CONTRACTS -- RIGHT OF A PHYSICIAN TO RECOVER ON AN IMPLIED-IN-FACT CONTRACT

Authors

Seward R. Stroud, University of Michigan Law SchoolFollow

Abstract

At one time, under the Roman civil law, neither a physician nor an advocate could recover in an ordinary action at law for services rendered. The philosophical interpretation put upon such services was that, each case being sui generis both as to the value of the service to the patient and as to the skill and attainment required of the physician, a fixed and invariable salary could not be predicated upon this basis and therefore the compensation must depend upon the case. This compensation was not a matter of right but a gratuity or honorarium, as it was called, paid to the physician voluntarily and at the discretion of the party benefited. The profession of medicine was deemed to be of so high a nature that any absolute right to a fee would by its mercenary character taint and degrade the profession. Since at that time physicians did not generally practice medicine for a livelihood, but were men of wealth and leisure, who presumably pursued the science from higher motives, this theory worked no particular hardship on the physician. Moreover, a physician depending upon an honorarium for his services was not, under the Roman law, entirely without remedy. He could by an action "de extraordinariis cognitionibus," which was a collateral action not based upon any implied promise of reward, present his claim to a magistrate who would pronounce the extraordinary (extraordinem) remedy according to the circumstance (causa cognita) determining whether an amount ought to be paid and if so what amount.

Recommended Citation

Seward R. Stroud, CONTRACTS -- RIGHT OF A PHYSICIAN TO RECOVER ON AN IMPLIED-IN-FACT CONTRACT, 37 Mich. L. Rev. 768 (1939).
Available at: https://repository.law.umich.edu/mlr/vol37/iss5/6