QUASI-CONTRACT. — According to legal doctrine and in certain positive legal systems (including the Italian Civil Code of 1865), it is obligation (v.).
I. NOTION
For jurists, the q. c. is a voluntary and lawful act from which arises an obligation toward a third party or a reciprocal obligation between the parties, without consent being joined to it, even implicitly (cf. Italian Civil Code of 1865, arts. 1097, 1140). For moralists, on the other hand, with few exceptions, the q. c. exists not only in the foregoing case, but also in every instance in which external consent is lacking but is tacitly included in an act (the so-called tacit contract), as occurs when someone assumes or accepts a position or office (e.g., physician, judge, teacher, mayor, parish priest, etc.).II. LAW
The doctrine of the q. c. is closely connected with the historical origin of the name. Classical Roman law knew neither this term nor a theory concerning it; nevertheless, it took into consideration certain transactions from which an obligation arose without the intervention of consent, and it brought these transactions into proximity with contractual forms. Once it had been established as a principle that the essential element of a contract is consent, the post-classical jurists, being unable to include these forms within it, elaborated the theory of the q. c., designating by this name those lawful acts that gave rise to an obligation without the agent having the will or intention to enter into it; and Justinian sanctioned the principle. These obligations non proprie nasci ex contractu intelliguntur, sed tamen quia non ex maleficio substantiam capiunt, quasi ex contractu nasci videntur (C. III, 28). The particle quasi in the text clearly indicates both a resemblance and a distinction: there is resemblance because in the cases mentioned a true obligation arises from a lawful act (non ex maleficio); and there is distinction insofar as there is no true contract without agreement or consent, at least tacit.Among recent legislations, the German and Swiss avoid classifying the sources of obligations; the French and the Italian legislation of 1865 (art. 1097) admit four sources of obligations. In legal doctrine, the advisability of retaining the designation q. c. was debated; it does not appear in the currently applicable Italian Civil Code. Nevertheless, in enumerating the sources of obligations, it is affirmed that they derive from contract, from an unlawful act, or from any other act or fact capable of producing obligations in conformity with the legal order (art. 1173). The legislator, therefore, while avoiding the term, recognizes other sources of obligations besides contract and unlawful act.
Among these acts or facts, the current Italian Civil Code, following the precedent, regulates three forms of q. c.: management of another’s affairs (arts. 2028–32), payment of an undue amount (arts. 2033–40), and unjust enrichment at another’s expense (actio de in rem verso in Roman law: arts. 2041–42).
It is debated whether other forms or civil instances of q. c. may be added to these; in practice, art. 1173 at least admits the possibility of other forms not specifically contemplated by the Code.
III. MORAL THEOLOGY
Moralists also include under the category of the q. c. every obligation arising from the acceptance or assumption of a public office or position; in this case, however, one should rather see a tacit contract. The reason for this extension may be found in the fact that, at the time when civil law became an object of the moralists’ attention, Roman law was not known and studied in its classical origins, but in the Justinian compilation, together with other modifications and non-Roman traditions, whereas the obligation arising from public office could materially be likened to that of negotiorum gestio (quasi ex mandato). Recently, some moralists have returned to the Roman concept; thus D'Annibale (Summula theol. mor., II, 4ª ed., Roma 1896, n. 437) and Vermeersch (Theologiae mor. prim., II, ivi 1923, n. 468); others simply point out the different notion, while still others do not discuss it at all.IV. ORIGIN OF THE OBLIGATION
Following the notion of Roman law, authors seek the foundation of the obligation of the q. c. in various theories; the one that finds the greatest favor and appears most consonant with legal principles places its foundation in the principles of justice or natural equity, sanctioned by positive law, insofar as natural law forbids anyone who has received things not owed to him or has managed the affairs of others to enrich himself to the detriment of third parties beyond the expenses incurred. For moralists, evidently, different foundations are proposed, in harmony with the differing concept of q. c.As a rule, the obligation arising from q. c. is considered one of strict justice, at least insofar as it concerns the forms regulated by civil law, in view of the principle that the latter, in determining the right of ownership, by sanctioning or completing natural law, binds in conscience. One must therefore observe the relevant rules laid down by civil laws under pain of sin, unless in the specific case their application proves contrary to the principles of natural justice. This rule also applies in ecclesiastical matters and to ecclesiastical persons among themselves, by virtue and within the limits of can. 1529. Strictly speaking, the canon expressly speaks only of contracts, both in general and in particular, named as well as innominate; but, according to can. 18, q. c. must also be included, especially since the CIC merely refers matters concerning obligations to civil law, concerning itself only with what properly belongs to ecclesiastical matters.
If the various positive provisions are considered in particular (e.g., those of the current Italian Civil Code), it must be acknowledged that the obligations arising from q. c. are clearly distinct from those deriving from a contract; while in the latter the will of the individual, expressed through consent, establishes their terms in harmony with or in addition to the law, the obligations of q. c. follow rules of natural equity, interpreted either by the law or by the judge (arts. 2030, 2031, 2037, 2038).
As regards the moral aspect of q. c. in the sense given it by moralists, the general rules concern sufficient expertise and adequate updating, diligence in the performance of the office such as is exercised by the good pater familias, a diligence expressed in readiness to respond to requests, in honesty and commitment to bringing the matter promptly to a successful conclusion, and in the exclusion of every form of corruption or favoritism, without forgetting the grave duty of charity to render one’s services gratuitously in cases prescribed by law or required by the individual’s poverty.