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The principal species of action on the case in the fourteenth century was that brought for a non-forcible wrong causing physical damage, such as negligence by a carrier or surgeon. The cases in this chapter contain discussions of the distinction between such actions on the case for ‘misfeasance’, actions of trespass for battery with force, and actions of covenant for breaking a promise. The boundaries were important for practical reasons. Although the actions were seen to rest on undertakings – assumpsit means ‘he undertook’ - it was important for plaintiffs that they should be trespassory in form; this meant that the plaintiff did not have to produce a sealed document as proof, as in the action of covenant, and that the defendant could not wage his law.

Among the writs of assumpsit issued in the fourteenth century were some alleging a mere failure to do what was promised (nonfeasance), the harm being economic rather than physical. The cases in this chapter show how the availability of such actions was controversial for nearly a century. Assumpsit for misfeasance had been allowed without dispute, because the misfeasance would have been a tort even without the undertaking. But assumpsit for nonfeasance rested wholly on a contractual agreement and arguably required written evidence of the agreement, if not a different writ (covenant). During the fifteenth century the action was established, after much debate, by deploying the concepts of bargain, reliance, and deceit. It enabled contracts to be enforced although there was no sealed agreement, as was required in the action of covenant. The turning point was Doige’s Case (1442), in which damages were recovered against a defaulting vendor of land.

Once it was established that the action of assumpsit would lie for nonfeasance, thoughts turned to using it for the non-payment of debts. This would enable the action of debt to be avoided, and thus prevent debtors from escaping their debts by waging law. The development was accepted by the King’s Bench in 1532, but resisted for over sixty years by the Common Pleas, which regarded wager of law as a right worth preserving. This chapter shows the arguments that were advanced on both sides, how the clash between the courts came to a head with the creation of the Exchequer Chamber in 1585, with jurisdiction to reverse King’s Bench judgments, and how the dispute was finally ended (by the barest majority) in Slade’s Case (1602). The 1602 decision was that every debt included an implied undertaking on which assumpsit would lie. This effectively put an end to wager of law.

The decision in Slade’s Case (1602) that the action of assumpsit could be brought for not paying a debt left open the question whether it would lie against a debtor’s executors. Executors had been immune from actions by writ of debt, unless there was a sealed acknowledgment of indebtedness, since they could not wage their testator’s law; but wager of law was not relevant in assumpsit. This chapter shows how the availability of assumpsit against executors, to recover debts from a deceased debtor’s estate, was a controversial question between the King’s Bench and Common Pleas, and how it was finally settled in 1611 in favour of allowing the action.

This chapter shows how the doctrine of consideration emerged as an amalgam of the factors which would justify bringing an action of assumpsit for nonfeasance. The principal factors were a benefit conferred on the promisor (the essence of a bargain) and a detriment suffered by the promisee (the essence of a tort founded on reliance). Though lacking coherence, consideration was the closest approach to a basic substantive principle of contract law. Closely connected with it was the doctrine of privity. There was much debate over this, and in particular whether it was necessary for a plaintiff to be privy both to the consideration and to the promise. The reported arguments show how far it was thought possible for parties to make enforceable contracts for the benefit of others.

This chapter traces the development of the action of assumpsit, a species of trespass on the case used to enforce informal contracts. The earliest examples were of ‘misfeasance’ causing physical damage; they belong as much to the history of tort as of contract. There were intellectual obstacles to extending the trespassory remedy to mere ‘nonfeasance’, but they were overcome by drawing (inter alia) on the concepts of deceit, reliance, and (in Doige’s Case) on the mutual force of bargains. The competing principles were brought together in the Tudor doctrine of consideration, which also accommodated the binding force of mutual executory promises. The use of assumpsit to recover debts, and thereby avoid wager of law, caused a prolonged controversy between the King’s Bench and Common Pleas, which was ended by Slade’s Case (1602). The action was soon afterwards held to lie against executors.