ABSTRACT
The mainstream treatment of quasi-contracts and implied contracts illustrates doctrine’s techniques of separation and conflation. Since at least the mid-nineteenth century, the discourse of contract doctrine has tried to portray contract as essentially private and free. In the earlier part of the nineteenth century, a will theory of contract dominated the commentary and influenced judicial discussion. The implied-in-law or quasi-contract plays a crucial role in sustaining the notion that contract law is essentially private. The doctrines of duress and unconscionability are self-consciously “public” insofar as they are designed to police the limits of “fair” bargain. Both private and public counterarguments are readily available. If the focus is the place of cohabitation agreements within the publicly regulated sphere of intimate relationships, then an argument can be made that certain kinds of enforcement in fact extend and implement public policy rather than derogate from it.
