22. Which of the following fact patterns most clearly suggests an implied-in-fact contract?

Contracts are frequently described as express, implied, or quasi. Only the first two are actually contracts, and they differ only in the manner in which they are formed.

Express contracts are formed by language, oral or written.

Implied contracts are formed by manifestations of assent other than oral or written language, i.e., by conduct (e.g., if a person sits in a barber's chair and the barber cuts his hair, a contract has been formed by the parties' conduct).

Quasi-contracts are not contracts at all. They are constructed by courts to avoid unjust enrichment by permitting the plaintiff to bring an action in restitution to recover the amount of benefit conferred on the defendant. Their only relationship to genuine contracts is historical.

C is correct. This is the clearest implied-in-fact contract because the contract was formed based on conduct, not language (either written or oral). Although based on tacit, and not express, promises, implied-in-fact contracts are enforceable. An implied-in-fact contract may be inferred from parties' conduct, such as where services are rendered by one person for another under circumstances where it may fairly be presumed that the parties understood that compensation would be paid. The contractor paving the neighbor's driveway while the neighbor looks on without raising objection gives rise to the presumption on an implied-in-fact contract theory that the neighbor will pay the contractor for the work.

A is incorrect. This is not an implied-in-fact contract because it is based on the tax assessor's mistake in billing the man, who then mistakenly believes that he owes the taxes, which he does not. This is not a scenario in which one party performs and the other party impliedly agrees to pay for the performance. The man's payment of the taxes is not a conduct-based agreement to an implied contract.

B is incorrect. There could not have been an implied agreement by the parties to participate in a contract here because the rider was unconscious, which means he could not have requested the physician's services, either by implication or express communication. The physician may have another cause of action, such as under a theory of restitution, but not an implied-in-fact contract.

D is incorrect. This scenario involves communication (the mother's request), which would support a finding of an express contract, whether oral or written. Implied contracts are not based on express communication, as explained above. As a side note, the exchange may very well not be considered an express contract either because the law presumes that benefits conferred between family members are done gratuitously, without the expectation of payment.