Page:Harvard Law Review Volume 10.djvu/241

215 tract, but from a duty, is clear. While it is true that the liability is ordinarily described as one in tort, it is submitted that it has been so described because of the usual classification of legal rights into contracts and torts, and that since the obligation imposed upon the carrier and the inn-keeper is to act, the obligation is really quasi-contractual in its nature, and not in the nature of a tort." Again the syllogism is defective, for proof that the obligation is not a tort is not proof that it is a quasi-contract. It may be a true contract. His error is again that of the undistributed middle.

Of his official duties he has only this to say : " Of this nature also, it is submitted, is the obligation of a sheriff to levy execution and pay the proceeds to a judgment creditor."

He adduces no argumnent in support of his position, which seems to be at least questionable. The obligation of the sheriff would seem very largely to depend upon his consent. Of his own free will he enters upon his office, and of his own free will he may leave it. To be sure, he cannot assume the office without assuming its duties; but they are none the less voluntarily assumed. When in pursuance of his office he levies execution, he would seem to be in a position analagous to, if not identical with, a voluntary trustee or bailee holding the proceeds for the benefit of the plaintiff. I submit that it is not at all certain that the obligation does not contain a large consensual element, and may not therefore be rightly classed as contractual.

To the obligation founded upon unjust enrichment substantially the whole treatise is devoted. In his discussion of its nature the earned author restricts himself to showing that it contains no element of assent In this he is wholly convincing; but to establish the want of assent is in nowise to establish that the obligation is quasi-contractual, because there may be many obligations not quasi-contractual, such as those of which a breach is a tort, in which that element is lacking. The old fallacy of undistributed middle is again exemplified.

The truth is that in no one of these discussions does the learned author complete a logical argument. In each of them, to make it technically correct, it is necessary to say either that all obligations not founded upon assent are quasi-contracts, in which case quasi-contracts would include torts, or else that all obligations in which