ARTICLE III § 2 clause 1 (cont'd):
(3)unjust enrichment:
(a)the case: Here's an example case of unjust enrichment: Suppose Nate lives near a lake in America's north woods. Suppose this lake does not have any navigable inlets or outlets, and is therefore not under an "admiralty and maritime Jurisdiction". Suppose issues like boat traffic, algae control, pier size, pollution control, and other such issues are governed by a private consortium of concerned citizens, but the lake is considered by all to be a commons. —— Nate enjoys going to the lake from time-to-time to canoe peacefully at dawn and dusk. While canoeing across the lake one evening, he finds a plastic bag floating on the surface. As a concerned citizen, he picks it up to relieve the lake of yet another slob's debris. When he gets back to shore, he opens the bag to see what it is before he throws it in the dumpster. He is dumbfounded to see that it is about $100,000 in Federal Reserve Notes (frns). Over the next couple of days, Nate is overwhelmed with visions of what he could do with this windfall. On his third day of having this cache of frns, Nate sees a notice in a local newspaper in which Jeffrey Lament begs for the return of what he claims is his money. Nate thinks about it and decides he'd rather keep it. He thinks, "I didn't steal it. I found it on the commons. Finders, keepers. Losers, weepers.". —— After a couple of weeks, Jeffrey somehow discovers that Nate has the frns. So Jeffrey sues in a local court for recovery of the frns from Nate. Jeffrey knows from talking to his lawyer that he can't get his money back by filing criminal charges against Nate, because Nate hasn't committed a crime. In other words, the damage from which Jeffrey is suffering is self-inflicted. He is guilty of losing the frns, not Nate. Jeffrey can't sue himself to recover something he no longer has. And he can't sue Nate unless Nate is somehow obligated or culpable. If Nate had stolen the frns, then that would have been a gross delict, and Jeffrey could have filed criminal charges against Nate, and Jeffrey could have gotten both retribution against Nate and restitution from Nate. If Nate had acquired the frns through fraud, then that would have been a subtle delict, and Jeffrey could have filed a civil suit against Nate, and probably gotten restitution. But Nate didn't do anything other than find the frns, and keep what he found. Jeffrey has no grounds for suit in an at law court, or in a jural court, unless some extraordinary legal mechanism is discovered. If Jeffrey and Nate had a contract of some kind, where that contract covered situations like this, then Jeffrey could take his case to an ecclesiastical court. But they don't have a contract like that. So what's going to happen?
(b)unjust enrichment –– legal fictions: His lawyer tells Jeffrey that law holds that there is a fictitious contract between Nate and Jeffrey. He says that this legal fiction obligates Nate to return the frns to Jeffrey.[note] The lawyer tells Jeffrey that he can file suit in either a law court or an equity court, and in either type of court, if Jeffrey can prove himself to be the original owner, such court will certainly find in his favor, and put the frns in his hands.
Traditional Anglo-American jurisprudence claims that there is, indeed, something called a legal fiction, which is sometimes called a fiction of law. A legal fiction is defined as an "Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter, though it need not be created improperly".[note] A fiction of law is defined as "An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. An assumption, for the purposes of justice, of a fact that does not or may not exist. A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.".[note]
Between Jeffrey and Nate, there is no real contract –– no contract in fact –– and there is no delict. Is it possible that the court could discover or invent a fiction in this situation that would give relief to Jeffrey Lament? If so, then if this fiction is legal in traditional Anglo-American jurisprudence, then the fiction must also abide by the maxim, "A fiction of law injures no one.".[note]
(c)unjust enrichment –– defining "contract": In traditional Anglo-American jurisprudence, for a contract to be valid, it must be entered voluntarily, intentionally, and knowingly, i.e., via consent. This sounds simple enough. But because many muddle-headed legal "experts" have such difficulty in defining contract, we'll start searching for a definition by recognizing what a contract is not. If a contract is void ab initio –– null from the beginning –– then it never existed. In traditional Anglo-American jurisprudence, there are five valid reasons for voiding or nullifying a contract. These in effect delineate what a contract is not.
