Quasi的翻译

Quasi-Contract

准合同

1 The term ‘quasi-contract’, once used to describe the area of law now called ‘restitution’ or ‘unjust enrichment’, is now out of favour. ‘Quasi-contract’ says only that the matter is not contract. So far as it suggests that there is a sort of contract, it deceives, unintelligibly. Quasi-contractual liability should be understood not as part of unjust enrichment, but as a different basis of liability that can help us see what liability for unjust enrichment might be: liability grounded in notions of fairness.

1“准合同”这一术语,以前用于描述现在法律领域的“恢复原状”或“不当得利”，现在不合时宜。从字面意义，准合同并非合同。目前为止，它还是一种合同，具有欺骗性，难以理解。准合同责任不应该作为“不当得利”来理解，而是作为责任的基础，这有助于我们明白不当得利的责任基础，即基于公平正义观念的责任。

2 The notion of quasi-contract can help us understand what is at stake. whether to impose liability in certain circumstances in which no contract has been made between the parties but when we have good reason to believe that such a contract would have been made if the parties had had the opportunity to do so. This analysis is more fitting for these cases because by trying to find what the parties would have contracted for, it adopts an ex ante perspective. Interestingly, once again we see that commentators who reject the quasi-contractual analysis end up explaining the situation by invoking contractual concepts. For example, in explaining why liability should be imposed only on successful attempts, Burrows writes: ‘A reasonable man would surely pay for someone to try to rescue his drowning daughter or to try to save his burning house’. Burrows comes close to stating the quasi-contractual rationale for imposing liability: the reason why liability should be imposed in such cases is because people would have been willing to pay for the service (even without the guarantee of success), if they had had the opportunity to do so.

2准合同观念能帮助我们理解什么才是利害攸关所在。在某些情形下，双方当事人之间没有订立合同，但是当我们有充足的理由相信如果双方有条件订立合同，他们之间的合同已经订立，以此可以强加双方相应的责任。从事前的角度看，这种解释更适合发现当事人双方最初的合同目的。有趣的是，我们再次看到拒绝准合同分析的评论家通过调用合同概念的做法终结对准合同的解释。例如，在解释为什么强制责任应该只在成功的事例中实施，Burrows写道：“一个理性的人肯定愿意为成功救助他溺水的女儿或成功挽救他着火的房子支付对价”。 Burrows进一步说明准合同强制责任的理论基础：如果在条件允许的前提下，人们愿意为服务支付对价（尽管没有成功保证），所以在这些情形下必须有强制责任。

3 Within a quasi-contractual analysis it is not difficult to explain why liability need not be limited to successful attempts. In many contracts for service, the service provider does not promise a certain result, only a certain degree of effort. If the promisor fulfils her contractual liability by performing to that level, she does not breach her contractual obligation even if the service she provides does not match a certain desired outcome. By contrast, in principle, if the promisor fails to perform to the same degree required by the contract, she breaches the contract even if the non-contracted yet desired outcome is achieved.

3在准合同分析的范围内，不难解释为什么强制责任不必要限于成功的事例。在很多多服务合同,服务提供方不承诺明确的合同结果,只有某种合同行为。如果义务人履行合同责任达到了约定的承担责任的水平,那么义务人就没有违反合同义务，即使义务方提供的服务不符合某种预期的结果。相比之下，原则上，如果义务人没有履行达到合同预期的行为，即使非合同预期的目的达到了，义务方也是违反了合同的。

4 A true emergency situation that should give rise to quasi-contractual liability exists in the following situation: an uncontracted-for service is provided when (a) transaction costs for the contract are prohibitively high; (b) had the service not been provided, the recipient of the service would have suffered a considerable real loss; (c) the recipient has not provided evidence to suggest that she would have declined the service if she had had the opportunity to do so; and (d) the service provided was of adequate quality. If these conditions obtain and someone provides an unconsented service to another, the provider of the service is entitled to recover from the person she assisted, whether or not her service was successful.

