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Quasi Contract

A quasi-contract (or implied-in-law contract) is a fictional contract created by courts for equitable, not contractual purposes. A quasi-contract is not an actual contract, but is a legal substitute for a contract formed to impose equity between two parties. The concept of a quasi-contract is that of a contract that should have been formed, even though in actuality it was not. It is used when a court finds it appropriate to create an obligation upon a noncontracting party to avoid injustice and to ensure fairness. It is invoked in circumstances of unjust enrichment, and is connected with the concept of restitution. Generally the existence of an actual or implied-in-fact contract is required for the defendant to be liable for services rendered, and a person who provides a service uninvited is an officious intermeddler who is not entitled to compensation. Quasi-contracts are defined to be "the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person, and sometime a reciprocal obligation between the parties." It "is not legitimately done, but the terms are accepted and followed as if there is a legitimate contract."

According to the Oklahoma pattern jury instructions, the elements of quasi-contract are: Plaintiff furnished / rendered valuable goods / services to Defendant with a reasonable expectation of being compensated; 1. and 2. Defendant would be unfairly benefited by the services / receiving the Defendant knowingly accepted the benefits of the goods / services;

goods if no compensation were paid to the Plaintiff. Knowledge, the second element, is required, and if the defendant had no knowledge of the benefits, there would be no contract of any kind, even a quasi-contract.


That morning. no less than justice. Pleased at the mistake. These acts are called quasi-contracts. but who also makes repairs to the axle (without which the brakes would not function properly). can sue in court to get paid. A painter.Contract compared In contracts. For a casual job. A homebuilder who signs a contract with a purported agent. they bind the parties as contracts do. But his obligation is manifestly not based upon the consent. Under the general heading of the Quasi contract there has been grouped a number of cases which have little or no affinity with contract. Examples An example of a quasi-contract is the case of a plumber who accidentally installs a sprinkler system in the lawn of the wrong house. If that knowledge could not be proven. there is almost never a written contract. who actually has no authority. on the facts of the case. and the obligation arises from the law or natural equity. it is the consent of the contracting parties which produces the obligation. pays to the defendant a sum of money which he does not really owe. he would not be liable. because. can recover the cost of the services and materials from the homeowner. has an implied quasi-contract. but often a quasi-contract. he sees the plumber installing them in his own lawn. A simple illustration is afforded by the action to recover money paid by mistake. the court would make him pay because of a quasi-contract. "A quasi-contract is not really a contract at all in the normal meaning of a contract. who mistakenly paints a house with the owner's knowledge. Will the man be held liable for payment? Yes. in quasi-contracts no consent is required." according to one scholar. without being contracts. if it could be proven that the man knew that the sprinklers were being installed mistakenly. If the plaintiff on an erroneous interpretation of the facts. and then refuses to pay when the plumber hands him the bill. and 2 . A mechanic who fixes the brakes to a car as requested. Examples of quasi-contracts vary by jurisdiction. law. he says nothing. will require he defendant to restore it. but rather is "an obligation imposed on a party to make things fair”. The owner of the house had learned the previous day that his neighbor was getting new sprinklers. even in the extended meaning borne by the word in the English law.

This shows that there are many situations in which Law as well as justice require that a certain person be required to conform an obligation. Rationale So far as there was not an established rule of Quasi Contractual obligation the English Lawyers were content to enumerate the cases of the Quasi Contract for which they are provided a remedy as to many species of “indebitatus assumpsit”. for the want of better or more appropriate name. But as soon as the urge was felt to explore their juristic basis. as Quasi Contractual Obligations. that is if a person in whose home certain goods have been left by mistake is bound to restore them. Macferlan: Facts of the case:- 3 . although he has not broken any contract nor committed any tort. who is considered to be the real founder of such obligations. explained them on the principle that Law as well as Justice should try to prevent “Unjust Enrichment”. This shows that a person cannot entertain unjust benefits at the cost of some other person. an another example for Quasi Contract would be worthy of Quoting for the better understanding of Quasi Contract.its description as a quasi contractual liability serves only to emphasize its remoteness from any genuine conception of contract. The first and the most ambitious attempt to provide such a basis was made by Lord Mansfield in Moses v. but they evaded the odious task of rationalization. such kind of obligations are generally described. Macferlan in year 1760 Thus it was Lord MANSFIELD.that is enrichment of one person at the cost of another. His Lordship offered this explanation in Moses v. This would be better to explain it up that Quasi contract consists of the Contractual Obligation which is entered upon not because the parties has consented to it but because law does not allow a person to have unjustified benefit at the cost of other party. controversy was born.

