Professor Keener has endeavored to establish a distinction between conditions expressed in the contract or implied in fact and conditions implied in law, holding that the condition implied in law is not a genuine condition, i.e. a condition which represents the intention of the parties, but a fiction of the law of contract, and therefore that it should in no case be permitted to affect one's quasi contractual rights: 1

1 Sinclair v. Bowles, 1829, 9 Barn. & Cr. 92, (contract to repair a chandelier partly performed); Munro v. Butt, 1858, 8 El. & Bl. 738, (building contract to be completed by a specified time); Button v. Thompson, 1869, L. R. 4 C. P. 330, (service contract); Forman & Co. Proprietary v. The Ship "Liddesdale," [1900] A. C. 190, (repair contract). In the case of sales of goods, however, a different result is reached. See post, Sec. 176.

2 Crapson v. Wallace Bros., 1897, 71 Mo. App. 682, 684.

"That conditions implied in law are not true conditions is as evident on reflection as that a quasi-contract is not a contract. A true condition is as much dependent upon actual intention as is a true contract, and conditions implied in law are only found where a party to a contract failed to protect himself by the insertion of conditions, express or implied in fact. A condition implied in law being then a creature of the law as distinguished from the creation of the parties to the contract, cannot be properly regarded as a true condition. . . . And as the law has imposed these conditions upon the plaintiff in favor of the defendant simply for the purpose of reaching equitable results, the court creating this condition should be at liberty, if it is deemed desirable, to create an obligation upon equitable principles in favor of the plaintiff against the defendant, it being one thing to say that the plaintiff shall not recover against the defendant under the contract, and quite another thing to say that he shall not recover in any form whatever." 2

1 "Quasi-Contracts," p. 225.

2 Professor Keener's contention that conditions implied in law do not represent the actual intent of the parties is supported by Professors Williston and Costigan. See 7 Col. Law. Rev. 151, 152. "They are conditions," says Professor Costigan, "which rest not on any intention which the parties had but on that fair dealing which the court should require as between litigants." Professor Harriman, on the other hand, says, in his treatise on "Contracts" (Sec. 315): "Internal conditions are always gathered from the contract itself, and when they are implied by the law they are always implied because the law supposes that the intention of the parties is to treat a given fact as a condition, even though they have not manifested that intention in express words. The fact that the court always tries to discover the intention of the parties by looking at the entire contract, and that such intention is the sole rule for determining whether a given fact is or is not a condition, shows clearly that an internal condition implied by law is just as much a part of the real contract of the parties as if the condition had been set forth in express words."

If the premise be true that conditions implied in law do not rest upon the actual intent of the parties as inferred from the express terms of the contract, there is no basis whatever for the claim that a contractor assumes the risk of a failure to perform such conditions. And it is believed that the premise ought to be true. That is to say, the courts ought to recognize the futility of attempting to ascertain the unexpressed intention of the parties - to say nothing of the probability that they had no intention whatever in the matter - and treat the condition as a fiction invented in the interest of fair dealing. But the prevailing judicial dogma, it is feared, is that conditions implied in law are genuine conditions, resting upon the actual intent of the parties, as ascertained by an examination of the entire contract, and unless this view is abandoned, any distinction between express and implied conditions, as to their effect upon quasi contractual rights, is impossible.