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“Although from time to time the judicial view of substantive rights broadened under the leavening effect of equity and other considerations, the broadening process did not lead to the creation of remedies sounding in neither contract nor tort. The judges attempted, however, by means of fictions, to adapt the old remedies to the new rights, with the result usually following the attempt to put new wine into old bottles. Thus, largely through the action of assumpsit, that portion of the law of quasicontract usually considered under the head of simple contracts, was introduced into our law.

“In the action of assumpsit, as the word assumpsit implies, whether it be special or indebitatus assumpsit, a promise must always be alleged, and at one time it was an allegation which had to be proved. It was only natural, therefore, that the courts, in using a purely contractual remedy to give relief in a class of cases possessing none of the elements of a contract, should have resorted to fictions to justify such a course. This was done in the extension of assumpsit to quasi-contract; and the insuperable difficulty of proving a promise where none existed was met by the statement that the law implied a promise.' The statement that the law imposes the obligation would not have met the difficulties of the situation, since the action of assumpsit presupposed the existence of a promise. The fiction of a promise was adopted then in that class of cases solely that the remedy of assumpsit might be used to cover a class of cases where, in fact, there was no promise.

“The continuance of such a fiction (existing for the purposes of a remedy only) cannot be justified, to say nothing of its extension, in those jurisdictions where all forms of action have been abolished. In such jurisdictions the inquiry should be, not as to the remedy formerly given at common law, but as to the real nature of the right.” 64

The term Quasi-Contract is unsatisfactory to many jurists. Sir Frederick Pollock and Professor Knowlton prefer "constructive contract.” The word “constructive" would more distinctly convey the idea of a fictional contract, invented for the sake of the remedy.65 Neither designation (quasi-contract or constructive contract) "is as happy as would be one that avoided altogether the use of the word 'contract.'

" 63

64 Ibid., 160. Compare ANSON, CONTRACTS, 12 ed., 8, 394, 395.

65 See Sir F. Pollock, 22 L. QUART. Rev. 89; 1 ENCYCLOPÆDIA OF LAWS OF ENGLAND, 2 ed., Introduction, 11; Professor Knowlton, 9 Mic. L. Rev. 671.

66 WOODWARD, $ 4. As to reasons for retaining the term quasi-contract now that it is in such general use, and as to the difficulty of finding a completely satisfactory substitute, see Professor Corbin, 21 YALE L. J. 545, 553.

66 ܙܙ ܕ

In reality, these cases of so-called quasi-contract are instances of “absolute” liability imposed by the courts in the absence of either breach of genuine contract or tort in the sense of fault.67

The use of the unfortunate expression Quasi-Contract is largely due to two things:

1. The history of remedial law, as summarized ante by Keener.

2. The unwillingness of judges to admit that they, by their decisions, make or change rules of substantive law.

As to the advantage of discarding the fiction of a contract:

Lawyers would be forced to think about the validity of results heretofore blindly accepted.68 Courts would then examine more carefully into alleged reasons of public policy for imposing absolute liability. In some instances the reasons might be found insufficient. And in such instances the courts might refuse to continue to impose liability, unless fault, or breach of genuine contract, could be established, as it sometimes might be.

We have heretofore said that cases falling under the general head of Absolute Liability can be subdivided as follows: Class 1 - Cases

where recovery has heretofore been enforced in an action of tort; Class 2 - Cases where recovery has heretofore been enforced in an action of contract.69 But this division, temporarily adopted for reasons of convenience, is open to the objection that it is based upon procedure a mode of classification which it is the purpose of this paper to discourage. Now that the general nature of the cases included under Class 2 has been explained, it is possible to substitute a better basis of classification. Such a basis is found in the following statement, given here in the words of a legal friend:

“It may be suggested that cases of absolute liability may be divided into two classes on a basis which is not founded on procedure although most of the cases in one subdivision would have been enforced at common law by actions of tort, and most of the cases in the other subdivision by actions of assumpsit. The distinction is between (1) cases where the law imposes an obligation upon the defendant to compensate a plaintiff for something which has injured the plaintiff, though there has been no moral fault on the part of the defendant, and (2) cases where the law requires the defendant to restore to the plaintiff a benefit received from him or its value. In one case the plaintiff's injury, in the other the defendant's benefit, is the gist of the action. The latter class of cases will include most, though not all, of the cases generally classified as quasicontractual.”

