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FROM ‘LOOSE PAPERS,’

Containing Heads of Lectures or Sections.⁷

Contracts.

In the proper sense of the word, a Contract is a promise, and begets only jus ad rem against the promisor: i.e. a right to an act, an endurance, or a forbearance on his part.

Confusion of incidents which are not promises, or not purely so, with Contracts.

Consequences expressed by parties, and consequences annexed by law in default of such expression.

Consequences of Contracts upon third persons.

In the language of the English Law, ‘Contract’ is often limited to mutual promises; Bond and Covenant being the names applied to unilateral contracts.

Covenant, in the Roman Law, a generic expression; in the English, the name of a species.

Bond, which etymologically is equivalent to obligation, is the name of a species of unilateral contracts, or rather, perhaps, of a formality necessary to the validity of it.

Nominate and innominate Contracts.

Most nominate contracts appear to be improper contracts: i.e. not to be productive of Jus ad rem purely.

Pollicitation.

Why a promise is binding (abstraction made of the interests of third parties). It binds, on account of the expectation excited in the promisee. For which reason a mere pollicitation (that is, a promise made but not accepted) is not binding; for a promise not accepted could excite no expectation. So of a promise obviously made in jest.

In enforcing contracts, the expectations of both parties must be looked to. Where the terms are expressed in writing, their 907common agreement, contemplation, expectation (i.e. of the burthen undertaken by one, and the advantage expected by the other), is to be collected from that.

In the Stipulation, the sense in which each party contracted was expressed apart, in order to render a doubt impossible.

Where language is not employed, the common meaning of the parties is collected from the peculiar facts of the case, and from the consequences attached by the law (or usage) to contracts of the sort. Which consequences are either positive or dispositive: i.e. to take effect whether the parties wish them or not, or in default of their making other provisions of their own. And in either case they must be understood to contemplate these consequences.

Solemnities annexed to Contracts.

Their ends, as regards the parties, are two. 1. To provide evidence of the existence and purport of the contract, in case of controversy. 2. To prevent inconsiderate engagements.

Many of these solemnities answer (and were intended to answer) both purposes, such as Bond, Covenant, Stipulation, etc. Others answer (or were only intended to answer) one. Such as the writing required by the Statute of Frauds.

Distinction between such solemnities as are merely evidence of a contract; and such as are evidence of a contract and of its terms.

Earnest, for instance, is merely evidence that a contract was made; its subject, its terms, etc. must be established by evidence aliunde: A bond, etc. perpetuates these last. So a Stipulation was evidence of the promise and of the terms.

In Unilateral Contracts, inconsiderateness is prevented by the unusual solemnity of the evidentiary incident annexed: E.g. the sealing of a bond or covenant, the interrogation and answer in a Stipulation.

In Bilateral Contracts (by the Romans termed ‘consensual,’ by the English ‘parol’), it is supposed to be prevented by the mutuality: each party contracting for his own pecuniary advantage; contemplating, a quid pro quo; and therefore, being in that circumspective frame of mind which a man who is only thinking of such advantage naturally assumes. This solution will not indeed apply where the Consideration is past, or of small amount; but that this is only an inconsistent application of the doctrine, and that it arose out of the principle suggested, is clear, from the considerations afterwards suggested.

908By consensual is meant, resting upon consent without solemnity; by parol, contracts which are not evidenced by writings in a certain shape and accompanied by certain solemnities.

In consistency with the principle, the doctrine of Lord Mansfield and Wilmot (in 3d Burrows, 1665) is the just one. The contrary opinion, however, is consistent with the actual law. To require quid pro quo where a solemnity analogous to that of a bond intervenes, seems to be absurd.

The doctrine of Lord Ellenborough, that ‘there must not only be a consideration, but that it must be stated in the evidentiary instrument,’⁸ is pushing the deviation from the principle still further. (Sed Qu^e.)

Quære: Whether, in cases of pure contract, the solemnities in question are ever intended for, or are applicable to, the protection of third persons?

In cases of mortgage, etc. Registration is applicable and applied; but only in respect of the subject over which the jus in re is given.

