Page:Harvard Law Review Volume 5.djvu/238

222 222 HARVARD LA W REVIEW. GRATUITOUS UNDERTAKINGS. THE ordinary division of personal actions between torts and contracts has long been regarded, in our law, as inade- quate. Lately there has been a determined and probably success- ful attempt to revive the phrase quasi-contract, which was feebly put forward two centuries ago ; * and the phrase quasi-tort, before, I think, unknown to the common law, has been somewhat af- fected. But about these phrases there is an air of strangeness ; they are fantastic habits of a continental cut, which seem ill suited to the sturdy limbs of the Common Law. One cannot help feeling that they conceal some native principles of our law which should be recognized, and recognized under English names. A contract is a right which A has (in personam') against B, because B has consented, for a consideration, or in some formal manner, to assuirie the correlative duty. A tort is a violation of a right which A has (in rem) against B, equally with all others, because society has decreed that the corresponding duty should be laid upon every member of it. Between these classes of rights exists a third ; which, unlike a tort, depends upon some voluntary act by B, by which he undertakes a duty, and, unlike a contract, does not depend upon any promise of B, but only upon the mutual relations of A and B. In other words, B assumes a duty merely by voluntarily entering into a new relation towards A. To create such a right and duty no consideration need be shown, since no contract is necessary. As a matter of fact, en- trance into such a relationship is often the occasion of a contract, which may to some extent supersede the principles of the common law, and govern the rights and duties of the parties. Thus, in case of carriage, some of the rights of the parties are often se- cured by a contract, — the bill of lading. But even in these cases the terms of the contract seldom embrace the whole transaction. In order to avoid complications, however, I shall consider cases where the relationship is gratuitous, so that the principles of law cannot be modified by contract; but the same principles govern 1 E.g., by Lord Mansfield in Moses v. Macfarlane, 2 Burr. 1005.