Compilation On Quasi Contract PDF

Quasi-Contract, Its Nature and Scope
Author(s): William A. Keener

Source: Harvard Law Review, Vol. 7, No. 2 (May 25, 1893), pp. 57-75
Published by: The Harvard Law Review Association
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LAW REVIEW.:
VOL. VII. MAY 25, 1893. No. 2.
QUASI-CONTRACT, ITS NATURE AND

SCOPE.
T is usual to divide contracts into three classes,

1. Simple contracts.
2. Contracts under seal.
3. Contracts of record.
Where this classification is made, simple contracts are sub-
dirvided into
i. Express contracts.
2. Contracts implied in fact.
3. Contracts implied in law.
In this classification of contracts, obligations of a quasi-contrac-
tual nature are treated either as simple contracts or as contracts
of record.
This treatment of quasi-contract is, in the opinion of the writer,
not only unscientific, and therefore theoretically wrong, but is also
destructive of clear thinking, and therefore vicious in practice.
It needs no argument to establish the proposition that it is not
scientific to treat as one and the same thing an obligation that
exists in every case because of the assent of the defendant, and
an obligation that not only does not depend in any case upon his
assent, but in many cases exists notwithstanding his dissent. And
yet with this wide difference between simple contracts and quasi-
contracts, the latter are generally treated to-day as a species of
simple contract.
8
58 HARVARD LAW RE VIEW.
Equally objectionable in principle, though perhaps not so mis-

leading in practice, is the classification of such quasi-contracts as
cannot by any possibility be treated as simple contracts, as con-
tracts of record.
A true contract, whether it be a simple contract, a specialty, a
contract in the nature of a specialty, or a contract of record, exists
as an obligation, because the contracting party has willed, in
circumstances to which the law attaches the sanctification of an
obligation, that he should be bound. Had he not so willed, he
would not be under a contractual obligation. This statement is
as true of a contract implied in fact as of an express contract. In-
deed, the division of simple contracts into " express contracts " and
contracts implied in fact " does not involve a consideration of the
principles of contracts at all.'
In the case of a contract implied in fact, as much as in the case
of an express contract, the plaintiff must prove that the defendant
either made or accepted an offer which resulted in a promise on
the defendant's part, and that the promise was not only in fact
made, but that a sufficient consideration was given therefor. If
the defendant gave in words a promise containing all the terms- of
the contract which the plaintiff claims that he made, for a consid-
eration expressly requested in words by him, in exchange therefor,
then the contract is an express contract. Thus, if A should say to
B: " I will promise to sell you my horse X for the sum of $500 in
cash if you will promise to purchase on these terms," and B should
so promise, an express contract would be thereby created. Sup-
pose, however, that A should write to a livery-keeper, simply
requesting him to send a coup6 to his house at a certain hour,
and the coupe was sent and used by A, there would certainly be
no express contract in such a case, since A has never in words said
that he intended to assume any obligation in favor of B. And yet
A's conduct speaks quite as loudly as words, and leaves no doubt
of his intention to enter into a contract with B for the use of the
coup6. No one would question that A has communicated such an
intention to B, and that he can be fairly said to have promised to
pay him for the use of his property, and that to allow the defend-
ant to escape liability would defeat the intention of the parties
quite as much as to allow the defendant to refuse to be bound by
his contract to sell the horse in-the case first supposed.
I Marzetti v. Williams, I B. & Ad. 415; Hertzog v. Hertzog, 29 Pa. St. 465.
QUASI-CONTRACT, ITS NATURE AND SCOPE. 59
The difference between the cases is a difference simply in the

kind of the evidence used to establish the contract. In the one
case the language of contract is in terms used, and because of
the expressions used the contract is called an express contract;
whereas in the other case the contract is established by the conduct
of the parties, viewed in the light of surrounding circumstances.
The terms " express contracts " and " contracts implied in fact"
are used then to indicate, not a distinction in the principles of
contract, but a difference in the character of the evidence by which
a simple contract is proved. The source of the obligation in each
case is the intentioni of the parties.
The phrase "contract implied in law " is used, however, to denote,
not the nature of the evidence by which the claim of the plaintiff
is to be established, but the source of the obligation itself. It is a
term used to cover a class of obligations where the law, though the
defendant did not intend to assume an obligation, imposes an
obligation upon him, notwithstanding the absence of intention on
his part, and in many cases in spite of his actual dissent.
The identity in principle of express contracts and contracts
implied in fact, and- the distinction between a genuine contract,
whether express or implied in fact, and a quasi-contract, commonly
called a contract implied in law, is thus stated by Maine in his
"Ancient Law:" I-
"The part of Roman law which has had most extensive influence on
foreign subjects of inquiry has been the law of Obligation, or, what
conies nearly to the same thing, of Contract and Delict. The Romans
themselves were not unaware of the offices which the copious and malle-
able terminology belonging to this part of their system might be made
to discharge, and this is proved by their employment of the peculiar
adjunct quasi in such expressions as Quasi-Contract and Quasi-Delict.
'Quasi,' so used, is exclusively a term of classification. It has been
usual with English critics to identify the quasi-contracts with implied
contracts; but this is an error, for implied contracts are true contracts,
which quasi-contracts are not. In implied contracts, acts and circum-
stances are the symbols of the samre ingredients which are symbolized,
in express contracts, by words; and whether a man employs one set of
sy mbols or the other must be a matter of indifference so far as concerns
the theory of agreement. But a quasi-contract is not a contract at all.
The commonest sample of the class is.the relation subsisting between
two persons, one of whom has paid money to the other through mistake.
1 4th ed. 343-346.
6o THE HARVARD LA W RE VIE W.
The law, consulting the interests of morality, imposes all obligation on

the receiver to refund; but the very nature of the transaction indicates
that it is not a contract, inasmuch as the convention, the most essential
ingredient of contract, is wanting. This word 'quasi,' prefixed to a term
of Roman law, implies that the conception to which it serves as an index
is connected with the conception with which the comparison is instituted
by a strong superficial analogy or resemblance. It does not denote that
the two conceptions are the same, or that they belong to the same genus.
On the contrary, it negatives the notion of an identity between them; but
it points out that they are sufficiently similar for one to be classed as the
sequel to the other, and that the phraseology taken from one department
of law may be transferred to the other, and employed without violent
straining, in the statement of rules which would otherwise be imperfectly
expressed."
Notwithstanding the existence and recognition of this well-

defined line of demarcation between genuine contracts, whether
express or implied, and quasi-contracts, there exists the greatest
confusion in the application thereof in practice. Thus Blackstone
confuses contracts implied in fact and quasi-contracts, when he
says .
"T This contract or agreement may be either express or implied. Exxpress
contracts are where the terms of the agreement are openly uttered and
avowed at the time of the making, as to deliver an ox, or ten load of
timber, or to pay a stated price for certain goods. Imilied, are such as
reason and justice dictate, and which, therefore, the law presumes that
every man undertakes to perform. As if I employ a person to do any
business for me, or perform any work; the law implies that I undertook,
or contracted, to pay him as much as his labor deserves. If I take up
wares from a tradesman, without any agreement of price, the law con-
cludes that I contracted to pay their real value."
While this definition of an implied contract is, at best, true only

of quasi-contracts, all the cases put are illustrations of contracts
implied in fact. Mr. Justice Lowrie, referring to the language just
quoted from Blackstone, properly says :2-
"CThere is some looseness of thought in suipposing that reason and

justice ever dictate any contracts between parties, or impose such upon
them. All true contracts grow out of the intentions of the parties to
transactions, and are dictated only by their mutual and accordant wills.
When this intention is expressed, we call the contract an express one.
1 2 Bl. Corm. 443. Hertzog v. Hertzog, 29 Pa. St. 465, 467.
QUASI-CONTRACT, ITS NATURE AND SCOPE. 6i
When it is not expressed, it may be inferred, implied, or presumed, from

circumstances as really existing; and then the contract, thus ascertained,
is called an implied one. The instances given by Blackstone are an
illustration of this.
"But it appears in another place, 3 Comm. I59-i66, that Blackstone

introduces this thought about reason and justice dictating contracts, in
order to embrace, under this definition of an implied contract, another
large class of relations which involve no intention to contract at all,
though they may be treated as if they did. Thus, whenever, not our
variant notions of reason and justice, but the common sense and com-
mon justice of the country, and therefore the common law or statute
law, impose upon any one a duty, irrespective of contract, and allow it to
be enforced by a contract remedy, he calls this a case of implied con-
tract. Thus out of torts grows the duty of compensation, and in many
cases the tort may be waived, and the action brought in assumpsi/.
" It is quite apparent, therefore, that radically different relations are
classified under the same term; and this must often give rise to indis-
tinctness of thought. And this was not at all necessary; for we have
another well-authorized technical term exactly adapted to the office of
nmaking the true distinction. The latter class are merely construclive
contracts, while the former are truly implied ones. In one case, the
contract is mere fiction, - a form imposed in order to adapt the case to
a given remedy; in the other, it is a fact legitimately inferred. In one,
the intention is disregarded; in the other, it is ascertained and enforced.
In one, the duty defines the contract; in the other, the contract defines
the duty."
Yet the learned Justice, after so intelligently criticising Black-

stone, falls into the same confusion of statement when he says, in
the same opinion : -
" The law ordinarily presumes or implies a contract whenever this is

necessary to account for other relations found to have existed between
the parties.
"Thus if a man is found to have done work for another, and there
appears no known relation between them that accounts for such service
the law presumes a contract of hiring. But if a man's house takes fire,
the law does not presume or imply a contract to pay his neighbors for
their services in saving his property. The common principles of human
conduct mark self-interest as the motive of action in the one case, and
kindness in the other; and therefore, by common custom, compensation
is mutually counted on in one case, and in the other not."
1 Hertzog v. Hertzog, 29 Pa. St. 465, 468.
62 HAR VARD LAW V RE VIEW.
Plainly, in the case put by Mr. Justice Lowrie, the inference of

a contract is one of fact; and in another part of the same opinion
the learned Justice clearly regards the inference as one of fact and
not one of law, when he says -
" Every induction, inference, implication, or presumption in reasoning

of any kind, is a logical conclusion derived from and demanded by cer-
tain data or ascertained circumstances. If such circumstances demand
the conclusion of a contract to account for them, a contract is proved;
if not, not. If we find, as ascertained circumstances, that a stranger has
been in the employment of another, we immediately infer a contract of
hiring, because the principles of individuality and self-interest, common
to human nature, and therefore the customs of society, require the
inference."'
In the opinion of Lord Justice Lindley, it was the failure of

Lord Justice Brett to recognize the distinction in question, which
led h im to doubt2 that a luniatic was liable for necessaries furnished
to him, by one knowing of his lunacy. On this point Lord Justice
Brett expressed himself as follows:-
"A question has been flushed, if I may use the word, in this case which
it is not necessary to decide, namely, whether if a person supplies neces-
saries to a lunatic, knowing of the lunacy at the time, a contract on the
part of the lunatic to pay for them can be implied. I give no opinion
upon that point. It has not been fully argued to-day, and it appears
to me to involve a very difficult point of law, which I do not think has
ever been settled by authority. For my part I should doubt whether in
favor of a person who knows of the lunacy you can imply a contract to
pay for a supply of necessaries to a lunatic."
In Rhodes v. Rhodes,3 Lord Justice Lindley, referring to the

doubt raised by Lord Justice Brett, said:-
"The question whether an implied obligation arises in favor of a per-

son who supplies a lunatic with necessaries is a question of law, and In
re Weaver, a doubt was expressed whether there is any obligation on
the part of the lunatic to repay. I confess I cannot participate in
that doubt. I think that that doubt has arisen from the unfortunate
terminology of our law, owing to which the expression ' implied contract
has been used to denote, not only -a genuine contract established by infer-
ence, but also an obligation which does not arise from any real contract,
I Hertzog v. Hertzog, 29 Pa. St. 465, 469. 8 44 Ch. D. 94, 107.

" In re Weaver, 21 Ch. D. 6I5_620.
QUASI-CONTRACT, ITS NATTURB AND SCOPE. 63
but which can be enforced as if it had a contractual origin. Obligations

of this class are called by civilians obligationes quasi ex cont ractu."
It was this confusion of ideas that caused the counsel in Sceva v.

True,' to contend, that as an insane person was not able to contract,
the defendant was not liable for necessaries furnished to her by
one knowing her to be insane. The counsel's argument in that
case was as follows:
"The foundation principle of the entire law of contract is, that the
parties must have the capacity to contract, and must actually exercise
their faculties by contracting. Here there was no capacity, for there was
but one mind; no contract was made, and no attempt was made to make
one. The two vital facts, without which no contract, tacit or express, can
exist, -capacity and its exercise, -are wanting. Was there an implied
contract? What does that term mean? In thousands of cases, in the
books, we know just what it means. The parties have capacity to con-
tract; facts, circumstances, few or many, clear or complicated, exist, which
lead the minds of the jurors to the conclusion that the nminds of the par-
ties met. Minds may meet by words, acts, or both. The words even may
negative such meeting; but 'acts which speak louder than words' may
conclude him who denies a tacit contract. Aside from cases where the
capacity to contract is wanting, no instance now occurs to us in which
the implied contract cannot be supported upon these principles, and the
familiar doctrines of waiver and estoppel. . . . It is another fundamental
principle that no one, by voluntarily performing services for another, can
make the other his debtor. If these principles apply to cases where the
contracting mind is wanting, they settle this case. We know it is some-
times said, in such a case, 'the law will imply a contract.' What does
that mean? As it seems to us, only this: that where A, who has capa-
city to contract, furnishes B, who is totally destitute of such capacity,
what is proper for B to have, the judges will turn the bench into a
broker's board, will substitute themselves for B, make a contract where
none existed, cause it to relate back to the voluntary acts of A, and then
sit in judgment upon and enforce their own contract. It is a perversion
of language to call such a performance a contract of any kind. It is
judicial usurpation. The Constitution gave the court no such power.
The court has no power to make contracts for people: it can only infer
one where a jury might."
To this argument the court made the following conclusive

answer:-
1 53 N. HI. 627.
64 HAR VARD LA W RE VIEW.
"We regard it as well settled by the cases referred to in the briefs of

counsel, many of which have been commented on at length by Mr.
Shirley for the defendant, that an insane person, an idiot, or a person
utterly bereft of all sense and reason by the sudden stroke of accident or
disease, may be held liable, in assumpsit, for necessaries furnished to him
in good faith while in that unfortunate and helpless condition. And the
reasons upon which this rests are too broad, as well as too sensible and
humane, to be overborne by any deduction which a refined logic may
make from the circumstances that in such cases there can be no contract
or promise in fact, no meeting of the minds of the parties. The cases
put it on the ground of an implied contract; and by this is not meant, as
the defendant's counsel seems to suppose, an actual contract, - that is,
an actual meeting of the minds of the parties, an actual mutual under-
standing, to be inferred from language, acts, and circumstances, by the
jury, -but a contract and promise, said to be implied by the law, where,
in point of fact, there was no contract, no mutual understanding, and so
no promise. The defendant's counsel says it is usurpation for the court
to hold, as matter of law, that there is a contract and a promise, when all
the evidence in the case shows that there was not a contract, nor the sem-
blance of one. It is doubtless a legal fiction, invented and used for the
sake of the remedy. If it was originally usurpation, certainly it has now
become very inveterate, and firmly fixed in the body of the law."1
Not only has this identification in classification of quasi-contracts

with genuine contracts led to a confusion of ideas, but it has also
rendered the interpretation of written laws or statutes exceedingly
difficult where the word " contract " is used; thus, for example, in
Dusenbury v. Speir,2 the legality and arrest turned upon the mean-
ing to be given to the phrase " contract express or implied," as
used in statutes regulating arrests in civil actions. The plaintiff
had been arrested in an action, corresponding to the common-law
action, of money had and received, brought to recover money which
the plaintiff, the defendant in that action, had fraudulently obtained.
The plaintiff was arrested on a warrant issued on the theory
that the action was that of contract, express or implied, within the
meaning of the statute. It was held that his liability was in quasi-
contract, and not in contract, and that as the phrase " contract
express or implied" was used in the statutes with reference solely
to genuine contracts, the arrest was illegal, and the judgment of
1 Illustrations of this confusion of ideas might be multiplied indefinitely; but it

seems unnecessary to cite them here, as further illustrations will be offered in the
discussion of the scope of quasi-contract.
2 77 N. Y. 144.
the lower court was reversed. And yet the court, whose judgment
was reversed by the Court of Appeals, recognized as fully as did
the Court of Appeals that the obligation to return the money was
a quasi-contractual, and not a contractual, obligation.'
In O'Brien z. Young,2 the question involved was the construc-
tion of the statute reducing the rate of interest from seven per cent
to six per cent. The statute contained a clause excepting from
its operations "'any contract or obligation made before the passage
of this Act." It was contended that a judgment obtained before
the passage of the Act was exempted from its operations, and that
the judgment creditor was, therefore, entitled to six per cent inter-
est. But the court reversed the judgment of the lower court, hold-
ing that the clause in question referred, not to quasi-contracts,
but to genuine contracts only, and that, therefore, the judgment
creditor was entitled to only six per cent after the passage of
the Act.
But in The Gutta Percha Shoe Co. v. Mayor, etc.,3 it was held
that although a judgment was not a genuine contract, yet an
1 Probably no clearer statement of the distinction between a genuine contract and a
quasi-contract can be found than is contained in the following statement, taken from
the opinion of Mr. Justice Danforth in this case:
"We cannot agree with the learned judge in this construction of the statute. On
the contrary, we think that the express contract referred to in the statute is one which
has been entered into by the parties, and upon which, if broken, an action will lie for
damages, or is implied, when the intention of the parties, if not expressed in words, may
be gathered from their acts and from surrounding circumstances; and in either case
must be the result of the free and bonafide exercise of the will, producing the aggrega
mentium, the joining together of two minds, essential to a contract at common law.
There is a class of cases where the law prescribes the rights and liabilities of persons
who have not in reality entered into any contract at all with one another, but between
whom circumstances have arisen which make it just that one should have a right, and
the other should be subject to a liability, similar to the rights and liabilities in certain
cases of express contract. Thus, if one man has obtained money from another through
the medium of oppression, imposition, extortion, or deceit, or by the commission of a
trespass, such money may be recovered back, for the law implies a promise from the
wrong-doer to restore it to the rightful owner, although it is obvious that is the very
opposite of his intention. Implied or constructive contracts of this nature are simi-
lar to the constructive trusts of courts of equity, and in fact are not contracts at all.
And a somewhat similar distinction is recognized in the civil law, where it is said: 'In
contracts it is the consent of the contracting parties which produces the obligation; in
quasi-contracts there is not any consent. The law alone, or natural equity, produces
the obligation by rendering obligatory the fact from which it results. Therefore these
facts are called quasi-contracts, because, without being contracts, they produce obliga-
tions in the same manner as actual contracts.'"
2 Qo N. Y. 428.
8 io8 N. Y. 276.
9
66 HAR VARD LA W RE VIE W.
attachment could issue in an action brought on a foreign judgment

under a section of the code of civil procedure, allowing an attach-
ment against property, in an action brought for " breach of contract,
express or implied, other than a contract to marry." Yet the
same court held, in Remington Paper Co. v. O'Dougherty,l that
the attachment could not issue under the same section of the code,
in an action brought to enforce a statutory liability created by the
Legislature of New York to pay the cost of an action.
The question naturally arises, why a classification productive of
so much confusion was ever adopted. The answer to this question
is to be sought, not in the substantive law, but in the law of
remedies.
The only forms of action known to the common law were actions
of tort and contract. If the wrong complained of would not sus-
tain an action, either in contract or tort, then the plaintiff was
without redress, unless the facts would support a bill in equity.2
Although from time to time the judicial view of substantive
rights broadened under the leavening effect of equity and other
considerations, the broadening process did not lead to the creation
-of remedies sounding in neither contract nor tort. The judges
attempted, however, by means of fictions, to adapt the old reme-
dies to the new rights, with the result usually following the
attempt to put new wine into old bottles. Thus, largely through
the action of assumpsit, that portion of the law of quasi-contract
usually considered under the head of simple contracts, was intro-
duced into our law.
In the action of assumpsit, as the word assumpsit implies,
whether it be special or indebitatus assumpsit, a promise must
always be alleged,3 and at one time it was an allegation which had to
be proved.4 It was only natural, therefore, that the courts in using
a purely contractual remedy to give relief in a class of cases possess-
ing none of the elements of contract should have resorted to fictions
to justify such a course. This was done in the extension of assump-
sit to quasi-contract; and the insuperable difficulty of proving a
promise where none existed was met by the statement that "1 the
law implied a promise." The statement that the law imposes ile
' 96 N. Y. 666, affirming 32 Hun, 255.