4应该实行准合同中的强制责任的紧急情况存在以下四种情况：一方提供了非合同的服务当：（a）合同的交易成本非常高； (b)如果没有提供服务，服务的接收方将会遭受很大的实际损失；(c)服务的接收方不能提供证据证明，如果客观条件允许，他（她）会拒绝服务；(d)所提供的服务质量合格。如果符合这些条件之一并且一方向另外一方提供了不符合要求的服务，服务提供者有权从对方获得补偿，无论服务是否符合标准。

5 The four conditions highlight the quasi-contractual aspect of this sort of liability, both by limiting liability to those situations in which contracts were not made only because of high transaction costs, and by their focus on the ex ante perspective. As with all cases of comparing reality to a hypothetical case, this approach raises a question as to which hypothetical situation we envisage and how different we make it from what actually took place: do we imagine the recipient in perfect health making a contract with the person who provided him with the service, or do we change the facts as little as possible from how things actually were and imagine the recipient consenting to a contract with the service provider in the last moments before losing consciousness? The latter situation may seem the better one because it is ‘closer’ to how things were.

5上述四种情形说明了准合同中的责任，一是由于很高的交易成本，合同没有订立，限制责任在这种情形；二是，从事前可以预料的角度看待。正如所有的把事实比作假想一样，这种方法也会出现新的问题，我们设想的哪种情况和实际发生的有多大程度上的差别：我们可以预见身体健康的人与能为他提供服务的人订立合同?或者我们尽可能少改变事物，使得事物保持原状?权利人会在失去意识的最后时刻同意与义务人订立合同吗?最后一种情况是实践中常见的，也更能说明事情的本质。

6 However, this case is problematic from a contractual perspective: it is hard to know what a market price for such a case would be, partly because there are not enough such cases to establish a market price. Further, in such cases it would be rational for the recipient to agree to pay anything for a treatment, down to the level of subsistence below which he would rather not stay alive, and because at this moment the particular service provider is a monopolist, it is possible that she will demand such a price. This implies that in such cases the recipient's willingness to pay would be strongly affected by his ability to pay, which differs considerably among people. More broadly, the latter scenario is one in which one's autonomy is compromised. As quasi-contract liability is supposed to be grounded in the same notions of autonomy that ground contractual liability. It is also the hypothetical that matches the liability rule proposed.

6然而，从合同的视角来看，这种情形容易发现问题：在这种情形下很难确定市场价格，一部分原因就是由于没有足够的案例。一部分是因为没有足够的例子来确定市场价格。进一步说,大多数情况下，当一个人的生存环境到了他不想活下去的时候任何一个理性的人都会为治疗支付任何对价。此刻，服务提供方处于服务的垄断地位，他（她）完全有可能狮子大开口。这意味着在在这种情况下服务接收方支付的意愿收到他（她）实际支付能力的制约，这种情况是因人而异的。更深入地说，后有情景中,服务接收方的自由意思表示打了折扣。准

合同责任和合同责任一样也是建立在自由意志之上。可以假设准合同责任是法律规则的要求。

7 Another aspect of the proposal worth highlighting is that it does not try to identify emergency cases directly. Rather, it assumes that emergency cases are cases of ‘considerable loss’ (and not merely cases of foregone opportunity to make a profit) and limits recovery to them. The basis for this definition is psychological: even though from an economic perspective a lost profit is (more or less) similar to an actual loss of similar size, people tend to react very differently to actual losses and foregone benefits. The second and third conditions provide additional indirect guarantee that only true cases of emergency are captured in the definition. The claimant in such a case would have to show that transaction costs were high, or else her quasi-contractual claim would fail for not taking the contractual route when it was readily available. The third condition not only provides an easy way for the service recipient to avoid liability, but also helps identify rescue cases on the assumption that in other cases the recipient would have rejected the service. 7准合同另一方面值得说明的是它不直接说明紧急情况。相反,它假设紧急情况是“巨大损失”的情况（不仅仅是预期的商业机会利益）以限制赔偿责任。紧急情况额定义有很大的主观性：尽管从经济学的视角看巨大损失与实际损失或多或少差不多，但是一般人对实际和预期利益反应差别很大。第二和第三个条件为真正的紧急情况提供了间接保证。在实践中，请求权人必须举证在这种情况下交易成本很大，否则就会由于由于缺乏合同的构成要件导致准合同的请求不被支持。如果在其他情况下服务接收方将会拒绝服务，第三种情况不仅确定服务接收方免责事由，同时确定权利人减少损失的义务。

8 Another advantage of the suggested solution over that of free acceptance is that in cases that do not fall under it, the recipient will not have to reject the service because the provider will not be able to establish the first condition. Birks's solution requires the recipient of the service to actively reject the service or otherwise risk having to pay for it. Because the proposed alternative is more finely tailored to identify those instances in which liability should be imposed, in all non-emergency situations the recipient of a service will not have to do anything to avoid liability for unconsented services.

