Page:Harvard Law Review Volume 10.djvu/240

214 214 HARVARD LAW REVIEW. are quasi-contracts.^ To prove that the obligation upon a record is independent of assent is not sufficient, therefore, to prove that it is a quasi-contract, for he must go further and show that of at least these two classes, quasi-contracts and torts, each lacking that element, it properly belongs to the former. To prove that it is not ont is no proof that it is another. He has in fact committed that logical error technically known as the fallacy of undistributed middle. His syllogism may be stated thus : — Quasi-contracts are obligations not founded upon assent ; Obligations upon a record are obligations not founded upon assent ; Therefore, obligations upon a record are quasi-contracts. The class of obligations not founded upon assent, which is the middle term whereby he effects the logical transition from obliga- tions of record to quasi-contracts, is not, to use the technical phrase of logic, distributed, — that is, is not wholly comprised within either of the other two. To make his syllogism sound, he must be willing to say either that quasi-contracts include all the non- consensual obligations that there are, or that obligations of record include them all, — a willingness which in view of his analysis of torts we cannot suppose to be a fact. It is to be observed, however, that while the syllogism is incor- rect, the conclusion is not by this criticism proved to be untrue, for it may actually be that obligations of record are quasi-contracts. The matter of its truth is to be considered later. Of his second class of quasi-contracts, he gives two examples of statutory obligation,^ and his treatment of them is precisely iden- tical with his treatment of the obligation upon a judgment. In each he cites a passage from the opinion of a court, pointing out that the element of assent is wanting, and thence he concludes that the obligation is quasi-contractual. The objection that proof that they are not contracts does not prove that they are quasi- contracts again obtains. A breach of them, consistently with his argument, may well be a tort. His middle term is again undistributed. Of customary obligations he instances that of a carrier,^ founded upon the custom of the realm to receive and carry safely, and of an inn-keeper* to receive guests, or to keep their goods safely. He says : " That the liability in such cases arises, not from con- 1 Page 15. 2 Pages 16, 17. « Page 18. * Page 18.