2 I Spence, Eq. Jur. 243; Wood v. Ayres, 29 Mich. 345; Sceva v. True, 53 N. H.
627.
3 Chitty on Pleading, 30I.
4 Ames, The History of Assumpsit, 2 Harv. Law Rev. 64.
obligation would not have met the difficulties of the situation,

since the action of assumpsit presupposed the existence of a
promise. The fiction of a promise was adopted then in this class
of cases solely that the remedy of assumpsit might be used to
cover a class of cases where, in fact, there was no promise.
It might be asked why did the court extend to this class of obli-
gations the remedies peculiar to contracts, rather than the remedies
peculiarto tort. The right conferred in quasi-contract, and the right,
the violation of which constitutes a tort, undoubtedly possess this
common characteristic, that the obligation is imposed by operation
of law, regardless of the consent of the defendant. But treatinga
tort as the violation of a right in rem, the obligations differ in an im
portant particular; for while to avoid committing a tort, one need
only forbear,1 to discharge the obligation imposed by quasi-con-
tract, one must act.2 It is true that the obligation imposed by a
contract may be simply to forbear; but the obligation most gen-
erally assumed under a contract requires one to act, and therefore
contract rather than tort would naturally suggest an analogy.
Another consideration would also suggest the analogy of contract
rather than of tort; not only in most cases where a quasi-contrac-
tual contract is imposed has the defendant not acted in violation
of a right in rem, in consequence of which the law could impose an
obligation, but in many cases he has either not acted at all, as, for
example, where one, in the absence of a husband, who is ignorant
of the death of his wife, defrays the funeral expenses, or, if he has
acted, has acted with the consent and perhaps the co-operation
of the plaintiff; as, for example, where a plaintiff pays money under
mistake to a defendant, who shares in the mistake made by the
plaintiff.
It remains to consider the scope of quasi-contract.3
Quasi-contracts may be said in general to be founded,4
i. Upon a record.
2. Upon a statutory, or official, or customary duty.
Austin, Jurisprudence, Lect. XIV.

2 Illustrations of this proposition will be given in discussing the scope of the
obligation.
3 No attempt will be made in this connection to do more than classify the liabilities
recognized as obligations existing in law. The writer reserves for separate treatment
the consideration of the facts that should exist in any given case to entitle one to recover
on principles of quasi-contract.
4 Ames, The History of Assumpsit, 2 Harv. Law Rev. 64.
68 HA R VA RD LA W RE VJE W.
3. Upon the doctrine that no one shall be allowed unjustly to

profit or enrich himself at the expense of another.
The obligation created by a judgment, which, as Sir William
Anson has said, is unfortunately styled a contract of record in
English law, resting, not upon the agreement of the parties, but
regardless thereof, is a quasi-contractual, and not a contractual
obligation.' In Louisiana v. New Orleans,2 Mr. Justice Field, de-
livering the opinion of a court, in support of the decision that a
judgment was not a contract within the meaning of that word as
used in the clause of the Constitution forbidding the passing of
a law by a State impairing the obligation of a contract, said-
"A judgment for damages, estimated in money, is sometimes called by
text-writers a specialty or contract of record, because it establishes a
legal obligation to pay the amount recovered; and by a fiction of law
a promise to pay is implied where such legal obligationl exists. It is on
the principle that an action ex contractu lies upon a judgment. But this
fiction cannot convert a transaction wanting the consent of parties into
one which necessarily implies it."
-A statutory obligation resting, not upon the consent of the
parties, is clearly quasi-contractual in its nature.3 In Steamship
Co. v. Joliffe,4 Mr. Justice Field, in discussing the nature of the
claim for half-pilotage fees under a statute allowing such fees,
where a pilot's services are offered and declined, thus distinguishes
between a contract liability and a liability imposed by statute -
"The transaction in this latter case, between the pilot and the master
or owners, cannot be strictly termed a contract, but it is a transaction
to which the law attaches similar consequences; it is a ,uasi-contract.
The absence of assent on the part of the master or owner of the vessel
does not change the case. In that large class of transactions desig-
nated in the law as implied contracts, the assent or convention which
is an essential ingredient of an actual contract is often wanting . . .
" The claim of the plaintiff below for half-pilotage fees resting upon a
transaction regarded by the law as quasi contract, there is just grouind
for the position that it fell with the repeal of the statute under which the
transaction was had."
Biddleson v. Whytel, 3 Burr. 1545; State of Louisiana v. New Orleans, IO9 U. S.

285; O'Brien v. Young, 95 N. Y. 428.
2109 U. S. 285.
Stea mship Co. v. Joliffe, 2 Wall. 450; Louisiana v. New Orleans, 109 U. S. 285;
Inhabitants of Milford v. Commonwealth, I44 Mass. 64; Woods v. Ayres, 39 Mich.
345; McCoun v. New York Central & Hartford R. R. Co., 50 N. Y. 176.
' 2 Wall. 450.
In Inhabitants of Milford v. Commonwealth,' the court, discuss-

ing the nature of the plaintiff's claim for the support of a pauper
under a statute imposing upon the Commonwealth an oblig-ation to
reimburse the plaintiff for the expenses so incurred, recognizes the
distinction between a contract liability and a liability imposed by
statute in the following language:-
"The law regards the money as expended at the implied request of

the defendant, and a promise to pay the money is said to be implied from
the liability created by the statute. A contract may be expressly made,
or a contract may be inferred or implied when it is found that there is an
agreement of the parties and an intention to create a contract, although
that intention has not been expressed in terms of contract; in either case,
there is an actual contract. But a contract is sometimes said to be im-
plied when there is no intention to create a contract, and no agreement of
parties but the law has imposed an obligation which is enforced as if it
were an obligation arising ex contractu. In such a case there is not a con-
tract, and the obligation arises ex lege."
Of a quasi-contractual nature, it is submitted, is the duty of a

carrier, founded upon the custom of the realm to receive and to carry
safely. That the liability in such cases arises, not from contract,
but from a duty, is clear-2 While it is true that the liability is ordi-
narily described as one in tort, it is submitted that it has been so
described because of the usual classification of legal rights into con-
tracts and torts, and that since the obligation imposed upon the
carrier is to act, the obligation is really quasi-contractual in its
nature, and not in the nature of a tort. If this be the proper clas-
sification of the duties imposed by law upon a carrier, it must neces-
sarily be true of the common law liability of an innkeeper to receive
guests, or to keep their goods safely.3 The obligation in these cases
seems analogous in principle to the obligation imposed by the Aus-
trian law upon one in possession under a fidei comimiss in favor of
his successor, as to the care of the property. That liability is thus
described by Lord Justice Cotton in Batthyany v. Walford :4
" It appears, as far as I understand the evidence, that the law of Aus-
tria (I will omit Hungary, because the Hungarian law on this head is
1 I44 Mass. 64.

2 Anonymous, I2 Mod. 3; Marshall v. York, N. & B. Railway Co., II C. B 655;
Austin v. Great Western Railway Co., L. R. 2 Q. B. 442, 445.
3 Morgan v. Ravey, 6 H. & N. 265, 275.
4 36 Ch. Div. 269, 278.
70 THE HARVARD LAW REVIEW.
practically the same as that of Austria) is this: The tenant in possession
under afldoi commiss, both of real and personal estate, is considered

possession in a different way from that in which a tenant for life or a ten.
ant in tail in England stands. There are no trustees, and if he loses any
portion of the personal estate, which apparently stands as regards the
provision of thefJdei commiss nearly in the same position as real es
he must make that loss good. As regards the real estate, he is answer-
able, at the time when he surrenders, by death or otherwise, the possession
of the property in the fidei commiss, for the deterioration of the estate
which has taken place since the time when he took possession. He is
considered as having possession of the estate, not only for his own ben-
efit, but subject also to an obligation to hand it over to his successor in
as good a condition as when he took possession, subject only to this, that
he can excuse himself if he shows that the deterioration took place with-
out any fault ('C ulpa,' as it is called) on his part. But, as I understand
the evidence, the claim according to the law of Austria is not in the nature
of damages for default, but a claim under an obligation to keep the prop-
erty in as good condition as the late possessor found it, with liberty to
excuse himself from making good the deficiency if he can show that it
was not caused by any default of his own. That, in my opinion, is not a
claim simply depending on tort, and does not come within the rule of
actio personalis morilur cum persona. It may be that it is a wrong
has produced the deterioration; but the claim, in my opinion, is one
depending on the implied contract or obligation which, by the law of
Austria, every possessor under a fidei commiss takes upon himself when
he enters into possession.
" It was contended that there could be no such liability of a personal
representative for anything connected with default, unless there was an
express contract. No authority was referred to in support of that propo-
sition, and in my opinion it is contrary to English law. WVe had to con-
sider this subject in Phillips v. Homfray,l where minerals had been dug
from a neighbor's property, and there Lord Justice Bowen gave a very
carefully considered judgment, expressing his own and my views as regards
this particular point. What he says is this: I ' As regards all actions
essentially based on tort, the principle' (i.e., actio personalis moritur cum
persona) ' was inflexibly applied. There was, however, a species of per-
sonal actions to which the rule in question was not extended. These
were such as were founded upon some obligation, contract, debt, cove-
nant, or other duty to be performed. If an injury has been done to the
personal property of the plaintiff, for relief arising out of which assumpsit
could be brought (as in the case of actions against carriers and bailees),
the executors of the deceased might well be sued.' That, in my opinion,
1 24 Ch. D- 439. 2 24 Ch. D. 456.
QUASI-CONTRACT, ITS NATURE AND SCOPE. 7I
correctly lays down the law. It is not only where there is an express
contract that a suit grounded on some default of the person whose repre-
sentative is sued can be maintained; but if the position of the parties
was such that the law of England would imply a contract from that posi-
tion, then on assiumpsit the executor might still be held liable. There
are many cases where an action can be brought upon an obligation im-
plied by law in consequence of the position which the parties have under-
taken one to another."
Of this nature also, it is submitted, is the obligation of a sheriff

to levy execution and pay the proceeds thereof to a judgment
creditor.1
By far the most important and most numerous illustrations of
the scope of quasi-contract are found in those cases where the
plaintiff's right to recover rests upon the doctrine that a man
shall not be allowed to enrich himself unlawfully at the expense
of another.
As the question to be determined is not the defendant's inten-
tion, but what in equity and good conscience the defendant ought
to do, the liability, while enforced in the action of assumpsit, is
plainly of a quasi-contractual, and not contractual nature.
It is on the theory of quasi-contract, founded on the doctrine of
unjust enrichment, that an insane man, known to be insane by the
party furnishing necessaries, is held liable therefor. That such is
the nature of the liability is evident, not only from the fact that he
has no contracting mind, but also from the fact that he is equally
liable for necessaries furnished at a time when there was no
attempt on his part to contract.2
In discussing the existence and nature of the obligation incurred
by a lunatic for necessaries, Lord Justice Cotton, in Rhodes v.
Rhodes,3 thus stated the nature thereof: -
"Now the term 'implied contract' is a most unfortunate expression,

because there cannot be a contract by a lunatic. But whenever necessa-
ries are supplied to a person who by reason of disability cannot himself
contract, the law implies an obligation on the part of such person to pay
for such necessaries out of his own property. It is asked, Can there be
an implied contract by a person who cannot himself contract in express
1 Speak v. Richards, Hobart, 206, 3 Bi. Com. I63.

2 In re Rhodes, 44 Ch. Div. 94 (semble); Sawyer v. Lufkin, 56 Me. 308; Sceva v.
True, 53 N. H. 97.
8 44 Ch. Div. 94, I05.
72 HARVARD LAW RE VIEW.
terms? The answer is, that what the law implies on the part of such
a person is an obligation, which has been improperly termed a contract,
to repay money spent in supplying necessaries. I think that the expres-
sion ' implied contract' is erroneous and very unfortunate. In one case
which was before the Court of Appeal, In re Weaver,' the question
whether there could be what has been called an implied contract by a
lunatic, was left undecided by the court, and one of the judges said that
it was difficult to see how there could be an implied contract on the part
of a lunatic if he was himself incompetent to make an express contract.
"But we all agree with the view that I have thus expressed, in order to
prevent any doubt from arising in consequence of our having declined
to settle the question in the case to which I have alluded."
Of a quasi-contractual nature also is the obligation of an infant

to pay for necessaries. It is usually stated that an infant is bound
by his contract for necessaries. But if, as is held in many jurisdic-
tions, the infant is bound to pay for necessaries, not the contract
price, but the reasonable value thereof, it would seem clear that he
is not liable on his contract. By the terms of his contract he is
required to pay a stated sum, and not the reasonable value for
necessaries furnished. If he is bound by his contract to pay for
necessaries, then of course he should be liable in damages for hav-
ing, in violation of his contract, refused to pay therefor; and if
liable in damages, the amount of the plaintiff's recovery would be
determined, not by the reasonable value of the necessaries, but by
the price agreed upon, - since had the infant performed his con-
tract, the plaintiff would have received that amount of money.
When, therefore, the infant is required to pay, not the stated price,
but simply the reasonable value of the necessaries, the obligation
differs from that which he assumed; and though the result reached,
as to the amount of the recovery, by a plaintiff in any given case,
may be the same as would have been reached had the recovery
been had on the theory of the plaintiff's being entitled to the price
agreed upon, yet such a result is purely accidental. The doctrine,
therefore,2 that while the payee of a note given by an infant for
necessaries can recover on the note, he can recover, not the amount
thereof, but simply the reasonable value of the necessaries, must
be regarded as an anomaly in procedure. In no other way can the
result actually reached in some jurisdictions,3 that while the payee
} 21 Ch. Div. 6I5. 3 I Daniel Neg. Inst., 4th ed., ? 226.

2 I Daniel Neg. Inst., 4th ed., ? 226.
of the note can recover in the action of a note the value of neces-
saries furnished, an indorsee thereof has no right of action, be
explained.
That the liability is really in quasi-contract seems to be recog-
nized in the jurisdiction which has furnished the leading authority I
for the proposition that the payee, while not allowed to recover the
amount of the note, can, in an action brought on the note, recover
the value of the necessaries. In Trainer v. Trumbull,2 where the
court held an infant liable for necessaries furnished in the absence
of contract, Allen, J., delivering the opinion of the court, said:
"The practical question in this case is, whether the food, clothing, etc.,
furnished to the defendant were necessaries for which he should be held
responsible. This question must be determined by the actual state of
the case, and not by appearances. That is to say, an infant who is
already well provided for in respect to board, clothing, and other articles
suitable for his condition, is not to be held responsible if any one sup-
plies to him other board, clothing, etc., although such person did not
know that the infant was already well supplied.3 So, on thie other hand,
the mere fact that an infant, as in this case, had a father, mother, and
guardian, no one of whom did anything towards his care or support,
does not prevent his being bound to pay for that which was actually
necessary for him when furnished. The question whether or not the
infant made an express promise to pay, is not important. He is held
on a promise implied by law, and not, strictly speaking, on his actual
promise. The law implies the promise to pay, from the necessity of his
situation; just as in the case of a lunatic.4 In other words, he is liable
to pay only what the necessaries were reasonably worth, and not what
he may improvidently have agreed to pay for them. If he has made an
express promise to pay, or has given a note in payment for necessaries,
the real value will be inquired into, and he will be held only for that
amount." 5
Such also, it is submitted, is the nature of a liability of a husband

for necessaries furnished a wife whom he has deserted, or com-
pelled to leave him. In such cases it is settled that one furnishing
1 Earle v. Reed, IO Met. 387.

2 141 Mass. 527, 530.
3 Angel v. McLellan, I6 Mass. 28; Swift v. Bennett, Io Cush. 436; Davis v.
well, 12 Cush. Si2; Barnes v. Toye, 13 Q. B. D. 410.
4 i Chit. Con. (I Ith Am. ed.) I97; Hyman v. Cain, 3 Jones (N. C.), i i; Richardson
v. Strong, 13 Ired. Io6; Gay v. Ballou, 4 Wend. 403; Epperson z. Nugent, 57 Miss.
45, 47.
5 Earle v. Reed, io Met. 387; Lock v. Smiths 4I N. H. 346; Met. Con. 73, 75.
74 HARVARD LAW REVIEW.
necessaries can recover against the husband therefor, notwithstand-

ing his knowledge at the time he furnished them that the husband
did not intend to pay therefor. It is usually stated that the wife in
such cases is authorized to pledge the credit of the husband. Sinc
however, the husband may be liable for necessaries furnished even
thoug-h the wife made no attempt to pledge his credit, -as, for
example, for necessaries furnished a deserted wife while she is
unconscious; -and since, furthermore, the husband is held liable
for necessaries furnished a wife while he is incapable of contract-
ing, - as where necessaries are furnished a wife while the husband
is insane,1 - the better form of statement would seem to be simply
that an obligation is imposed by law upon the husband to pay for
necessaries furnished in such circumstances. That such is the
nature of the liability was recognized in Cuningham v. Reardon,2
where Hoar, J., delivering the opinion holding the husband liable
for necessaries furnished a wife, said, -
" The husband who by his cruelty compels his wife to leave him is con-
sidered by the law as giving her thereby a credit to procure necessaries
on his account; and is responsible to any person who may furnish her
with them. This responsibility extends not only to supplies furnished
her while living, but to decent burial when dead. Its origin is not merely
and strictly from the law making her his agent to procure the articles of
which she stands in need. If it were so, the consequence would follow
for which the defendant contends, that the agency would end with the
life of the agent. But it is rather an authority to do for him what law
and duty require him to do, and which he n'eglects or refuses to do for
himself; and it is applicable as well to supplies furnished to the wife when
she is sick, insensible, or insane, and to the care of her lifeless remains, as
to contracts expressly made by her."
On this ground must also be put the obligation of a father, where

such obligation is imposed by law,3 -to pay for necessaries furnished
a child whom he has refused to support.
That the right to recover money paid under mistake rests
-upon a quasi-contractual obligation is a self-evident proposition,
when it is remembered that in the typical cases where money is
recovered as paid under mistake, the mind of the plaintiff as well
1 Read v. Legard, 6 Ex. 636.

