#1660 - Assumpsit In Lieu Of Debt - History of English Law

Assumpsit in Lieu of Debt

‘Assumpsit in lieu of debt’: Failure to pay money owed is a particular species of nonfeasance, sounding in debt rather than covenant. There is a difference between a wrong, which is a spent act requiring redress, and a continuing duty, such as debt, which requires enforcement.

Reasons for wishing to extend assumpsit to money claims:

• There were disadvantages of debt on a contract: wager of law, uncertain scope of quid pro quo, the need for a certain sum, and the lack of a remedy against executors. In the early 16^th c the assumpsit was seen as a means of avoiding these problems.

• KB was eager to furnish litigants with an alternative to debt. From 1510s there was a steady flow of actions of assumpsit for money or fungibles. Many of the earliest actions were to enforce payments which could not be recovered in debt: actions by or against sureties, actions against executors, cases where the sum not fixed etc.

• From 1521 actions were resisted on the ground that the facts sounded in debt (Cremour v Sygeon 1521).

• In 1532 KB decided that C could elect whether to bring debt on the contract or assumpsit on breach of the promise. In Pykeryng v Thurgoode (1532) Spelman J stated, ‘the action of debt is founded on the debet et debinet, whereas this action is founded on another wrong, namely the breach of the promise’. Henceforth there was a general remedy in case for any breach of promise causing damage. The possibility of suing for debts without risk of debtors waging their law attracted creditors to court.

• Pykering v. Thurgoode;

Facts: P, a London brewer, brought an action on the case against T. D had sold 40 quarters of malt to P for 5, and T promised to deliver the malt. Relying on T’s promise, P made lesser provision of malt for his brewing. T did not deliver the malt, so P had no malt for brewing; forced to buy it from others at a higher price. D pleaded non assumpsit.

T’s argument: This action does not lie because an action of debt lies, and where a general action lies a special action on the case does not lie in the same case.

Decision: Jury found for P and awarded 29 damages and 4 costs.

Reasoning:

+ Spelman J: Action on the case does lie – where a man has a wrong done to him, and has suffered damage, he must have an action. As T broke his promise and undertaking he has wronged P, and P suffered damage through the non-delivery of the malt. No action lies on this but the action on the case. The distinction drawn between misfeasance and nonfeasance, so that an action of covenant les on one and an action on the case on the other, is unreal. The action of debt is founded on the debet et detinet, whereas this action is founded on another wrong, namely the breach of promise. The action of covenant is based on the covenant broken, whereas the action on the case is based on deceit.

+ Coningsby J and Fitzjames CJ: Decided that the action lies, and ‘it is at the plaintiff’s election to take either action for they are based on different points’.

NB. More significant than change from covenant to assumpsit, which was technical and not used lots.

= Henceforth there was a general remedy in case for any breach of promise causing damage. The possibility of suing for debts without risk of debtors waging their law attracted creditors.

Test: The contractual assumpsit for non-payment of debt could be used if C could:

1. Establish a debt producing transaction;

2. Show that D promised to pay the amount/consideration;

3. D did not pay.

Defence: Defence would argue that this was covenant so C had to say more. The ‘extraordinary damage’ requirement was added so the action was not debt or covenant.

• By mid-16^th c. assumpsit for money was becoming the principal action on the case. Necessary by 16^th c. to show consideration for the promise to pay.

Ways of framing consideration:

1. Where tradesmen or merchants had entered into an account with each other or with customers plaintiffs’ method was to lay the assumpsit ‘in consideration that the parties had accounted together’ and that the sum was found owing; or

2. Allege a pre-existing debt and a subsequent promise to pay it.

Issue: The objection that consideration was past in these cases was met by stating: the account or contract was entered into at the request of D, and by alleging consideration over and above the debt itself. Or could show that plaintiff had paid for the promise. Common Pleas did not agree with the assumpsit for money because it deprived D of their right to wage law. Common Pleas did not like overlapping forms of action on one cause of action. You could not tell which judge you would get at nisi prius.

Problems with assumpsit for non payment of debt:

• Anon (1535); Fitzherbert held, ‘You shall not have any action on the case, or any other remedy, for once the testator is dead, the debt which was due by reason of simple contract is dead also’. Knightley explained, ‘The reason why no writ of debt lies against executors is because the testator could have waged his law, and the executors cannot do his law’. = Unfair to CP that executors can be sued in assumpsit but not debt. Also Fitzherbert ignored the Exchequer approach.

• Anon (1543); Shelley J stated, ‘An action on the case does not lie in any case except where the plaintiff is without other action’. = Must use the classic action. Action on case is a gap filler. He recognised that P ‘brought this action because D shall not wage his law in this action, as he could in an action of detinue’.

• Edwards v. Burre (1573); Wray J made clear the different procedure used in KB and CP. In the KB, ‘if it be true that the plaintiff lent you the said sum, you must find for the plaintiff; for the debt is an undertaking in law.’ He noted this was KB custom so, ‘in the Common Pleas he would have to prove the undertaking, and it would not be sufficient to prove the debt alone’. = Need express, not implied, promise.

Issue: D would not know what judge he would get at nisi prius. CP asked jury if factually there was really a debt (KB and CP) – also was there an additional promise (CP)? Intolerable for litigants.

• Norman v. Some (1594); ‘An action of debt shall not be converted into an action on the case unless the P has sustained more than ordinary damage – as where wares or grain are sold and not delivered, and the markets rise – for in such special cases of extraordinary damage sustained, debt may be converted into assumpsit.’

= Must show more loss than non-payment of the debt.

• Anon (1596); Can only have an action on the case where is ‘something more than ordinary’.

• Duppa v. Jones (1602); ‘Action on the case is maintainable only where deceit or fraud is supposed’. ‘For what fraud can there be if the debtor does not pay the money he borrowed at the day?’

= Anytime D did not pay his debt, C put his failure...