Page:Harvard Law Review Volume 10.djvu/237

211 KEENER ON QUASI-CONTRACTS. 211 " It might be asked : Why did the court extend to this class of obliga- tions the remedies peculiar to contracts rather than the remedies pecul- iar to 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 treating a tort as the violation of a right in rem^ the obligations differ in an important partic- ular ; for while, to avoid committing a tort, one need only forbear, to dis- charge the obligation imposed by quasi-contract one must act. It is true that the obligation imposed by a contract may be simply to forbear ; but the obligation most generally 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 con- tract rather than of tort : not only in most cases where a quasi-contrac- tual obligation is imposed has the defendant not acted in violation of a right in rem J in consequence of which the law could impose an obliga- tion, but in many cases he has either not acted at all, — as, for exam- ple, where an absent husband, who is ignorant of the death of his wife, is obliged to reimburse one who has defrayed the expenses attendant upon her burial, — or, if he has acted, has acted with the consent, and perhaps the co-operation, of the plaintiff; as, for example, where a de- fendant is obliged to refund money which he has received from the plain- tiff, both parties acting under a misapprehension."^ The paragraph begins with a question of history : " Why did the court extend to this class of obligations the remedies peculiar to contracts rather than the remedies peculiar to tort?" and the an- swer should properly take the form of an historical account of the origin and growth of the remedies actually extended to the wrongs under discussion. It is, however, not an historical answer that the question receives, and it may be surmised that the learned author did not put the question he really had in his mind. He «eems to have been actually concerned with the reasons for his own terminology rather than with matters of history. At any rate, if this is not the case, not only is no explanation of his terminology given, — except so far as the quotation from Sir Henry Maine is an explanation, and that, we have seen, leaves open a choice of terms, — but the historical question is wrongly answered.^ As a reason for his terminology, the explanation is unsatlsfac- 1 Page 15. 2 See Prof. Ames's article on the History of Assumpsit, 2 Harvard Law Review I and 53.