2 98 Mass. 538.
8 Gilley v. Gilley, 79 Me. 292; Cromwell v. Benjamin, 4I Barb. 558.
as the mind of the defendant was directed, not to the creation of,
but to the discharge of, an obligation.
That quasi-contract is the basis of liability where a plaintiff is
allowed to sue a tortfeasor in assumpsit is equally clear, since it is
the want of assent on the part of the plaintiff that renders the
defendant's act tortious. It is idle to speak of the possibility of
contract where there is not even the suggestion of a meeting of
minds.
That the obligation imposed upon a defendant to refund money
obtained by duress, legal or equitable,' or upon a judgment subse-
quently reversed, is quasi-contractual, is evident, since the use of
such means to obtain money is utterly inconsistent with an intention
to repay it.
Such, of necessity, is the nature of the obligation of a defendant
to a plaintiff who has conferred a benefit upon him without request,
but in circumstances recognized in law as entitling him to com-
pensation or indemnity therefor.
Such, likewise, must be the nature of the obligation, where
though there was a request, and intention to contract, the contract
did not come into existence because of the failure of the minds of
the parties to meet upon some material term of the contract, or
because of the inability of one of the acting parties to make the
contract contemplated. Quasi-contractual in its nature necessarily
is the obligation of a defendant who, though he has entered into a
contract with the plaintiff, and has a perfect defence to any action
brought by the plaintiff on the contract, is yet held liable in
assumpsit to the' plaintiff for value received under the contract.
William A. Keener.
SCHOOL OF LAW, COLUMBIA COLLEGE.
Yale Law Journal
Volume 21
Article 1
Issue 7 Yale Law Journal
1912
QUASI-CONTRACTUAL OBLIGATIONS
ARTHUR LINTON CORBIN
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YALE
LAW JOURNAL
yol. XXI MAY, 1912 No. 7
By Arthur Linton Corbin, Professor of Contracts,
Yale Law School.
For the perfect understanding of any one branch of the law, a

knowledge of the whole field is required. The law is indeed "a
seamless web." This is exceptionally true of quasi-contractual
obligations. But no attempt can be made inthis article to classify
law as a whole, or even to discuss at length the one great~field of
obligations. An attempt will be made, however, to determine
just what obligations may properly be called 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-
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 that do not readily fall within the foregoing
classes. Centuries before the time of Justinian, Roman jurists
were referring to these obligations as quasi-contractual or quasi-
delictual. From that day to this, however, jurists have very
generally used these terms without drawing distinct lines between
their various fields, and without showing any very clear bond of
unity within the limits of any one field. This fact goes far to
show, indeed, that the facts of life giving rise to obligations are
so inter-related that it is exceedingly difficult to classify them. It
YALE LAW JOURNAL
is universally agreed, however, that a contractual obligation arises

out of an agreement of the parties, while a quasi-contractual
obligation is independent of agreement. A few instances may
serve to show that even this distinction does not in practice
enable us to classify some cases with certainty.
In a certain case A sent a telegram offering to sell lath to B at
$2.IO per thousand, but the telegraph company delivered it to B
reading $2.00 per thousand. B accepted the offer as delivered.
There is no agreement of the parties, and yet it was held that A
was bound to d-v-e-l at $2.00 per thousand.' It cannot be said
that this obligation arises from an agreement, but it is said that
there is a contract.
Again, A offers to sell his land to B for $5,ooo and B accepts.
A intended to sell for that price subject to a then existing mort-
gage of which B knew nothing. The law holds A contrary to his
intention.2 There is no agreement in the sense of a common
intention or meeting of the minds; but the courts say that there is
a contract. Of course there may be said to be an agreement
3
in expression, but this is no meeting of the minds.
In such cases as the above, the obligation is clearly contrary to
the will of A. But it may be convenient to continue to classify
such cases among contracts. This is the case, particularly because
it is seldom possible to determine conclusively whether there was
an agreement in intention or not; 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 the minds are not in practice distinctly separable
from those arising otherwise.
There is another large field, always included under the heading
of contracts, where the same difficulty of classification exists.
The law in regulating the performance of a contract and deter-
mining liability for non-performance oftentimes construes an
agreement in a way never dreamed of by the parties at the time
they made it, "Conditions" are said to be implied by the law.
When a contract is held to be conditional, although in its terms
I Ayer v. West. U. Tel. Co., 79 Me., 493.
2Mansfield v. Hodgdon, 147 Mass., 304.
3 See further Holland, .uris., ed 10, p. 253; Anson, Cont., ed. 10, p. 9;
O'Donnell v. Clinton, 145 Mass., 461-463.
it appears to be unconditional, the enforcible obligation does not

seem to arise entirely out of agreement, either of intention or of
expression.
Thus where A promises to deliver goods and B promises in
return to pay the price, the promises are the consideration for
each other and are both binding. The contract does not express
that B shall not be liable to suit unless A tenders a delivery of
the goods, and the parties may not have thought about it at all.
4
But the law says it. Tender is made a condition precedent.
Of such conditions Professor Holland says: "Supposing a
contract to have been duly formed, what is its result? An obliga-
tion has been created between the contracting parties, by which
rights are conferred upon the one and duties are imposed upon
the other, partly stipulated for in the agreement, but-partly also
implied by law, which, as Bentham observes (works, III, p. 19o )
'has thus in every country supplied the shortsightedness of indi-
viduals by doing for them what they would have done for them-
selves, if their imagination had anticipated the course of nature.' "5
So also, when an agreement is by its terms expressly made
conditional, but the Court for some reason enforces it though the
condition has not been fulfilled, the defendant's obligation cer-
tainly does not wholly arise from an agreement, either of inten-
tion or of expression. An insurance company issued a policy,
in which it was provided that in case of dispute the liability of the
company should cease unless suit should be brought within one
year. The Civil War 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."
A 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 and the architect refused to give his certificate. Never-
theless the contractor was allowed to maintain suit on the owner's
promise, the owner being allowed merely to counterclaim.7
Similar difficulties arise in distinguishing between a quasi-
contract and a tort. A tort is said to be a civil wrong independent
4 Morton v. Lamb, 7 R., 125.
5.uris., ed. 10, p.
6Semmes v. Htford Ins. Co., 13 Wall., 158.
7 Nolan v. Whiney, 88 N. Y.. 648.
8I
YALE LAW JOURNAL
of contract, an illegal act doing damage. The obligation topay

damages for~the act is said to be delictual. But according to the
common law, the injured party is often allowed to waive the tort
and sue in assumpsit. If A converts B's property to his own use
and sells it for a sum certain, B may sue in various tort actions;
but he may sue also, if he desires to do so, in assumpsit for the
proceeds received by A from the sale. A is under an obligation
to turn over those proceeds. This obligation is said to be quasi-
contractual; and yet it arises from a civil wrong.
Before attempting a definition, it may be of service to give a
brief survey of the obligations commonly called quasi-contractual.
It will be seen that they are very numerous, that some of them
have little in common with others, that some more closely resem-
ble contractual obligations while others approach more nearly to
torts, and that in the past, in treatises upon the common law,
they have generally been handled under diverse headings. Dur-
ing the period when the substantive law was controlled by the
forms of procedure, they were classified as contractual or delic-
tual, in accordance with the form of action maintainable to
enforce them.
JUDGMENTS.
If one party sues another and obtains a judgment, that other

is under a legal obligation. The common law enforced this
obligation in the action of debt;S but if the judgment was in a
.foreign court or in a court not of record, the action might be
assumpsit.f However, despite the fact that these actions are
known as ex contractu, it is clear that the obligation is purely legal
and is not contractual. The obligation arises from the order of
the Court and not from agreement. Even in cases based upon
a contract, the judgment is usually for damages, an entirely dif-
ferent thing from the thing that was promised. A judgment"
based upon a contract may be within the protection of the United
0
States Constitution, but other judgments certainly are not;" and
in no case can the obligation of the judgment be said to be con-
tractual. It has been classified by recent writers among quasi-
8 Williams v. Jones, 13 M. & W., 628.
0 Dupeix v. DeRoven, 2 Vernon, 540; Grant v. Easton, 13 Q. B. D., 302.
10 Art. I, Sec. 10; Nelson v. St. Martin'sParish, 111 U. S., 716, 720.
1 Peerce v. Kitziniller, 19 W. Va., 564; La. v. New Orleans, 109 U. S.,
contracts.1 2 It must be noted that any suit based upon a judg-

ment is for the specific performance of the judgment, and is not
for damages.
STATUTORY, OFFICIAL, AND CUSTOMARY OBLIGATIONS.
In certain cases an obligation may be put upon a party by

reason of a statute or other law, or by custom, particularly where
the party holds some office. It has been held that assumpsit lies
to recover an amount due by custom for "Waiage," "Wharfage,"
"Cranage," and the like.' 3 If a sheriff levies on goods under a
writ of execution, but fails to return the proceeds into court, the
judgment creditor may sue him in debt. 4 A statute may make it
the duty of a,.shipowner to employ a certain pilot, and to pay him
a certain fee in any case. The pilot may sue in admiralty for the
fee, even though he rendered no service. 5 So also, where a
statute provided that anyone might break a log jam, and recover
the cost thereof from the owners of the logs, it was held that
assumpsit lay.' 6
Such obligations as these are based on neither contract nor
tort, and have been classified as quasi-contractual.'1 In all such
cases the suit is for specific performance of the duty and not for
damages, and the contractual forms of action are available.
1.2Ames, History of Assumpsit; Scott, Cases on Quasi-Contracts;
Keener, Quasi-Contracts,p. 16.
13 City of London v. Goree, 3 Keble, 677.
'1 Speake v. Richards, Hob., 206; King v.
Moore, 6 Ala., 160.
'5 The Francisco Garguilo, 14 Fed., 495; Steamship
Co. v. Joliffe, 2
Wall, 450.
16 Woods v. Ayres, 39 Mich., 345.
17 Ames, Keener, and Scott, supra. These writers have also classified
the obligation of an innkeeper to receive guests and to keep their property
safely, and the like obligation of a common carrier, as quasi-contractual.
With this the present writer disagrees. At the common law these obliga-
tions have been treated as based on contract or on tort. The customary
duty of the carrier, inn-keeper, farrier, surgeon, and the like, was to act
rather than to forbear, it is true, and to act with the degree of care and
skill customarily required; but the form of action was in tort, if based
solely on the custom and not on an agreement, and the remedy was com-
pensatory damages measured by the extent of the plaintiff's loss. This
is just the same as where one is injured through the defendant's negligent
failure to act. See also Holdsworth, History of English Law, Vol. 3, p.
331; Digest rust., 44, 7, 5, Sec. 5, per Gaius; Digest Just., 4, 9.
YALE LAW JOURNAL
WAIVER OF TORT.
At common law one who has suffered by the tort of another

may, in many cases, choose between two sorts of remedies. He
may sue in a tort action for compensatory damages, the recovery
being in no way measured by the amount of profit secured by the
defendant. Or he may, as it is said, waive the tort and sue in
assumpsit, in which case his recovery is limited by the amount by
which the defendant has been unjustly enriched. The obligation
in this latter case has been said to be quasi-contractual. In such
cases as this it must certainly be admitted that the obligation arises
out of a tort. But for the defendant's tort, he would be under
no obligation; and the plaintiff must allege and prove the com-
mission of that tort in order to win his case, whether his action is
s
in trover or trespass or assumpsit.' But the obligation enforced
by the law in a tort action is somewhat different from that
enforced in assumpsit. In tort, it is measured by the amount
of damage done to the plaintiff; in assumpsit, it is measured by
the amount of the defendant's unjust enrichment. This differ-
ence and the difference in the form of action, are the only reasons-
for taking the obligation enforced in assumpsit out of the realnr
0
of obligations ex delicto.'
MONEY PAID BECAUSE OF FRAUD OR COMPULSION.
One who obtains money or property from another by fraud or

2
by duress of person or goods, , or by virtue of a judgment after-
wards reversed," may be held liable in assumpsit. Taxes illegally
2 2
assessed may sometimes be so recovered. Where one is compelled
to pay money to a third person, which the defendant was legally 2
one so paying. r
bound to pay, the defendant must reimburse the
Illustrations of this are found in the rights of contribution and
2, 25
indemnity in favor of a surety or of a joint tort-feasor, in the
1s See Keener, Quasi-Contracts.
19 See on this whole topic 19 Y. L. 3., 221, Waiver of Tort.
20 Smith v. Broniley, 2 Doug., 696; Astley v. Reynolds, 2 Strange, 915;
Tutt2 v. Ide, 3 Blatch., 249; Chandler v. Sanger, 114 Mass., 364.
1 Hosiner v. Barret, 2 Root, 156; Clark v. Pinney, 6 Cow., 297.
22
Atwell v. Zeluff, 26 Mich., 118; Preston v. Boston, 12 Pick., 7.
2
3 Brown v. Hodgson, 4 Taunton, 189.
24 Deering v. Winchelsea, 2 B. & P., 270; Appleton v. Bascon, 3 Metc.,
.169.
25 Bailey v. Bussing, 28 Conn., 455; Palmerv. Wick, L. R., 1894, Appeat
Cases, 318.
doctrine of general average in admiralty," and in the obligation of

a divorced husband to reimburse his former wife for expenses
incurred by her in the support of their children. 27 The same
obligation has been held to exist where one pays under compul-
sion money that another ought to have paid, even though that
other was not legally liable. 28
BENEFITS CONFERRED WITHOUT REQUEST.
In some instances where the plaintiff has voluntarily conferred

a benefit upon the defendant without the latter's request, the
defendant is obliged to reimburse the plaintiff. Such was the
case in Roman law known as negotiorurn gestio, where one man-
aged another's affairs in the latter's absence, and to the latter's
benefit. 9 There is some authority that a finder of lost property
is entitled to compensation for labor and expense in preserving
and repairing the property. 0 The maritime law fully recognizes
such an obligation in the matter of salvage. Compare also the
claim of a warehouseman against the owner of goods that have
been deposited with him without the owner's authority. So, if A
pays B's debt, and B accepts the benefit of the payment, 31"or A
pays the funeral expenses of one for whose burial B is responsi-
ble, 3 2 or furnishes support for the wife or child of B 33 or for a
person whom B has contracted to support,"4 B is liable iri debt or
assumpsit to A. Where an occupant of land, honestly believing
26 Digest of Just., 14, 2, 1; Ralli v. Troop, 157 U. S., 386, 393.
27 See 21 YALE LAW JOURNAL, 397.
28 Great Northern Ry. v. Swaffeld, L. R. 9 Exch., 132; Lewis v. Camp-
bell,208 Man. Gr. & S., 541.
Inst. Just., 3, 27; Dig. Just., 44, 7, 5; Birgerlichesgesetzbbuch,677 to
687; Erskine Law of Scotland, ed. 20, p. 381; France, Code Civil, 1372 to
1375; Police Jury v. Hampton, 5 Martin N. S. (La.), 389; In Re Bryant's
Estate, 180 Pa., 192.
30 Chase v. Corcoran, 106 Mass., 286; Nicholson v. Chapman, 2 H. BI.,
254 (semble); Reeder v. Anderson, 4 Dana, 193. Weight of authority
,may be contra. Keener, Quasi-Contracts,354; Falcke v. Scot. Imp. Ins.,
L. R. 34 Ch. Div., 234, 248; Bartholomew v. Jackson, 20 Johns., 28.
31 Crumlish v. Cent. Imp. Co., 38 W. Va., 390, 395; Muir v. Craig, 3
Blackf., 293.
32Jenkins v. Tucker, 1 H. BI., 90; Patterson v. Patterson, 59 N. Y.,
574; Keener, Quasi-Contracts,341.
13 C-unningham v. Reardon, 98 Mass., 583.
34 Forsyth v. Ganson, 3 Wend., 558; contra Moody v. Moody, 14 Me.,
YALE LAW JOURNAL
that he is the owner, or holding under a contract unenforcible

because not in writing, makes improvements, it has been held that
he is entitled in equity to maintain suit for the value of such 30
improvements. 35 The contrary has been held at common law,
37
but the matter has now often been provided for by'statute. If
the owner should ask for any equitable relief against the occu-
39
pant,38 or should sue at law for the mesne profits, the occupant
is allowed a recoupment for the value of his improvements.
In cases of the foregoing general class, there is much conflict
in the American decisions, many of the judges not having grasped
the quasi-contractual principle and having no knowledge of
Roman law. Of course, it is too much to expect that we shall
have many judges like Lord Mansfield, with a vision broad
enough to see the possibilities lying in the action of assumpsit or
in the civil action under the codes, and with courage enough to
keep the law abreast of the current ideas of morality and the
needs of commerce. We must often be content, as best we may,
with the little judges of narrow historical perspective and little
grasp of principle, who tremble at a new decision and know no
law for which cannot be found a precedent on all fours.
FAILURE OF CONSIDERATION BY NON-PERFORMANCE OF A PROMISE.
An unjust enrichment occurs in another large class of cases

where there has been an agreement between two parties and one
has performed his part without receiving the consideration to
which the agreement entitled him. \The failure of consideration
consists of a non-performance by the' defendant of his part of the
agreement. His failure to perform his promise may occur under
the following circumstances: (I) performance may be impossible;
(2) the defendant's promise may be unenforcible because of the
defendant's incapacity to contract or because of the statute of
frauds; (3) the plaintiff himself, though performing in part, may
have broken his own promise; (4) a condition precedent to the
defendant's liability may have been unfulfilled, without being an
3 Bright v. Boyd, 1 Story, 478, 2 Story, 605; Note in Scott's Cases,
Quasi-Contracts,p. 320. See also Williams v. Gibbes, 20 How., 535.
36 Welsh v. Welsh, 5 Hammond (Ohio), 425; Cook v. Doggett, 2 Allen,
439.
See Griswold v. Bragg, 48 Fed., 519, holding the Conn. "Betterment
37
Act" constitutional.
38 See Williams v. Gibbes, 20 How., 535.
39 Parsons v. Moses, 16 Ia., 440.
actionable breach of contract by the plaintiff; (5) the defendant's

failure to perform his enforcible promise may be wilful and with-
out excuse; (6) performance may be illegal.
(i) If performance by the defendant is impossible, such impos-
sibility will in some instances prevent him from being liable for
breach of contract. In such cases the defendant will be under
an obligation to pay back whatever he has received.40 Such an
obligation cannot be said to arise from agreement, and is rightly
called quasi-contractual. On the other handj there are cases
where impossibility does not relieve the defendant from his obli-
gation and he is liable in damages. 4' In such cases the plaintiff
may sue for damages ex contractu, or he may rescind the contract
and sue for the recovery of what he has paid.
(2) If the defendant fiils to perform his part of the agreement,
and the plaintiff has no remedy ex contractu because of the statute
of frauds, he may sue quasi ex contractu for the restitution of
what he has paid or for the value of what he has done. 42 If the
contract is unenforcible because of the defendant's lack of capac-
ity to contract, the defendant is under an obligation to return what
he has received if he still has it, or to pay its reasonable value in
case it came within the class known as necessaries. 43 The defend-
ant's promise may be unenforcible also on the ground of mistake,
but the principles governing such cases will be found below under
the head of Mistake., Mistake may be a ground for a quasi-
contractual obligation where the defendant has made no promise
at all, as well as where he has made one.
(3) Where the plaintiff is himself in default on his express
contract, his breach may be of a vital part of the contract, or of a
subordinate part not "of the essence" and not "going to the root
of the consideration." The latter does not justify non-perform-
ance on the part of the defendant, and so the defendant is liable
in damages. He is still under an obligation ex contractu. But
here also the plaintiff may rescind the contract because of the
defendant's unjustified repudiation, and sue the defendant quasi
ex contractu for the amount of the defendant's enrichment. This
40 Reina v. Cross, 6 Calif., 29; Knowles v. Bovill, 22 Law Times, 70.
41 See Stees v. Leonard, 20 Minn., 494; School Dist. v. Dauchy, 25
Conn., 530. These, however, were cases where the impossibility was not
absolute.
42 Hollis v. Edwards, 1 Vernon, 159; Jellison v. Jordan,68 Me., 373.
43 Gregory v. Lee, 64 Conn., 407; Valentini v. Canali, L. R., 24 Q. B. D.,
167; Waldron v. Davis, 70 N. J. L., 788 (lunatic).
YALE LAW JOURNAL
is the same as (5) infra. If the plaintiff's breach is of a vital

part of the contract, it deprives him of any remedy ex contractu
against the defendant. His performance of that part was either
an express condition precedent to the defendant's liability, or was
a condition precedent implied by the law."1 In such cases, the
plaintiff has no quasi-contractual remedy for the value of his
45
part performance, according to the weight of authority. The
determination of whether the breach is of a vital part or not, is
made to depend in some measure on whether or not the breach
46
was wilful.
(4) If the plaintiff has no remedy ex contractu because of the
non-fulfilment of a condition precedent, but such non-fulfilment
does not constitute' an actionable breach by the plaintiff, the
defendant is under a quasi-contractual obligation to pay back the
47
value of what he has receiveI. Such is the case where further
performance by the plaintiff has become impossible because of
cases."'
death and in some other
(5) Where the defendant has broken his contract in a vital
matter without excuse, the plaintiff has two remedies-ex con-
tractu for damages, or quasi ex contractu by rescinding the con-
tract and contenting himself with restitution of what the defend-
49
ant has received, or its value.
(6) If the contract is illegal, there can be no remedy ex con-
tractu. But the law will construct a quasi-contractual 5 ° obligation
of a plaintiff who is not in pari delicto.
in favor
In such of the foregoing cases as give to the plaintiff a right of
action on the contract, as in certain cases under (1), (3), and
(5), it may seem that the so-called quasi-contractual right of res-
titution is really only a remedy on the contract; but just as in the
See Shadforth v. Higgin, 3 Camp., 385; Worsley v. Wood, 6 T. R.,
44
710; Norrington v. Wright, 115 U. S., 188.
45 Champlin v. Rowley, 18 Wend., 187; Stark v. Parker, 2 Pick, 267;
Note in Scott's Cases, Quasi-Contracts,p. 741. Contra, Britton v. Turner,
6 N. H., 481; Oxendale v. Wetherell, 7 L. J., 264.
46 See Pincelws v. Swedish Church, 55 Conn., 183.
47 Wright v.Newton, 2 Cr. M. & R., 124.
48 Luke v. Lyde, 2 Burr., 882; N. Y. Life, Ins. Co. v. Statham, 93 U. S.,
24; Butterfield v.Byron, 153 Mass., 517.
49 Dutch v. Warren, 1 Strange, 406; Clark v. Manchester, 51 N. H.,
594.
Musson v.Fales, 16 Mass., 332; White v. Franklin Bank, 22 Pick,
50
181; but no contribution between highway robbers, The Highwayman's
Case, Scott's Cases, Quasi-Contracts,p. 666.
case of waiver of tort; the plaintiff has the option.of putting the
defendantunder an obligation other than the one created by the
agreement. It may be said that an obligation to pay damages
for breach of contract is created. by the law and not by the agree-
ment, the contractual obligation being to perform, not to pay
damages for non-performance. The truth of this must be
admitted; but to enforce the obligation to pay damages, the plain-
tiff must prove the contract and its breach, as a part of his cause
of action, whereas this is not the case if he has rightfully
rescinded the contract and is merely suing for restitution. In
the latter case he could sue on the common counts in assumpsit,
though no doubt the defendant could take steps that would require
the plaintiff to show that he had rightfully rescinded the contract.
In addition there is also the difference in the measure of recovery.
It must be admitted that this distinction is a narrow one, and that'
both the obligation to pay damages and the obligation to restore
the value received are secondary, remedial obligations created by
the law to right the wrong done to the plaintiff. Neither one of
them is of the same character as the primary contractual obliga-
tion to perform.
MISTAKE.
Where money is paid under the mistaken belief that it was
due, when in fact nothing was due, an action will lie to recover
it.1 This was true also under the Roman law5 2- and it is true
under all the civil codes based on the Roman law. 3 The general
principles allowing recovery are the same whether there was an
agreement between the parties or not. If there was an agree-
ment, the mistake must be such as to vitiate it or there will be no
quasi-contractual obligation.
The obligation to repay in cases of mistake is certainly not
based on agreement, and therefore cannot be said to be contrac-
tual.5 4 On the other hand, the party to whom the money was
paid was not a tort-feasor in receiving it. He is not liable in
damages, but only for the exact sum that he received. The obli-
51
Lady Cavendish v. Middleton, 3 Cro. Car., 141 ; Mayer v. N. Y., 63
N. Y., 455. The English and most of the American courts have improp-
erly drawn a distinction between mistakes of law and mistakes of fact.
See Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunton, 144;
Note in Scott's Cases, Quasi-Contracts,p. 365; Contra, Culbreath v. Cui-
breath, 7 Ga., 64, and Mansfield v. Lynch, 59 Conn., 320.
5
2 Inst. Just., 3, 27; Inst. Gaius, 3, 91 ; Dig. Just., 12, 6; Codex
4, 5.
53 Code Civil, 1376 to 1381; B. G. B., 812 to 822.
5
4 Inst. Just., 3, 27, 6; Dig., 44, 7, 5, Sec. 3, per Gaius.
.544 YALE LAW JOURNAL
gation to repay has been said to be quasi-contractual, from the