8紧急情况条款于自由选择另外一个优势在于防止纠纷的不确定性，服务权利人不必要拒绝服务因为义务人不能满足第一个条件。比尔克要求权利人以积极行为拒绝服务或者冒风险支付对价。因为这种精细的选择方案能更好地说明强制责任的必要性，在所有的非紧急情况中权利人对于合同外的额外服务没有必要做任何事情规避强制责任。

9 The defendant's liability under quasi-contract is equal to the value of the benefit conferred by the plaintiff. The value is the fair market value of the benefit and not necessarily the subjective value that the defendant enjoys. A traditional measure of the fair market value is called quantum meruit, for \get him an unusually large refund. Tax-payer doesn't pay accountant. Assuming a court finds no contract, tax-payer is only liable for the fair market value of tax preparation services, which is not inflated up to account for the unusually large refund he enjoyed. 9准合同下被告的责任等价于原告享有的利益的价值。该价值依据所得利益的市场公正价值决定，而不是依据原告的主观要求计量。市场价格的传统计量称为“合理价格”，即使在合理要求范围内的利益最大化。例如，企业会计在为企业做纳税筹划的时候，就会尽力使企业少交税、多返还税款。纳税人并不因此支付会计。假定法庭没有发现合同的存在，纳税人就仅仅需要为纳税筹划服务的市场价格支付价款，这并不包含会计主观所求的额外的税款返还额。

10 Under Oklahoma law:The measure of damages in a quasi-contract action is the amount which will compensate the party aggrieved for the detriment proximately caused thereby, and, if the obligation is to pay money, the detriment caused by the breach in the amount due by the terms of the obligation. The party to be charged is any defendant, or in the case of a guarantee or surety, a co-defendant, in a breach of contract lawsuit.

10俄克拉何马州法律规定：准合同行为损失的标准是由最近损害侵害一方给一方造成损失的赔偿额，如果合同义务是支付价款，违反准合同的损害标准就是准合同义务的数量。在违反合同的法律争诉中，合同双方的任何一方都可能成为被告，在有第三人担保的情况下，还会出现共同被告之诉。

11 In contracts, it is the consent of the contracting parties which produces the obligation; in quasi-contracts no consent is required, and the obligation arises from the law or natural equity, on the facts of the case. These acts are called quasi-contracts, because, without being contracts, they bind the parties as contracts do. \quasi-contract is not really a contract at all in the normal meaning of a contract,\make things fair.\

11在合同中，缔约双方合意约定双方的义务；准合同中不需要合意的存在，义务源于法律直接规定或自然正义的观点，实际上事实需要准合同的作用。由于这些情形下不存在合同的约束，但是双方之间互相约束正如合同有一样的效力，所以称之为准合同。从社会主流的合同概念来看，准合同压根就与合同不沾边。有学者的观点认为：准合同就是为了公平正义强加给一方的义务。

12 The Oklahoma Supreme Court has described the distinction between a contract and a quasi-contract in T & S Inv. Co. v. Coury, 593 P. 2d 503 (Okla. 1979), as follows:

12俄克拉何马州最高法院在T&S投资公司诉库利的案件中很明确地说明了合同和准合同之间的区别，如下所示：

A \of fact. In the former the contract is a mere fiction, imposed in order to adapt the case to a given remedy. In the latter, the contract is a fact legitimately inferred. In one the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty.

准合同或者建设性合同是对法律内容的延伸。默示合同基于事实而存在。在前一种情形中，合同是虚构的，仅仅是为了对特定情形的强制救济。在后一种情形中，合同是理性存在的事实。准合同没有具体的目的，默示合同中目的是明确而有法律强制力的。准合同就代表着义务，默示合同双方合意约定义务。

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