Someone recently bought our

students are currently browsing our notes.

X

Assumpsit In Lieu Of Debt Notes

Law Notes > History of English Law Notes

This is an extract of our Assumpsit In Lieu Of Debt document, which we sell as part of our History of English Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our History of English Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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 16th 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 PS5, 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 PS29 damages and PS4 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: (i) Establish a debt producing transaction;

Buy the full version of these notes or essay plans and more in our History of English Law Notes.