2. or extortion. Moses was thus compelled to discharge a liability which he had excluded and. and in view of the clear statutory authorization of the courts in India is not hindered in allowing relief under the different sections of the Act by the theoretical considerations concerning quasi contracts. He was allowed to do so. 69] 4 .” Position of Quasi Contract in Indian Law Chapter V of the Indian contract Act 1872 deals with the situations qualifying the quasi contractual obligations under the heading “Of certain relations resembling to those created by contract”. or upon a consideration which happens to be fail. he stated that “here it lies for the money paid by mistake. upon the circumstances of the case. 68] Payment by interested person [sec. by a written agreement. Even so Macferlan sued Moses on the endorsement and he was held liable despite the agreement. excluding. is obliged by ties of the natural justice and equity to refund the money. or for an undue advantage taken off the plaintiff’s situation.One Jacob issued four promissory notes to Moses and the latter indorsed them to Macferlan. therefore. sued to recover back his money from Macferlan. or oppression. contrary to laws made for the protection of the persons under those circumstances.  Provisions under Indian contract law Section 68 to 72 of the Indian Contract Act 1872 provides for five kinds of quasi-contractual obligations they are as follows:1. Supply of necessaries [sec. After making the defendant liable to restore the money Lord MANSFIELD continued as follows: After stating that such money cannot be recovered where the person to whom it is given can “retain it with a safe conscience”. or for money got through imposition. But the English cases do provide valuable guidance:  Not only as to the scope of the relief But also as to the way the provisions should be interpreted to keep them in tune with the changing notions of justice. The chapter avoids the words “quasi contract”. his personal liability on the endorsement. In one word the gist of this kind of action is that the defendant.

5. 70] Finder of goods [sec. 4. with the necessaries suitable to their conditions in life. is supplied by the another person with necessaries suited to his condition in life. 72]  Supply of Necessaries :. supplies the wife and children of B. the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person”. A is entitled to be reimbursed from B’s property. A is entitled to be reimbursed from B’s property. the supplier is entitled to recover the price from the property of the incompetent person.[SECTION 68] Where necessaries are supplied to a person who is incompetent to contract or to someone who is legally bound to support. Liability to pay for non-gratuitous acts [sec. 4) The reimbursement is to be claimed from the property of that incapable person. Section 68 reads as under: “If a person. 71] Mistake or coercion [sec. a lunatic. incapable of entering into a contract or anyone whom he is legally bound to support. Supplies to B. a lunatic. with the necessaries suitable to his condition in life. Necessaries so supplied must be suited to the condition of life of that person to whom they are supplied. 3) Necessaries are supplied to a person who is incapable of entering into a contract or anyone whom he is legally bound to support. Examples:a) A.3. b) A. 1) 2) Necessaries are being supplied. Ingredients of the section:According to the language drawn upon by section 68 we got to know the following essentials to apply this section. 5 .

and who therefore pays it. the Zamindar.A person who is interested in the payment of money. Conditions for Liability: The conditions for liability under this section may now be stated: 1) Payer must be interested in making payment: The first condition for establishing the liability is that the Plantiff should be interested in making payment. Payment by interested person :. a payment by him of the others’ share would not give him a right of recovery under this section. Under the Revenue Law. Illustration:B holds a land in Bengal. Where a person is jointly liable with others to pay. in payment of which he is interested: . 2) But should not be bound to pay:- The second essential condition is that it is necessary that the plantiff himself should not be bound to pay. A is bound to make good to B the amount so paid. the consequences of such sale will be the annulment of B’s Lease. to prevent the sale and annulment of his own lease. B. on a lease granted by A. He should only be interested in making the payment only for the purpose of protecting his own interest. is entitled to be reimbursed by the other. to mean bound by law or by contract. The Revenue payable by A to the Government being in arrears. his land is advertised for the sale by the government. It is not necessary that the liability should only be statutory. In a judgment of Privy Council it 6 . 3) Defendant should be under a legal compulsion to pay:- Thirdly the defendant should have been “Bound by Law” to pay the money.[SECTION 69] Reimbursement by a person paying money due by another. which another is bound by law to pay. The interest which the plantiff seeks to protect must be of course legally recognizable. pays to the government the sum due from A. The words “bound by law” have been held after some hesitation.

not intending to do so gratuitously. The finder’s position is therefore considered along with bailment.”  Finder of Goods :. 7 . and such other person enjoys the benefit thereof.[SECTION 71] Responsibility of finder of goods: A person. the latter is bound to make compensation to the former in this respect of. He is bound to pay A for them. Conditions of Liability under the section:a) b) A person should lawfully do something for another person or deliver something to him. who finds goods belonging to some another and takes them into his custody.[SECTION 70] Obligation of a person enjoying benefit of a non-gratuitous act:. a finder is treated at par with bailee. if the circumstances shows that he intended to act gratuitously. to restore. Illustrations:a) A. A is not entitled to compensation from B.  Liability to pay for Non Gratuitous Acts :. In doing the said thing or delivering the said thing he must not intend to act gratuitously. Thus in respect of duties and liabilities. and c) The other person for something is done or to whom something is delivered must enjoy the benefit thereof. B treats the goods as his own. a tradesman leaves his good at B’s place/home by mistake. or delivers anything to him.was held that it is enough that “the defendant at the suit of any person might be compelled to pay” 4) Payment should be made by one party to some other person:- Lastly the Plantiff should have made payment to some other person and not to himself. the thing so done or delivered. b) A saves B’s property from fire.where a person lawfully does anything for another person. is subject to the same responsibility as a bailee.

“A certain amount of the Sales Tax was paid by a firm under the U. or things delivered. or anything delivered.P. the Allahabad High Court ruled the levy of the sales tax on such transaction to be ultra virus. “A” alone pays the amount to C and B. Illustration: A and B jointly owe 100 rupees to C. Mistake or Coersion:.  Refund of Tax Money paid without being due:The Supreme Court in its decision in Sales tax Officer. The consignee pays the sum charged in order to obtain the goods. Banaras v Kanhaiya Lal Mukund Lal Saraf has accepted this interpretation of section 72.  Mistake of Fact or Mistake of Law:- Money paid under mistake is recoverable irrespective of the fact that whether the mistake is of fact or of law. C is bound to repay the amount to B. 8 .  A railway company refuses to deliver up certain goods to the consignee except upon the payment of an illegal charge of carriage. it was not due.A person to whom money has been paid. by mistake or under coercion: . must repay or return it. “The Payment by Mistake” in section 72 must refer to a payment which was not legally due and which could not have been enforced: the “Mistake” is on thinking that the money paid was due when in fact. by mistake or under coercion. He is entitled to recover so much of the charge as was illegally excessive. The firm sought to recover back the tax money. Liability of a person to whom money is paid. There is nothing in section 72 to relate with that whether the mistake is of law or of a fact. not knowing the fact pays another 100 rupees to C. Sales Tax Law on its forward transactions and subsequently to the payment.[SECTION 72] Section 72 deals with the payments made or things delivered under mistake or coercion.

