Page:Harvard Law Review Volume 10.djvu/239

213 KEENER ON QUASI-CONTRACTS, :2I3 only does not depend in any case upon his assent, but in many cases exists notwithstanding his dissent." ^ In other words, the learned author has objected to the usual classification, which includes so-called contracts implied in law under the name of contracts, because it neglects the origin or cause of these several obligations for a mere resemblance. The unex- pressed major premise of his argument is that all rights and obli- gations are to be classified according to their origins or causes, — a proposition which in these days of evolutionary science will hardly be denied either in its application to biology or in its appli- cation to legal principles. The learned writer, however, has not obeyed his own canons. He classifies the following obligations as all quasi-contractual : — " I. Upon a record. "3. Upon the doctrine that no one shall be allowed to enrich himself unjustly at the expense of another." ^ The mere enumeration of these various obligations indicates a several origin for each. The first is founded upon the mandate of the court, and depends for its validity upon the right of a court to adjudicate between contending parties. The statutory duty de- pends upon the mandate of the legislature, which in turn depends upon the right of the community through its legislature or other- wise to prescribe positive duties to its members. The last depends by its terms upon a principle of natural justice, and not upon a mandate of court or legislature. How then can he classify them under one head and maintain a consistency with his own indicated law of classification? Nothing appears in the subsequent discussion of the nature of the various obligations of quasi-contract to remove the basis of this objection. To consider them in their order, of the obligation founded upon a record he asserts ^ that it is quasi-contractual, for the reason that, as pointed out by Mr. Justice Field in a passage which he quotes in full,* it is not founded upon the assent of the parties, and is not, therefore, contractual. Now it is to be noted that the learned author has already pointed out that the obligations of which a breach is a tort are quite as independent of assent as 1 Page I. a Page 16. « Page 16.
 * 2. Upon a statutory, or official, or customary duty.
 * State of Louisiana v. New Orleans, 109 U. S. 285.