Quasi contractual obligations and the obligation or duty a breach of which constitutes a tort4 are alike paramount, or irrecusable. That is, unlike contractual obligations, they are imposed without reference to the obligor's assent. As accounting for the fact that notwithstanding this similarity the courts adapted to this class of obligations contractual rather than tort remedies, it has been pointed out that A more substantial difference between quasi contracts and the duty not to commit a tort is that the former are what have been called particular obligations, i.e. obligations imposed because of a special state of facts (as, for instance, the receipt of money paid under mistake) and in favor of a particular person, while the latter is universal, i.e. an obligation or duty which rests upon one at all times and in favor of all persons, or at least all who may be affected by one's conduct. Whenever a certain person is under a particular quasi contractual obligation, it is correlated to a determinate right in personam of a certain other person; but the general duty a breach of which constitutes a tort is not correlated to any determinate right, either in personam or in rem, or to the right of any particular person - only to what may be called the general right in rem of every one that no tort shall be committed against him.
1 Maine, "Ancient Law " (3d Am. ed.), p. 332.
2 See opinion of Lowrie, J., in Hertzog v. Hertzog, 1857, 29 Pa. St. 465, 468, in which he distinguishes constructive contracts from genuine implied contracts and defines the former as "fictions of law adapted to enforce legal duties by actions of contract, where no proper contract exists, express or implied." See also Professor Knowlton's article on the "Quasi Contractual Obligation of Municipal Corporations," 9 Mich. Law Rev. 671, in the opening paragraphs of which he says:
"We use the term 'quasi contract' in deference to writers on the science of jurisprudence and to many authors of works on technical law. Personally we do not like the term at all. The qualifying word quasi is too frequenty used when one is without an idea and wishes to say something, or has an idea but does not know how to express it. . . . "We have constructive fraud, constructive trusts, constructive notice, and why not constructive contract, a contractual obligation existing in contemplation of law, in the absence of any agreement express or implied from facts?"
3 For a statement of the reasons why the term "quasi contract" should not be abandoned, see Professor Corbin's article on "Quasi-Contractual Obligations," 21 Yale Law Jour. 533, 545.
4 The use of the term "obligation" in reference to the general duty of all men not to trespass, steal, and so forth, is of doubtful propriety. "In English-speaking countries," says Sir Frederick Pollock (8 Harv. Law Rev. 188), "an unfortunate habit has arisen of using 'obligation' in a lax manner as coextensive with duties of every kind." quasi contracts are superficially unlike the duty not to commit a tort, but are like most contracts in that the obligation is positive rather than negative; the obligor is required to act rather than to forbear.1