such as prevention of the execution of a decree on a property in which the party paying is interested. Upon finding out that the stone was actually a very valuable diamond. $1. Despite the fact that Quasi Contract is molded in the Indian Contract Act under a new name. may be recovered even though “coercion” as defined in sections 15 is not established. owned an rough and uncut stone she did not know the identity of.  Coersion:The word “coercion” used in this section is used in the general sense and not as defined in section 15.? 9 . BOYNTON (1885) Facts: P. sold said stone to D. who also did not recognize the identity or value of the stone. American and Australian Laws and their contentions are concerned they do not allow the payments made under mistake of law to be recovered. brought suit. entitled to rescind the sale because she was ignorant as to the "hypothetical fair market value" of the stone she sold D. D. and demanded return of the stone. Issue(s): Is the P.. Quasi contract forms an integral of the contracts Act and it definitely comes to an aid of the victim when the person enriched unjustly over the former. for $1. the basic nature and essence of the principles of the remains the same without any drastic change.10. Nature of the Risk(s): In the absence of explicit contractual statements otherwise. Cases  WOOD V. refused. the seller assumes the risk that he under-charged for an item. and the buyer assumes the risk that he over-paid for an item. although she thought it might be a topaz. and so P. since the principle is grounded on the principles of justice and equity. Thus the money paid under pressure of circumstances. Thus. Conclusion:The principle of quasi contract is often ignored but still it holds a very important place. P. P.And as far as English. tendered the D.

was having difficulty "making ends meet" because the crop was poor on the farm land he leased from D. P. D. bought the cattle. P. and the P. This would probably constitute a contract. appealed to this court.  ANDERSON V. there was no agreement of warranty. of his house. and so the then 174 head of cattle lost value due to starvation. refused to pay. if he would put them to pasture on his land.Holding(s): "In the absence of fraud or warranty. Therefore. as was the local public law. and lower court sustained. requested D. 10 . is the school board. as long as it remains possible to fulfill that contract. and so P. had induced him to do by relying on D. demurred claiming no cause of action. so there was no fraud. was taken as advice and not a contract. after which he presented the bill for transportation to D. D. alleges that D. PUTNAM BOARD OF EDUCATION (1925) Facts: P. as the D. was aware that P. and D. nor the D. provide high school facilities within 4 mi. In addition. and P. BACKLUND (1924) Facts: P. is no ground for recission of the sale. sued. refused.? Holding(s): "Contracts must be in certain terms and not so indefinite and illusory as to make it impossible to say just what is promised". P. the [hypothetical] value of the property sold. Issue(s): Was there a contract between P. Notes: The court overlooked the fact that D. was damaged in the sum of $2. as compared with the price paid.  SOMMERS v. the risk was equally borne by both the buyer and the seller. Nature of the Risk(s): Both parties assume the risk of fulfilling exactly the terms of the contract. however. however absurd or improbable. had any knowledge that the stone was a diamond. is a father of high school students. either stated or implied. D. and D.500. transported his children to school for 1 semester.'s "advice". and so the court concluded there was no contract. The water supply failed. agreed to provide enough water for 100 additional head of cattle. and the seller could not rescind the sale. D." Reasoning: Neither the P.. Reasoning: The language between P.

the parties resultantly enter into a contract.Nature of the Risk: When a person does not perform his obligations. While the fire was still burning. and someone else fulfills his obligation for him. Issue: Was a there a contract between the father and the school board.'s allege that 11 . there was a contract because of the beneficial intervention.'s were teachers who were hired to teach public school. solely because the father benefited the school board by taking his children to school? Holding: Yes. The D. Reasoning: The court reasoned that the fact that neither intended to enter into a contract was irrelevant.'s barn was on fire and he called the local Upton police chief and asked him to send "the fire brigade". failed to pay the schoolhouse rent. The father was required to make sure that his children were in school. Thus.  NOBLE v. so he was justified in performing the school's duties. he may be held liable for a "quasi-contract" because he was benefited. The contract was created because the service was performed and therefore there was an implied promise to pay. and so the Upton fire brigade was not under obligation to put it out for free. The P.. a neighboring fire chief came by and informed all that the farm was really in his district.  UPTON-ON-SEVERN RURAL DISTRICT v. school board. WILLIAMS (1912) Facts: P. even though the other may not be aware that the service requires payment. Reasoning: The court reasoned that the school board had benefited inequitably. or furnish necessary classroom materials. Parties create a contract by implied promise when one renders service that requires payment. When a person makes an "act of beneficial intervention" in discharging the duties of another. When the D. The Upton fire brigade showed up and began to put out the fire. Issue: Was there a contract between the fire brigade and the farmer by implied promise of the farmer to pay if payment was required? Holding: Yes. refused to pay for the service. POWELL (1942) Facts: D. they sued. Nature of the Risk: You may contract by implied promise when you ask for assistance in protecting your property.

