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This chapter examines the history of the evolution of the action of assumpsit for breach of promise and the enactment of the Statute of Frauds and Perjuries in England. It suggests that the evolution of assumpsit made the contract law excessively biased in favour of the plaintiff, which encouraged the filing of groundless suits. To address this problem, the Statute of Frauds adopted a policy of requiring written evidence of important legal transactions as a prerequisite to their enforcement, which made the filing of groundless suits more difficult and costly.

Chapter four examines James's role as an investigator of physical mediums purporting to levitate tables and materialize ghostly forms of the deceased, and recounts the instances when he revealed several of them to be frauds including the notorious Eusapia Palladino.

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 materials in this chapter relate to the early history and legal recognition of ‘uses’ of land, and to the legislation designed to prevent them from harming others, particularly by depriving the king and lords of their feudal incidents. The legal background to the Statutes of Uses (1536) and Wills (1540) is revealed from miscellaneous sources. Subsequent cases show the survival of equitable interests in the form of ‘trusts’ created by means of the ‘use upon a use’. The post-1535 trust was recognized judicially in The Duchess of Suffolk’s Case (1560), printed here in translation for the first time.

This chapter explores some lines of development in contract law after 1600. First there were questions flowing from the decision in Slade’s Case – the pleading formulae known as the ‘common counts’ in indebitatus assumpsit were quickly settled and the perjury problems after the disuse of wager of law were dealt with in the Statute of Frauds 1677. Attempts to rationalize consideration in the eighteenth century were unsuccessful save that it became distinct from the requirement of an intention to be bound. The chapter traces the history of privity of contract and of the various attempts to give remedies to third-party beneficiaries. It then discusses the implication of terms into contracts, the difference between conditions and warranties, exclusion clauses, and the problems occasioned by standard-form contracts.

Chapter 56 concerns the statute of frauds. The law does not require contracts as a class to be in writing. However, the Statute of Frauds, adopted in England in 1677 and in force in almost every American state, provides that certain kinds of contracts are unenforceable against the party sought to be held liable unless the contract is evidenced by a writing or, today, an electronic equivalent, signed by that party. Section 4 of the Statute provides that no action shall be brought upon any contract or sale of land, or any agreement that is not to be performed within one year from the making thereof, unless the agreement or some memorandum or note thereof is in writing and signed by the party to be charged. Section 17 of the original Statute covered contracts for the sale of goods. That section has been superseded by the UCC.

This concluding chapter focuses on the doctrine of the ‘equity of the statute’, according to which courts can go beyond the literal meaning of a statute—either narrowing or broadening—in order to avoid perverse results. It distinguishes between two versions of the equity of the statute: an older one in which some external standard of morality is brought to bear to override the normal operation of a statute; and a more modern version of the equity of the statute in which statutory language is interpreted in a contextual manner and construed with a view to its purposes. Famous examples of the equity of the statute, in both versions, can be found in courts’ treatment of the Statute of Frauds. Although traces here and there of the older—independently moral—version of the equity of the statute can still be found, the chapter argues on grounds of separation of powers, rule of law, and judicial legitimacy, that the modern view is defensible and desirable, whereas new applications of the older version would be neither. Similar issues of equity arise with respect to all other instruments, notably including contracts, wills, and treaties.