Page:Harvard Law Review Volume 10.djvu/238

212 tory. It first points to a resemblance between quasi-contracts and torts which obtains in all cases of each, to wit, the fact that the obligation is imposed by law without the consent of the parties, and then discards that resemblance as a basis of analogy in favor of another which it admits to obtain in only some cases, to wit, those cases of contract in which the obligation is to act, rather than to refrain from acting. In other words, the analogy is not an analogy with the whole class of contracts at all. Just to the extent, therefore, that the term quasi-contracts points to a class, rather than to an individual resemblance, its use is fallacious. If this were an attempt at scientific classification, such an objection would be fatal. It seems to me equally fatal where, as now, there is a search for that which is a mere analogy, to be sure, but which is yet of a real, not haphazard, character, and intended to indicate a scientific rather than a whimsical classification.

In the paragraph just quoted the learned author indicates another reason why the analogy to contracts is preferred to the analogy to torts, to wit, that

"not only in most cases where a quasi-contractual obligation is im- posed 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 . . . or, if he has acted, has acted with the consent, and perhaps the co-operation, of the plaintiff."

Again, however, he is pointing to an analogy which he expressly says obtains in most cases, and by implication says does not obtain in all. The resemblance, then, is again an individual, not a generic, resemblance, and therefore is not a sufficient basis for a generic analogy. I submit, therefore, that the choice of the name, by the author's own showing, in spite of the weighty authority of Pollock and Anson, is unfortunate

Unfortunate as is the word quasi-contract as indicating an anal1 ogy, it seems to me still more unfortunately used as the name of a class of rights and as a term of classification. The learned writer has himself indicated the true theory of classification in the matter of legal obligations in the following words: —

"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