[A] Quasi Contract as a Source of Primary Rights

It must be admitted, or indeed asserted, that considerations of equity and morality play a large part in the process of finding a promise by inference of fact as well as in constructing a quasi contract without any such inference at all. The exact terms of the promise that is ''implied'' must frequently be determined by what equity and morality appear to require after the parties have come into conflict.n12 Like most other boundary lines in legal classification, that between contract and quasi contract is ''wavering and blurred.'' Nevertheless, the classification is logically sound, necessary and useful.

Any successful attempt to explain and classify quasi contracts would fill many pages.n13 For present purposes, it will be enough to give a few illustrations.

Mistakenly believing that he owns Blackacre, A pays the taxes and makes permanent improvements thereon, without the knowledge or assent of the real owner B. When B is requested to reimburse A, B positively refuses. Nevertheless, the law will in some such cases make it B's duty to reimburse A. B's obligation is called quasi contract.n14

B finds or steals A's money and refuses restitution; he is under a quasi-contractual duty to make restitution. The common count in assumpsit for ''money had and received'' was sustained in cases such as these. In general, some form of assumpsit was sustainable as an alternative remedy for a tort by which the wrongdoer enriched himself at the expense of the plaintiff.n15

Under compulsion of law, or in order to protect A's own interest in property, A makes payment of money that it was B's legal duty to pay. In spite of any express refusal, B is under a quasi-contractual duty to reimburse A.n16

A finds B's house afire and cattle starving and renders service and incurs expense in saving and feeding them. In some states, B is under a quasi-contractual duty of reimbursement.n17

Suppose that a person is elected or appointed to fill a state or municipal office, created by law or ordinance with prescribed duties and powers, and takes the oath of office and renders services. These services are not rendered by virtue of a contract. After the rendition of the service, a money debt does indeed arise, for the enforcement of which a judgment can be obtained in a modern civil action. At common law, the action might have been an action of debt or of indebitatus assumpsit; and the court might say that there was an ''implied promise'' to pay. But the ''implication'' would not be an implication of fact. A judgment so obtained would create a ''judgment debt,'' likewise enforceable by action as well as by execution. Still, the right and duty are not created by mere agreement, by voluntary expressions. Usage permits the word ''contract'' to be used-at least if preceded by the word ''quasi''; but the relationship is not one with which the present treatise is primarily concerned.n18

Why should such cases as these be classified as contracts at all, even with such qualifying modifiers as ''quasi'' or ''implied in law''? The chief reason that they came to be so classified, both in Roman law and in the English common law, is that no other suitable and really descriptive classification was available, and it was desired to make use of the remedial forms of action by which contracts were enforced. Public welfare required that an enforceable duty should exist without regard to assent or dissent; and the sanctions and remedies of contract law were convenient and effective. In English law, the writ of assumpsit was at hand and was appropriate to serve the purpose. While the word ''assumpsit'' means literally ''he promised,'' it was easy for the courts to create the fiction of a promise in these cases, to say that the law implied a promise, and then to refuse all opportunity to the defendant to deny it. The action of debt was older than assumpsit; and in very many instances a debt existed without being either created or accompanied by a promise to pay it. To avoid the much abused defense called ''wager of law'' that was available in actions of debt, the courts permitted the creditor to sue in assumpsit, an action in which that defense was not available, saying that a debt implies an assumpsit.n19 This made it easily possible for the courts to expand the use of assumpsit to include new cases where obligation had not previously been recognized, making this one of the most important growing points in the evolution and expansion of law. So, under the head of quasi contract are included numerous odds and ends of obligation, without other pigeon holes in which to place them, even though they have little in common with consensual agreement and may have great differences among themselves.n20 Despite the fact that quasi contracts are imposed by law, they are not torts,n21 except in the situations in which the victim of a tort may elect to treat the situation as if there were a contract. Despite the presence of unjust enrichment in most of these cases, unjust enrichment is not an essential prerequisite to quasi contractual relief; unjust deprivation or impoverishment of the claimant is often the gravamen of the cause of action.