—— (i)lack of capacity: If a twelve-year-old makes a contract with an adult, the contract may have been entered voluntarily, intentionally, and knowingly, but since one of the parties is a minor, the contract will not be enforced against the minor to the minor's detriment. It might be enforced as positive law against adult parties, as though it were a perfectly valid contract. But it won't be enforced against the minor, at least in most American courts.
—— (ii)coercion: For the contract to be valid, all parties must have entered it voluntarily.
—— (iii)fraud: Fraud is "an intentional perversion of the truth for the purpose of inducing another … to part with some valuable thing.[note] …". Fraud is usually classified into two kinds: actual fraud and constructive fraud. "Actual fraud consists in deceit, artifice, trick, design, some direct and active operation of the mind. … Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.".[note] Constructive fraud is also called fraud in law, because it is fraud construed from existing law. Fraud in law is contrasted with fraud in fact, where fraud in fact is the same thing as actual fraud. In contracts, actual fraud is usually more difficult to prove than constructive fraud. This is because proving actual fraud demands proof of intent (which is usually difficult) or establishment of a pattern of behavior. In contrast to this, constructive fraud is where all the details of the contract are not revealed because one of the parties is withholding information.
—— (iv)mutual misunderstanding: If there is mutual misunderstanding, then that's grounds for voiding a contract under the common law.
—— (v)misrepresentation: "A 'misrepresentation' … is a false statement of a substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter at hand, made with intent to deceive or mislead.".[note]
If there is some contract between Jeffrey Lament and Nate, the way Jeffrey's lawyer claims there is, do any of these reasons for voiding the contract apply? —— From a rational perspective, there is absolutely a good reason. Nate is being coerced into this fictional contract by the police powers of the court. From Nate's point of view, anyone should be able to see that he is being coerced, that coercion is wrong, and that this fiction of law is in fact injuring him by depriving him of his windfall. —— But according to the definition of fiction of law, such a fiction cannot be refuted. That's because a fiction of law is defined as "A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.".[note] So if Jeffrey's lawyer is correct, when Jeffrey files suit against Nate, the court will find that there is a fictitious contract between Nate and Jeffrey, and any claim by Nate that he is being coerced into this fictitious contract will be ignored, and will not be heard by the court, except with a deaf ear. As far as the court is concerned, its legal fiction trumps Nate's claim to coercion. The court believes that such fictions of law "are of an innocent or even beneficial character, and are made for the advancement of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable [(in this case, contracts)] to other cases to which it is not strictly applicable, the ground of inapplicability being some difference of an immaterial character.".[note] —— So if Jeffrey's lawyer is correct, the court will find that the lack of a contract between Nate and Jeffrey is "of an immaterial character.". In other words, the fact that there is no contract in fact is irrelevant and immaterial because the court intends to create a contract out of thin air, for the sake of pursuing its vision of justice. —— Creating fictions in order to procure justice is equivalent to claiming that the end justifies the means. Tyrants have used this logic for centuries to pursue their special visions of justice.
Now that we have some idea about what a contract is not, can we determine what a contract is? Some legal "experts" claim that contracts are beyond definition. For example, "A learned writer has said, in discussing the proper definition of contract, that 'if we seek to build up a definition of “contract” which shall include all things that have been called contracts and shall exclude all things that have been held not to be contracts, the task is evidently impossible. … Any definition of contract therefore must be either arbitrary or inexact.'".[note] Such confusion derives largely from attempts to relegate consent to irrelevance, as in the example of Nate's fictitious contract with Jeffrey. But there are also other reasons for this confusion.
Some "authorities" claim that consideration is irrelevant to the definition of contract. For example, "The consideration is not properly included in the definition of contract, because it does not seem to be essential to a contract, although, it may be necessary to its enforcement."[note]
Generally, the definition of contract has remained relatively unsettled for centuries, and different jurisdictions have slightly different ideas about how to define contract, how to categorize contracts, and how to prioritize them. One "authority" says a contract is "An agreement by which two parties reciprocally promise and engage, or one of them singly promises and engages to the other, to give some particular thing or to do or abstain from doing some particular act.".[note] Another "authority" says it's a "A voluntary and lawful agreement by competent parties, for a good consideration, to do or not to do a specified thing.".[note] The most popular American law dictionary in the early 20th century defines the qualities of a contract like this: "[B]oth parties must assent [(or consent)] to fill its terms …. To the rule that the contract must be obligatory on both parties, there are some exceptions: as the case of an infant, who may sue, though he cannot be sued, on his contract …. There must be a good and valid consideration, which must be proved though the contract be in writing …. There is an exception to this rule in the case of bills and notes, which are of themselves prima facie evidence of consideration. And in other contracts (written), when consideration is acknowledged, it is prima facie evidence thereof, but open to contradiction by parol [(oral)] testimony. There must be a thing to be done which is not forbidden by law, or one to be admitted which is not enjoined by law. Fraudulent, immoral, or forbidden contracts are void. A contract is also void if against public policy or the statutes, even though the statute be not prohibitory but merely affixes a penalty …."[note] —— From the investigation's point of view, this latter definition is fairly reliable. But there are several serious problems with it: (i)Regarding something in a contract that "is not forbidden by law", what if the law is wrong, and immoral, and stands in violation of biblical standards of morality, and the term in the contract that is "forbidden by law" is a corrective to the flaw in the law? Is the contract lawfully a contract under such circumstances? (ii)Regarding "immoral" terms in a contract, who is qualified to judge morality in a secular social compact? (iii)Regarding "forbidden" terms, it's safe to assume here that Bouvier's is speaking of a malum prohibitum. If something is bad simply because so-and-so says it's bad, and not because it is forbidden by positive law prescribed by the global covenant, then has a given party to the contract consented to abide by this malum prohibitum? (iv)The two breeds of "prima facie evidence" of consideration mentioned above are implicitly treated as plain consideration by the investigation.
The most popular law dictionary of the late 20th century says that a contract is "An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.".[note] Although this definition is more concise, it covers essentially the same ground and has essentially the same problems as Bouvier's definition. We'll summarize these definitions by claiming that a contract has these characteristics: A contract has (i) terms ("subject matter"); (ii)"competent parties" (All parties have capacity, meaning that they aren't minors or mentally ill or disabled in some other respect.); (iii)"legal consideration" (In other words, valuables are being exchanged, and this set of valuable things is recognizable as valuable in a court.); (iv)agreement by all parties to the terms (i.e., mutual consent, assent, agreement, regarding the terms, given by all parties); and (v)"mutuality of obligation".
We're convinced that the variety of notions about the nature of contracts, espoused even by "authorities", derives from numerous sources, but from two above all others. We believe that it derives from muddled thinking (i)about distinctions between gifts, agreements, and contracts; and (ii)about the centrality of mutual consent to the existence of a contract in fact. In hopes of gaining clarity about the nature of contracts, we offer our own definition, which is based on the process of contract-formation, and on the differences between agreements, gifts, and contracts. —— A contract is formed by (a)mutual offers, (b)mutual acceptances, and (c)mutual considerations. —— If Joe Blow sets up a fruit-vending stand at the intersection of two dirt roads, his act of setting up the stand and stocking it with produce is an act of making an offer of his produce to passersby. When Jack Stark stops and says he wants two watermelons, he's making an offer to Joe. They are in an offer feedback loop with one another, mutually searching for the terms of their contract. When Joe responds to Jack's offer by saying, "I'm charging three dollars a melon."; and Jack responds by saying, "I'll give you two and a half."; and Joe responds by saying, "Two seventy-five."; and Jack responds by saying, "OK!"; they are continuing their offer feedback loop in search of mutual agreement. When they reach mutual agreement, they have each consented to the terms, where the terms define what's necessary to consummate their contract. The contract is consummated through exchange of mutual considerations. The considerations always consist of benefits to be received and obligations to be rendered. The obligations always contain promises. The terms of their informal contract obligate Joe to give two watermelons to Jack, and they obligate Jack to give five dollars and fifty cents to Joe. The terms indicate that the benefit to Joe is receipt of the money, and the benefit to Jack is receipt of the two watermelons. The contract is consummated when the exchange of considerations is completed. —— Common sense demands that all contracts follow this pattern. In other words, according to natural law, all contracts follow this pattern. If the contract is not consummated immediately, it may be important to write the contract down so that it can be adjudicated. It may also be necessary to stipulate penalties for non-performance, or mal-performance. No doubt contracts can get extremely complex. But no matter how complex they may get, they always follow this simple pattern. Otherwise they are not contracts. There are potentially countless objections to the claim that all contracts follow this pattern. Endeavoring to address all such objections is a monumental task that is far beyond the scope of this inventory. Nevertheless we'll address two such objections briefly:
(i)Some legal authorities make a radical distinction between contracts and sales, claiming that contracts have promises, while sales do not.[note] Our response is to claim that sales are are contracts because they do contain promises. In a sale, the duration between the initial offer and the consummation of the consensual promises might be reduced to the infinitesimal, but that doesn't mean that the promises don't exist. If merely means that they are fulfilled quickly. Sales always have (a)an offer feedback loop, (b)mutual acceptance, and (c)mutual consideration. Likewise, they always have a set of promises, even if the promises may be difficult to see because of the short duration. In contrast to a sale, a gift is not a contract because a gift lacks one of the three essential ingredients. In a gift, there is a one-sided offer and a one-sided consideration. If Jack stops at Joe's fruit stand, and says, "I want two watermelons.", and Joe says, "They're free.", Joe is making an offer, but Jack is not offering anything in return. This gift has mutual acceptance, because Joe accepts the terms of the transaction, and so does Jack. Since consideration is composed of benefits and obligations (where the latter contains a set of promises), the benefit flows from Joe to Jack, but it doesn't flow reciprocally, and there is no apparent promise or obligation on either side.[note] There is mutual agreement about the terms of this gift, but it lacks a mutual offer and mutual consideration. —— Black's defines agreement as "A coming together of minds; a coming together in opinion or determination; the coming together in accord of two minds on a given proposition. … Although often used as synonymous with 'contract', agreement is a broader term; e.g. an agreement might lack an essential element of a contract.".[note] People can agree that the moon is made of Swiss cheese, but such an agreement imposes no obligations that are recognizable in a court, and the parties to the agreement receive no benefit that is recognizable in a court, and there are no promises. So most courts would treat such an agreement as frivolous, and outside its jurisdiction. So even though a promise exists in a sale, even if difficult to discern, and even though a promise may also exist as part of a gift, that doesn't mean that the promise makes the gift into a contract.
(ii)Some legal authorities may claim that (a)offer feedback loop, (b)mutual acceptance, and (c)mutual considerations, are inadequate because some contracts are never intended to be consummated. For example, some corporations are designed to have a perpetual existence, meaning that they are not intended to be consummated the same way that a sale is consummated, or that some other short-term contract is consummated. But this is a bogus claim because a reasonable claim to perpetuity is a claim to an indefinite duration, not a claim to an infinite timeline.
In an imperfect universe, the infinite and the infinitesimal may have mathematical value, but they have no value in the real world unless they go to their limits. A promise may have a minute duration, but that doesn't mean that it doesn't exist. Likewise, a promise may have an indefinite duration, but that doesn't mean that it exists infinitely. Any legal entity that fails to have (a)an offer feedback loop, (b)mutual acceptance, and (c)mutual consideration is not really a contracts. Likewise, any claim, by legal experts, that some common legal entities are not contracts needs to be scrutinized carefully before accepting their claim as correct.[note]
With this understanding of what a contract is, we can look at the Constitution to see if we can discover its view of contracts. According to the supreme Court, "Contract is used in the United States constitution in its ordinary sense as signifying the agreement of two or more minds, from considerations proceeding from one to the other, to do, or not to do, certain acts. Mutual assent to its terms is of its very essence: it does not extend to a judgment against a city for damages suffered from a mob (given by statute)".[note] Note this: "Mutual assent [(consent)] to [the contract's] terms is of its very essence". Also note that contracts, according to traditional constitutional law, do not include judgments made by a court. A judgment is "The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties.".[note] If parties go to court to resolve a dispute, but there is not an obvious dead, damaged, or injured party, then they have in essence agreed to resolve their dispute in an ecclesiastical court. They have thereby entered a contract implied in fact, to abide by the findings of the court. The judgment of the court is a direct product of that implied contract. Since the Constitution excludes judgments from its view of what constitutes a contract, it's reasonable for us to wonder if the fictitious contract imposed on Nate by the court to which Jeffrey appealed, if this judgment-created contract is a legitimate contract.
(d)unjust enrichment –– categorizing contracts: Before we jump to any final conclusions about what the Constitution says, what constitutional law says, or what the best combination of divine law and natural law says, about fictions of law and unjust enrichment, we should look more closely at the categories of contracts, for the sake of ensuring that whatever conclusion we make is made on solid ground. According to Bouvier's, contracts at common law are categorized into (i)contracts of record, (ii)contracts by specialty, and (iii)simple or parol contracts. "At common law, contracts have been divided ordinarily into contracts of record, contracts by specialty, and simple or parol contracts. The latter may be either written (or sealed) or verbal; and they may also be express or implied. … 'The only difference between an express contract and one implied in fact is in the mode of substantiating it. An express agreement is proved by express words, written or spoken …; an implied agreement is proved by circumstantial evidence showing parties intended to contract'".[note]
—— (i)A contract of record is "one which has been declared and adjudicated by a court having jurisdiction, or which is entered of record in obedience to, or in carrying out, the judgments of a court."[note] —— "These are not properly speaking contracts at all, though they may be enforced by action like contracts."[note] —— If PartyX sues PartyY, and the judgment of the court is that PartyY should pay PartyX thus-and-such, then that judgment might be enforced as though it were a contract, i.e., a contract of record.
—— (ii)A specialty contract is "A contract under seal [such as deeds and bonds]. … A writing sealed and delivered, containing some agreement. A writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified.".[note] "They are not merely written, but signed, sealed, and delivered by the party bound. … In the seal, the distinction with regard to specialties has been preserved intact except when abolished by statute. In Ortman v. Dixon, 13 Cal. 33, it is said that the distinction is now unmeaning and not sustained by reason.".[note] So "in common usage this term is often used to denote an express or explicit contract.".[note]
—— (iii)A simple contract is "one that is not a contract of record and not under seal; it may be either written or oral, in either case, it is called a 'parol' contract, the distinguishing feature being the lack of a seal.".[note] Simple contracts are "by parol (which includes both oral and written). The only distinction between oral and written contracts is in their mode of proof.".[note] In modern vernacular, a parol contract is not in writing, or is only partially in writing. But "At common law, [it's] a contract, though it may be in writing, not under seal.".[note] —— We conclude that a simple / parol is an ordinary contract, what ordinary Americans think of when they hear the word, "contract".
Since a contract of record is essentially a contract arising out of a judgment, and since no prior judgment existed in Jeffrey's action against Nate, we're left concluding that Jeff's action must be either a specialty or a simple / parol. It's clearly not a specialty because it's not under seal, and it's not even in writing. So we're led to conclude that the presumed contract between Nate and Jeffrey must be a simple / parol. Simple / parol contracts are classified most prominently according to how they are enforced. Out of the numerous ways to classify contracts –– and to classify the variety of simple / parol contracts –– this classification of such simple contracts according to how they are enforced is closest to our central concern about consent.
Given our overriding concern for avoiding bloodshed and honoring consent, classifying simple / parol contracts according to how proof of consent is obtained by a court is crucial. So the overriding sub-categories of simple / parol contracts are those expressed and those implied. "Express contracts are those in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of making: as, to pay a stated price for certain specified goods; to deliver an ox, etc."[note] For example, the contract between Joe Blow and Jack Stark was express, even though it was not in writing. Failure to put the contract in writing makes the contract more difficult to enforce in a court. Nevertheless, if it's not in writing, the contract can be fully articulated orally, making it an express contract.
"An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding."[note] If Sneed Carnahan goes to a produce wholesaler and orders a truck-load of potatoes, pays for it in advance, and neglects to get written evidence of a contract; and the wholesaler delivers to Sneed a truck-full of rocks, a court would probably find evidence that there was a contract. Because evidence of the existence of this contract is circumstantial, the court sees it as an implied contract. —— "Implied contracts may be either implied in law or in fact."[note]
"A contract implied in fact arises where there was not an express contract, but there is circumstantial evidence showing that the parties did intend to make a contract; for instance, if one orders goods of a tradesman or employs a man to work for him, without stipulating the price or wages, the law raises an implied contract (in fact) to pay the value of the goods or services."[note] The action between Sneed Carnahan and the wholesaler pertains to a contract implied in fact.
