Contracts/Definitions: Difference between revisions

This is the language of Blackstone, 2 Comm. 443, and it is open to some criticism. There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or presumed, from circumstances as really existing, and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. . . . It is quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And this was not at all necessary; for we have another well-authorized technical term exactly adapted to the office of making the true distinction. The latter class are merely constructive contracts, while the former are truly implied ones. In one case the contract is mere fiction, a form imposed in order to adapt the case to a given remedy; in the other it is a fact legitimately inferred. In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty

There has been some inaccuracy in the use of this phrase [Implied contract]. If it is applied only to cases in which parties enter into a real contract, but without express words, then it is accurately used. If A borrows money of B, he really agrees to repay it, although he does not expressly say so. But . . . [in case of money lost on a wager], there is no contract to repay the money, either express or implied; and to call the liability an "implied contract" gives an incorrect idea of the nature of the liability. Such use of this phrase probably arose under the old forms of pleading when the action of assumpsit was found so useful. It was necessary in that action to allege a promise, while the action often lay in cases where no promise had been made. The civil law writers found the difficulty of attempting to classify actions into those ex contractu and those ex delicto. Therefore they made two other classes, viz., quasi ex contractu and quasi ex delicto. Thus they said that the action to recover back money paid by mistake was quasi ex contractu, for the party was so far from being bound by a contract, that he was bound rather ex distractu than ex contractu, because money paid was rather to dissolve than to form a contract. (Inst., III. 27, 6.) Similarly in this case the defendant made no contract to pay the plaintiff the money demanded. The actual contract between the parties, even if valid, would not be that which the plaintiff seeks to enforce. He claims that the defendant has money of his which, in justice and good conscience, the defendant should return. This right of action is not unlike the action to recover money paid by mistake. In each the money is paid voluntarily, in each it is unjust for the defendant to retain that which he has received. In neither has he agreed to return it. We might then class this as an action quasi ex contractu, for there is no agreement to return the money, which would give an action ex contractu. And on the other hand, possession of the money was not obtained by force or fraud, and thus the action is not strictly ex delicto

The term "implied contract" is a familiar one in the law. By reason of the relation of the parties or the existence of an obligation or duty a contract may be implied by law which the party never actually intended to enter into and the obligation of which he did actually intend never to assume. Whether or not it accords with scientific terminology to call an obligation imposed by the existence of a duty an implied contract, yet in the ordinary use of language by courts and writers it has been almost universally so called. "Implied contracts," says Blackstone, "are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance." (3 Com. 158.) In the sixth subdivision of his classification of implied contracts which arise from natural reason and the just construction of the law, he says: "The last class of contracts, implied by reason and construction of law, arises upon this supposition: that every one who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence and skill; and if by his want of either of those qualities any injury accrues to individuals, they have their remedy in damages by a special action on the case." (Ibid. 163.) And among the instances of implied contracts are mentioned those of the common inn-keeper to secure his guest's goods in his inn, of the common carrier to be answerable for the goods he carries, and of the common carrier that he shoes a horse well without laming him

The evidence of an actual contract is generally to be found either in some writing made by the parties, or in verbal communications which passed between them, or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The law says that it shall be taken that there was a promise, when, in point of fact, there was none. Of course this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the obligations quasi ex contractu of the civil law, which seem to lie in the region between contracts on the one hand, and torts on the other, to call for the application of a remedy not strictly furnished either by actions ex contractu or actions ex delicto.

The term "implied contract" has also been applied to a class of obligations which are created by law without regard to the assent of the party upon whom the obligation is imposed, on the ground that they are dictated by reason and justice. They are not concontract obligations in the true sense because there is no agreement of the parties, but they are constructive contracts created hy the law.

Foundation of doctrine.

1. "The whole theory of contracts implied in law was originated for the purpose of giving a remedy ex contractu for certain wrongs." Nevada Co. v. Farnsworth, 89 Fed. 164, 165.

2. After subtracting express contracts and contracts implied in fact, there is still left another large class of obligations, to enforce which the action of general assumpsit is a well established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles, derived from the civil law. This obligation was under the civil law designated "quasi-contractus." Stated as a civil law principle, it was an obligation similar in character to that of a contract, but which arises not from an agreement of parties but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obllgation springing from voluntary and lawful acts of parties in the absence of any agreement. (Howe's Studies of Civil Law, 171; Morey on Roman Law, 371).

   Highway Comrs. v. Bloomington, 253 Ill. 164, 173, 97 NE 280, AnnCast913A 471.
3. A quasi promise is "an implied promise In law, founded either on the doctrine that one shall not be allowed to enrich himself unjustly at the expense of another; or on the doctrine that when an obligation is imposed by law upon one to do an act because of an interest in the public to have it done, and that one fails to do it, he who does do it, expecting compensation, may recover therefor of him on whom the obligation is imposed." Mathie v. Hancock, 78 Vt. 414, 417, 63 A 143.

A quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In truth, it is not a contract or promlse at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acta of the parties or others have placed in the possession of one person money, or its equlvalent, under such circumstances that in equity and good conscience he ought not to retain it, and which ex aequo et bono ["according to the right and good"] belongs to another. Duty, and not a promise or agreement or intention of the person sought to be charged, defines it. It is fictitiously deemed contractual, in order to fit the cause of action to the contractual remedy.

Miller v. Schloss, 218 N.Y. 400, 407, 113 NE 337

The rule is that one cannot be held liable on an implied contract to pay for that which he declines to permit to be done on his account. The exception to the rule is that when the law imposes upon one an obligation to do something which he declines to do, and which must be done to meet some legal requirement, the law . . . treats performance by another as performan for him, and implies a contract on his part to pay for it.