time of Cicero to the present, and in many countries. In the
Roman law the form of action for the enforcement of this obliga-
tion was called condictio indebiti. Under the common law, the
form of actioh was assumpsit for money had and received.
Under this heading many difficult questions have arisen, and5 there
is much conflict, most of it unnecessary and unreasonable.'
A few other specific classes of obligations have been called
quasi-contractual, but they will be found to be included under
some of the foregoing heads. The mutual rights and obligations
50 on
as between guardian and ward are many of them based
neither contract nor tort. The guardian's obligation to account
may be regarded as official. His breach of duty is often d tort.
His right to compensation and indemnity from the estate of the
ward is for benefits conferred, and is often statutory. The
mutual rights and obligations of tenants in common and joint
heirs5 7 are based upon benefits received, though the common law
differs from the civil law in just what those rights and obligations
are. The obligation of an heir to pay a legacy charged against8
the estate is classified as quasi-contractual in the Roman law.
The rights and obligations of a trustee, like those of a guardian,
may be regarded in many instances as quasi-contractual, the fact
that the remedies are chiefly equitable being an immaterial fact
in this classification. In the case of constructive trusts, the
character of the obligation is very similar to that in the case of
waiver of tort.5
It will readily appear from the foregoing survey that the term
quasi-contract is not in all respects a fortunate term. It sug-
gests a relation and an analogy between contract and quasi-con-
tract. 0 The relation is distant and the analogy slight. The
the
55In particular, in cases involving negotiable instruments and
parties. Price v. Neal, 3 Burr., 1354; Ellis v. Ohio
rights of two innocent
Life Ins. Co., 4 Oh. St.,, 628; Keener, Quasi-Contracts,Chap. 2.
56 Inst. Just., 3, 27, Howe, Studies in the Civil Law, 274.
57 Inst. Just., 3, 27.
58 Inst. Just., -3,27, Dig., 44, 7, 5, Sec. 2, per Gaius.
59 Holland, Juris. ed. 10, p. 238, 241, classified all fiduciary rights among
those arising ex lege.
60"The word quasi, 'prefixed to a term of Roman Law, implies that
the conception to which it serves as an index is connected with the concep-
tion with which the comparison is instituted, by a strong superficial analogy
or resemblance. It does not denote that the two conceptions are the
differences are greater than the similarities. But there are now
moderately compelling reasons why the term quasi-contract,
or
quasi-contractual obligation, should not be abandoned.
These
are chiefly historical, and are as follows: (i) the term is already
in use; (2) some general term, excluding torts and contracts,
is
necessary, and there is no other acceptable one; (3) the
obliga-
tions included under this head were first recognized and enforced
by the courts of common law in the forms of action known
as
debt and assumpsit, these long having been known as actions
ex contractu.
(i) To what extent is the term quasi-contract already in
use?
It may be doubted whether the term is well understood or in
very
common use among the great body of attorneys at law through-
out the United States. But it has long been used by judges
who
have had some knowledge of the Roman law, and who have
been
able to conceive of the possibility of a legal obligation neither
con-
tractual nor delictual in character.0' This usage is the usage of
the leaders of our jurisprudence,02 and has become so general
that
a newly coined term could not make its way. This seems
to be
true despite the fact that the term is not truly descriptive
of its
content, and despite the fact that it has been rejected by high author-
ity. 3 In addition to this English and American usage, the term
has a
'same, or that they belong to the same genus. On the contrary,
it nega-
tives the notion of an identity between them; but it points
out that they
are sufficiently similar for one to be classed as a sequel of the
other, and
that the phraseology taken from one department of law may
be trans-
ferred to the other and employed without violent straining,
in the state-
ment of rules which would otherwise be imperfectly expressed."
Maine
Ancient Law, ed. 4, p. 344. In fact, in this case the phraseology
of con-
tracts cannot always be employed in quasi-contract "without
violent strain-
ing," and the attempt to employ it has led to error and injustice.
61 Lord Mansfield in Moses v. Macferlan, 2 Burr., 1005;
Holmes, J., in
Cahill v. Hall, 161 Mass., 512; Sceva v. True, 53 N. H., 627;
Richards v.
Bickley, 13 Serg. & R., 395; Gregory v. Lee, 64 Conn., 407.
62 Adam Smith, Lectures on Justice, in 1763; Sir
Win. B. Evans,
Essay on Action for Money Had and Received, 1802; Bracton
on the
Laws and Customs of England; Austin, Lectures on Jurisprudence,
1832;
Maine, Ancient Law, 1861; Ames, History of Assumpsit, 1888;
Works on
Contracts, by Anson, Pollock, Clark; Keener on Quasi-Contracts;
Case
Books, by Scott and Woodruff.
63 Holland (Inris., ed. 10, p. 238, n. 2) objects to the
term quasi-con-
tract and criticises Keener's definition of the term. Girard
(Manuel de
Droit Romain, ed. 4, 388 to 389) criticises the use of the term
by Gaius
in the Digest 44, 7, 5, and in the Inst. of Just., 3, 13 and 27,
and uses as
546 YALE LAW JOURNAL
long history in Roman and European law. Obligationesquasi

ex
Roman law as being distinct in
contractu were recognized in the 4
though the Roman lawyers are
character from contract and tort,
in their
as indefinite as are modern writers in their definition and
obligations are included.
determination of just what particular
The Roman usage has been followed in the codes of France,5
Louisiana, and other codes derived from the Code Napoleon,
and in the law of Scotland ;o6but seems not to have been adopted
in the German civil code, such0 obligations -there being treated
under their individual titles only.
(2) The only term already in use in the common law that might
This
compete with quasi-contract is "contract implied in law."
quasi-contract, and many more
has all the defects of the term 8 It has
besides, and has led to misunderstanding and error.
to be confused with a contract
often been used by the courts so as
implied in fact. A contract implied in fact is a true contract
Dig. 44, 7, 1.
his title "Variae causarum figurae," also taken from Gaius,
"un peu vague," as Girard admits. Moyle
This last term is certainly
ed. 3, p. 396) calls the term "Variae causarum figurae" a "perplex-
(Inst.,
into
ing expression." It certainly amounts to a division of obligations
as followys: contractual, delictual,,and others. The expres-
three classes
make no
sion may be more accurate than quasi-contract, but it would
headway in English.
04 Inst., 3, 13 and 27; Dig., 44, 7. The specific obligations mentioned
in the institutes by no means cover the entire ground.
Civil
05 France, Code Civil, 1372-1381; La. Civil Code, 2293; Howe,
Law, 269; Spanish Code, 1887-1901;Italian Code, 1140-1150.
60 Erskine, Law of Scotland, ed. 20, p. 381.
67 B. G. B., 323; 677-687, NegotioriuL Gestio; and 812-822, Unjustified
362, n. 1, and
Benefits. Windscheid (Lehrbuch des Pandektenrechts,Sec.
"Forderungsrechte aus
Sec. 421) uses a term similar to quasi-contract,
Grilnden." He also says, Sec. 302, n. 1, "Die Neueren
vertragsdihnlichen
sprechen von Quasi-Contracten und Quasi-Delicten."
the
Schuster, German Civil Law, Sec. 143, says: "It was customary in
quasi ex
old text books to classify all obligations as being ex contractu,
has
contractu, ex delicto, quasi ex delicto; but this mode of classification
now been completely abandoned. There is now a broad line of demarca-
tion between obligatory rights created by act-in-the-law (Rechtsgeschfft),
and other obligatory rights. The latter may be subdivided under two
principal heads, namely: (1) remedial obligatory rights; (2) obligatory
rights conferred by outside circumstances." This classification can not
be said to be any improvement. In fact there is no legal term in English
corresponding to 'Rechtsgeschfift. Most of our quasi-contractual obliga-
tions fall under subdivision (2).
08 See Keener, Quasi-Contracts,Chap. 1.
based upon a real agreement of the parties. It differs from an

express contractonly in the evidence necessary to establish its
existence and its terms. In reality a contract implied in fact is
an express contract, for intentions can be expressed as clearly by
actions as by words. Where there has been no expression of
intention to agree, either by words or by acts, there is no contract
whatever; and in cases like this courts have sometimes refused a
remedy on the erroneous supposition that there can be no remedy
unless there is a contract express or implied.69 In numberless
instances the courts have said that where the parties have made an
express contract the law will never imply a different one. This
is quite true, if a contract implied in fact is meant; for where the
agreement has been put into express words, those words are con-
clusive as to the intention of the parties. But many cases have
been shown above where the law will create an enforcible obliga-
tion, other than the contractual one, despite the fact that the par-
ties have made an express contract.
(3) The term contract implied in law came to be used in the
common law because obligations neither contractual nor delictual
were enforced in the so-called actions ex contractu, debt, account,
and assumpsit. This fact makes the term quasi-contract seem
somewhat less unnatural than it otherwise would, and is perhaps
a reason for retaining it.
The action of debt was originally used for the purpose of
enforcing a property right or right in rem, and such other rights
as the primitive mind pictures in his imagination as a property
right. A debt was regarded as a different thing from a contract.
The thing owed was some specific thing that had been granted
to the creditor. So the action of debt was an action for the specific
enforcement of a legal duty, often quasi-contractual in character
rather than contractual. The earlier legal mind conceived of a
right to a specific sum of money as being of the same character
as a right to any other specific property, 0 and debt lay to recover
this specific sum because the plaintiff owned it, not because the
defendant had promised it. So, specific sums due by statute,
custom, or judgment, or by unilateral contracts where the quid
pro quo had passed to the defendant,71 were collectible in debt.
69 Kellogg v. Turpie, 93 IIl., 265; Ferguson v. Carrington,9 Barn. & C.,
59; Rayburn v. Comstock, 80 Mich., 448 (last paragraph).

70 See Maitland, Lectures on Equity and Forms of Action, 357.
71 Salmond, Essays in Juris., 181-182; Holdsworth, History of English
Law, Vol. 3, p. 283, 326.
YALE LAW JOURNAL
The action is a contractual action in the last case, where there was
a true agreement; in the other cases it is not. But the action of
debt came to be called contractual, because in the majority of cases
where it was used there was in fact an agreement, and a debt came
to be called a contract. So in English history we do not need
so much to explain why quasi-contractual obligations came to be
enforced in the action of debt, as to explain why debt came to be
72
called a contractual form of action.
The action of account had a. similar history, being first of a
73
quasi-contractual character and founded upon property rights,
its use becoming proper also where there was an agreement, until
finally it was superseded by assumpsit and by a bill in equity.
The use of the action of assumpsit to enforce quasi-contractual
obligations has been well explained.7 4 But inasmuch as debt and
true indebitatus assumpsit are nearly identical, it was natural
enough for the latter to replace the former in quasi-contractual
cases as well as in contractual ones. Further, assumpsit is of
tort parentage, and it does not seem unnatural to use it in cases
of waiver of tort. The action on the case was the action most
easily extensible to new obligations which society acting through
its courts might desire to create and enforce. However, assumpsit
is used to enforce quasi-contractual obligations only in those cases
where it is being used as a substitute for debt.
Express assumpsit, an action upon a special promise, is always
more of the common counts that are used. However, there is
ex contractu, and the measure of recovery is the damage suffered
by the promisee in not getting the thing promised. The common
counts also may be used to enforce an express agreement, but it is
only in cases where debt also would lie, where there is a specific
sum of money due from the defendant, or where the contract was
not wholly express and the law creates a partly quasi-contractual
obligation to pay a reasonable sum. When assumpsit is brought
to enforce a quasi-contractual obligation, it is generally one or
more of the common counts that are used. However, there is
no objection to a plaintiff's stating a quasi-contractual obligation
in the form of a special (uncommon) count.7" It therefore
72 See Anson, Contracts, chapter on quasi-contracts.
7 See Holdsworth, History of English Law, Vol. 3, p. 323; Vol. 2, Pol.
& Mait., 219.
74 Ames, 4-istory of Assunpsit.
7' Bachelder v. Fisk, 17 Mass., 464; Merchants Ins. Co. v. Abbott, 131
Mass., 397; Reina v. Cross, 6 Calif., 29; Knowlnan v. Bluett, L. R., 9
Exch., 307.
appears that the character of the cause of action, as to its being

contract or quasi-contract, cannot be determined from the form
of the plaintiff's count in assumpsit. It depends upon the facts
and the proof. The action is contractual if the plaintiff proves
a real agreement, express or implied in fact, and asks for damages
for its breach. Assumpsit in any other case is quasi-contractual.
The same may be said of debt, of account, of a bill in 6quity,
of a libel in admiralty, of a case brought before an arbitrator, of
a civil action under the codes Any of them may be used to
enforce either a contract or a quasi-contract. The distinction is
one of substance, not of form, and depends upon the facts and
the proof.78 A quasi-contract has been defined as a legal obliga-
tion enforced by contractual remedies. This is a correct state-
ment, but it is not a definition for the reason that it does not
enable us to know a quasi-contract when we see it. All obliga-
tions are legal obligations and all courts give contractual remedies.
If it means "contractual remedies at common law," the definition
is altogether too limited, and it would mean nothing in States that
have adopted the civil action as the universal form. For'many
reasons, the definition of quasi-contract cannot be made to depend
upon the form of pleading. Our courts, now that they have
equitable jurisdiction and have the civil action at their command,
must not refuse to enforce a quasi-contractual obligation merely
because they cannot find a precedent in debt or assumpsit, or
merely because some court of common law held that debt
or assumpsit would not lie. Maitland has said: "The forms of
' 77
action we have buried, but they still rule us from their graves."
It is time for us to lay their ghosts. The civil action, with the
Lord Chancellor on its right band and the Lord Chief Justice on
its left, need not be frightened at the apparition of assumpsit or
debt, any more than we now tremble before inort d'ancestor or
novel desseisin whose ghosts are laid.
It has been made to appear above that obligations may be
classified according as they arise ex contractu, ex delicto, and
otherwise (ex variis causarurn figuris) .78 This third class is
70 Williams v.Jones, 13 M. & W., 628 (debt); Lockwood v. Kelsea,
41 N. H., 185 (assumpsit for money had and received); The Francisco
Garguilo, 14 Fed., 495 (libel in admiralty) ;Bright v. Boyd, 1 Story, 478,
2 Story, 605 (bill in equity).
77 Lect. on Eq. and Forms of Action, 296.
78 Gains, Dig., 44, 7, 1.
YALE LAW JOURNAL
further divided into obligations quasi ex contractu and obligations

quasi ex delicto. Let us now proceed to their formal definition.
Contractual obligations are those arising from an agreement
of two parties, and are enforced either specifically or by giving
the obligee damages in money equivalent to the thing that the con-
tract entitled him to receive.. To make out a cause of action, the
agreement and its breach must be proved. The obligation to per-
form is primary and antecedent ;79 the obligation to pay damages
is secondary and remedial. Both, however, are always classified
as contractual.
Obligations ex delicto are those arising from a tort, an illegal
act other than a breach of contract, and are enforced by giving to
the obligee compensatory money damages equivalent to the amount
of his loss. It is always a secondary and remedial obligation.
The primary, antecedent obligation, the breach of which is a tort,
is not an obligation ex delicto. It is like the obligation not to
commit a crime, enforced against sane persons only by threats of
punishment, and not by action. It is the correlative of a right
in rem, not of a right in personam.
Obligations quasi ex delicto are hardly known as such in the
common law. The Roman lawyers divided torts into two classes,
those where the wrongdoer was personally and actively at fault
and those where he was not. The latter were said to give rise to
an obligation quasi ex delicto. Such were torts of a servant for
which the master was held responsible, or the tort of negligence.
All other obligations must be quasi ex contractu. A review of
these other obligations, as set out in the earlier part of this article,
shows that they have the following things in common: they are
not based upon agreement; when they are primary in character,
they are specifically enforced; -When they are of a remedial char-
acter, the remedy is restitution of what the defendant has received
and is never compensatory damages. Therefore, a quasi-con-
tract is a legal obligation, not based upon agreement, enforced
either specifically or by compelling the obligor to restore the value
of that by which he was unjustly enriched.
The two essential features of this definition are the lack of
mutual consent and the omission to measure the damages done
to the obligee. Quasi-contract differs from contract in the first
named feature-the lack of agreement. It differs from tort in
79 See Holland, Iuris., Chaps. 12 and 13.

