(1) The traditional classification of the various forms of personal actions, as being based either on contract or on tort. This classification could be rendered exhaustive and sufficient only by forcing all liquidated pecuniary obligations into the contractual class, regardless of their true nature and origin. The theory that all common law actions are either contractual or delictal is received by the legislature even at the present day,[[474]] and its necessary corollary is the doctrine of quasi-contract.

(2) The desire to supply a theoretical basis for new forms of obligation established by judicial decision. Here as elsewhere, legal fictions are of use in assisting the development of the law. It is easier for the courts to say that a man is bound to pay because he must be taken to have so promised, than to lay down for the first time the principle that he is bound to pay whether he has promised or not.

(3) The desire of plaintiffs to obtain the benefit of the superior efficiency of contractual remedies. In more than one respect, it was better in the old days of formalism to sue on contract than on any other ground. The contractual remedy of assumpsit was better than the action of debt, for it did not allow to the defendant the resource of wager of law. It was better than trespass and other delictal remedies, for it did not die with the person of the wrongdoer, but was available against his executors. Therefore plaintiffs were allowed to allege fictitious contracts, and to sue on them in assumpsit, whereas in truth their appropriate remedy was debt or some action ex delicto.

It seems clear that a rational system of law is free to get rid of the conception of quasi-contractual obligation altogether. No useful purpose is served by it at the present day. It still remains, however, part of the law of England, and requires recognition accordingly.

§ 171. Innominate Obligations.

The foregoing classification of obligations as either contractual, delictal, or quasi-contractual, is not exhaustive, for it is based on no logical scheme of division, but proceeds by simple enumeration only. Consequently, it is necessary to recognise a final and residuary class which we may term innominate, as having no comprehensive and distinctive title.[[475]] Included in this class are the obligations of trustees towards their beneficiaries, a species, indeed, which would be sufficiently important and distinct to be classed separately as co-ordinate with the others which have been named, were it not for the fact that trusts are more appropriately treated in another branch of the law, namely in that of property.

SUMMARY.

Obligations defined.

Choses in action.

Solidary obligations: