#1658 - Action Of Assumpsit In Contract And Tort - History of English Law

The Rise of the Action of Assumpsit

In the 16^th c. the action of trespass on the case became established as the primary, ordinary remedy for the imposition of liability on informal contracts. In the case of contractual liability the tortuous dimension came to lie principally on the surface of the action.

In the 14^th c. the action for trespass on the case principally provided remedies for cases of mis-performance of informal contract. These actions were excluded from the action of covenant as a result of the deed requirement, yet they were reincorporated into trespass.

Development: From the beginning there was a degree of pressure for the expansion of the remedy to cover cases of contractual non-performance, especially in cases where no other remedy was available; i.e. non-performance of contracts for services and cases where the vendor of land failed to convey it. Palmer has shown that the plea rolls demonstrate attempts to bring such cases within the action of trespass as early as 1303. By the end of the 14^th c. precedents can be found of actions on the case for contractual non-performance in the Registers of Writs (Kiralfy). Easy to find attempts to bring such actions in the 15^th c.

Opposition: Judicial opinion was uniformly against these attempts until the end of the 15^th c.

Why was there such reluctance?

• Difficulty was seen with the use of a trespassory remedy where D had done nothing. Courts were always reluctant to impose liability for mere omissions (Watkins Case).

• There was a serious concern that trespass and covenant (tort and contract) should be kept separate. Martin J said in Watkins Case 1425, where an action on the case was brought for failure to build a mill: ‘If this action should be maintained upon the present facts, then a man would have an action for trespass for every broken covenant in the world’.

Change:

• First successful attempt to circumvent these objections occurred in the early 15^th c.

• Somerton v Colles;

Facts: Plaintiff alleged he had retained D to be his counsel in the purchasing of a manor. In breach D had represented a rival and obtained the land for him instead.

Decision: Court held in favour of the plaintiff.

Reasoning:

1. P could point to a positive act of wrong-doing on the part of D. He had done something positively inconsistent with their agreement but representing a rival.

2. P suffered some genuine loss as a result of D’s behaviour. It was not simply that D had failed to labour on his behalf, but he made it impossible for anyone else to do so.

3. Analogy was drawn with liability on a warranty, where it was clear that an action on the case would lie.

Ibbetson’s reasoning:

1. This situation is very close to that envisaged by the Statute of Labourers. If D had been retained for a period as a labourer then an action would have lain against him on the Statute if he had not performed what he had been retained to do.

2. D’s status as a lawyer might have been relevant for the courts claimed some disciplinary jurisdiction and might have been willing to countenance an action where they would have been more reluctant in a case involving a different type of D.

• Doige’s Case;

Facts: Plaintiff brought an action of trespass on the case alleging D had orally undertaken to sell him a plot of land in London for 110. P had paid the price but D had conveyed the land to a third party.

Decision: Found in favour of the plaintiff and awarded 20 expectation damages.

Reasoning: This was an agreement to buy and sell land, and it was clear that the seller would have an action against the buyer for the price. So how could it be that the buyer should have no action against the seller for the land? It would be ‘merveillous Ley’ if a contract bound one party but left the other wholly free. Court claimed the trespass on the case was the appropriate remedy because D had not simply failed to perform her agreement; she had positively broken it by conveying the land to a third party and thereby disabling herself from performance.

These two decisions provided a ‘door through which some cases of contractual non-performance could pass into the action of trespass on the case’. In the half-century after the latter cases actions for the failure to convey land, coupled with allegations of disablement, became a routine, if not frequent part of the business of the royal courts (Baker and Milsom).

The boundary between tort and contract was breached. In 1499, speaking in Gray’s Inn, Fyneux CJ said that there was no reason why trespass on the case could not be brought for nonfeasance if (or because) damage flowed from it. No longer was it necessary to sue in Chancery: the Common law was capable of providing a satisfactory remedy.

By the beginning of the 17^th c there was a clear division between tort and contract.

Contract and Tort: The Action of Assumpsit

Tension: From its inception the emergent action on the case for breach of contract was held in tension between its trespassory and contractual aspects. Not resolved until the beginning of the 17^th c. ‘The developed form of action was never to lose the scars of its passage through the thicket of tort’.

• On the one hand, its pleadings were firm in their focus on the wrong-doing of D (Pykeryng v Thurgoode (1532)).

• On the other hand, from the early 16^th c. the action was known as the action of assumpsit, focusing on the central allegation of the action that D ‘assumed and faithfully promised’ to P to do something. This naming of the action gave more weight to the original cause of the obligation – the promise or contract – than to its breach. Moreover, it was settled by the 1520s that the proper general issue for D to plead was not ‘not guilty’, which was otherwise ubiquitous in trespassory claims, but ‘non assumpsit’ (Haymond v Lenthorp).

• On the other hand the contractual underpinnings of the action were moulding its substantive nature. For example, the plaintiff’s lost expectation measure was the ‘proper’ measure of damages, as established in Doige’s Case – when the courts spoke it was clear that they were thinking in terms of compensating plaintiffs for lost expectations. E.g. Strete’s Case (1528); the correct measure of damages was the amount it ought to have cost D to build the chimney.

By beginning of the 17^th c. there was a clear cleavage between situations where the action of assumpsit was brought for misfeasance and situations where it was brought for non-performance.

Distinctions:

• Action of assumpsit for misfeasance, with 1350s roots, could be treated as a generic action of trespass on the case in which the trespassory ‘not guilty’ would be the appropriate general issue; in contractual cases this was impermissible. In an action on the case against a carrier of goods who had allegedly carried them negligently, it was essential to make a sharp distinction between cases where the action was brought on a special term of the contract (where non assumpsit alone was appropriate) and cases brought on the general duty of the carrier (where not guilty was acceptable) (Bradley v Tewe (1606)).

• In Powtuary v Walton (1598) it was held that, although an allegation that the promise had been made for consideration was absolutely essential in an action for non-performance, it was unnecessary in an action for misperformance. So an action could be brought for the negligent performance of a gratuitous undertaking, but not for the mere failure to perform it.

Assumpsit and the Theory of Contract

The medieval notion of contract was built on two elements:

1. Identification of a bilateral agreement as its base, rather than a simple voluntary undertaking of responsibility by one person to another.

2. The restriction of the legal horizon to reciprocal arguments. The law insisted that unilateral or gratuitous arrangements should made under seal and marginalised them.

On its surface the action of assumpsit was completely different:

1. The standard form of language of the pleadings, that the D super se assumpsit et fideliter promisit, proclaims its basis as a unilateral promise or undertaking made to the plaintiff rather than a contract or covenant made with him.

2. There was nothing inherent in the concept of a promise that limited its actionability to situations of reciprocity.

The contrasts are a matter of appearance; by the beginning of the 17^th c. at the latest, assumpsit had to all intents and purposes adopted the structure of contractual liability found in the medieval contract law.

Promise and Agreement – Gradually, as assumpsit became more popular, a degree of uniformity was reached. The central elements if the plaintiff’s claim were: D’s ‘undertaking’ and ‘faithful promise’. There was an element of ambiguity in the concept of promising as it came to be applied in the action of assumpsit, as seen in Pykeryng v Thurgoode (1532).

By the early 1540s a formal mechanism had been invented that separated the promise from the contract, the plaintiff counting that the promise had been made after the contract. Throughout the second half of the 16^th c. the KB held this subsequent promise might be an empty fiction, and that the plaintiff was entitled to...