Page:Harvard Law Review Volume 10.djvu/252

226 226 HARVARD LAW REVIEW. given a plaintiff, it would seem to be for the reason that the defendant should not be allowed to blow hot and cold, and to profit by a contract the burdens of which he refuses to perform. The obligation imposed by law in such a case then should be that the defendant make restitution in value to the plaintiff of that which he received. On no other theory can the count for money had and received which does not sound i?t damages be maijitained." This is an excellent statement of the obligation of restitution upon a breach of contract. The obligation is explained, however, not by the doctrine of unjust enrichment, but rather by the propo- sition that the defendant cannot occupy two inconsistent positions at one and the same time, that is, that having by his refusal to perform denied his obligation, and the plaintiff having accepted the situation by demanding back the consideration paid, by the act of both parties the contract is rescinded, and the defendant cannot alone, without the plaintiff's consent, reinstate it. I desire to redeem myself from the charge of disputing about unessentials. It is a pity that logical accuracy should ever be deemed a matter of small moment; but beyond a doubt it is often so regarded. Apart from any question of logical accuracy, how- ever, a decision which begs the question is a decision without a reason, which, even if right in the particular case^ may become through its force as a precedent the source of grave error. No- body can count the evil results of our right decisions wrongly reasoned. The chance, however, of achieving truth by means of error is remote, and the requirements of practical justice demand that a doctrine of such wide application as that under discussion, should be rigorously and severely tested. IV. We have seen, if the argument is so far valid, that the doctrine of unjust enrichment is either a contradiction in terms or an iden- tical proposition ; and that in either case, it is inapplicable to the decision of a concrete controversy as a principle of jurisprudence. We have further found that if the attempt to apply it is actually made, the attempt results either in a begging of the question or in a reference to some other and logically anterior principle which thereby becomes the real reason for deciding, while the doctrine itself is to be rejected as a redundant link in the chain of reason- ing. From this dilemma the"*learned author never quite escapes, as indeed he could not, so long as he retained his original assump-