the second feature-the character of the remedy. There are

other differences between particular quasi-contracts and contracts,
and between particular quasi-contracts and torts; but the above
seem to be the only universally distinguishing features, and an
obligation possessed of these two features is certainly a quasi-
contract.
The field of quasi-contractual rights and obligations may be
shown by the following diagram:
Specifically enforcible
In rem/J
I eFrom agreement
(Contracts) Enforced by giving
compensatory
Rights damages
In personam Specifically enforcible

or otherwise than by
compensatory dam-
Not based on ages (Quasi-con-
agreement
(Q-C and Tort) tracts)
aEnforced
by giving
compensatory dam-
ages (Torts)
In the above outline and definition, specific enforcement does)

not mean merely the equitable remedy of that name. Obligations
are specifically enforced in other courts than equity. The action
of debt at common law is as truly an action for specific perform-
ance as is a bill in equity. The judgment in debt specifically
enforces the defendant's obligation to pay, with incidental dam-
ages perhaps. But incidental damages are also obtainable in
equity. Certain obligations may also be specifically enforced in
indebitatus assumpsit and by a libel in admiralty and in other
ways. Wherever the remedy may be sought, the obligation is
quasi-contractual if it is not based on agreement and is enforced
otherwise than by compensatory damages.
The correlative of an obligation is a right. A quasi-contractual
right is any right in personam that arises by act of the law inde-
YALE LAW JOURNAL
pendently of agreement, and is either specifically enforcible or

measured by the amount of the defendant's enrichment.
A quasi-contract cannot be distinguished from a contract or tort
on the ground that the obligation is created by the law. All
enforcible obligations are created by the law.s0 One is under an
obligation when he is subject to compulsion. In all cases the
c6mpulsion is from society, acting through the courts as its agents.
Society may exert its force through other agents, but we are not
now concerned with them. If a party makes a valid contract to
convey land, society may enforce this primary obligation specifi-
cally in equity, or it may substitute a secondary obligation to pay
damages and enforce that, or under some circumstances it may
permit a rescission and compel restitution of the price paid. The
last alternative is quasi-contractual; but the obligation is societal
and legal in all three cases. The same is true of torts. Society
may specifically order us by injunction not to destroy property;
or society may create and enforce a secondary obligation to pay
for all damage caused by the tort. In either case the obligation
is legal, the compulsion is societal.8 '
It has been said that the courts extended contractual remedies
to enforce quasi-contractual obligations, because "to discharge the
obligation imposed by quasi-contract one must act," "while to
so "An obligation is a legal bond, with which we are bound by a neces-

sity of performing some act according to the laws of our State." Inst. of
Just., 3, 13.
"An obligation, as its etymology denotes, is a tie, whereby one person
is bound to perform some act for the benefit of another. In some cases
the two parties agree thus to be bound together, in other cases they are
bound without their consent. In every case it is the law which ties the
knot, and its untying, 'solutio', is competent only to the same authority."
Holland, Juris., ed. 10, p. 236.
"Si l'on consid~re la force juridique de l'obligatiofn, l'action qui en fait
un vinculum jinis, toute obligation vieint de la loi: car c'est la loi qui, dans
tous les cas possibles, organise les moyens de coercition sans lesquels il
ne peut y avoir que les obligations naturelles. Sous ce rapport, aucune
distinction n'est possible: toutes les obligations viennent de la loi." F.
Mourlon, Code Civil, Vol. II, Sec. 1660. Se also Baudry-Lacantinerie and
Barde, Droit Civil, Vol. III des obligations, p. 1040; Savigny, Obligation-
enrecht, p. 4:
81 Holland (Iuris., ed. 10, p. 238) having classified quasi-contractual
rights among antecedent rights in personain, further defines them as rights
ex lege, in opposition to rights ex contractu. This description is defec-
tive, because, as he himself has shown, all obligations are ex ,lege.
avoid committing a tort one need only to forbear."' 2 This comes

near to indicating a distinction upon which a definition may be
based; but it does not afford a certain test. Most contracts, it is
true, require positive action rather than forbearance; but Very
large number require forbearance. Furthermore, it is not true
that all torts are breaches of a duty to forbear. Surely the tort
of negligence is generally the breach of a duty to act. 83 Therefore,
it would not do to define a quasi-contract as a breach of a duty to
act, arising independently of agreement.
It is readily to be seen from the foregoing survey and attempt
at definition, that the term quasi-contract is not at all a fortunately
chosen term. But there are indeed inherent difficulties, due to
the great variety of obligations to be described, that made the
choosing of a better term difficult two thousand years ago, and
84
make it still difficult to-day.
Arthur L. Corbin.
Yale Law School.
82 Keener, Quasi-Contracts, p. 15. "It resembles the true contract,
however, in one important particular. The duty of the obligor is a posi-
tive one, that is, to act." Ames, Hist. of Assumpsit.
s3 Negligence is defined by Austin (Lectures, II, p. 103) as the inad-
vertent omission to act as one ought, distinguishing it from heedlessness
and rashness.
"The omission to do something which a reasonable man would do,
or the doing of something which a reasonable man would not do." Alder-
son, B., in Blyth v. Birmingham W. Co., 11 Ex., 781.
"Negligence may consist either in faciendo or in non faciendo, being
indeed either non-performance, or inadequate performance of a legal
duty." Holland, Iurs., ed. 10, p. 111.
84 The use of the term quasi-contract in the French Civil Code is now
severely criticised in France, but the commentators must perforce use the
term.
"L'ide de quasi-contrat est particuli~rement critiquable. Aucun fait
n'a un caract~re presque contractuel. Ceux que l'on d6signe sous le nom
de quasi-contrats, ne sont nullement comparable a des contrats. En effet,
les obligations y prennent naissance ind~pendamment de tout accord de
volont6s, et mEme, du moins dans certains cas, sans la volont6 du d6biteur,
Ces faits sont, par consequent, d~pourvus de l'616ment qui est de l'essence
-mnme des contrats." )Baudry-Lacantinerie and Barde, Droit Civil, des
Obligations, Vol. III, pp. 1040, 1041. To the same effect, Girard, Droit
Ronzain, ed. 4, p. 389. Of the term quasi-contract, Rambaud (II Droit
Romain, 300) says: "Cette d6signation ne se trouve pas, il est vrai, dans
les textes, mais elle a &6 employ6 par Pothier et reproduite par notre
Code civil, et nous nous en servirons 6galement pour ]a commodit6 du
langage." See also Bry, Droit Romain, ed. 5, p. 459; and G. May, Droit
Romain, ed. 8, p. 238.
554 YALE LAW JOURNAL
The definition in the French code is entirely inadequate. Art. 1371.
"Les quasi-contrats sont les faits purement volontaires de l'homme, dont il
r~sulte un engagement quelconque envers un tiers, et quelquefois un
engagement r~ciproque de's deux parties." See F. Mourlon, Code Civil,
Vol. II, 1660, 1661. This definition is repeated in the Louisiana code,
merely limiting it by adding the adjective "lawful." Howe, Civil Law, 269.
Bracton defined quasi-contracts as those "quae nee omnino ex pacto,
neb omninoex-maleficio (oriuntur), sed tamen majorem cum pactis habent
aflfinitatem, quam cum maleficiis." His illustrations are identical with
those given in the Izstitutes of Justinian. See Gfiterbock, Bracton and His.
Relation to the "Roman Law.
College of William & Mary Law School
William & Mary Law School Scholarship Repository
Faculty Publications Faculty and Deans
1975
The Concept of Benefit in the Law of Quasi-

Contract
Timothy J. Sullivan
William & Mary Law School
Repository Citation
Sullivan, Timothy J., "The Concept of Benefit in the Law of Quasi-Contract" (1975). Faculty Publications. 476.
https://scholarship.law.wm.edu/facpubs/476
Copyright c 1975 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
https://scholarship.law.wm.edu/facpubs
THE CONCEPT OF BENEFIT IN THE LAW
OF QUASI-CONTRACT
TIMOTHY J. SuLLIVAN*
INTRODUCTION
The appeal of a legal rule requiring the disgorgement of gains

unjustly acquired or retained is so compelling that scholars from
classical times to our own era may be cited in its support. 1 The
enthusiasm for separating a wrongdoer from his illicit gains, however,
has obscured careful analysis of what constitutes an unjust benefit
sufficient to entitle a plaintiff to recover in quasi-contract on
restitutionary principles.2 Not only do we lack a comprehensive
concept of benefit, but the need to develop uniform yardsticks for
measuring the quantum of gains unjustly obtained also has been
neglected.
The central function of quasi-contract in providing a remedy in
extremis may explain why no wholly consistent or comprehensive
definition of benefit is possible or even desirable. 3 Quasi-contract fills
many gaps in areas to which other more conventional legal actions do
not comfortably extend4 and often provides a remedy of last resort. To
serve these objectives the application of quasi-contract necessarily must
be improvisational. In failing to recognize that a doctrine serving such
divergent and exigent purposes is not likely to emerge as a model of
rationality, courts and scholars often have confused the concept of
*Associate Professor of Law, Marshall-Wythe School of Law, College of Williani and

Mary; A.B., William & Mary, 1966; J.D., Harvard University, 1969. The author wishes to
acknowledge the generous assistance of his colleague, Professor Elmer J. Schaefer, and his
research assistant, Mr. Marc Kane, J.D., 1975, William and Mary.
1. See J. DAWSON, UNJUST ENRICHMENT 3 (1951) (authorities cited as various as Pom-
ponius, a second century Roman lawyer, and the Restatement ofRestitution).
2. See Comment, Quasi-Contracts-Concept of Benefit, 46 MICH. L. REV. 543, 544
(1948). Relatively few articles or student comments have treated the concept of benefit as
a distinct topic of general application. See generally Jeanblanc, Restitution under the
Statute of Frauds: What Constitutes a Legal Benefit, 26 IND. L.J. 1 (1950); Note, The
Necessity of Conferring a Benefit For Recovery in Quasi-Contract, 19 HASTINGS L.J. 1259
(1968).
3. See J. DAWSON, supra note 1, at 7.
4. See Comment, supra note 2, at 551, 553-54.
1
2 THE GEORGETOWN LAW JOURNAL [Vol. 64:1
quasi-contract. A more reasonable analysis of quasi-contract suggests

that the doctrine simply cannot be systemized.
THE HISTORICAL ORIGINS oF QuASI-CoNTRACT
Quasi-contract 5 grew out of the common law action of general

assumpsit, which itself was the progeny of the contract action of special
assumpsit. 6 Prior to the development of assumpsit, the personal actions
of covenant and debt were the principal means of enforcing contractual
obligations. 7 The action of covenant was never used widely in the
King's courts.8 Debt was a much more common device for the
enforcement of promises, although recovery in that action did not
hinge on a showing of mutual promises; indeed, a defendant would be
found liable in debt not because he had made a promise and failed to
perform but because he had received a benefit and had not given the
agreed value in return. 9
Since procedural limitations plagued the actions of covenant and
debt, 10 lawyers sought alternative forms of action for claims that
modern legal minds would denominate contractual. The King's courts
showed little interest in expanding the enforceability of promises
through liberation of these strict procedural rules, and plaintiffs'
lawyers turned to the action of trespass on the case as a more fruitful
5. Quasi-contract historically is a term limited in application to legal actions for there-

covery of money. Modem usage has expanded the meaning of quasi-contract to include a
wide range of restitutionary actions both at law and in equity; this modem usage has been
criticized, however, as misleading and historically inaccurate. See Henderson, Promises
Grounded in the Past: The Idea of Unjust Enrichment and the Law of Contracts, 57 VA. L.
REv. 1115, 1135 n.88 (1971). See generally Comment, Restitution: Concepts and
Tenns, 19 HASTINGS L.J.1167 ( 1968 ).
6. See J. DAWSON & R. PALMER, CASES ON RESTITUTION 1 (1969). The genesis and
maturation of quasi-contract is rooted firmly in English legal history. A detailed analysis
of the complicated and uncertain history of quasi-contract is beyond the scope of this ar·
ticle; other sources adequately discuss that history. See generally J. DAWSON, supra
note I; R. GoFF & G. JoNES, RESTITUTION (1966); R. JACKSON, THE HISTORY OF QuASI-CoN·
TRACT IN ENGLISH LAw (1936); W. KEENER, THE LAW OF QuASI-CoNTRACTS (1893); P.
WINFIELD, QUASI-CoNTRACTS (1952).
7. SeeS. MILSON, HISTORICAL FOUNDATIONS OF THE CoMMON LAW 60·61 (1969). The
actions of covenant and debt were called personal actions because they were purely private
and of no interest to the King. To say that these actions were contractual is to impose the
logic and classifications of our time upon a much different legal system. See id. at 211-17.
8. See id. at 215.
9. See id. at 224.
10. Defects in the action of debt from the plaintiff's point of view included the defen·
dant's right to wage his law, the requirement that the amount in issue be a sum certain,
and the extraordinary difficulty of pleading in debt. See T. PLucKNETT, A CoNCISE
HISTORY OF THE CoMMON LAW 565·66 ( 1936).
1975] QUASI-CONTRACT 3
alternative. Early lawyers clearly understood that a breach of a parol

promise was a tort, 11 but only gradually did they perceive actions in
trespass as at least partly contractual. 12 The development of the
contractual aspects of trespass focused attention on assumpsit, which
had its origin in trespass. .AF. actions in assumpsit became more
common, efforts were made to make assumpsit applicable to all cases of
simple contract to which debt applied. 13
The first step in the development of assumpsit as a functional
substitute for debt was the recognition "that a preexisting debt
constituted a consideration for a promise, and therefore, if one who
was already under an obligation enforceable by an action of debt made
a promise to pay the debt, such action was enforceable by an action of
assumpsit.m 4 Thus, if a plaintiff could show a second promise to pay,
subsequent to the creation of the obligation sought to be enforced, his
action in assumpsit would be free of the disabling procedural
impediments of debt. The decision in Slade's Case, 15 that the second
express promise need not be shown, 16 represented the next step. The
action created by that decision, indebitatus assumpsit or special
assumpsit, became a remedy substantially equivalent to debt. 17
The final step in the development of quasi-contract as a relatively
distinct legal doctrine can be traced to the opinion of Lord Mansfield in
Moses v. Macferlan, 18 a case involving an action in indebitatus
assumpsit. The plaintiff in Moses had endorsed notes of a third party
over to defendant upon defendant's promise that no action would be
commenced against the plaintiff on his endorsement. The defendant
breached that promise, sued the plaintiff in a separate action, and
recovered judgment. The plaintiff paid the judgment but brought an
action against the defendant in special assumpsit. 19 In awarding
11. See Ames, TheHistoryofAssumpsit:Parti, 2HARv.L.REv.1,15(1888).

12. See generally T. PLUCKNETI', supra note 10, at 570 (quoted exchange between
counsel on whether trespass action sounded in tort or contract).
13. Actions in debt were the exclusive province of the courts of common pleas. The
judges of the King's Bench, who had jurisdiction over assumpit, thus had considerable
incentive to permit the expansion of assumpit as an action in competition with debt.
Assumpit developed as a contractual action in King's Bench. See 3 W. HOLDSWORTH, A
HISTORY OF ENGLISH LAW 443 (1923); T. P!..UCKNETT, supra note 10, at 576.
14. F. WOODWARD, THE LAW OF QUASI-CoNTRACTS§ 2, at 3 (1913).
15. 76 Eng. Rep. 1074 (K.B.1602).
16. Id.
17. Professor Ames argues that Slade's Case was not the source of indebitatus
assumpsit; he maintains "instead that the holding of Slade's Case was the law at least 60
years before the case was decided. See Ames, supra note 11, at 16.
18. 97 Eng. Rep. 676 (K.B.1760).
19. Id.
judgment for the plaintiff, Lord Mansfield answered. the defendant's

objections that there was no promise by observing:
If the defendant be under an obligation, from the ties of

natural justice, to refund; the law implies a debt, and gives this
action, founded in the equity of the plaintiff's case, as it
were upon a contract ("quasi ex contractu," as the Roman law
expresses it). 20
Lord Mansfield was the first commentator to suggest that obligations

based upon fictional promises should be enforced.21
Lawyers continued to test the logical limits of the concept of
quasi-contract. They focused principal attention on the distinction
between actions in contract premised on a consensual agreement and
proceedings in quasi-contract grounded in ideas of unjust enrichment.22
As a result of this persistent probing, the doctrine of quasi-contract
evolved into "a peculiar hybrid, a residuary remedy supplementing the
contract and tort remedies of the common law and the wide range of
equitable remedies."23
The reach of quasi-contract has continued to expand; quasi-
contractual principles are applied in a wide variety of contemporary
situations. This breadth of application has resulted in much confusion.
One persistent source of difficulty, and the subject of this article, is the
definition of a benefit to the defendant sufficient to entitle a plaintiff
to recoverv
THE MEANING OF BENEFIT
Courts show substantial agreement that a defendant who receives a

tangible asset has received a recoverable benefit. 24 Since 1705, in
reliance on La mine v. Dorrell, 25 a plaintiff whose goods have been
converted and sold may dispense with his action in tort and proceed in
20. Id. at 678.

21. See F. WooDWARD, supra note14,§2,at4.
22. See J.DAWSON&R.PALMER, supra note6,at4.
23. I d. at 4-5.
24. See, e.g., City of Vernon v. Southern Cal. Edison Co., 191 Cal. App. 2d 378, 394, 12
Cal. Rptr. 701, 711 (1961) (use of electric system); Bellanca Corp. v. Bellanca, 53 Del. 378,
383, 169 A.2d 620, 623 (1961) (receipt of brokerage services); Estate of Phillips, 10 Misc.
2d 714, 716, 173 N.Y.S.2d 632, 635 (Sur. Ct. 1958) (receipt of money and labor); Bill v.
Gattavara, 34 Wash. 2d 645, 648, 209 P .2d 457, 459 (1949) (receipt of cash).
25. 92 Eng. Rep. 303 (K.B. 1705 ).
quasi-contract. 26 Most American courts have followed the English

precedent and have allowed a quasi-contract action as an alternative to
a tort action in conversion.27 Since the existence of benefit in these
cases usually is clear, the question of whether a benefit sufficient to
allow recovery has been shown rarely is raised explicitly.
The plaintiff's right to waive the tort remedy and sue in quasi-
contract has not been so obvious when the defendant converter has not
resold the wrongfully acquired goods but instead has consumed or
retained them. Many American jurisdictions initially rejected the right of
a plaintiff to sue in quasi-contract where the converted goods had not
been resold. 28 Persistent criticism by respected scholars,Z 9 however,
eventually convinced most jurisdictions to allow quasi-contractual
recovery from a converter in the absence of resale. 30 The concepts of
benefit expressed in the older cases denying recovery if the converter
has not resold nevertheless provide an important starting point for an
analysis of the status of the idea of benefit in modern cases. Two
fundamental questions shape this analysis: whether the concept of
benefit in earlier cases was so narrow that courts would not afford relief
26. I d. at 303-04. The rules governing the definition of benefit in quasi-contract are iden-
tical whether the origin of the action is in contract or tort. Whether unjust enrichment
principles should be applied uniformly to quasi-contracts arising out of a tort, an express
contract, or an implied contract raises a broader and more controversial question. The
more traditional view holds that quasi-contract principles constitute a body of law sep·
arate from either tort or contract and thus are uniformly applicable to any relevant set of
facts. Some commentators have argued in recent years, however, that quasi-contract
actions based on the existence of an express contract should be resolved separately and
more in accordance with conventional contract law. See Childres & Garamella, The Law
of Restitution and the Reliance Interest in Contract, 64 Nw. U.L. REV. 433, 439-40 (1969)
[hereinafter cited as Childres & Garamella]; Perillo, Restitution in a Contractual
Context, 73 CoLUM. L. REv. 1208, 1215-19 (1973). But cf. Dawson, Restitution or Dam-
ages?, 20 OHIO ST. L.J. 175, 189-90 (1959) (only benefit from analyzing quasi-contract
actions with traditional contract action is elimination of election of remedies problems).
27. See, e.g., Felder v. Reeth, 34 F.2d 744, 746 (9th Cir. 1929); American Smelting &
Refining Co. v. Swisshelm Gold Silver Co., 63 Ariz. 204, 210-11, 160 P.2d 757, 760 (1945);
Canepa v. Sun Pacific Co., 126 Cal. App. 2d 706, 711, 272 P.2d 860, 864 (1954); Davidson
Grocery Co. v. Johnston, 24 Idaho 336,342-43, 133 P. 929,930 (1913); Downs v. Finnegan,
58Minn.112, 117, 59N.W. 981,982 (1894); Siegman v. Siegman, 155 Ore.l73, 182,62 P.2d
16, 20 (1936); Ferrous Products Co. v. Gulf States Trading Co., 323 S.W.2d 292, 296 (Tex.
App.1959).
28. See, e.g., Crowv. Boyd, 17 Ala. 51, 54 (1849); Woodruffv. Zaban & Son, 133 Ga. 24,
25-27, 65 S.E. 123, 123-24 (1909); Jones v. Hoar, 22 Mass. (5 Pick.) 285, 289-90 (1827);
Capital Garage Co. v. Powell, 96 Vt. 227, 231, 118 A. 883, 885 (1922). See general-
ly Annot.,97 A.L.R.250(1935).
29. See F. WOODWARD, supra note 14, § 76, at 122-23; Corbin, Waivero{TortandSuit
in Assumpsit, 19 YALE L.J. 221,229 (1910).
30. In a few jurisdictions the courts have not explicitly rejected the absence of resale as
an impediment to recovery in a quasi-contract. See, e.g., Janiszewski v. Behrmann, 345
Mich. 8, 36-39, 75 N.W.2d 77, 80-82 (1956) (dictum); McDonald v. First Nat 'I Bank, 353 Pa.
29, 32-33,44 A.2d 265, 266 (1945); Anderson Equipment Co. v. Findley, 350 Pa. 399,401-
02,39 A.2d 520,522 (1944).
on restitutionary principles unless the converted goods were trans-

formed into cash; and whether the restrictions of these older cases were
explicable on grounds unrelated to the existence or definition of
benefit.
Jones v. Hoar 31 is the leading American decision rejecting recovery in
quasi-contract absent a sale by the converter. The defendant in Jones
had entered plaintiff's property and removed valuable timber. No sale
of the timber by the defendant was shown. 32 In affirming a judgment
for the defendant in a summary opinion, the Massachusetts Supreme
Judicial Court approvingly referred to the trial court's opinion, which
had cited a number of English and American decisions denying recovery
in quasi-contract on similar facts. 33 An examination of the cases cited
by the lower court in Jones suggests that the plaintiff was denied
recovery for two reasons. First, courts did not clearly perceive the
general concept of unjustified benefit as the underlying justification for
the range of actions that we call quasi-contract. The cases extracted by
the trial judge in Jones do not refer to the concept of benefit in the
abstract but only to some particular manifestation of benefit such as
money received or goods exchanged for money. 34 Second, neither the
trial nor the appellate court in Jones could find precedent for implying
a promise from the relationship between the plaintiff and defendant
necessary for recovery in quasi-contract. 35 Jones v. Hoar manifests a
persistent devotion to maintaining the strict integrity of existing legal
categories. The judges who decided the case were not philosophically
disposed to break new ground by infusing the idea of quasi-contract
with a concept that must have seemed dangerously flexible.
Many of the opinions following Jones v. Hoar provide no logical
justification for denying restitution against a converter in the absence
of a sale of the converted goods. 36 The Missouri Supreme Court stated
the case against recovery explicitly in Sandeen v. Kansas City, St.
Joseph & Council Bluffs Railway Co.: 37
The doctrine [permitting recovery in quasi-contract of the

value of converted goods not sold by the converter] came to
be extended by some courts to all cases in which the
31. 22Mass. (5Pick.)285(1827).