A person who receives medical care while in an injured and helpless position is liable for payment by way of implied contract when such medical care is provided in good 12 . and further say that the ability of the victim's estate to pay should have no bearing on the value of the services provided. P. If so. Nature of the Risk: When a person does not perform his obligations. because they would be forcing the school board into a contract that the school board did not intend. D. Notes: This case is in sharp conflict with Sommers where a school board was found to have contracted when someone fulfilled their obligations for them. runs the risk that he might not be compensated for his performance. Holding: Yes. "No man. Was there a contract between the unconscious victim and the physicians?.'s are physicians who performed an emergency surgery in an attempt to save the life of a accident victim who had fallen from a street car.'s are suing for the cost of performing the surgery.they were therefore required to pay for the supplies themselves. Nature of the Risk: A person who commits resources by performing a service in the absence of the other committing resources. Reasoning: The court reasoned that the teachers had no right to provide the supplies themselves and then demand payment. WISDOM (1907) Facts: Co-P.  COTNAM v. solely because the school board benefited from the teachers' actions? Holding: No. Issue: Was a there an implied contract between the teachers and the school board. entirely of his own volition. D. and 2. he may be held liable because he was benefited. and so they sought to recover their costs in furnishing the schoolhouse. Issue: 1. and someone else fulfills his obligation for him. there could have been no contract (not very good argument). is the administrator of the victim's estate. can make another his debtor". The victim never regained consciousness and later died. The D. which they allege to be customarily dependent on the victim's ability to pay. 1. what was the value of the services they provided. demurred and circuit court sustained the demurrer. claims that since the victim never gained consciousness.

Although there was no negotiation. Yes. For "implied in fact" contracts. how should the damages be measured? Holding: 1. the court limits the damages to the amount of the unjust enrichment. negotiations on the construction contract broke down. and Appellee sued for his costs and the value of his services. In constructing an "implied in law" contract. The victim could not have contemplated the charges since he was unconscious. If so. where both parties acted as if they had contracted. Reasoning: The court distinguished between "implied in fact" contracts. Issue: 1. regardless of whether he expects his payment therefore to be in the form of immediate payment or future profits from an ensuing contract.  HILL V. and so this is an implied contract without a negotiated price where the only equitable determination of price would be the fair value of the service provided. Is there a contract? 2. the court enforces what the contract would have been. The value of medical services rendered to a victim who cannot negotiate is reasonable compensation for the services rendered.faith. Appellant appealed stating the judgment was /excessive. 2. In securing the FHA guarantee. with the mutual understanding that the Appellee would be awarded the contract for construction if the FHA guarantee came through. and thus awards compensatory damages measured by the going contract rate. 2. The court stated that either might apply in this case. without which the Appellant would not have secured the FHA guarantee. and "implied in law" contracts. where one party was unjustly enriched at the expense of the other. In "implied in law" contracts. 2. The damages should be limited to the amount of the unjust enrichment. Appellee incurred many costs which he expected would be offset by the profits from the construction contract. but 13 . The physicians provided competent medical care in good faith. However. and that the court incorrectly instructed the jury. the court shifted that risk to the Appellant. An implied in law contract results when one renders service at the request of another. once the FHA guarantee came through. The victim received a benefit which requires equitable compensation. WAXBERG (1956) Facts: Appellant is a property owner who asked Appellee to assist him in securing a FHA guarantee for a construction loan. no agreement or "meeting of the minds". these are NOT requirements for the creation of a contract. Nature of the Risk: The Appellee risked that he would have committed his time and money better had he not relied on the promise of a future construction contract. Reasoning: 1.

