law, and in other systems of law, two ways in which promises may be made binding and thereby become contracts. One way is by giving the transaction a certain form, the other is by compliance with requisites based on the essential nature of the transaction rather than on the form which it takes.11 In the Roman law as well as in the early German and in the English law, the validity of formal contracts was established before contracts of the latter sort were recognized. Formal contracts in our system of law are

(1) Promises under seal.
(2) Recognizances.

(3) Negotiable instruments.

Judgments have often been classified as contracts of record, but this is due to the fact that a judgment could be sued upon in an action appropriate to the enforcement of contractual liability. There is no element of promise in a judgment. Contracts in writing have been given by statute in some States some of the attributes of contracts under seal, and to this extent have become formal contracts.12

The Roman law required as a general rule that an agreement in order to be binding should take the form of a stipulation; but to this rule there were considerable exceptions. The modern Civil law has entirely abandoned the requisite of form as a general basis for the validity of contracts, and the mere expressed will of the parties however declared is sufficient to create a contractual obligation, 13 subject to some statutory exceptions.14 A cause or motive for the contract

10 See infra, § 1478 et seq.

11 That is, for a simple contract, there must be mutual assent and consideration.

12 See infra, § 218.

13 Windscheid, Lehrbuch, § 312; Burgerliches Gesetzbuch, §§ 116 et seq., 145. 14 Notarial authentication is requisite for the validity of some contracts.

is indeed required in the French code 15 and in many of the codes based upon it, 16 but as a spirit of liberality or the "satisfaction of a sentiment of generosity" is sufficient cause " the Requirement amounts simply to an inhibition of agreements based on illegality, mistake or fraud; and in the German code 18 and some other modern codes, the requirement is altogether otted. 19

5. Contracts under seal.

The formality recognized by the English law as giving legs force to a promise is a seal. Centuries before the recognition of simple contracts, promises under seal were held

ling. 20 They were variously called deeds, specialties, or covenants, A seal was a legal formality essential for the transfer of property in many cases, and the words "deed" 2 "specialty," both include transfers under seal, as well as promises under seal. The word "covenant," on the contrary, is appropriate only to promises under seal. Contracts under scal were enforced at common law by the action of covenant uns the contract was for the payment of a fixed sum of

ey. In that case debt was the exclusive remedy until the seventeenth century.21 Afterwards covenant became a concurrent remedy.22

$Recognizance.

recognizance is an acknowledgment in court by the nizor of an obligation that he is bound to a certain paysubject to the condition that on the performance of cified act the obligation shall be discharged. As a recogce is in terms an undertaking and is created by the act of the recognizor, it is properly classified as a contract.23 § 7. Negotiable instruments.

Pils of exchange (including checks) and promissory notes payable to the order of a specified person, or to bearer, are

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negotiable instruments. Certain formal requisites are necessary in order to constitute a writing a bill exchange or promissory note.23a If these requisites are complied with, the contract represented by the writing is a formal contract. Such instruments are in vogue throughout the commercial world and the rules of law applicable to them under our system of law and under the civil law prevailing on the Continent of Europe are in most respects the same. The English and American law of negotiable instruments have, however, been much affected by the law of simple contracts, and some principles not originally applicable to negotiable instruments have been attached to them in this way. It is still true, however, that no adequate understanding of the law of bills and notes is possible without recognizing that they are formal contracts-mercantile specialties. 24 Assumpsit and debt were the proper remedies for the enforcement of liabilities on negotiable instruments.25

§ 8. Real contracts.

The term "real contract" is in common use in the civil law, and though not commonly used by judges or writers in the common law, nevertheless describes certain obligations known to the common law from very early times. A real contract is an obligation arising from the possession or transfer of a res. The real contracts known to the common law were enforced by the actions of account, detinue and debt. All of these forms of action fell into disuse to a great extent after the rise of the action of assumpsit. This action gave the plaintiff a more favorable and simpler remedy for the enforcement of the obligations in question than any other form of action. To the general allowance of this remedy as a substitute for the earlier forms of action is due the forgetfulness of modern lawyers of some distinctions which were vital in our early law and which are still of importance in appraising early authorities and occasionally also in determining the rights of parties

zaro (Mass. 1919), 123 N. E. 346, and cases cited.

234 See infra, §§ 136 et seg.

24 See 2 Ames' Cas. Bills and Notes, 872 et seq.

25 See 2 Ames' Cas. Bills and Notes, 873, 874.

in present controversies. As procedure was inextricably interwoven with the early substantive law, the nature and incidents of the real contracts known to the common law may best be learned by an examination of the forms of action by which they were enforced.

§ 9. Account.

The obligation to account arose when property was received by a guardian, bailiff, or receiver. In effect the defendant in these cases was a trustee, since under the early law the seisin of property personal as well as real, carried with it the idea of ownership.26 Therefore the action of account was in its essence an action to enforce a trust. The judgment, if in favor of the plaintiff, was an interlocutory one-that the defendant account; and, subsequently, upon an account being taken before auditors, final judgment was given for the balance found due.27 The theory of trust underlying the action is clearly disclosed by the circumstance that a third person to whose use money or property was delivered to another might maintain the action against the latter, though there was no privity between them.28

§ 10. Detinue.

Detinue was the only action allowed by the common law to recover specific goods except in the few instances where replevin would lie.

The obligation upon which detinue was based arose from the possession of property by the defendant which he was under a duty to deliver to the plaintiff. This obligation most commonly arose upon a bailment; but also arose where the defendant had sold goods to the plaintiff and the ownership had become vested in the plaintiff. 29 The action was also allowed in cases where the defendant had wrongfully come into

26 See The Seisin of Chattels, 1 Law Q. Rev. 326, by Maitland; The Disseisin of Chattels, 3 Harv. L. Rev. 23, 313, 337, by Ames.

27 The action of account and the obligations upon which it might be

based are analyzed by Langdell in 2 Harv. L. Rev. 243-257.

28 See a full examination of the early authorities by Hening in 3 Select Essays in Anglo-American Legal History, 343.

29 8 Harv. L. Rev. 258, 259, by Ames.

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