32. I d. at 285.
33. I d. at 289; see id. at 285·89 (footnote)(text oflower court's opinion).
34. Id. at 285-89 (footnote).
35. I d. at 290.
36. See Quimbyv. Lowell, 89 Me. 547, 549·50, 36 A. 902,903 (1907); Telford & F. Turn·
pike Co. v. Gerhab, 9 Sad. (Pa.) 550, 553, 13 A. 90,92 (1888) (per curiam).
37. 79 Mo. 278 (1883).
wrong-doer had acquired a benefit by his wrong. It was

claimed that natural justice raised the promise upon the faith
of the benefit received.... This extension of the doctrine
would tend to do away with the action of tort, for perhaps in
a majority of the wrongs inflicted the wrong-doer receives
some benefit. 38
The court in Sandeen correctly perceived the consequences of a flexible

definition of the benefit necessary to recovery in restitution; like the
court in Jones, it found most compelling the impulse to preserve
existing legal categories and salvage something of the forms of action. 39
The cases denying recovery in quasi-contract for conversion without
sale represent an enduring strain of judicial hostility to quasi-
contractual recovery, even in situations where the defendant has acted
wrongly and has received a clear and tangible benefit. This judicial
hostility results partially from the courts' distaste for the role of
quasi-contract as a subverter of more conventional legal doctrines. No
doubt the courts that recognized the existence of a benefit did so only
grudgingly, because they were unable, as a matter of logic, to
distinguish between a converter who transformed goods into cash and a
converter who merely consumed or retained goods himself.
Determination of the existence of benefit in cases arising out of
actual or supposed contractual relationships follows standards sub-
stantially similar to those applicable in actions where the benefit results .
from the defendant's tortious conversion of goods. When a breaching
party is shown to have received a tangible benefit, courts have been
willing to force disgorgement on quasi-contractual grounds. 40 Whether
38. Id. at281·82.

39. See Holt v. Mackham [1923] 1 K.B. 504. In Holt Lord Scrutton, writing in 1923,
evidenced a similar dislike of quasi-contract because of the violence it does to established
legal categories. Lord Scrutton observed:
Now ever since the time when that great judge, Lord Mansfield, with no doubt a
praiseworthy desire to free the Court from the fetters of legal rules and enable them to
do what they thought to be right in each case ... the whole history of this particular
form of action has been what I may call a history of well-meaning sloppiness of
thought.
Id. at513.
40. Various reasons may explain why an aggrieved party chooses to sue in quasi·
contract rather than for damages for breach of contract. See,e.g., Elder v. Chapman, 176
Ill.142, 52 N.E.10 (1898) (gambling contract); Masseyv. Becker, 90 Ore. 461, 176 P. 425
(1918) (acceptance of payment after default may constitute waiver of breach); True v. J .B.
Deeds & Son, 151 Tenn. 630, 271 S.W. 41 (1925) (subject matter jurisdiction). Where the
plaintiff cannot establish the value of his expected losses with certainty an action in quasi-
contract becomes an attractive alternative that will permit judgment for the plaintiff. See
Shriver v. Cook, 256 Iowa 271, 278·79, 127 N.W.2d 102, 106-07 (1964). Professor Corbin has
objected to use of the term quasi-contract to describe a situation in which plaintiff seeks
restitution instead of bringing a damage action for breach of an express contract. 5 A.
CoRBIN, CoNTRAcrs § 1102 (1964). Corbin's view has not been adopted universally by the
courts. See Gladowski v. Felczak, 346 Pa. 660, 663-65,31 A.2d 718, 720 (1943).
the defendant is a tortfeasor or a contract breacher, a showing that the

defendant unjustly has reaped a tangible gain at the expense of the
plaintiff usually will support recovery in quasi-contract.
If the benefit received by the defendant is neither concrete nor
readily quantified but incorporeal and difficult to measure, establishing
the existence of the benefit required for quasi-contract recovery
becomes more complicated. Phillips u. Homfray, 41 where the defendant
had used underground passages beneath the plaintiff's property to
transport coal, provides a starting point for analyzing the existence of
benefit when the defendant receives a less tangible gain. The plaintiff in
Phillips theorized that the net savings that accrued to the defendant as a
result of his wrongful use of plaintiff's land rightfully belonged to the
plaintiff on quasi-contractual grounds. 42 The court rejected the
argument, however, endorsing the defendant's contention that
"[u]nless some part of the Plaintiff's property can be traced into the
trespasser's estate, . . . his estate cannot be made liable •... " 43 The
majority reasoned that the defendant had taken nothing from the
plaintiff merely by carrying coal underneath plaintiff's property.44 A
dissenting judge attacked the notion that the defendant must possess
tangible property or proceeds of property belonging to plaintiff in
order to establish the necessary benefit and concluded that a plaintiff
need show only that defendant saved an expenditure or that his assets
increased because of failure to pay for the benefit received.45
The majority opinion in Phillips reflects the restrictive view of
benefit that plaintiff must establish that the defendant has gained
something concrete before recovery in quasi-contract will be available.
Other cases of the same era support this strict concept of benefit. In
Schillinger u. United States 46 the plaintiff alleged that the Government
had realized a savings of $250,000 in laying stone on the Capitol
grounds by using plaintiff's patented invention without compensating
the plaintiff.47 The Supreme Court assumed that receipt of a benefit by
the Government had been shown but nevertheless rejected plaintiff's
41. 24Ch.D.439(1883).
42. I d. at 439-40.
43. I d. at 449.
44. I d. at 462.
45. Id. at 471 (Baggallay, L.J., dissenting). The theory that plaintiff need only show
tnat defendant saved an expenditure or increased his assets, which Lord Justice Baggallay
asserted as a basis for recovery, has been followed more widely in England that in the
United States. See Gutteridge & David, The Doctrine of Unjust Enrichment, 5 CAMB.
L.J. 204, 223·229 (1934).
46. 155 U.S.163 (1894).
47. Id. atl63·65.
1975] QUASI-CONTRACf 9
claim, concluding that quasi-contract was not available absent a

showing of a meeting of the minds. 48 The Court further suggested that
even if quasi-contract were appropriate no sufficient benefit had been
shown, because the plaintiff had not established what property of his
the Government had appropriated. 49 The Court thus restricted the
concept of benefit to palpable gain; the plaintiff's assertion that
expenses saved by the defendant constituted a cognizable benefit
simply fell outside the definition of benefit that the court was willing
to accept. 50
State court decisions in the nineteenth century, frequently involving
straying farm animals, adopted a similarly narrow view of benefit. If a
defendant's trespassing cattle or sheep consumed the plaintiff's crop or
pastureland, the defendant's gain was not difficult to establish since a
measurable quantum of plaintiff's crops or pasture grass had been
ingested. 51 The benefit to defendant becomes more obscure, however,
where straying animals invade plaintiff's field, trampling but not
consuming crops, even though a loss to plaintiff is self-evident. In
Tightmeyer v. Mongold 52 the defendant's cattle had trespassed on
plaintiff's property, but plaintiff could not prove that any grass or grain
had been consumed.5 3 The Kansas Supreme Court held that the absence
of tangible benefit to defendant was fatal to plaintiff's quasi-contract
claim regardless of how great his loss might be.54 That same term the
Kansas court again rejected the opportunity to broaden the concept of
benefit. The court's summary opinion in Fanson v. Linsley 55 reflects its
conviction that benefit in quasi-contract was not an abstract concept
that courts could manipulate flexibly to improve a desperate
plaintiff's chance for recovery. 56 The Supreme Court of New
Hampshire previously had rendered an opinion that depended upon an
equally conservative definition of benefit. 57
These American cases are united in spirit \vith the decision in Phillips
v. Homfray. 58 Although the facts of the cases differed, each reflects an
48. ld. at 169, 170-71.

49. Id. at 172.
50. Professor Woodward has criticized the narrow view of benefit endorsed in Schillin-
ger. See F. WOODWARD, supra note 14, § 275, at 443-445.
51. See, e.g., Tsuboi v. Cohn, 40 Idaho 102, 107, 231 P. 708, 709-10 (1924); Gillespie v.
Hendren, 98 Mo. App. 622, 626-27, 73 S.W. 361, 362 (1903); Monroe v. Cannon, 24 Mont.
316,320, 326, 61 P. 863,864,866 (1900).
52. 20 Kan. 90 (1878).
53. I d. at 92.
54. Id.
55. 20 Kan. 235 (1878).
56. See id. at 238-39.
57. See Pagev. Babbit, 21 N.H. 389,391-92 (1850).
58. 24 Ch. D. 439 (1883).
10 THE GEORGETOWN LAW JOURNAL [Vo1.64:1
implicit fear that adoption of a broader definition of benefit would

expand the concept of quasi-contract. Like the Massachussetts court's
decision in Jones v. Hoar, 59 these cases constituted part of an active,
although perhaps unconscious, effort to restrict the development of
quasi-contract. Countervailing tendencies already were exerting power-
ful pressure, but decisions like Schillinger and Tightmeyer should serve
as reminders that the judicial expansion 9f the definition of benefit was
not as inevitable as it now may seem.
Although a venerable strain of American case law exists that defines
benefit narrowly so as to preclude recovery where the plaintiff has not
proven tangible gain by the defendant, most jurisdictions in recent
times have developed a much broader definition of benefit. 60 The
Vrrginia Supreme Court decision in Raven Red Ash Coal Co. v. Ball 61
typifies this recent trend. The defendant in Raven Red had acquired
both mineral rights in plaintiff's land and an easement to construct a
railroad to transport the coal extracted from the plaintiff's property;
the defendant later obtained mineral rights to parcels surrounding the
land of the plaintiff and used the railroad to transport coal mined on
those adjoining tracts. 62 The plaintiff instituted an action in quasi-
contract to recover the benefit received by defendant from using the
railroad to transport coal other than that mined on plaintiff's
property. 63 The unjust benefit assertedly received by the defendant in
Raven Red was clearly intangible; no property belonging to the plaintiff
could be traced to defendant's hands. The gain alleged was similar to
that rejected as a basis for recovery in Phillips v. Homfray 64 - an
expense saved by the defendant. The court in Raven Red recognized
that other jurisdictions had refused to find a gain on similar facts, 65 but
affirmed plaintiff's recovery. The court reasoned:
59. 22Mass.(5Pick.)285(1827); see notes:h-35 supra andaccompanyingtext.

60. See, e.g., Edwards v. Lee's Adm'r, 265 Ky. 418, 423-24, 96 S.W.2d 1028, 1030·31
(1936) (benefit from use of cavern running under plaintiff's land); Carmichael v. Old
Straight Creek Coal Corp., 232 Ky.133, 140-42,22 S.W.2d 572, 576 (1929) (benefit from use
of railway over plaintiff's land); DeCamp v. Bullard, 159 N.Y. 450, 454-55, 54 N.E. 26, 28
(1899) (benefit from use of plaintiff's stream); Raven Red Ash Coal Co. v. Ball, 185 Va.
534, 542-43, 39 S.E.2d 231, 235-36 (1946) (benefit from wrongful use of easement). See gen·
erally Annot., 167 A.L.R. 796 (1947).
61. 185 Va. 534,39 S.E.2d231 (1946).
62. I d. at 537-38, 39 S.E.2d at 232-33.
63. Id. at 538, 39 S.E.2d at 232-33. Recovery in quasi-contract for the value of use and
occupancy of land traditionally has been denied in the absence of a landlord·tenant rela·
tionship. See Lockwood v. Thunder Bay River Boom Co., 42 Mich. 536, 538·39, 4 N.W.
292,293 (1880). The reasons for this restriction on recovery for use and occupation of land
are mainly historical. See AMES, LECTURESONLEGALHISI'ORY 167·71 (1913).
64. 24Ch.D.439(1883); see notes41-45 supra andaccompanyingtext.
65. 185 Va. at 543-48, 39 S.E.2d at 235-238; see Annot., 167 A.L.R. 796, 803·05 (1947).
The illegal transportation of the coal in question across

plaintiff's land was intentional, deliberate and repeated from
time to time for a period of years. Defendant has no moral or
legal right to enrich itself by this illegal use of plaintiff's
property.... Natural justice plainly requires the law to imply
a promise to pay a fair value of the benefits received.
Defendant's estate has been enhanced by just this much. 66
The court did not distinguish between a concrete gain and an intangible
benefit. In asserting that the fundamental question concerned whether
the plaintiff had received an unjustified benefit, the court concluded
that it would be illogical to deny recovery merely because the
defendant's gain did not assume tangible form. 67
Whether a particular court chooses to define benefit strictly or
liberally, in order to obtain relief in quasi-contract the plaintiff must
show receipt by the defendant of a gain that justifiably should be
restored to the plaintiff. The phrase "unjust enrichment" presumes the
existence of some benefit wrongfully acquired. Despite black letter
statements that a gain must be shown to justify recovery, 68 however, a
substantial body of cases arguably have allowed recovery in
quasi-contract even in the absence of any demonstrable benefit to the
defendant. 69 A long line of scholars have noted this anomalous result
and have offered various explanations, including the theory that the
remedy is intended primarily to restore the status quo ante. 70 Some
66. Id. at 548, 39 S.E.2d at 238 (footnote omitted).

67. I d. at 547, 39 S.E.2d at 237. The court in Raven Red reasoned that since the de-
fendant benefits substantially from his own wrongdoing regardless of the injury he inflicts
on the plaintiff, an implied promise to compensate plaintiff should be found even where the
defendant's actions do nothing to diminish the value of the plaintiff's property. I d.
68. See RESTATEMENTOFCoNTRACTS§348,comment a, at591-92(1932).
69. See, e.g., Williams v. Dougan, 175 Cal. App. 2d 414,415-418,346 P.2d 241, 242-44
(1959) (plaintiff recovered monies expended on care of animals that defendant inherited
but for which she had no concern); People's Nat1 Bank v. Magruder, 77 Fla. 235, 244-46,
81 So. 440, 443-44 (1919) (landlord's leasehold improvements made in reliance on tenant's
oral agreement to extend lease constitutes benefit to tenant); Vickery v. Ritchie, 202
Mass. 247, 250-52, 88 N.E. 835, 836 (1909) (defendant received no benefit when plaintiff
made unsuccessful business investment; recovery nevertheless allowed); Clement v.
Rowe, 33 S.D. 499, 505-07, 146 N.W. 700, 701-02 (1914) (land transferred to third party at
defendant's direction); Abrams v. Financial Serv. Co., 13 Utah 2d 343, 346, 374 P.2d 309,
311 (1962) (prospective buyer gained nothing from home improvements since sale was not
finalized, but seller allowed recovery); cf. Campbell v. Tennessee Valley Authority, 421
F.2d 293, 294·97 (5th Cir. 1969) (since valuation of benefit difficult, fair marliet value of
services or products used to determine plaintiff's recovery); Maragos v. City of Minot, 191
N.W.2d 570, 572 (N.D. 1971) (dictum) (inverse condemnation proceeding; recovery avail-
able on implied contract theory despite absence of benefit to Government).
70. See D. DOBBS, THE LAw OF REMEDIES 792 (1973); Childres & Garamella at 436-37;
Fuller & Perdue, The Reliance Interest in Contract Damages: 2, 46 YALE L.J. 373, 394
(1937); Henderson, supra note 5, at 1147; Patterson, The Scope of Restitution and Un-
just Enrichment, 1 Mo. L. REV. 223, 230 (1936); Perillo, Restitution in a Contractual Con·
text, 73 CoLUM. L. REV.1208, 1219·1226 (1973).
commentators have maintained that quasi-contract served as a

respectable disguise for the award of reliance damages before courts
recognized reliance losses as an appropriate basis for measuring recovery
in breach of contract actions;71 another asserts that courts in deciding
cases that arise from the breach of personal service contracts have
dispensed with the requirement that a benefit be shown simply to
protect the legitimate interests of plaintiffs who might go uncom-
pensated otherwise. 72 'One commentator unreasonably ascribes the
recovery of damages without requiring a showing of gain to judicial
ignorance of elementary distinctions in the law of quasi-contract. 73
Whatever the correct explanation of this trend may be, any inquiry into
the definition of benefit must account for those cases ostensibly
decided on quasi-contractual grounds that permit recovery without
requiring a finding of gain.
The clear preference of American courts in this century has been to
relax and in some instances to dispense with the requirement that
benefit be shown before quasi-contractual recovery is allowed. In this
judicial environment, the definition of benefit has varied depending
upon the exigencies of a particular case. Some courts consider benefit
to be any net gain measurable in monetary terms. 74 Other courts have
refused to eliminate explicitly the requirement that a benefit be proved
but nonetheless have found the necessary benefit on facts establishing a
most tenuous gain. 75 The Restatement of Restitution also specifically
71. Fuller & Perdue, supra note 70, at 393-94.