was a bus driver for a company that contracted year-to-year with its drivers. who refused a gov't order to pay back wages at the higher rate. is the newspaper owner. Nature of the Risk: In the absence of a contract. Was there a contract? 2. 2. and reads it. In the year in question. P. the P. Issue: 1. The damages for implied in fact contracts should be the reasonable value of the services. They stated that the reasonable value of the services should be determined by taking into account the fact that the union was negotiating new wages. would not pay for his newspaper. in reading the newspaper? Holding: One who accepts an unsolicited newspaper. but claims that after the expiration of those two years. An implied in fact contract would shift that risk to D. CAMPANARO (1946) Facts: P. the damages would be the Appellee's costs and fees. P. and the bus company fell bankrupt and into the hands of D.  Austin v. Reasoning: The Court of Appeals agreed with the lower court that there was a contract "implied in fact". however they reversed the decision that the amount of the services should be measured at the old rate. The labor negotiations broke down. He had at one time subscribed for a two-year period. and the union was negotiating for higher wages while the drivers continued to work. sued for back pay at the higher wage rate.since the lower court had decided that it was an implied in fact contract. he requested that service be stopped.  MARTIN V. received and read a newspaper over the course of several years. the P. Issue: Was there a contract implied by the conduct of the D. assumed the risk that D. 14 . Burge (1911) Facts: D. who claims he never received notice of stoppage. bore the risk that he would only be paid at the previous rate after performing services that he expected would be paid at the higher wage rate. A contract implied in fact arises from the "presumed" intention of the parties when their actions indicate that both considered the contract to be in existence. in anticipation of being paid back wages. what should the nature of the damages be? Holding: 1. Yes. the contract had not been renewed. Nature of the Risk: In the absence of a contract. If so. is liable for the cost of the newspaper subscription if it is understood that the newspaper is not free.

they awarded restitution damages to the P. which he knew was not free. the contract fails for lack of consideration. to demonstrate how much it would have made if the machines were actually delivered. to expectation damages. Where the performance of a contract has begun. the D. (Restitution Interest. The burden would be on the P. even though the D. Ltd. Thus.quasi contract.Reasoning: The court stated that although one cannot be forced into a contract unilaterally by the newspaper company. The P. not by release by implied condition. the risk of invasion preventing delivery was never reallocated to the P. Thus.  Fibrosa Spolka Akcyjna v.'s actions of reading the newspaper. but further performance of a contract becomes impossible due to events unanticipated by the parties and beyond their control.] Notes: In English law. The court constructed a quasi-contract due to the D. Poland was subsequently invaded by Germany. to recover any down payment. Webster. Under that view. but paid somewhat less than that. they only sued for their down-payment. liable for the subscription price. The D. It seems that the announced theory of the case . began the construction of the machines. However. sufficient to release the parties from further contractual liability. (1943) Facts: The P. on a theory of quasicontract because the whole contract had failed. implied that he had to pay for it.'s deriving benefit. which made it impossible to deliver the machines. Issue: Is the subsequent impossibility of performance by the D. to deliver was an unconditional one. Reasoning: The court expressly overruled Chandler v. this is an express contract. They were supposed to have made a down payment of 1/3 upon order. and held D.. Nature of the Risk: Standard sale of goods risks. as well as entitle the P. and claimed that the P. The court reasoned that the contract was for delivery. the whole contract failed for lack of consideration. But these would be hard to calculate. was entitled to recovery. [The promise by the D. is a polish company who expressly contracted with the D. entitling the P. had already gone to some expenditure to make the machines? Holding: Yes. and so when delivery became impossible.. but that failure of consideration prevented the contract from being formed at all. there has been a Law Reform (Frustrated Contracts) Act which attempts to make an equitable adjustment of the losses of the parties when performance is 15 . was a means to get the theory to match the request for reimbursement. and any partial payment by the buyer is refundable. sued to get his down payment back. to buy some machines and have them delivered to Poland. Fairbairn Lawson Combe Barbour.

