Quasi-contract

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A quasi-contract (or implied-in-law contract or constructive contract) refers to a fictional contract recognised by a court. The notion of quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems.

History[edit]

In common law jurisdictions, the law of quasi-contract can be traced to the medieval form of action known as indebitatus assumpsit. In essence, the plaintiff would recover a money sum from the defendant as if the defendant had promised to pay it: that is, as if there were a contract subsisting between the parties. The defendant's promise - her agreement to be bound by the "contract" - was implied by law. The law of quasi-contract was generally used to enforce restitutionary obligations.[1]

The form of action known as indebitatus assumpsit came to include various sub-forms known as the common money counts. The most important of these for the later development of the law of quasi-contract included: (i) actions for money had and received to the plaintiff's use; (ii) actions for money paid to the defendant's use; (iii) quantum meruit; and (iv) quantum valebat.[2]

Quasi-contractual actions were generally (but not exclusively) used to remedy what would now be called unjust enrichment. In most common law jurisdictions the law of quasi-contract has been superseded by the law of unjust enrichment.[3]

Quasi-contract and contract[edit]

A quasi-contract was distinct from a contract implied in fact.

  • Contract implied in fact. A person's assent to be bound by an agreement can be expressed or implied. In the latter case, assuming the requisite formalities for a valid contract are met, there is a perfectly normal contract. The only distinction between a contract arising by express agreement between two people and a contract implied-in-fact is that the latter was recognised by a court drawing inferences from facts proved at trial. When the plaintiff sued on either sort of contract, she was suing in the law of contract in respect of a consensually assumed obligation and her remedy for the defendant's breach was damages.
  • Quasi-contract. In contrast, quasi-contract refers to situations in which a defendant is bound as if there were a contract. When the plaintiff sued on such a 'contract' by bringing an action of indebitatus assumpsit she was not enforcing some consensually assumed obligation, but rather an obligation imposed by law.

See also[edit]

References[edit]

  1. ^ See generally, Sir John Baker, An Introduction to English Law History (4th ed)
  2. ^ See generally, Sir John Baker, An Introduction to English Legal History (4th ed)
  3. ^ See generally, Mitchell et al, Goff & Jones Law of Unjust Enrichment (8th ed, 2011); Carter et al, Mason & Carter's Restitution Law in Australia (2nd ed, 2008); Graham Virgo, The Principles of the Law of Restitution (3rd ed, 2015)
  • The Law of Quasi-Contract by S. J. Stoljar; Sydney : Law Book Co. of Australasia, 1964