Since a contract gives no jus in re,⁹ registration, as regards the subject, could be of no use; for as the party who contracts to dispose of that subject may, if the transaction be really a contract, aliene to another before completion, and that other can retain (even with notice), registration would be nugatory. It is only where the other could not retain as against the former party, that registration is of use. By declaring that he shall retain (if there be no registry or notice in some other way), you make the right of the first acquirer conditional. But in the case of contract, he has no right, conditional or unconditional, as against third persons; and therefore, third persons need not any such precaution.

Contracts in Equity, which give jus in re as against all who have real or constructive notice, are, as against all such persons, alienations; though only contracts as against others. So far, therefore, as regards contracts, registration could be of no use, but in respect of the person of the contracting party. By knowing the nature of a man’s engagements with others, I may make a guess at his ability to fulfil such as I may think of entering into with him. His, in case of partnership, has taken 909place to a certain extent. But it seems to be of limited application.

The absence or presence of Consideration, how it affects third persons (as creditors or other claimants against the general means of the obligor).

Its absence as affecting third persons need not be considered where the contract is unilateral, and is not accompanied by such solemnities as are necessary to make unilateral contracts binding on the promisor. Not being binding on him, it is of course, and à fortiori, not binding on those who acquire rights from him.

But unilateral contracts, which would bind the promisor, are often void as against third persons, because they are without consideration; i.e. without valuable consideration; for, as we have often observed, no promise or act is without a consideration, inducement, or motive of some sort.

Analyse the different motives; and shew why a promise made for other than a valuable consideration is not, and ought not to be, good against those who have acquired rights out of transactions founded on such consideration.

Difference between the intensity of the expectations.

Danger of fraud. Danger of what would have the same effect, if rights acquired for valuable consideration could be defeated wholly or partially by inconsiderate engagements. Postponement of the claims of the industrious to those of the idle.

Difference between vicious consideration and want of consideration.

Where the consideration is vicious, the contract begets no obligation. Where there is a want of consideration, there is an obligation against the contracting party, provided certain solemnities are observed. ‘Want of consideration’ is an elliptical or abridged expression for ‘want of valuable consideration.’

Why a contract (strictly so called) gives no right in re as against third persons, whether of property or right of possession.

The principle seems to be this: that for want of sufficient publicity (or what is deemed sufficient), the right of the obligor over the subject, and consequently his power of disposition, are apparently unaltered: the contract is not generally known. Third parties, therefore, afterwards acquiring by alienation (to which more publicity is, or ought to be, attached), would be disappointed in their well-founded expectations, if their right could be defeated by a right arising out of a transaction of which 910(as is assumed) they had no, or very inferior, means of ascertaining the existence.

Upon this principle, a transaction accompanied by such evidentiary solemnities that at law it would be merely a contract, is, in equity, an alienation (i.e. gives a jus in re which may be classed with rights of possession), against all who do not afterwards acquire by a conveyance without notice of the contract. Equity looks at the purpose of the solemnity which is attached to a conveyance. That such solemnity imparts a knowledge of the disposition to third persons, is merely a presumption; that in the absence of it no such knowledge is imparted, is also a mere presumption; and since this limited presumption will not hold if there be evidence aliunde (i.e. either actual evidence, or presumptio juris of another sort—constructive evidence), that such knowledge was had, Equity, in these cases (whether usefully or not, is a question), overrules the presumption, and gives the subject to the obligee, as against all who are proved to have had that notice which (for want of a conveyance) it is only presumed that they had not.

Cases in which Equity does not give jus in re against acquirers with notice, but defeats an existing jus in re in favour of acquirers without notice. This is also resolvable into principles of evidence.

Where the contract is accompanied by some incident which is presumed to give general notice of the disposition, it changes its character and becomes an alienation, e.g. a sale with delivery, actual or symbolical.

In these cases there is jus in re given to the obligee (i.e. a power of making a valid disposition, and of retaining as against the obligor or subsequent acquirers from him), though for many purposes (such as that of rescinding the disposition and recovering the equivalent—charging the obligor with the loss of the subject, etc.), the contract is still in fieri, as between obligor and obligee. Stoppage in transitu is a good illustration. The disposition as an alienation being incomplete,¹⁰ the seller, by preventing its completion, prevents the right of the creditors from attaching.

