Page:Harvard Law Review Volume 10.djvu/235

209 KEENER ON QUASI-CONTRACTS, 209 KEENER ON QUASI-CONTRACTS.^— I. PROFESSOR WILLIAM A. KEENER'S Treatise on the Law of Quasi-Contracts appeared in 1893, and was deservedly welcomed. It brought to the exploding point the uneasy con- sciousness of many legal writers that the usual division of obliga- tions into those of contract and those of which the violation is a tort is inadequate, if not erroneous, and it is safe to say that that venerable tradition has been brought by the learned author to a moribund condition from which recovery is impossible. Moreover, the treatise for the first time recognized and formally considered a large class of cases which have not received a sufficient treatment, in our law at least, but which deserve a separate name and a separate classification. The method of the book is excellent and almost unique in our modern juridical Hterature. It is the method of free and independent, yet respectful, criticism of the decisions, and of such criticism we cannot have a surfeit. With a treatise of so many striking merits it seems almost ungracious to find fault; but in spite of its ability, it seems to me chargeable with certain grave and serious errors, and this is the more regretable because its very force and original character lend to such errors a great additional vitality. My criticisms are in brief these: first, that the title " quasi-contracts " is unfortunate in that it suggests a false analogy ; second, that the learned author uses it to cover an erroneous classification ; third, that the proposition with which the learned author is mainly concerned, the proposition, to wit, that " no one shall be allowed to enrich himself unjustly at the expense of another," is, according to the interpretation of the word cal proposition from which, though true, no deduction as to the rights of litigants can possibly be drawn ; fourth, and last, that under the name of unjust enrichment the author has been dealing for the most part with a group of remedies upon the breach of legal obligations, or upon the violation of legal rights, which are afforded by courts of law as distinguished from courts of equity, 1 A Treatise on the Law of Quasi-Contracts. By William A. Keener, Kent Pro- fessor of Law and Dean of the Faculty of Law in Columbia College. New York : Baker, V^oorhis and Company. 1893. 8vo, pp. xxxii, 470.
 * ' unjustly," either a contradiction in terms or else a merely identi-