72. Note, supra note 2, at 1267. Personal service contracts raise significantly different
problems in the determination of unjust gain than do contracts for the sale of goods or
other tangible property. See REsrATEMENT OF REsriTUTION § 40 & comment a, at 155
(1937); Childres & Garamella at 451.
73. See 1970 DUKE L.J. 573, 581·82. The author criticizes the Fifth Circuit for its de-
cision in CampbeU v. Tennessee VaUey Authority, in which the court permitted recovery
in quasi-contract measured by the market value of plaintiff's services in preparing
microfilms rather than by the value received by the defendant. I d.; see 421 F.2d 293, 294·
97 (5th Cir. 1969). The author attributes the court's decision to its failure to distinguish
between contracts implied in law and contracts implied in fact. See 1970 DuKE L.J. at
581·82. The author fails to perceive, however, that the fundamental and threshold problem
raised by CampbeU is not the proper standard for measuring benefit, but instead whether
the defendant received any benefit at all. See 421 F .2d at 298 (Rives, J ., dissenting).
74. See Ablah v. Eyman, 188 Kan. 665, 678·79, 365 P.2d 181, 191-92 (1961); Indepen·
dent Electric Lighting Corp. v. M. Brodsky & Co., 118 Misc. 561, 563, 194 N.Y.S.1, 2 (Sup.
Ct.1972).
75. See, e.g., Phillips Petroleum Co. v. Cowden, 241 F .2d 586, 592-93 (5th Cir. 1957)
(unsuccessful exploration for mineral deposits); H.W. Kastor & Sons Adv. Co. v. Grove
Labs., 58 F. Supp. 1011, 1016·17 (E.D. Mo. 1945) (unsuccessful advertising campaign);
Meyer v. Parobek, 119 Cal. App. 2d 509, 511-12, 259 P.2d 948, 950·51 (1953) (sale of assets
in bankruptcy to satisfy creditors); Fabian v. Wasatch Orchard Co., 41 Utah 404, 407.08,
125 P. 860, 861·62 (1912) (advertising benefits where defendant ceased operation). Some
courts have arrived at a more restrictive view of benefit. See General Metals, Inc. v.
Green Fuel Economizer Co., 213 F. Supp. 641, 652 (D. Md. 1963); Tramonte v. A.J.
Rasmussen & Sons, 167 S.W.2d 566, 567 (Tex. Civ. App. 1942).
sanctions recovery on unjust enrichment principles for the preservation

of life and health even though the measurement of longer life or better
health cannot be translated easily into dollar amounts.76 A substantial
body of case law similarly supports recovery in quasi-contract for the
wrongful use of plaintiff's ideas,77 even though the precise measure-
ment of defendant's gain in such cases often has proved difficult.78
Procedural reforms, such as the adoption of Field Codes and the
growing influence of the Federal Rules of Civil Procedure, also have
contributed to the expansion of the concept of benefit. By eroding the
restrictive influence of the common law forms of action, these reforms
have freed courts from excessive concern over whether a
quasi-contractual remedy conflicts with the theory of plaintiff's
action. 79 'Result-oriented courts therefore may have expanded the
concept of benefit without any intellectual direction.
76. RESTATEMENT OF RESTITUTION § 116 (1937); see Cotnam v. Wisdom, 83 Ark. 601,
605-08, 104 S.W. 164, 165-66 (1907); In re Crisan's Estate, 362 Mich. 569, 574·76, 107
N.W.2d 907, 910·11 (1961).
77. See, e.g., Servo Corp. v. General Electric Co., 337 F.2d 716, 722-25 (4th Cir. 1964);
Hamilton Nat'l Bank v. Belt, 210 F.2d 706, 708 (D.C. Cir. 1953); DeFillips v. Chrysler
Corp., 53 F. Supp. 977, 980 (S.D.N.Y. 1944); Liggett & Myer Tobacco Co. v. Meyer, 101
Ind. App. 420, 429-431, 194 N.E. 206, 210 (1935). See generally Havighurst, The Right to
Compensation for an Idea, 49 Nw. U.L. REv. 295 (1954); Annot., 170 A.L.R. 449 (1947).
78. See Sheldon v. Metro·Goldwyn Pictures Corp., 309 U.S. 390, 403-05 (1940); Havig-
hurst, supra note 77, at 299·300.
79. See Murphy v. Lifschitz, 49 N.Y.S.2d 439, 440-42 (Sup. Ct. 1944), affd 294 N.Y.
892, 63 N.E.2d 26 (1945) (per curiam). The plaintiff in Murphy, a purchaser of liquor
under a sales contract, brought an action for specific performance or, alternatively, da-
mages after defendant seller failed to deliver the contract goods. Id. at 440. Defendant
had sold the subject liquor in the black market at a price substantially above the contract
price. Id. Finding no basis for awarding plaintiff a substantial recovery on a breach of
contract theory, the court instead awarded plaintiff recovery measured by defendant's
profit: the difference between contract price and black market price. Id. at 441-42. The
court evidenced no discomfort in awarding relief measured by a quasi-contract standard
even though the plaintiff's action had been brought on the contract.
The trend toward a liberal definition of benefit has not been without negative impact;
flexible definitions of benefit have further confused the muddled meaning of benefit and
have exacerbated the difficulty of framing damage awards in quasi-contract. The good
samaritan cases involving physicians illustrate the difficulty of determining damages
under a broad definition of benefit. The plaintiff physician may properly persuade the
court that defendant's improved health is a sufficient benefit to justify a recovery, but ar·
ticulation of a rational and consistent monetary standard that could be used to measure
the value of defendant's improved health is quite difficult. See Comment, supra note 2, at
545. Courts that have awarded recovery in these good samaritan cases measure the dam·
ages by the value of plaintiff's services rather than the benefit conferred on the defendant.
See Cotnam v. Wisdom, 83 Ark. 601, 606-07, 104 S.W. 164, 166 (1907); Ladd v. Witte, 116
Wis. 35, 40,92 N.W. 365,367 (1902). This measure of recovery conflicts with the theory of
the action, however, which asserts that the defendant has received an unjustified benefit.
To award recovery measured by the value of plaintiff's services without inquiring into
whether the value approximates defendant's unjust gain may be the only convenient basis
for measuring the award; it nevertheless begs the question confronting the court in quasi·
contract actions. Although plaintiff's recovery historically has been measured by the value
of his services and not their value to the defendant, application of this general rule does not
answer the argument that courts should consider the defendant's gain; in quantum meruit
THE CHILDRES-GARAMELLA HYPOTHESIS:

A RATIONAL CoNTROL MEcHANISM?
Against this background of ongoing judicial redefinition of benefit,

Robert Childres and Jack Garamella published a major article setting
forth an analytical framework within which quasi-contract actions
properly may be confined. 8 ° Childres and Garamella do not discuss
specifically the concept of benefit as an idea common to the wide range
of quasi-contract actions but limit the applicability of their theory to
suits growing out of express contracts. Observing that quasi-contract
principles have been overly utilized,81 the authors contend that a clear
distinction should be made between quasi-contract actions where an
actual benefit is conferred and those actions to recover the reasonable
value of expenses and services; Childres and Garamella argue that only
the former situation presents an appropriate setting for the application
of unjust enrichment theory. 82 The "reasonable value" cases, long
assumed to be based upon unjust enrichment principles, are simply
reliance damage actions. 83
The factual distinction between "actual benefit" and "reasonable
value" cases may be simply illustrated. Assume A contracts 'vith B to
sell a new automobile to B for $3,000. B gives A his check for the
$3,000 purchase price, but A refuses to deliver the promised auto-
actions the plaintiff's services ordinarily are requested, but in good samaritan cases the de-
fendant frequently makes no such request. See Edson v. Hammond, 142 App. Div. 693,
696, 127 N.Y.S. 359, 360 (1911). See generally RESTATEMENT OF RESTITUTION§ 113, com·
ment g, at 473-74 (1937) (appropriate measure of damage in good samaritan cases is value
of plaintiff's services).
Some courts have held that a plaintiff's recovery cannot be limited to nominal damages
simply because it is difficult to assign a monetary value to an intangible benefit. See Shell
Petroleum Corp. v. Scully, 71 F.2d 772, 774 (5th Cir. 1934) (unauthorized exploration for
minerals; recovery not limited to nominal damages despite difficulties of measuring bene-
fit); Edwards v. Lee's Adm'r, 265 Ky. 418, 427·28, 96 S.W.2d 1028, 1031·33 (1936) (tres·
pass on cavern partially beneath plaintiff's property; plaintiff entitled to one-third of net
profits of tourist enterprise where benefit difficult to apportion). See also Humble Oil &
Refining Co. v. Kishi, 276 S.W. 190, 191 (Tex. Comm. Civ. App. 1925), modified andre·
manded, 291 S.W. 538 (1927) (recovery cannot be limited to nominal damages because of
uncertainty of defendant's benefit from unauthorized drilling on plaintiff's property),
80. See Childres & Garamella, The Law of Restitution and the Reliance Interest in
Contract, 64 Nw. U .L. REv. 433 (1969) [hereinafter cited as Childres & Garamella].
81. See id. at 444.
82. I d. at 435·36.
83. Id. at 437-39, 457. See also Fuller & Perdue (parts 1 & 2), supra note 83, at 52,
373. Fuller and Perdue identify three interests that courts have recognized-explicitly or
implicitly-when awarding contract damages: a restitution interest, which describes the
claim of a promisee who has conferred some value on the promisor in reliance on the
contract; a reliance interest, which is premised on the promisee's claim to expenses
incurred in reliance on the contract but that have not benefitted the promisor; and an
expectancy interest, which reflects the promisee's claim to the value that the breaching
party's promise represents. I d. at 53-54.
mobile. Since A has been enriched tangibly to the extent of $3,000, an

action in quasi-contract to compel disgorgement of A's unjustified gain
would properly lie. According to the Childres-Garamella hypothesis,
this fact pattern presents a case of "actual enrichment." Assume next
that A agrees to custom build an automobile for B at a contract price of
$10,000. A purchases the necessary materials at a cost of $5,000 and
hires an assistant at a salary of $1,500. The materials prove unsuitable,
however, and the assistant is incompetent; A therefore discards the
materials, discharges his assistant, purchases new materials at a cost of
$6,000, and engages a new assistant at a salary of $1,800. As work on
the automobile begins anew, B repudiates the contract. A brings an
action to recover $15,000 representing the cost of materials, the salary
expense of his assistants, and the value of his own labor. This fact
pattern presents a "reasonable value" case in which reliance, rather than
quasi-contract principles, should. apply.
Childres and Garamella's analysis also addresses the question of
whether an aggrieved party suing in quasi-contract after part per-
formance can recover only according to the underlying contract rate.84
The question of when and to what extent recovery should be allowed in
excess of the contract rate relates directly to the concept of benefit in
quasi-contract, since courts implicitly must determine the extent of the
defendant's benefit in deciding whether recovery should exceed the
contract rate. 85 · Childres and Garamella propose no solution to this
question, concluding only that recovery should be limited to the
contract rate in some cases and not in others. 86 The authors do suggest
some guidelines for distinguishing between these two types of cases.
Suppose A contracts to supply B with 100 rifles at a unit cost of $100.
A delivers the first 30 rifles but at a unit cost of $300. B then
repudiates the agreement, and A sues in quasi-contract for $9,000- the
cost of manufacturing the rifles. 87 Under the Childres-Garamella
84. See W. KEENER, supra note 6, at 289; F. WooDWARD, supra note 14, § 268, at 430·
31. The great majority of American courts have permitted recovery in quasi-contract in
excess of the contract price. See, e.g., Southern Painting Co. v. United States, 222 F .2d
431, 433-34 (lOth Cir. 1955); Boomer v. Muir, 24 P.2d 570, 578 (Cal. Dist. App. 1933);
Heitz v. Sayers, 32 Del. 207, 218-20, 121 A. 225,230-31 (1923). See generally Palmer, The
Contract Price as a Limit on Restitution for Defendant's Breach, 20 OHIO ST. L.J. 264
(1959). Only a few jurisdictions have denied recovery in excess of the contract
rate. See Kehoev. Mayor & Common Council, 56 N.J.L. 23,26-27,27 A. 912,913 (Sup. Ct.
1893); Doolittle & Chamberlain v. McCullough, 12 Ohio St. 360, 365-67 (1861).
85. See Childres&Garamellaat446-47.
86. Id. at 457-58.
87. See Acme Process Equip. Co. v. United States, 347 F.2d 509, 530 (Ct. Cl. 1965),
rev 'don other grounds, 385 U.S. 138 (1966) (restitution available on similar facts; remand
to determine why costs exceeded contract rate).
analysis, whether A may recover more than the $3,000 contract price
depends on why the expenses incurred by A exceeded the contract rate.
Courts should permit recovery in excess of the contract rate where the
additional costs were incurred not because of A's inefficient operation
but because the "real" value of the rifles when completed and delivered
exceeded the contract price. Such recovery should be allowed because
A is not casting the additional cost of his incompetence on the
defendant but rather seeks to obtain only a return of the increment of
"real" value above the contract price unjustly received by B.88
The Childres-Garamella hypothesis has major implications for the law
of quasi-contract and the concept of benefit. By narrowly defining
benefit to include only cases in which the defendant can be shown to
have obtained "real" gain, the authors' theory contracts the area of the
law to which unjust enrichment principles should apply. 89 This narrow
definition of benefit excludes from the ambit of quasi-contract law
innumerable cases that traditionally have been decided by applying
quasi-contract concepts. 90 ' In arguing that cases growing out of an
explicitly contractual setting are more appropriately decided on
reliance theory, Childres and Garamella inject a useful control
mechanism into the law of quasi-contract by which the outer limits of
the remedy may be more rationally defined.
The Childres-Garamella hypothesis is not without defects. By
limiting their inquiry to quasi-contract actions arising out of actual
contractual relations, 91 the authors do not analyze directly the
multitude of quasi-contract actions that arise in tort or that do not
depend on any underlying express contract. The tangled history of
quasi-contract and its broad application militate against such a
compartmentalization of the doctrine into neat, self-contained
segments. Quasi-contract resulted from the need to supplement a
variety of tort and implied contract remedies and has developed
without sharp distinctions based on the origin of the action. Childres
and Garamella may be correct in objecting to such imprecision as the
88. Under the Childres-Garamella analysis, A could recover costs in excess of the
contract rate even if they did not represent a "real" increase in value of the rifle to the
extent that his additional expense represented startup costs that increased the production
costs of earlier units. See Childres & Garamella at 445.
89. See id. at 443.
90. See Acme Process Equip. Co. v. United States, 347 F.2d 509, 530 (Ct. Cl. 1965),
rev 'don other grounds, 385 U.S. 138 (1966) (non-defaulting plaintiff recovers reasonable
cost of performance); Boomer v. Muir, 24 P.2d 570, 578 (Cal. Dist. App. 1933) (plaintiff
recovers cost of performance less inefficiency loss).
91. See Childres & Garamella at 433-37.
root of much confused thinking about quasi-contract, but the history

and purposes of the action cannot be ignored. 92
Childres and Garamella's fundamental distinction between actions in
which the plaintiff seeks to recover "real" enrichment or gain and those
in which the plaintiff seeks to recover the "reasonable value" of his
effort also raises difficulties. The authors themselves observe that the
Restatement of Restitution does not recognize the distinction between
cases of "real gain" and "reasonable value. " 93 They also concede
indirectly that a substantial body of case law relevant to their
hypothesis yields no explicit recognition of the theory they assert. 94
Although the distinction between "real gain" and "reasonable value" is
valid in the sense that those co~cepts represent very different means of
measuring recovery in restitution, 95 no other established scholar in the
field has based a comprehensive analysis of quasi-contract on that
distinction. In arguing that this distinction provides a rationalizing
principle that will allow the orderly classification of a vast body of
quasi-contract cases, Childres and Garamella move well beyond current
thinking. 96
In criticizing courts for awarding a restitution recovery in excess of
the contract rate, the authors assert that any rational measurement of
damages in restitution should reflect, to the maximum extent possible,
the allocation of risks agreed upon by the parties themselves in their
contract. 97 'Although Childres and Garamella claim that their approach
will preserve the parties' respective positions under the contract, the
risks allocated by the parties to control the amount of a recovery in
quasi-contract actually do not determine recovery under the Childres-
Garamella formula. For example, assume that a manufacturer contracts
to sell tanks to the Government at $10,000 each, that the Government
repudiates, and that the plaintiff proves that the cost of manufacturing
each tank delivered before breach was $20,000. Under the Childres-
92. Professor Dawson has observed correctly that "we can probably say now that
damage remedies can be ignored and quasi-contract used as to any kind of legal wrong
from which gains are realized." J. DAWSON, supra note 1, at 23. A remedy that is so
broadly based and that has so many potential applications cannot be compartmentalized
satisfactorily in the manner Childres and Garamella suggest.
93. Childres & Garamella at 436; see RESTATEMENT OF RESTITUTION§ 149 (1937).
94. See Childres & Garamella at 435·36.
95. See 5 A. CoRBIN, supra note 40, § 1113; Note, Contracts: Remedies for Total
Breach of Contract: Restitution and ''Damages," 43 CoRNELL L. REV. 274, 279 (1957).
96. Childres and Garamella suggest that other commentators may not have suggested
their hypothesis earlier because certain legal concepts vital to an understanding of the
larger theory, such as the reliance interest or restitution itself, are of relatively recent
origin. See Childres & Garamelia at 433-34.
97. Id. at 446.
Garamella hypothesis, recovery nonetheless \vould be limited to the

contract rate of $10,000; recovery in excess of the contract rate would
not be allowed because the plaintiff must not be permitted to shift its
contractual loss to the Government where the loss is caused by its own
ineffectiveness. If the plaintiff can show that the tanks have a "real"
value of $15,000 each, however, the Childres-Garamella approach
would entitle the manufacturer to $15,000 for each tank delivered. 98
Assume next that the tanks have a "real" value 50 percent greater
than the contract price because the cost of steel increased substantially
between the date of contract and the date of breach. In fixing the price
of tanks at $10,000 with no provision for upward adjustment if the
cost of materials increased, the parties presumably allocated the risk of
higher material costs to the plaintiff. In an ordinary contract action,
absent breach by the Government, the plaintiff would be unable,
except under extraordinary circumstances, to recover the additional
cost of steel. 99 The Childres-Garamella hypothesis would allow recovery
of the "real" value of the tanks, however, presumably reflecting the
increased costs of steel. Childres and Garamella recognize this incon-
sistency in their thesis but urge that the analogy to cases in which the
breaching party receives money and is required to disgorge that gain is
too close to arrive at any different result where the "real" value of the
goods the defendant receives exceeds the contract rate. 100 In presenting
their hypothesis the authors should at least explain more fully why in
some cases the allocation of risks should be shifted radically from that
provided for by the parties. In these cases Childres and Garamella
abandon the basic assumption of their analysis that recovery should be
based on the allocation of risks agreed on by the parties. Ironically, the
authors cast aside this assumption because of precedent-courts always
have given restitution in cases of actual enrichment without reference
to the contract rate 101 -a reason they condemn elsewhere as the cause
of much muddled thinking in the area of quasi-contract. The
Childres-Garamella position forces the conclusion that the defendant in
the preceeding example should pay $15,000 per tank despite the lower
contract price only because the defendant is a bad man and deserves
punishment for breaking the contract. 102
98. See id. at 443.

99. See UNIFORM CoMMERCIAL CoDE § 2-615, comment 4; 6 A. CoRBIN, supra note 40,
§1333.
100. See Childres & Garamella at 443.
101. Seeid.
102. Despite the natural conclusion of their hypothesis, Childres and Garamella term
the use of the bad man standard for measuring contract damages "nonsense." See id.
at435.
The greatest failing of the Childres-Garamella analysis may be its

assumption that the plaintiff can easily prove the fundamental
economic distinctions necessary to proper application of the Childres-
Garamella test. The existence of rules distinguishing between costs that
are attributable to plaintiff's inefficiency and those that confer "real"
benefits on the defendant, of course, would be useful for measuring
recovery in quasi-contract. Cases are tried and decided, however, by
judges, lawyers, and juries wholly unskilled in economic analysis. 103
Moreover, economists concede that the measurement of the economic
efficiency of a particular production process presents many difficulties.
Although the concept of inefficiency theoretically may not be difficult
to grasp, the precise measurement of the inefficiency of a particular
production process is not a simple task. One crucial factor in that
measuring process, for example, is the potential gain in efficiency that
would result if the plaintiff had made better use of scale economies. 104
The accurate measurement of economic efficiency must account for
factors such as planning, designing, and organizing, which are not easily
quantified. 105 Furthermore, the performance of a single contract that is
the subject of litigation may provide an inaccurate measurement of
efficiency.106 Finally, costs of production may yield precious little
information about the efficiency of plaintiff's manufacturing operation
absent a comparison of plaintiff's operations with those of similar
firms. Such comparative studies multiply the variables relevant to
determining what part of plaintiff's costs result from his inef-
ficiency.107
The application of the Childres-Garamella hypothesis even in the
simple case would require considerable economic expertise. Modem
quasi-contract claims often arise in complicated litigation involving
substantial sums of money and a multitude of second and third tier
subcontractors. 108 The proper application of Childres and Garamella's
103. Legal scholars have shown a growing interest in the relationship between law and
economics. See generally R. POSNER, ECONOMIC ANALYSIS OF LAW (1973); Leff, Econo-
mic Analysis ofLaw: SomeRealismAboutNominalism, 60VA. L. REV. 451 (1974).
104. Scale economics are defined as "reductions in cost per unit of product manufac-
tured and sold associated with the operation of large as compared to small production,
distribution, and merchandising." Scherer, Economies of Scale and Industrial Concentra-
tion, in IDUSTRIAL CoNCENTRATION: THE NEw LEARNING 16 (H. Goldschmid, H. Mann, &
J. Westoneds.1974).
105. See McGee, Efficiency and Economies of Scale, in INDUSTRIAL CoNCENTRATION:
THE NEW LEARNING, supra note 104, at 65. See generally id. at 65·88.
106. See id. at 58·59.
107. See id. at 61·65.
108. See Acme Process Equip. Co. v. United States, 347 F.2d 509, 535-36 (Ct. Cl. 1965),
rev'd on other grounds, 385 U.S. 138 (1966); General Metals, Inc. v. Green Fuel Econo·
mizer Co., 213 F. Supp. 641,642-43 (D. Md.1963).
theory to such cases would enmesh the court in a morass of conflicting

economic evidence further complicating litigation that is already
sufficiently perplexing. 109 One reason courts frequently remedy
defendant's unjust benefit by awarding plaintiff his reliance or out of
pocket losses is because the task of quantifying benefit is not a practical
alternative.
Although Childres and Garamella bring some measure of order to this
muddled area of the law, the authors attempt to push their reasoning
too far. Modem courts and scholars still view quasi-contract as a
doctrine to be pressed into service when the application of more
conventional doctrines would not yield a result that is compelled by
natural justice.110 The power of scholarship to impose order in this
field seems more limited than Childres and Garamella are willing to
concede.
Is BENEFIT ENouGH?
MORAL POSTURE OF THE PLAINTIFF
Professor Woodward defines quasi-contracts as "legal obligations