67 “Obligation may arise from Quasi-Contract. This is a convenient term for a multifarious class of legal relations which possess this common feature, that without agreement, and without delict or breach of duty on either side, A has been compelled to pay or provide something for which X ought to have paid or made provision, or X has received something which A ought to receive. The law in such cases imposes a duty upon X to make good to A the advantage to which A is entitled. ...” ANSON, CONTRACTS, 12 ed., 8.

68 "Lawyers and judges fall into habits of mental indolence and take for granted the absolute correctness of legal rules, and apply them mechanically.” Judge Swayze, 25 YALE L. J. 14.

60 See ante, 243, 256.

Jeremiah Smith. CAMBRIDGE, MASS.



Y leaps and bounds public sentiment in the present generation

has increased in favor of extending governmental control over affairs we once thought sacredly private. There is a desire, even a clamor, for public regulation, state or national, in matters which before the Civil War the nation conceived concerned only the persons directly interested. More accurately stated, we have come to see that in most problems it is not a few people who are interested, but all the people. And all the people must be represented in some way and their interest in the settling of a particular dispute or the solution of a given problem must be considered. So we have seen commissions to regulate railroads and public utilities, commissions to regulate banks, commissions to regulate insurance, commissions to regulate the relations of labor with employers and employment.

Now we have come to a stage where we must not only build anew, but also keep in order the structures existing. Already there has arisen the fear that these public bodies, set to solve given problems, may develop into tyrannous institutions, amenable to no law and subject only to the doubtful safeguards of political action.

There is a body of law, the writer believes, which is well developed and which is capable of dealing with these questions. It is here contended that in American administrative law there are safeguards which answer the nascent popular fear referred to. The object of this argument is to show that administrative law has developed in such a way that commissions, bureaus, and bodies of like type fall into a perfectly organized, perfectly defined place. As we have learned to use these commissions, they have made their own law. Put epigrammatically, it is here contended that administrative law has expanded coincidentally with administrative machinery.

In outlining this conception, it must be said at the threshold

that such law is of general application; it concerns all the governmental machinery. Just as in government we study the functions of each bit of machinery, so in administrative law we should study the law which creates it, which governs its exercise, which limits its function, and which repairs the wrong it does when it goes amiss. In an attempt to formulate some systematic method of approach to these questions the following propositions will serve as the general divisions of the argument:

First. That administrative law is the law applicable to the transmission of the will of the state, from its source to the point of its application.

Second. That this transmission involves all the so-called "three powers” — legislative, executive, and judicial.

Third. That in many instances the differentiation of these three functions is impossible, and instead of using the general governmental machinery we erect a specialized instrument.

Fourth. That in such cases the special instrument, in the

first instance, excludes the general machinery from its field. And thereafter the study of administrative law must branch out into specialized investigation of the particular general machinery or special instrument in which the student is interested.

First. Administrative law is the law applicable to the transmission of the will of the state, from its source to the point of

its application. We look backward a moment at the definitions of administrative law already formulated.

The word "administrative" will bear some examination. It has been called a synonym of "executive.” 1 But its content has changed with the powers of the bodies to which it was applied. The Interstate Commerce Commission, it has been suggested, acts in a legislative, or administrative, capacity, but not judicially.? Yet even when this was said, there was an unusually able opinion in which it was stated that this Commission is an administrative body ... lawfully created, and lawfully exercising powers which

· Brazell v. Zeigler, 26 Okla. 826, 110 Pac. 1052 (1910).

? Missouri, K. & T. R. Co. v. Interstate Commerce Commission, 164 Fed. 645 (1908).

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