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。