and the P. The brand name of the pipe was not crucial to the building of the house."  Jacob & Youngs. There was evidence that the pipe actually used was of the same quality as Reading pipe. law has taken a less forgiving approach. Nature of the Risk: The D. Kent. and furthermore. the D. letting the losses fall where they may unless the parties have contracted otherwise. could not simply substitute his own judgement for what is stipulated in the contract. because he might have provided against it by his contract.'s architect refused to sign off the final certificate. (1921) Facts: The P. built a house for the D.S. he is bound to make it good if he may. and it would be extremely burdensome on the P. took possession and noticed that the pipe was not made by Reading. even if it was 16 . When the building was completed. The U. v. It attempts to protect a reliance-type interest of the party who has begun partial performance (as in Fibrosa).'s subcontractor delivered Reading pipe for the first 1. Dissent: The dissent [McLaughlin] stated that the D. For example the holding in Bennet: "[W]here a party. Inc. Issue: Is the omission of Reading pipe in the house a cause for forfeiture of the final contract payment? Holding: No. risked that he could have a better house for less money. Although the P. to require him to rebuild the plumbing. but rather the difference in value between what was actually installed and the Reading pipes. The P. An omission which is trivial and innocent does not necessarily result in a forfeiture. risked that he could be paid more for his building services. The contract specification called for wrought iron pipe made by Reading. there was evidence that the pipe actually used was of the same quality. by his own contract. was entitled to exactly the kind of pipe that was stated in the contract. The P. withheld payment. as well as the restitution interest of one who has pre-paid for services which have not yet been performed. the deviation was so minor as to be considered a convenant and not a condition. The P. but rather may be remedied by the payment of damages. was not the price of installing new plumbing. therefore. creates a duty or charge upon himself.000 feet of pipe. notwithstanding any accident by inevitable necessity.frustrated. whether the other kind was just as good. but thereafter delivered pipe from other manufacturers.. Reasoning: The majority [Cardozo] reasoned that the omission of the pipe was not wilful. and that the cost of replacing the entire plumbing with the Reading pipe would have been exorbitant because it would have required rebuilding the house. The measure of damages.

but that the "difference in value" rule is used when the "cost of replacement" would result in unjust results. it should be treated as intentional because it was careless. However. 3. so the P. Under either theory. There was evidence that the use of the brand name "Reading" was as a generic reference to any high quality wrought iron. could have used explicit terms to evidence his desire to have exactly what was called for in the contract. the courts have adopted a quasi.'s remedy in a case of substantial performance. but only the value of his performance. 6. clearly had not met the burden of proof as to the difference in value between the actual pipes and the Reading pipes. The dissent concluded that the deviation was not innocent. Ham. Cardozo got around this by stating plainly that his conclusion was that it was either "nominal or nothing. there was an explicit clause in the contract that stated that all work not exactly to spec would be torn down and rebuilt correctly.." In Mass. does not have to prove the difference in value. 4. Notes: 2. and whether it was intentional or unintentional. The absence of the architect's certificate probably is not essential to the outcome of the case because the architect could be acting unreasonably. may have seized upon this event to express other dissatisfactions with the P. 5. where the court held that the partially performing party had to prove not only the value of what he had done. Otherwise. However. the P. It may not have been critical to the parties' consideration.contract theory to deal with substantial performance cases. In the instant case. but he felt that the deviation was not significant. the cases come out the same way. The D. but also the value of what remained to be done. and the law would suffer. Cardozo conceded that the D.'s work. 17 .simply a whim. Part of this determination involves whether the builder was warned by the contractor of the importance of strict adherence with the specification before it became unduly burdensome to correct the deviation. parties would be motivated to deviate from contracts intentionally. Cardozo stated that the "cost of replacement" is the general rule for the D. Both opinions cited Spence v.

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