arising ... from the receipt of a benefit the retention of which is
unjust, and requiring the obligor to make restitution." 111 As this
observation suggests, the plaintiff must show not only that the benefit
received by the defendant is legally sufficient but also that retention of
the benefit by defendant at the expense of the plaintiff is unjust. The
moral posture of the plaintiff-the "justice" of his claim-thus
becomes important to the success of his action. 112 If the quasi-contract
action arises out of tort, the defendant is by definition the wrongdoer
and the plaintiff has the superior moral position. In quasi-contract cases
109. See Childres & Burgess, Seller's Remedies: The Primacy of UCC 2·708(2), 48
N.Y.U.L. REv. 833, 847 (1973) (recognition by Professor Childres of limitations of
economic analysis).
110. See Coleman Engineering Co. v. North Am. Aviation, Inc., 65 Cal. 2d 396, 410, 55
Cal. Rptr. 1, 11,420 P.2d 713, 723 (1966) (Traynor, C.J., dissenting); Dyer Constr. Co. v.
Elias Constr. Co., 287 N.E.2d 262,264 (Ind. 1972); Clark v. Peoples Sav. &Loan Ass'n, 221
Ind. 168, 172, 46 N.E.2d 681, 682 (1943); J. DAWSON, supra note 1, at 8;
Note, supra note 2, at 1267. Quasi-contract frequently has been utilized where the plain·
tiff's argument is not supported by more traditional concepts of recovery. See Minsky's
Follies, Inc. v. Sennes, 206 F.2d 1, 2·3 (5th Cir. 1953) (plaintiff incurred great cost in expec•
tation of sale). See also Fildew v. Besley, 42 Mich. 100, 101, ·3 N.W. 278, 279 (1879)
(dictum) (fire destroyed structure before completion; quasi·contract supplements tradi·
tional contract concepts but recovery denied).
111. F. WOODWARD, supra note 14, § 2, at 4.
112. See RESTATEMENT OF RESTITUTION, Introductory Note §§ 150·159, at 596 (1937)
(moral position of plaintiff a factor in measuring extent of plaintiff's recovery). See gen·
erally Childres & Garamella at 443; 5 A. CoRBIN, supra note 40, § 1112.
arising from express contracts, the problem of assigning moral fault also
presents no difficulty since the defendant usually has breached.
Complications arise, however, where the plaintiff has breached an
express contract but attempts to establish that retention by the
defendant of an aclmowledged benefit is unjust because the value of the
plaintiff's performance exceeds the damages inflicted by his breach.U 3
The inflexible application of a rule broadly denying the right to
recovery to defaulting plaintiffs would produce many harsh results. 114
Many courts avoid harsh results by refusing to follow the rule denying
plaintiff's right to recovery. 115 In other jurisdictions that purport to
follow the harsh majority rule, judges have devised legal fictions to
permit plaintiff's recovery without explicitly overruling earlier cases.U 6
The majority rule denying recovery to defaulting plaintiffs despite a
net benefit to defendant received its first authoritative expression in
Stark u. Parker. 117 The plaintiff in Stark had agreed to work for
defendant for a year with his compensation payable at the end of the
term. The plaintiff without legal excuse left defendant's employ before
the expiration of the contract but brought suit in quasi-contract to
recover the value of the services that he had rendered prior to the
breach.118 Plaintiff's counsel argued that plaintiff should recover in
quantum meruit conceding that the defendant's damages from the
breach should be deducted from plaintiff's recovery; the court,
however, refused recovery altogether. 119 'Writing for the Supreme
Judicial Court of Massachusetts, Justice Lincoln flatly rejected the idea
"that a party who deliberately • . . enters into an engagement and
113. See, e.g., Varnerv. Hardy, 209 Ala. 575, 575-76, 96 So. 860,861-62 (1923); Fritts v.
Quinton, 118 Kan. 111, 112·13, 233 P. 1036, 1037-38 (1925); Waite v. C.E. Shoemaker &
Co., 50 Mont. 264,274-75, 146 P. 736, 738 (1915); Strand v. Mayne, 14 Utah 2d 355, 356,
384 P.2d 396,397 (1963). See generally Lee,PlaintiffinDefault, 19 VAND. L. REv. 1023,
1025·27 (1966).
114. Application of the rule denying recovery to defaulting plaintiffs penalizes most
severely the plaintiff who has rendered a major part of his promised performance.
See Freedinan v. Rector, Warden & Vestrymen, 37 Cal. 2d 16, 22,230 P.2d 629, 632 (1951).
115. See, e.g., Porter v. Whitlock, 142 Iowa 66, 68·69, 120 N.W. 649, 650 (1909);
McKnight v. Bertram Heating & Plumbing Co., 65 Kan. 859, 70 P. 345, 346 (1902) (per
curiam) (en bane) (opinion not contained in official reporter); Miles Homes, Inc. v.
Starrett, 23 Wis. 2d 356, 360·61, 127 N.W.2d 243, 246 (1964).
116. See Joachim v. Andover Silver Co., 104 N.H. 18, 21, 177 A.2d 394, 396 (1962)
(plaintiffrecovers for fully performed divisible portion); Chaude v. Shepard, 122 N.Y. 397,
401..()2, 25 N .E. 358, 360 (1890) (recovery based on distinction between payments to ensure
performance and payments on the contract).
117. 19 Mass. (2 Pick.) 267 (1824).
118. Id.
119. Id. at 268.
voluntarily breaks it . . . should be permitted to make that very

engagement the foundation of a claim to compensation for services
under it."120 Emphasizing its moral outrage with the plaintiff's
actions,121 the court failed to distinguish between a suit on the
contract and a suit in quasi-contract based on the concept of unjust
enrichment. 122
Several courts have qualified the rule in Stark by attempting to
distinguish between a defaulting plaintiff who willfully breaches
without excuse and one whose breach is non-willful. 123 Such
distinctions are often difficult to make, however, and frequently
amount to little more than a particular appellate court's subjective
intuition.124 In continuing to deny defaulting plaintiffs recovery, other
courts have not cited the plaintiff's moral fault but have reasoned that
the benefit conferred on the defendant did not exceed the harm caused
by the breach.125 The computation of net gain or loss when the
plaintiff has defaulted, however, sometimes owes more to plaintiff's
status as a legal "sinner" than to the rules of mathematics. 126
A long line of authority rejects the rule of Stark. In Britton v.
Turner, 127 on facts almost identical to those in Stark, a defaulting
plaintiff gained recovery in quasi-contract despite his acknowledged
default. 128 'Focusing on the unjust enrichment accruing to a defendant
who receives a net gain,129 'the court discounted the rationale in Stark
as "technical reasoning" that obscured the central issue= the defendant
received beneficial services but paid no compensation. 130 More recent
cases adopting the Britton rule have added little by way of further
analysis; most cases emphasize the defendant's unjust enrichment in
granting recovery despite the plaintiff's status as a defaulting party. 131
120. Id. at 271.

121. See id. at 275 ("the laborer is worthy of his hire, only upon the performance of his
contract, and as the reward of his fidelity").
122. See id. at 272-73. See also Lee, supra note 113, at 1024.
123. See Harris v. The Cecil N. Bean, 197 F.2d 919, 921-22 (2d Cir. 1952); Begovich v.
Murphy, 359 Mich.156, 159,101 N.W. 2d 278,280 (1960); RESTATEMENT OF CoNTRACTS§
357(1932).
124. See 5 A. CoRBIN, supra note 40, § 1123.
125. See Kitchin v. Mori, 84 Nev. 181, 183·84, 437 P.2d 865, 866 (1968); Dluge v.
Whiteson, 292 Pa. 334, 335-36, 141 A. 230, 231 (1928).
126. See Newcombv. Ray, 99 N.H. 463,467-68, 114 A.2d 882,884-85 (1955).
127. 6N.H.481 (1834).
128. Id. at 482, 485-86. In Britton the plaintiff, who had contracted with the defen-
dant to perform services, left the defendant's service before the contract was fully per-
formed and without the defendant's consent. Id. at 482. Plaintiff sued, asking to be com·
pensated in quantum meruit for services performed. I d.
129. Id. at 487.
130. Id. at 493.
131. See, e.g., Caplan v. Schroeder, 56 Cal. 2d 515, 518-21, 364 P.2d 321, 324, 15 Cal.
Rptr. 145, 148 (1961); Loeffler v. Wilcox, 132 Colo. 449, 453, 289 P.2d 902, 904 (1955);
THE PLU8-MINUS FACTOR
Keener and Woodward maintain that the plaintiff must prove both
that the defendant has committed a wrong and that the defendant has
benefitted at the expense of the plaintiff: "the facts must show not
only a plus, but a minus quality." 132 Since the idea that the defendant
should not be entitled to retain a .benefit wrongfully obtained at
plaintiff's expense partially underlies quasi-contract, the Keener-
Woodward view makes some sense. If the defendant's gain cannot be
shown to have caused plaintiff a loss, no basis exists for permitting
recovery in quasi-contract.
Despite the Keener-Woodward conclusion that quasi-contractual
recovery on such facts would not be appropriate, the law today is
otherwise. The Restatement of Restitution, for example, intimates that
plaintiff's recovery in quasi-contract does not require a showing that
plaintiff's loss corresponds precisely to defendant's gain.133 The
Washington Supreme Court embraced this view in Olwell u. Nye &
Nissen Co. 134 'The defendant had used the plaintiff's washing machine
on an average of one day per week over a three year period.135 The
plaintiff, who had placed the machine in storage, not intending to use
it, brought an action in quasi-contract to recover the reasonable value
of the machine's use. Although the machine was valued at only $600,
the plaintiff recovered judgment in the trial court for more than
$1500.136 '. The court measured the plaintiff's recovery by the
defendant's "negative unjust enrichment," the amount defendant saved
in wages paid by using the machine. The defendant argued that the
plaintiff suffered no loss since he had not intended to use the
machine. 137 'Although the court did assert that a loss must be shown as
a condition to recovery, 138 ' it defined loss so flexibly that the case
stands for the proposition that plaintiff need suffer no demonstrable
loss in order to recover in quasi-contract. 139 Other courts also have
Peters v. Halligan, 182 Neb. 51, 60,152 N.W.2d 103,109 (1967); Burke v. McKee, 304 P.2d
307, 308-09 (Okla. 1956).
132. W. KEENER, supra note 6, at 163; F. WOODWARD, supra note 14, § 274, at
442. See also D. DOBBS, supra note 70, at 419; York, Extension of Restitutional Reme-
dies in the Tort Field, 4 U.C.L.A.L. REV. 449, 504 (1957).
133. See RESTATEMENT OF RESTITUTION, Introductory Note§§ 150·59, at 595·96 (1937).
134. 26 Wash.2d282, 173 P.2d652 (1946).
135. I d. at 283·84, 173 P .2d at 652-53.
136. See id. at 287-88, 173 P .2d at 654-55. The appellate court reduced the amount of the
judgment, not because it objected to the amount, but because the amount exceeded the
sum plaintiff asked for in his complaint. I d.
137. I d. at 285·86, 173 P .2d at 653-54.
138. Id.
139. See D. DoBBS, supra note 70, at 418.
rejected the notion that plaintiff's loss must be matched against a

corresponding gain by defendant before an action in quasi-contract will
lie.140
The rejection of the Keener-Woodward plus-minus limitation has
increased the yardsticks available to measure damage awards in unjust
enrichment actions. As long as a plaintiff's recovery in quasi-contract
could not exceed his loss, the range of alternatives available to a court
in framing a damage award was limited; that standard effectively denies
judges the right to measure plaintiff's recovery by defendant's profits,
since the necessary link between defendant's profits and plaintiff's loss
does not exist. 141 Once a plaintiff's recovery can exceed the amount of
his loss, courts become free to apply a variety of tests in the calculation
of recovery. The case of Olwell v. Nye and Nissen Co. 142 provides a
useful illustration. If the court had felt bound strictly by the
Keener-Woodward plus-minus limitation, the plaintiff's recovery
probably would not have been measured by the defendant's negative
unjust enrichment. 143 By abandoning the narrow limitation, the court
in Olwell had a much 'vider range of alternatives available to assess
plaintiff's award. Instead of granting plaintiff the net profits that the
defendant earned by using the machine, the court properly could have
measured recovery by looking to the expenses saved as measured by the
rental value of the machine rather than by wages saved or by awarding
plaintiff the fair market value of the machine.
The decline of the Keener-Woodward plus-minus limitation illustrates
the general tendency of courts to breach the doctrinal barriers that have
been constructed to restrict recovery in quasi-contract. As courts have
stretched the concept of benefit itself to apply quasi-contract principles
to cases in which a particular result seemed just, they also have rejected
the plus-minus distinction where its application would restrict recovery
unjustly. In sweeping aside the artificial restraints of the plus-minus
formula, however, the courts have eliminated almost all limitations on
the calculation of damage awards in quasi-contract actions. The field
appears open to wide-ranging judicial subjectivity in measuring a
plaintiff's proper recovery. Since no firmly fixed standards guide either
the definition of benefit or application of the plus-minus formula, the
140. See, e.g., Catts v. Phalen, 43 U.S. (2 How.) 376, 381·82 (1844); Federal Sugar
Refining Co. v. United States Sugar Equalization Bd., 268 F. 575, 582 (S.D.N.Y. 1920);
Ablah v. Eyman, 188 Kan. 665, 677·80, 365 P.2d 181, 190·92 (1961).
141. See F. WOODWARD, supra note 14, § 274, at 442.
142. 26Wash.2d282, 173P.2d652 (1946).
143. Cf. D. DoBBS, supra note 70, at 418 (under Keener-Woodward analysis recovery
limited to value of converted goods; no consideration of defendant's profits).
1975) QUASI-CONTRACT 25
risks of injustice and unpredictability are great. 144 A meaningful

attempt to reconcile and unify the law of quasi-contract must be
grounded in concepts more legitimate and less artificial than the
Keener-Woodward view that an action in quasi-contract will not lie
unless an equivalent gain and loss are shown.
CoNCLUSION
No single comprehensive definition of benefit in quasi-contract is

possible. However convenient a uniform definition might be, a fair
reading of the cases that invoke quasi-contract principles shows that too
few consistent conceptual threads exist to fashion a unifying definition.
Several factors account for this conceptual discord. The divergent
factual settings in which quasi-contract principles are invoked stretch
across an extraordinarily broad range of legal categories. Actions
grounded in quasi-contract serve as alternatives to proceedings in both
tort and contract. In the contract category alone, quasi-contract
principles may be utilized in cases having their origin in express
contract and also in actions where no explicit consensual agreement
between the parties exists.
The varying attitudes of courts toward the idea of quasi-contract also
complicates analysis. Some jurisdictions have embraced the principles
underlying quasi-contract with genuine enthusiasm; others have shown
hostility to application of a doctrine that sometimes violates the logical
symmetry of more conventional legal rules. Inconsistencies also arise
from variations in judicial attitudes toward plaintiffs. A court that
perceives the plaintiff as a wrongdoer may deny recovery, even though
the defendant has reaped an unjustified gain at plaintiff's expense.
After determining that the defendant has benefitted and the plaintiff is
without legal "sin," courts still confront the difficult task of measuring
the defendant's gain. This tangled judicial environment produces a
paradoxical treatment of the concept of benefit. Although that concept
relates to the particular facts of the case in which it is being applied,
courts often express the concept of benefit so generally that the
definition becomes essentially meaningless as precedent.
Impatient to reconcile or at least to explain seeming inconsistencies
in conflicting cases, legal scholars tend to be uncomfortable with the
144. Cf. Holmes, The Path of Law, 10 IIARv. L. REv. 457 (1897) (predictability is cen-
tral to a rational legal system).
conceptual disorders inherent in quasi-contract. In the field of

quasi-contract, theories have been advanced that actions arising in a
contractual context should be distinguished from other applications of
the doctrine. Such segmentation permits the development of generaliza·
tions that are reasonably accurate within their self-defined limits but
that do not apply across the whole range of quasi-contract actions;
these generalizations are useful only in the sense that they illuminate
the inherent haziness of quasi-contract principles.
Quasi-contract owes its origin to the persistent desire to do justice; it
saves a deserving plaintiff's claim from failure under conventional
legal principles. Resort to quasi-contractual concepts often reflects a
failure of such conventional principles to serve the ends of justice. The
perception of what is just is by no means an objective vision and varies
from generation to generation, from case to case, and from court to
court. In fulfilling this ubiquitous impulse to do justice where legal
logic has failed, quasi-contract has presented extraordinary difficulties
to those who have sought to systematize and reconcile the distinctly
unsystematic and conflicting cases that constitute the law of quasi·
contract. The doctrine, in both its origin and its application, has proved
itself immune to such attempts at organization.

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Quasi-Contract, Its Nature and Scope

Author(s): William A. Keener

QUASI-CONTRACT, ITS NATURE AND

T is usual to divide contracts into three classes,

Equally objectionable in principle, though perhaps not so mis-

The difference between the cases is a difference simply in the

1 4th ed. 343-346.

The law, consulting the interests of morality, imposes all obligation on

Notwithstanding the existence and recognition of this well-

While this definition of an implied contract is, at best, true only

"CThere is some looseness of thought in suipposing that reason and

1 2 Bl. Corm. 443. Hertzog v. Hertzog, 29 Pa. St. 465, 467.

When it is not expressed, it may be inferred, implied, or presumed, from

"But it appears in another place, 3 Comm. I59-i66, that Blackstone

Yet the learned Justice, after so intelligently criticising Black-

" The law ordinarily presumes or implies a contract whenever this is

1 Hertzog v. Hertzog, 29 Pa. St. 465, 468.

Plainly, in the case put by Mr. Justice Lowrie, the inference of

" Every induction, inference, implication, or presumption in reasoning

In the opinion of Lord Justice Lindley, it was the failure of

In Rhodes v. Rhodes,3 Lord Justice Lindley, referring to the

"The question whether an implied obligation arises in favor of a per-

I Hertzog v. Hertzog, 29 Pa. St. 465, 469. 8 44 Ch. D. 94, 107.

but which can be enforced as if it had a contractual origin. Obligations

It was this confusion of ideas that caused the counsel in Sceva v.

To this argument the court made the following conclusive

"We regard it as well settled by the cases referred to in the briefs of

Not only has this identification in classification of quasi-contracts

1 Illustrations of this confusion of ideas might be multiplied indefinitely; but it

attachment could issue in an action brought on a foreign judgment

' 96 N. Y. 666, affirming 32 Hun, 255.

obligation would not have met the difficulties of the situation,

Austin, Jurisprudence, Lect. XIV.

3. Upon the doctrine that no one shall be allowed unjustly to

Biddleson v. Whytel, 3 Burr. 1545; State of Louisiana v. New Orleans, IO9 U. S.

In Inhabitants of Milford v. Commonwealth,' the court, discuss-

"The law regards the money as expended at the implied request of

Of a quasi-contractual nature, it is submitted, is the duty of a

1 I44 Mass. 64.

practically the same as that of Austria) is this: The tenant in possession

under afldoi commiss, both of real and personal estate, is considered

1 24 Ch. D- 439. 2 24 Ch. D. 456.

Of this nature also, it is submitted, is the obligation of a sheriff

"Now the term 'implied contract' is a most unfortunate expression,

1 Speak v. Richards, Hobart, 206, 3 Bi. Com. I63.

Of a quasi-contractual nature also is the obligation of an infant

} 21 Ch. Div. 6I5. 3 I Daniel Neg. Inst., 4th ed., ? 226.

Such also, it is submitted, is the nature of a liability of a husband

1 Earle v. Reed, IO Met. 387.

necessaries can recover against the husband therefor, notwithstand-

On this ground must also be put the obligation of a father, where

1 Read v. Legard, 6 Ex. 636.

Follow this and additional works at: https://digitalcommons.law.yale.edu/ylj

For the perfect understanding of any one branch of the law, a

is universally agreed, however, that a contractual obligation arises

it appears to be unconditional, the enforcible obligation does not

of contract, an illegal act doing damage. The obligation topay

If one party sues another and obtains a judgment, that other

contracts.1 2 It must be noted that any suit based upon a judg-

STATUTORY, OFFICIAL, AND CUSTOMARY OBLIGATIONS.

In certain cases an obligation may be put upon a party by

At common law one who has suffered by the tort of another

MONEY PAID BECAUSE OF FRAUD OR COMPULSION.