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Assumpsit for Nonfeasance 'Nonfeasance': Failing to do something. Developed in the 15th c. and created inroads on the idea that nonfeasance is not a trespass. Development:
? Actions on the Ordinance of Labourers - Writs of assumpsit against workmen, for failing to carry out work, are found from the 1360s: 'Statute of Labourers 1351' - Passed to deal with fluctuating labour conditions after the Black Death, and made workmen compellable to remain with and serve their masters on pain of criminal punishment. Held during Edward III's reign that a civil action lay on the 'statute' against a servant who failed to serve and such an action, though of the trespass type, was regarded as depending on the agreement to serve, so that the issue could be joined on the covenant. 14th c - Another way in which contractual actions reached the royal cts in the guise of trespass was a result of the construction placed on the Ordinance of Labourers (1349). Although the relationship of master and servant sounded in covenant, the statutory action did not require a deed, presumably because the duty to serve was a public duty imposed by law. The action went further than assumpsit for misfeasance because it lay for mere failure to serve, and therefore represented a major departure from the older law. Limitation: Confined to labourers and servants of the inferior sort, and did not extend to craftsman retained to do piece-work (Creting's Case (1373)) or professional men because they were not compellable to serve. Against them a writ of covenant was still needed, unless they committed misfeasance. Issue: A 'carpenter' might be a labourer who sawed and joined under orders, or he might be the builder who employed the labourers.Chabbok v. Saman (1361); Thatcher for failing to roof house, Plomer v. Palmere (1365); Carpenter.
? 1400 and 1409: Actions of this kind were challenged on the ground that C had no deed. Judges agreed that an action would lie on the Statute of Labourers without a deed, and also that the action on the case would lie for misfeasance, but the present action for nonfeasance would not lie (Watton v. Brinth (1400) and Anon (1409)). The objection was put in terms of lack of writing rather than in terms of the choice of writ.
? 15th c: Objections shifted to the form of action. Difference in legal theory between misfeasance and nonfeasance:?
Misfeasance is often legally wrong in the absence of contract, whereas nonfeasance is not. In misfeasance cases the 'undertaking' had not necessarily been promissory, it was the taking on of a task. Undertaking to do something in the future was the only sense
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