scantiness of the attention which has been given to the difference
between Western ideas and Eastern, between Western theology and
Eastern, caused by the presence of a new ingredient. It is precisely
because the influence of jurisprudence begins to be powerful that the
foundation of Constantinople and the subsequent separation of the
Western Empire from the Eastern, are epochs in philosophical history.
But continental thinkers are doubtless less capable of appreciating
the importance of this crisis by the very intimacy with which notions
derived from Roman Law are mingled up with every-day ideas.
Englishmen, on the other hand, are blind to it through the monstrous
ignorance to which they condemn themselves of the most plentiful
source of the stream of modern knowledge, of the one intellectual
result of the Roman civilisation. At the same time, an Englishman, who
will be at the pains to familiarise himself with the classical Roman
law, is perhaps, from the very slightness of the interest which his
countrymen have hitherto taken in the subject, a better judge than a
Frenchman or a German of the value of the assertions I have ventured
to make. Anybody who knows what Roman jurisprudence is, as actually
practised by the Romans, and who will observe in what characteristics
the earliest Western theology and philosophy differ from the phases of
thought which preceded them, may be safely left to pronounce what was
the new element which had begun to pervade and govern speculation.
The part of Roman law which has had most extensive influence on
foreign subjects of inquiry has been the law of Obligation, or what
comes nearly to the same thing, of Contract and Delict. The Romans
themselves were not unaware of the offices which the copious and
malleable terminology belonging to this part of their system might be
made to discharge, and this is proved by their employment of the
peculiar adjunct _quasi_ in such expressions as Quasi-Contract and
Quasi-Delict. "Quasi," so used, is exclusively a term of
classification. It has been usual with English critics to identify the
Quasi-contracts with _implied_ contracts, but this is an error, for
implied contracts are true contracts, which quasi-contracts are not.
In implied contracts, acts and circumstances are the symbols of the
same ingredients which are symbolised, in express contracts, by words;
and whether a man employs one set of symbols or the other must be a
matter of indifference so far as concerns the theory of agreement. But
a Quasi-Contract is not a contract at all. The commonest sample of the
class is the relation subsisting between two persons one of whom has
paid money to the other through mistake. The law, consulting the
interests of morality, imposes an obligation on the receiver to
refund, but the very nature of the transaction indicates that it is
not a contract, inasmuch as the Convention, the most essential
ingredient of Contract, is wanting. This word "quasi," prefixed to a
Public-domain text, read in full here on John Shaqi.
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