"De facto" contracts and implied promises
Establishing either an unstructured numerus clausus of obligations or sticking to an exclusive contract/delict dichotomy entails a specific danger: the temptation to pervert the law of contract in order to accommodate cases that do not happily fit into the established categories.
Thus, for instance, German courts and writers have construed "de facto" contracts where there is no legally relevant contractual agreement between the parties: in cases where, for instance, a person uses a parking bay whilst not being prepared (as he specifically declares) to pay the appropriate parking fee.1-4 This danger is much more obvious, however, if one looks at the history, in English law, of what we would call enrichment liability. "[B]roadly speaking", as Viscount Haldane LC put it in his speech in Sinclair v. Brougham, 5 "so far as proceedings in personam are concerned, the common law of England really recognizes (unlike Roman law) only actions of two classes, those founded on contract and those founded on tort." Thus, in the old common law, governed by specific forms of actions, the remedy of indebitatus assumpsit had to be used—on the basis of an implied promise—where it was felt that an obligation should be imposed."The basic reason for the development of implied assumpsit was the desire to use a convenient form of action to remedy certain duties or obligations recognized either directly by law or by common sense or justice. For example, the law said that debts should be paid, but if the action of assumpsit was to be used to ensure that this was done there had to be a promise; if in fact there had been no promise in reality then the solution (if one wanted to permit assumpsit) was to engage in some deeming. "ul
Liability was imposed where it was felt that payment ought to be made: not only where the implication of a promise was a genuine inference from the acts or words of the parties, but also where the implication was purely fictional.[120] [121] This somewhat artificial judicial construction was bound to lead to conceptual confusion; the problem of how and under which circumstances unjust benefits have to be skimmed off and (re-)transferred became contaminated by contractual doctrine.[122] In the course of the second half of the 18th century and during the 19th, the civilian notion of quasi-contract was imported into English jurisprudence,[123] [124] and the distinction between contract and quasi- contract gradually replaced the old English categories of express and implied contracts.130 To quote the words of Lord Wright in the famous Fibrosa case:[125] "The obligation is a creation of the law, just as much as an obligation in tort. The obligation belongs to a third class, distinct from either contract or tort, though it resembles contract rather than tort." The concept of implied contract, "[tjhese fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared",[126] has been abandoned as a misleading anachronism, and "restitution" is rapidly establishing itself as an independent, "quasi-contractual" branch of the law of obligations.[127] III.
More on the topic "De facto" contracts and implied promises:
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- On the "reality" of real contracts
- 2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"
- "Quod metus causa gestum erit, ratum non habeo"
- Causa as an extra piece of "garment"
- 1. Restoration, damages and "Dtfferenztheorie "
- "Animus iniuriandi" and Artemus Jones
- Essential elements of Roman "labour law"
- Unenforceable obligations ("obligationes naturales")