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This introductory chapter explains the coverage of this book, which is about the history of the action of assumpsit in England and its role in the English Contract Law. Though the origin of assumpsit can be traced back into the 14th century, it was not until the 16th century that it achieved any great prominence as a remedy for broken agreements, and not until the 17th century that it became the regular common law contractual action. This book examines the history of action of breach of promise, the relationship between assumpsit and older remedies, and transmission of liability on debt.

This chapter shows how, in the 16th century, the action of trespass on the case came to be established as the primary, ordinary remedy for the imposition of liability on informal contracts. The route by which this was achieved was the same as that followed in other situations: first of all the argument that trespassory remedy was simply supplementing the remedies that were otherwise available, followed by a wholesale expansion into the ground covered by other remedies.

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.

This chapter examines the establishment of a firm association between the action of assumpsit and the doctrine of consideration in England during the 1560s. This connection was highlighted by the setting of the requirement to aver consideration in the pleadings, and the importance of the doctrine of consideration was emphasized by the fact that at no time was any particular form of words required to count as a promise. This chapter provides examples of relevant court cases.

This chapter examines the history of implied promises and quasi-contract in England. It explains that the 16th and 17th centuries saw the beginnings of the evolution of the branch of the law which came to be known as quasi-contract. It suggests that the basic reason for the development of implied assumpsit was the desire to use a convenient form of action to remedy certain duties or obligations recognized either directly by law or by common sense or justice.

This chapter examines the history of the law of contract in England concerning the transmission of liability on death. During the Middle Ages, executors and administrators of estates were not in general liable for simple contract debts, nor were they liable to be sued for actio personalis moritur cum persona. However, the rise of the assumpsit significantly changed the rule so that the liability for breach of informal contracts was passively transmissible to personal representatives.

This chapter examines the pleading and procedure in the action for breach of promise in England during the medieval period. It suggests that the declarations and pleadings in an assumpsit action were not stereotyped and contained forms drawn by acknowledged masters. The basic structure of a declaration in assumpsit may be illustrated by an action brought by a clerk against a defendant to claim payment of a quantum meruit for drawing a declaration.

This chapter examines the history of the emergence of the action of assumpsit in England. The steady increase in the jurisdiction of the royal courts over actions for trespasses, or torts of wrongs, in the 14th century provided the necessary condition for the emergence of action of assumpsit. During the 15th century, assumpsit became more recognized but as nothing more than a word used in one of the many ways of pleading a trespass action. It only acquired its own identity, rules, and theoretical doctrines in the 16th century.

This chapter examines the history of the action for breach of promise in England. It explains that the nonfeasance doctrine under the common law of 1400 prohibited litigants from using assumpsit as a complete substitute for the action of covenant. During this period, nonfeasance exercised a powerful restraining influence over the development of assumpsit. This chapter discusses relevant court cases concerning the action for breach of promise.

This chapter examines the historical relationship between assumpsit and the older remedies for debt issues in England. Problems on the scope of legal action concerning debt issues started to arise when the courts decided that the action of assumpsit for breach of promise could be brought on a pure nonfeasance. These problems were highlighted by a series of demarcation disputes involving the relationship between the action of assumpsit and older remedies, particularly with the action of debt on a contract.

This chapter examines the role of the doctrine of consideration in the emergence of the action of assumpsit in England. It establishes the time at which the action of assumpsit became associated with the doctrine of consideration and discusses the essential features of the doctrine during the 16th and 17th centuries. It discusses the details of the earliest example of a case involving assumpsit and the doctrine of consideration in 1549.

This chapter examines the application of the equitable doctrine of consideration in the law of uses of land in England during the 16th century. It explains that the doctrine of consideration in land uses was fully and elaborately developed before there was any doctrine of consideration in assumpsit. It discusses examples of relevant court cases and analyses the experiences of common law practitioners.

This chapter examines the law of torts relevant to negligence and fault in England during the Tudor period. The principal actions in which negligence or incompetence was formally alleged by the plaintiff were the misfeasance forms of assumpsit, while fault or default was used in two cases, given as example, related to the spread of fire and to the loss of goods in an inn. This chapter discusses actions filed during this period and explores the courts' bases in their decisions.

This chapter examines the concept and principle of assumpsit for nonfeasance under the law of contract in England during the Tudor period. During this period, assumpsit law was based on the distinction between misfeasance which was actionable in trespass on the case, and nonfeasance which was not. This chapter discusses some cases related to assumpsit for nonfeasance during this period and analyses the legal bases of court decisions. It also describes the factors that led to the evolution of the laws governing assumpsit for nonfeasance.

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 action of assumpsit for money, usually in the fictional form known as indebitatus assumpsit, was extended in the seventeenth century to cover situations beyond the reach of the old action of debt: for instance, actions on bills of exchange, actions for sums of money not quantified at the time of contracting (quantum meruit and quantum valebant), and restitutionary actions for money received to the plaintiff’s use. The last category overlapped with the action of account, but unlike account could be used against wrongdoers. Excessive use of ‘money had and received’ to replace the usual remedies in contract and tort was resisted, with only partial success, by Chief Justice Holt.