What is a Quasi-Contract?

A quasi-contract is founded on the duty of restitution.

If you find a watch, you should give it back by the right of property, because a man does not lose property with possession. But if you and I balance accounts, and you pay me but you afterwards find that you did not owe that sum, how will you claim it?

You cannot ask for it because you alienated that sum. You cannot claim it by contract, for there never was one made between us. But I am a gainer by your loss. Therefore restitution is due.

In the same way, if a man was called away by a sudden order of the state without leaving an attorney to manage a lawsuit that he had going on, and a friend undertakes this office without commission, as the defence is necessary, and the undertaking it prudent, restitution of his expenses are due.

On the same principle were founded the Roman law’sactiones contrariae. If you lent me a horse which had cost me extraordinary expenses, by the contract commodate, you could redemand your horse in the same [state] in which you lent him. But I could claim my extraordinary expenses by an actio contraria. The same principle takes place in many other cases.

If a person borrows money and gets three of his acquaintances sureties for him, jointly and severally, and if he turns bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds.

The Scotch law carries this still farther.

If a bankrupt had two estates, and two creditors A and B.

• A has a security on both estates, B has security only on the best.
• A has a liberty of drawing his money from either estate he pleases, and draws from that on which B has his security.
• As Bin this case is cut out, the law obliges Ato give up his security on the other estate to B.

The same was the case in the Roman law with regard to tutory.