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The Rise of the Action of Assumpsit In the 16th 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 14th 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.
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