Obligation may arise directly from agreement. Here we find that form of agreement which constitutes contract. An offer is made by one person and accepted by another, so that one consents to intend, and the other to expect, the same thing; and the result of this agreement is a legal tie, binding the parties to one another in respect to some future act or forbearance.
Obligation may arise from delict or tort. This occurs where a primary right to forbearance has been violated; where, for instance, a right to property, to security, or to character has been violated by trespass, assault, or defamation. The wrongdoer is bound to pay to the injured party whatever damages he has sustained. Such an obligation is not created by the free will of the parties, or by agreement, but springs up immediately upon the occurrence of the wrongful act. The person injured has a cause of action which is said to arise ex delicto, as distinguished from such as arise ex contractu.22
Obligation may arise from breach of contract. While one person is under promise to another, the promisee has a right against the promisor to performance of the promise when performance becomes due, and to the maintenance up to that time of the contractual relation. But, if the promisor breaks his promise, the promisee's right to performance has been violated, and, even if the contract is not discharged, a new obligation springs up, - a right of action for damages, similar to that which arises upon a delict or tort. The cause of action results from the breach of contract, and is said to arise ex contractu.
There are certain obligations which arise neither from tort nor from contract, but which are imposed by law without assent of the party bound. These obligations are not contracts, for there is no agreement; but they are clothed with the semblance of contract for the purpose of remedy, and are described by the term quasi contract.23 Obligation may arise from the judgment of a court of competent jurisdiction ordering something to be done or forborne by one party in respect of another. This kind of obligation is called a "contract of record." It may arise from entry of judgment by consent of the parties, in which event the element of agreement is present; but, on the other hand, it may arise against the will of the party bound thereby, in which case there is no element of agreement, and therefore no true contract. Such an obligation is quasi contractual.24
20 Anson, Cont. (4th Ed.) 8; Wade v. Kalbfleisch, 58 N. Y. 282. 17 Am. Rep. 250; Ditson v. Ditson. 4 R. I. 87; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct 723. 31 L. Ed. 654: Watking v. Watkins, 135 Mass. 83. See "Contracts" Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 21-40.
21 Anson, Cont. (4th Ed.) 7. 22 Lenke. Cont. 3.
Again, a quasi contractual obligation may arise by the acts of the parties. A person pays something which another ought to pay, or receives something which another ought to receive, and the law imposes on him the duty to make good to the other party the advantage to which the other is entitled. The term "implied contract" is frequently applied to obligations of this class. Its use is objectionable, because the same term is frequently applied to true contracts in which the agreement of the parties is evidenced by conduct, and which are hence called "implied contracts," in distinction to contracts in which the agreement is evidenced by words, and which are said to be express.25
Finally, obligation may spring from agreement, and yet be distinguishable from contract. As explained in speaking of agreement, this is the case with obligations incidental to such acts as marriage and the creation of a trust. Contractual obligations may arise incidentally to an agreement which has for its direct object the transfer of property. In the case of a conveyance of land with covenants annexed, or the sale of a chattel with a warranty, the obligation hangs loosely to the conveyance or sale, and is so easily distinguishable that it may be dealt with as a contract. But in cases of trust or marriage the agreement is far-reaching in its objects, and the obligations incidental to it are either contingent, or at any rate remote from its main purpose or immediate operation. To create an obligation is the one object which the parties have in view when they enter into that form of agreement which is called contract
23 City of Chicago v. Pittsburg, C, C. & St L. R. Co., 146 111. App. 403 [affirmed 242 111. 30, 89 N. E. 648]; Leonard v. State, 56 Tex. Cr. R. 307, 120 S. W. 183. And see post, p. 623. Such obligations are also variously called "implied contracts" and "constructive contracts." Harty Bros. & Harty Co. v. Polakow, 237 111. 559, 86 N. E. 1085. See "Contracts," Dec. Dig. (Key-No.) § 5; Cent. Dig. § 7; "Judgment," Dec. Dig. (Key-No.) §§ 2, 3; Cent. Dig.
24 Post, p. 624.
25 For full discussion of the senses in which the term "implied contract" la used, see HERTZOG v. HERTZOG, 29 Pa. 465, Throckmorton Cas. Contracts, 5; Weinsberg v. St Louis Cordage Co., 135 Mo. App. 553, 116 S. W. 461; Harty Bros. & Harty Co. v. Polakow, 237 111. 559, 86 N. E. 1085. See, also, post, p. 20. See "Contracts," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 4-6.