4. The fourth and last class of wrongs which are not torts consists of breaches of trusts or other equitable obligations. The original reason for their exclusion and separate classification is the historical fact, that the law of trusts and equitable obligations originated and developed in the Court of Chancery, and was wholly unknown to those courts of common law in which the law of torts grew up. But even now, although the distinction between law and equity is abolished, it is still necessary to treat breaches of trust as a form of wrong distinct from torts, and to deal with them along with the law of trusts itself, just as breaches of contract are dealt with along with the law of contract. Torts, contracts, and trusts developed separately, the principles of liability in each case are largely different, and they must be retained as distinct departments of the law.
By some writers a tort has been defined as the violation of a right in rem, giving rise to an obligation to pay damages. There is a tempting simplicity and neatness in this application of the distinction between rights in rem and in personam, but it may be gravely doubted whether it does in truth conform to the actual contents of the English law of torts. Most torts undoubtedly are violations of rights in rem, because most rights in personam are created by contract. But there are rights in personam which are not contractual, and the violation of which, if it gives rise to an action for damages, must be classed as a tort. The refusal of an innkeeper to receive a guest is a tort, yet it is merely the breach of a non-contractual right in personam. So with any actionable refusal or neglect on the part of a public official to perform his statutory duties on behalf of the plaintiff.
§ 170. Obligations arising from Quasi-Contracts.
Both in Roman and in English law there are certain obligations which are not in truth contractual, but which the law treats as if they were. They are contractual in law, but not in fact, being the subject-matter of a fictitious extension of the sphere of contract to cover obligations which do not in reality fall within it. The Romans called them obligationes quasi ex contractu. English lawyers call them quasi-contracts or implied contracts, or often enough contracts simply and without qualification. We are told, for example, that a judgment is a contract, and that a judgment debt is a contractual obligation.[[465]] “Implied [contracts],” says Blackstone,[[466]] “are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform.” “Thus it is that every person is bound, and hath virtually agreed, to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation, of the law.”[[467]] So the same author speaks, much too widely indeed, of the “general implication and intendment of the courts of judicature that every man hath engaged to perform what his duty or justice requires.”[[468]]
From a quasi-contract, or contract implied in law, we must carefully distinguish a contract implied in fact. The latter is a true contract, though its existence is only inferred from the conduct of the parties, instead of being expressed. Thus when I enter an omnibus, I impliedly, yet actually agree to pay the usual fare. A contract implied in law, on the contrary, is merely fictitious, for the parties to it have not agreed at all, either expressly or tacitly.
In what cases, then, does the law recognise this fiction of quasi-contract? What classes of obligations are regarded as contractual in law, though they are not so in fact? To this question it is not possible to give any complete answer here. We can, however, single out two classes of cases, which include most, though not all, of the quasi-contractual obligations known to English law.
1. In the first place we may say in general, that in the theory of the common law all debts are deemed to be contractual in origin. A debt is an obligation to pay a liquidated sum of money, as opposed to an obligation to pay an unliquidated amount, and as opposed also to all non-pecuniary obligations. Most debts are obligationes ex contractu in truth and in fact, but there are many which have a different source. A judgment creates a debt which is non-contractual; so also does the receipt of money paid by mistake or obtained by fraud. Nevertheless, in the eye of the common law they all fall within the sphere of contract; for the law conclusively presumes that every person who owes a debt has promised to pay it. “Whatever, therefore,” says Blackstone,[[469]] “the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.”
Hence it is, that a judgment debtor is in legal theory liable ex contractu to satisfy the judgment. “The liability of the defendant,” says Lord Esher,[[470]] “arises upon the implied contract to pay the amount of the judgment.” Similarly all pecuniary obligations of restitution are in theory contractual, as in the case of money paid by mistake, or obtained by fraud or duress. “If the defendant,” says Lord Mansfield,[[471]] “be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action founded on the equity of the plaintiff’s case, as it were upon a contract (quasi ex contractu, as the Roman law expresses it).” So also with pecuniary obligations of indemnity; when, for example, the goods of a stranger are distrained and sold by a landlord for rent due by his tenant, the law implies a promise by the tenant to repay their value to the owner thus deprived of them.[[472]] A similar fictitious promise is the ground on which the law bases obligations of contribution. If, for example, two persons acting independently of each other guarantee the same debt, and one of them is subsequently compelled to pay the whole, he can recover half of the amount from the other, as due to him under a contract implied in law, although there is clearly none in fact.
2. The second class of quasi-contracts includes all those cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. That is to say, there are certain obligations which are in truth delictal, and not contractual, but which may at the option of the plaintiff be treated as contractual, if he so pleases. Thus if one wrongfully takes away my goods and sells them, he is guilty of the tort known as trespass, and his obligation to pay damages for the loss suffered by me is in reality delictal. Nevertheless I may, if I think it to my interest, waive the tort, and sue him on a fictitious contract, demanding from him the payment of the money so received by him as having rightly sold the goods as my agent, and therefore as being indebted to me in respect of the price received by him; and he will not be permitted to plead his own wrongdoing in bar of any such claim.[[473]] So if a man obtains money from me by fraudulent misrepresentation, I may sue him either in tort for damages for the deceit, or on a fictitious contract for the return of the money.
The reasons which have induced the law to recognise the fiction of quasi-contractual obligation are various. The chief of them, however, are the three following:—