Keith v. De Bussigney, 179 Mass. 255, 259, 60 NE 614.

1. "One In whlcll all the parties thereto have performed all the obligations which they have originally assumed." Wat· klns v. Nuf.en, 118 Ga. 372, 374, 45 SE 262.
2. 'One In which the object of the co ntra ct Is _performed." Fletcher v. Peck, 6 Cranch (U. S. ) 87, •136, 3 L. ed. 162 (per Marshall, C. :J. ); nastln Tel. Co. v. Richmond Tel. Co., 117 Ky. 122, 126, 77 SW 702, 26 KyL 1249; Skelly v. :Jefferson Branch Bank, 9 Oh. St. 607, 6 2 3 ; Sa ndusk.f City Bank v. Wllbor, 7 Oh. St. 48􀂲. 494.
3. "One the object 'o f which Is f ully performed." Cal. Clv. Code (1903) 1 1661 ; N. D. Rev. Codes (1899) I 3919 ; Okl. Rev. St. ( 1 9 0 3 ) § 8 1 2 .
4. "A contract becomes exe cuted when all Is done that Its term" require to be performed. Until that situation Is attained. the con trac t Is executory." Leadbetter v. Hawley, 5 9 Or. 4 22, 4 24. 1 17 P 289.
5. "A contract becomes a n executed one when nothing remains to be done by either party, and where the transaction has been completed, or was completed a t the ti me the contract was made." McNett v. Cooper, 13 Fed. 686, 690 ; Kynoch v . The S. C. Ives, 14 F. Cas. No. 7,958, Newb. Adm. 2 0 5 (quot Story Contr. I 18] ; M e t te! v. Gales, 12 S. D. 632, 639, 82 NW 181.

1. "A con· tract to do some f u t ure act." Hale v. Sharpe, 4 Coldw. (Tenn.) 275 , 286.
2. "One where It Is s t ipulated ... upon a sufficient consideration that something Is to be done or not to be done by one or both of the parties." Bergere v. Chaves, 14 N. M. 352, 364, 93 P 762, 61 LRA NS 50.
3. "One In wh ich something remains to be don e by one or more parties." Watkins v. Nugen, 118 Ga. 3 72, 374, 4'5 SE 262.
4. "A ll contracts other thai!' those the object of which Is fully performed are executory con· tracts." Cal. Clv. Code (1903) 1 1661 ; N. D. Rev. Codes (1899) f 3919; Okl. Rev. St. ( 1 903 ) I 812.
5. "Whilst any act remains to be done, tt1 e contract Is understood to be executory." Fox v. Kitt o n, 19 Ill. 519, 532.

1. A con tract betw e en a ci ty and an electric light company, by which the company Is to !lu rn l sh lights for a cer tai n number o f years at a fixed price, Is an executory. and not an executed, contract. K eokuk v. Ft. Wayne Electric Co.. 90 Iowa 67, 57 NW 689.
2. Where parties In the sale of stock agreed to pay a certain sum of money on one day, a nd on a subsequent day a certain other sum, and at some time to execute a r.ote for a third sum, and such acts were done on such days, the co ntract ca n· not be said to be execu tory merely because the note given was unpaid. Cincinnati, etc .. R. Co. v. McKeen, 64 Fed. 36, 12 CCA 1 4.
3. An agreemen t to se ll Is an execu tory con tract. Fulenwider v. Rowan, 136 Ala. 287, 34 S 9 75.
4. A defective deed, be ing only a contra ct to convey, Is therefore an executory contract to convey. Adams v. Reed, 11 Utah 4 8 0, 4 0 P 7 2 0.

1. "Those whose validity does not depend upon t heir form. but upon the presence Bec:kof a considerat ion. With the excep, tlon of c on tracts under s e al and con- tracts of record. every c on tract re- quires a consideration to su pport it." Corcoran v. New York Ce nt .. etc., R. Co .. 20 Misc. 197, 200. 4 6 NYS 861 [str 25 App. Dlv. 4 7 9, 4 9 NYS 701 <atr 164 N. Y. 587 mem. 68 NE 1086 mem)].
2. "An agreemen t between two parties. a draw ing to geth e r of two minds to a common Intent. and must be voluntary as well as mutual." Cash ion v. Weetern Union Tel. Co., 124 N. c. 4 6 9, 468, 32 SE 746, 46 LRA 160.

A resolutory condition is implied in all commutative contracts, to take effect in case either of the parties does not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance. . . . The dissolving condition . . . when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. The creditor seeking to avail himself of it is obliged to restore what he has received. . . . If the buyer does not pay the price, the seller may sue for the dissolution of the sale. . . . In certain cases the jduge may grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months. . . . In order to enforce the resolutory con d i t i o n th e re m u s t be a j u d i cial demand a n d a regular adj u d i c a t i o n . . . . T h i s res olu tory co n d i t i o n may be waived. or such c h a n g e s m a y have take n p l a c e t h a t the parties can n o t be p u t back Into the same position I n wh ich they were, o r the del i n qu e n t pa r ty may have had a proper ex cuse fo r want of p rompt ness In performance ; all which th ings are p roper to be submitted to the j u d g m e n t of a cou rt.

[c] In Louisiana commutative contracts are declared to be "those in which what is done, given or promIsed b y on e party, Is con side red as e quival ent to, or a cons ideration for what is done. given or promised by the other." Clv. Code art 1768 : Rid· irgs v . Johpson, 1 2 8 U. S. 2 1 2 . 2 1 5 , 9 S C:t 72. 32 L. ed. 401 : Goodson v. Vivian 011 Co., 1 2 9 La. 9 6 5 , 57 S 281. See Delabl nrre v. New Orleans Sec. on d Municipality, 3 La. Ann. 230.