Wherever a disposition given jus in re (i.e. a right on the part of the vendee or those who take from him, against acquirers from the vendor), the disposition is manifestly an alienation. If it be not, there are no means of distinguishing the one from the other. The ambiguity in truth arises from a very gross mistake, 911viz. confounding evidentiary incidents with dispositions. Because certain incidents at law give no jus in re (and therefore are contracts), ergo, the dispositions clothed with these incidents are still contracts, though in Equity they have a different effect.

Quasi-Contracts and Quasi-Delicts.

Quasi-Contracts strictly what?

Strictly, Quasi-Contracts are acts done by one man to his own inconvenience for the advantage of another, but without the authority of the other, and consequently, without any promise on the part of the other to indemnify him or reward him for his trouble.

Instances: Negotiorum gestio, in the Roman Law: Salvage, in the English.

An obligation arises, such as would have arisen had the one party contracted to do the act) and the other to indemnify or reward. Hence the incident is called a ‘quasi-contract;’ i.e. an incident, in consequence of which one person is obliged to another, as if a contract had been made between them.

The basis is, to incite to certain useful actions. If the principle were not admitted at all, such actions would not be performed so often as they are. If pushed to a certain extent, it would lead to inconvenient and impertinent intermeddling, with the view of catching reward. Whether it shall be admitted, or not, depends upon the nature of the act:—i.e. its general nature; since, without a general rule, the inducement would not operate, nor would the limitation to the principle be understood. Acts which come not within the rule, however useful in the particular instance, must be left to benevolence incited by the other sanctions.

But quasi-contract seems to have a larger import;—denoting any incident by which one party obtains an advantage he ought not to retain, because the retention would damage another; or by reason of which, he ought to indemnify the other. The prominent idea in quasi-contract seems to be an undue advantage which would be acquired by the obligor, if he were not compelled to relinquish it or to indemnify.

Quasi-delict:—an incident by which damage is done to the obligee (though without the negligence or intention of the obligor), and for which damage the obligor is bound to make satisfaction.

912It is not a delict, because intention or negligence is of the essence of a delict: it being useless to apply a sanction where the will is passive.

The distinction between quasi-contract and quasi-delict, seems to be useless. In neither case is there either contract or delict. They are merely arranged under these heads, because there is an obligation (stricto sensu), as there would have been if there had been a contract or a delict.

Therefore one fiction suffices: and the rational way of considering the matter is, to look at the incident as begetting an obligation; and to treat the refusal to make satisfaction, or to withhold the advantage, as a delict; i.e. as a breach of that obligation.

The terms are merely a sink into which such obligatory incidents as are not contracts, or not delicts, but beget an obligation as if, etc. are thrown without discrimination. And this is the rational view which Gaius has taken of the subject, in a work from which an excerpt is contained in the Pandects.¹¹

Note.—Many incidents which are treated as quasi-contracts or quasi-delicts are, in truth, contracts or delicts; or need not be thrown into this common receiver, because they may be treated of conveniently elsewhere. Examples: 1°. The refusal to pay money received under a mistake, appears to be, not a quasi-contract, nor a quasi-delict, but a delict; there being intentionality. 2°. Evictio, which is a tacit contract. 3°. The obligation of the hæres to pay legacies; which it is absurd to refer to a quasi-contract, and not to the will, etc.

In the English Law the above terms do not occur; there the obligation is said to arise out of a contract or promise which the law implies. But the fiction is the same.

Demand necessary to support an action on jus in re.

If there be no delict without intention or negligence, quasi-delicts (like quasi-contracts) are merely sources of obligations, the refusal to fulfil which is properly the cause of action. Thus, the fact of my having received money through a mistake, is not a delict; but begets an obligation to repay that money or an equivalent. And the refusal (express or indicated by conduct) to repay, is the immediate cause of action: i.e. is a delict.

(Qu^e. Or the action may be considered a vindication.)

913In those cases in which a consideration has failed, there is a breach of accessory contract.

So, if I refuse to make compensation for damage done by my servant (without intention or negligence on my part) there is a delict; but, before refusal, an obligation to make such compensation. (Qu^e. Whether demand be necessary to sustain the action?)

