Assumpsit For Nonfeasance Notes

Assumpsit for Nonfeasance

‘Nonfeasance’: Failing to do something. Developed in the 15^th 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.

14^th 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.

15^th 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 possible in the case of nonfeasance, so it was the same as promising or covenanting, so an action for merely failing to perform an undertaking ‘sounded in covenant’ rather than trespass. Not doing something could not naturally be called a trespass. So whenever in the 15^th c an action on the case was brought for breaking a promise, it was a standard objection that it was a nonfeasance and therefore did not sound in trespass.

• Arguably this is an unreal distinction (p.334) If a doctor gave inert medicine or treated the wrong part of the body so that the patient’s health declined, was that misfeasance or nonfeasance?

= Irrational distinction had to stay until the fundamental objection could be overcome – inaction was not a trespass.

Challenges in the 15^th c: Assumpsit is different from a pure agreement – the combination of it with an undertaking makes it actionable.

• Watkins’s Case (1425);

Facts: William B brought a writ of trespass against W on the grounds that W took upon himself to make a mill between that day and next Christmas, but the mill was not erected within that period, which caused William B 10 marks of damage.

Challenges:

• + Babington CJ: Argues that if a C is damaged by the nonfeasance he should have a remedy. E.g. Where someone covenants to roof my house within a certain period but he does not do so, so that my house is rotted by the rain for lack of timber, I shall have a good writ of trespass against the person who covenanted with me.

• + Cokayne gives an example: ‘Suppose someone covenants to clean out certain ditches which are near my land and he does not do it, so that through his default the water which should have run in the ditches floods my land and destroys my corn: I say that I shall have a good writ of trespass for this nonfeasance.’

Opposition:

• + Martin: Trespass would only lie if D had made a mill which was not good and had badly spoiled the timber. ‘No wrong is supposed by the writ in the sense of anything having been done, but only the not doing of a thing, and that sounds solely in covenant’ and requires specialty. Concerned that, ‘if this action should be maintained upon the present facts, then a man would have an action of trespass for every broken covenant in the world’.

• + Rolf: Writ should be based upon covenant but this may fail for want of certainty, drawing a difference between someone who is hired and a common labourer. This is because it is made certain by statute what a labourer is to have, so there can be action.

• Anon (1435);

Facts: R sued a writ of trespass on the case and counted that C had bargained to buy land from D, and D covenanted that he would cause strangers to make a release to him with a certain time, but they did not do so.

Challenges:

• + Newton: Argues that if a carpenter covenants to make a good, strong house of a particular form, but in fact makes me a weak, bad house of another form, I shall have a good action of trespass on my case. The reason in all these types of cases ‘is that he has taken upon himself a matter in fact beyond that which sounds in covenant’. Here D has undertaken that strangers will make a release to C.

• + Paston: Drew an analogy with the obligation of a serjeant – a duty to act which is beyond an agreement. The status of the individual attracts the obligation, such as a lawyer and servant.

Opposition:

• + Ellerker: Argues that, in...

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