Quasi-contract

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

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 In most common law jurisdictions the law of quasi-contract has been superseded by the law of unjust enrichment.^[3]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

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 express 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

• The law of contract
  • Implied-in-fact contract
  • Promissory estoppel
• The Law of Restitution
  • Unjust enrichment
  • Officious intermeddler

References

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