It would appear, therefore, that every Right of Action arises out of a delict: i.e. a violation of some positive or negative obligation: And all such obligatory incidents, as amount to a cause of action without demand and refusal, are not quasi-contracts or quasi-delicts, but breaches of contract or violation of jus in re.

In quasi-contract, the prominent idea seems to be the advantage derived by the obligor (though inconvenience must, of course, have been sustained by the obligee).

In quasi-delict, the prominent idea is the damage suffered by the obligee; any advantage which may have accrued to the obligor being accidental to the cause of obligation. But in many cases the advantage and damage so suppose one another that it is difficult to determine the class. As solutio indebiti. Hence, ‘ex variis causarum figuris.’

If the terms are to be retained, it would be better, perhaps, to limit ‘ quasi-contract’ to incidents in which a service has been rendered by the obligee, and on which, therefore, it may be presumed that the obligor (if conscious and capable of contracting) would have purchased the service by a promise to requite, etc. And to call all other incidents ‘quasi-delicts.’

Note.—Wherever there is a promise, expressed or implied (i.e. to be inferred from the words, or from the position, or conduct of the obligor, previous to the completion of the obligatory incident), that incident is not a quasi-contract, but a genuine contract And wherever there has been negligence or intention, immediate or remote, on the part of the obligor, there is a genuine delict. It would seem, therefore, that damage done by the intention or negligence of servants, by vicious cattle, etc. of the obligor, ought to be rather ranked with delicts: for there is a degree of negligence in employing such servants, or in keeping such cattle, etc. In short, where the damage is not the consequence of some incident which prudence could not prevent, there is always room for applying a motive to the will; and, therefore, the incident may be classed with delicts.

914Limiting quasi-contract to services without instance and promise, and quasi-delict to damage without intention or negligence, immediate or remote,—there seems no reason for the use of the two terms; either being alike applicable by the same analogy; i.e. an analogy not of obligatory incidents, but of consequent rights and obligations. Neither a quasi-contract nor a quasi-delict is like either a contract or a delict; but the consequences of either of the former, are like the consequence of either of the latter; i.e. in begetting jura ad rem.

Blondeau seems to mistake the meaning of quasi-delict. The cases which he has cited as quasi-delicts are delicts: for there is intention or negligence. Quasi-delicts, in truth, are not violations of rights at all; but sources of jura ad rem, the refusal or omission to satisfy which, is a delict.

If an incident beget directly an action, it should clearly be ranged with delicts, and not with quasi-contracts or quasi-delicts.

Perhaps all incidents not contracts, which imply neither negligence nor intention on the part of the obligor, but which yet beget an action without refusal or omission to satisfy, etc. should be called quasi-delicts, being like delicts in directly begetting an action, but unlike them in respect of the absence of negligence and intention.

And all incidents not contracts, which imply neither negligence, etc. but which only beget an obligation, the refusal or omission to satisfy which, is the direct cause of action, should be called quasi-contracts: they being like contracts (rather than delicts), inasmuch as they engender an obligation which in itself supposes no right of action, but only begets an action on breach.

If this be so, quasi-delicts should be classed with ‘Sauctionative Rights and Obligations.’

Gaius makes no distinction between delicts and quasi-delicts, though he adverts to quasi-contracts.

Quasi-contracts and quasi-delicts, are not the only cases in which the name of one incident is extended to another, by reason of a resemblance between the rights and obligations which they respectively engender. Another instance, is the extension of the term ‘purchasers for valuable consideration,’ to certain parties who are entitled under marriage settlements.

The confusion entirely proceeds from the want of a generic expression by which these incidents can be bundled up together.

And note; the same want, instead of leading to the extension 915of a narrower, sometimes leads to the limitation of a wider: as in the instance, Rights arising by operation of Law; as if all rights did not so arise, and as if it were possible to distinguish this narrower class of rights by a term which is common to all.

Tendency to confound tacit contracts with quasi-contracts.

(Give instances:) This confusion is more likely to arise amongst English lawyers than others, on account of their wanting a generic name (which, bad as it is, the Romans have) for marking this sort of obligatory incidents.

Origin of the classification of spontaneous services, and of damage without intention, etc. with contracts and delicts.

1st. The want of generic names.

2nd. The extension to the former of the remedies previously annexed to the latter.

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