The title would seem to imply the validity of debts not explicitly contracted—that is to say, the existence of obligations which have not involved any volitional undertaking on the part of either party concerned. The first case, that of injury inflicted upon others, whether wilfully or not, is referred to as quasi-misdemeanour, and other instances mentioned in the section are spoken of as quasi-contracts. Illustrations, which are plentiful enough, include payments made when not really due, attention to the business of another without any definite mandate authorising such interference, the obligation of the inheritor of property to pay off debts incurred by the previous owner, the recognition of the common interest which people living in the same neighbourhood possess, and which also exists between those who own property and those who lease it, between those who use it and those who inherit it.
Wherever anything of the nature of a quasi-contract exists we may be tolerably certain that it is the product of de facto or natural solidarity. Such solidarity may take its rise in the mere fact of propinquity or the mere feeling of neighbourliness; but more often than not it involves a measure of control over the lives of others, which is one of the outstanding features of a régime of division of labour. Then follow the familiar phenomena of fortunes amassed to the detriment of others through the acquisition of unearned increment and the operation of the laws of inheritance—the source of so many inequalities. Nor must we forget the prejudicial effect of quasi-misdemeanour upon the fortunes of others. The result is that the whole of society seems built, if not upon an original explicit contract, as Rousseau imagined, at least upon a quasi-contract; and seeing that this quasi-contract receives the tacit submission of the parties concerned, there is no reason why it should not be legally binding as well.
Now the existence of a debt implies that someone must pay it, and the next question is to determine who that someone ought to be.
Obviously it can only be those who have benefited by the existence of natural solidarity—all those who have amassed a fortune, but whose fortune would be still to make but for the co-operation of a thousand collaborators, both past and present. Such individuals have already drawn more than their share and have a balance to make up on the debit account. This debt should certainly be paid. It is all the better if it is done voluntarily, as an act of liberality arising out of goodness of heart—quia bonus, as the Gospel narrative puts it, of the rich good man. But this is hardly probable. Most people will pay just when they are obliged to; but such people have no right to consider themselves free, and no claim to the free disposal of their goods until they have acquitted themselves honourably.[1259] Individual property will be respected and free when every social debt which it involves has been adequately discharged, and not before then.[1260] Until this is done it is useless to speak of the existence of competition.
The next question is to determine who is to receive payment. Payment ought to be made to those who, instead of benefiting by the existence of natural solidarity, have suffered loss through its operation—the disinherited, as they are rightly called.[1261] All those who have not received a fair share of the total wealth produced by the co-operation of all naturally find themselves in the position of creditors. It is not easy to name them, perhaps, but the State can reach them a helping hand in a thousand different ways. State action of this kind was formerly spoken of as public assistance; nowadays it is termed solidarity or mutual insurance.
The payment may take the form either of a voluntary contribution to help some solidarist effort or other, or an obligatory contribution levied by the State. Some advocate progressive taxation, for if it be true that profits tend to grow progressively in proportion as an increase in the variety and strength of the means of production takes place, why not a progressive tax as well?[1262] Besides, the tax would be of a semi-sacred character, because it would mean the discharging of an important social debt. Nor is there anything very extravagant in the demand that the State should see that everyone makes a contribution in proportion to his ability, seeing that the natural function of the State is to be the guardian of contracts.[1263]
It is still more difficult to assess the rate of payment. The conditions under which payment would be made, says M. Bourgeois, would be such as the associates themselves would have adopted had they been free to discuss the terms of their engagement. In other words, everything must be regulated as if society were the result of an express convention, or rather of a retroactive contract mutually agreed upon. The difficulty is to determine the conditions which individual associates would demand as the price of their adhesion to the terms of the contract. We shall have to imagine what they would demand were they able to make fresh terms.
But we are not much farther ahead after all, for the individual himself knows nothing at all about it. Renouncing the attempt to solve the insoluble, one has to fix some kind of minimum claim which the disinherited may reasonably expect to see fulfilled. Such a minimum claim would be a guarantee against the ordinary risks of life. Society would become a kind of association for mutual insurance, with the good and bad fortune spread out equally over everybody.[1264]
But a quasi-contract is something very different from this. Contracts and quasi-contracts are based upon the giving and receiving of equivalent values, do ut des, whereas mutual insurance is a kind of substitute for direct liability. A contract is essentially individualistic—mutualism is primarily socialistic.
This idea of a quasi-contract contributed not a little to the success of M. Bourgeois’s theory, but it makes no vital contribution to the doctrine itself, and he might very easily have omitted it altogether.[1265] It is nothing better than an artifice, almost a logomachy, invented for the express purpose of affording some kind of justification for demanding a legal contribution by treating it as an implicit or retroactive contract. It is more of a concession to individual liberty than anything else. A taxpayer grumbles at a tax which goes to provide pensions for the old, but it is pointed out to him that the contribution is owing from him in virtue not of an explicit agreement perhaps, but at least of a quasi-agreement.