"'The only difference between an express contract and one implied in fact is in the mode of substantiating it. An express agreement [(obviously including a parol contract)] is proved by express words, written or spoken …; an implied agreement is proved by circumstantial evidence showing parties intended to contract'".[note] So the distinction between a contract implied in fact and an express contract pertains purely to the kind of evidence used to establish the existence of the contract. In both express and implied in fact, the source of the obligation is the intention of the party. In other words, in each, the contract is established by consent.
In contrast to express contracts and contracts implied in fact, consent is not the source of the obligation in contracts implied in law. "Implied contracts are sometimes subdivided into those 'implied in fact' and those 'implied in law,' …. [T]he latter are obligations imposed upon a person by the law, not in pursuance of his intention and agreement, either expressed or implied, but even against his will and design, because the circumstances between the parties are such as to render it just that the one should have a right, and the other a corresponding liability, similar to those which would arise from a contract between them."[note] —— "A contract implied in law arises where some pecuniary inequality exists in one party relatively to the other which justice requires should be compensated, and upon which the law operates by creating a debt to the amount of the required compensation …. The case of the defendant obtaining the plaintiff's money or goods by fraud, or duress, shows an implied contract to pay the money or the value of the goods."[note] —— So the essential distinction between a contract implied in fact and a contract implied in law is that in the former, the parties all intended for there to be a contract, whereas in the latter (implied in law), at least some of the parties had no intention of taking on the obligation. —— If one party to a contract implied in law receives a benefit from another party, and does so through "fraud, or duress," or through some other form of bloodshed, then this contract implied in law seems plausible. Thieves should definitely pay back what they steal.[note] But in this contract implied in law between Nate and Jeffrey Lament, Nate did not obtain a benefit from Jeffrey through fraud, duress, or any other form of bloodshed. Yet the judge still claims that there is a contract implied in law between them which obligates Nate to give the frns to Jeffrey. Regardless of whether bloodshed is involved or not, the contract implied in law is a legal fiction, while express contracts and contracts implied in fact are not.
The kind of obligation that's inherent in a contract implied in law "rests on the principle that whatsoever it is certain a man ought to do that the law will suppose him to have promised to do. And hence it is said that, while the liability of a party to an express contract arises directly from the contract, it is just the reverse in the case of a contract 'implied in law,' the contract there being implied or arising from the liability. … But obligations of this kind are not properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and concurrent intention of the parties. Such obligations are more properly described as 'quasi contracts'.".[note] —— Here we discover several more things about contracts implied in law: (i)They are not really contracts, and are therefore called quasi contracts. (ii)The law presumes to claim to know with certainty what a man ought to do, and claims that because he ought to have done it, the law supposes that he promised to do it. (iii)The obligation exists prior to the assumed existence of a contract implied in law, rather than arising out of the contract. —— This last point leads us to make the following observations: (i)In an express contract, the contract –– and the consent / agreement that gave rise to the contract –– implies the liability / obligation. (ii)In a contract implied in fact, fact implies the existence of the contract, and the contract –– and the consent / agreement that gave rise to the contract –– implies the liability / obligation. (iii)In a contract implied in law, law mandates the liability / obligation, and the obligation is presumed to imply the existence of the contract, without regard to consent, as though the obligated party were guilty of bloodshed.
(e)unjust enrichment –– defining "quasi contract": A quasi contract is a "Legal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been a promise. It is not based on intention or consent of the parties, but is founded on considerations of justice and equity, and on doctrine of unjust enrichment. It is not in fact a contract, but an obligation which the law creates in absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it. It is what was formerly known as the contract implied in law; it has no reference to the intentions or expressions of the parties. The obligation is imposed despite, and frequently in frustration of their intentions.".[note] —— This definition confirms that a quasi contract and a contract implied in law are synonyms pointing to the same legal concept. It also indicates that "quasi contract" is the more modern of the two expressions: Early in the 20th century, "quasi contract" was "gradually displacing the term 'contract implied in law,' which is often used to express the same thing.".[note] The only other information in this definition that is new to us is the fact that a quasi contract can be "based on … doctrine of unjust enrichment". Before we look directly at unjust enrichment, we'll see if we can find out more about quasi contracts.
