#1662 - Breach Of Covenant As Trespass - History of English Law

Contract: Assumpsit and Deceit

General

In the writs of covenant and debt, the C demanded the performance of a contract as a right. It is true that a breach of covenant was a wrong, but to turn from the praecipe writs to trespass a C had to present his case in a different light.

Trespass writs were not designed to compel performance. If a medieval C brought such a writ simply for failing to perform a covenant, he would be met by the argument ‘this sounds in covenant’ and the action might fail. The ostensurus quare formula of the trespass writ required D to come and explain why he had done something wrong. To a medieval lawyer that seemed fundamentally different from a truly contractual action, the object of which was to give effect to what the parties themselves had agreed (Vampage in Somer v. Sapurton (1428)).

By 1600 this distinction would lose its meaning, but even in the year-book period there was no dramatic leap from contract to tort. The extension of trespass was slow and resisted at every step. The first step was taken into territory where the boundary marks were indistinct.

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Breach of Covenant as Trespass - Contract Side of Assumpsit

14^th c. evolution of covenant: Assumpsit – Development occurred as a result of the specialty rule.

‘Assumpsit’: A form of recovery for the negligent performance of an undertaking – D ‘took upon himself’ to do something and then did it badly to the damage of C. Earliest assumpsit actions were trespassory – the complaints were of damage actually caused to goods entrusted by C to D, not of failure to carry out a ‘contractual’ obligation. They were the first comings to the royal courts of wrongs which were not done in breach of the king’s peace.

‘Misfeasance’: A wrongful act which needed explaining had to shown for the claim to be trespass: since the complaint was an act rather than of a failure to keep one’s word there was no need for a deed. A breach of covenant which caused physical damage, as where a carrier damaged goods or a surgeon mishandled an operation, looked like trespass. It is not an act of force against the king’s peace – a surgeon could not be sued for battery, nor the bailee for trespass to chattels.

E.g. If C claims that he and D made a covenant that D would shoe his horse, but D did that badly, then C’s lawyers would not want to mention covenant. C’s lawyer would want to make it appear that D’s act was unilateral (D took the task upon himself wrongfully) in order to avoid the deed requirement of covenant. This conceptualisation of assumpsit ignores any agreement. However, covenant would be lurking in the background as D would often respond, ‘you mean I did not keep my covenant with you?’ and try to make the case ‘sound in covenant’.

14^th c: Possibility of using trespass in such cases was opened up by the decision in the mid-14^th c. to admit actions of trespass in central courts where no force and arms were mentioned. There was then no difficulty in allowing actions in which the C’s special case was that the D had caused damage whilst carrying out an undertaking. Such cases were already known in London and other local courts; the change was not in reality a change in substantive legal thought but simply an enlargement of royal jurisdiction.

Case development

First known case in the superior cts where liability was imposed on someone who had undertaken (‘received to safely carry’) to do something and done it badly:

• Humber Ferry (1348);

Facts: C complained by a bill of trespass in the KB that D (a ferryman on the river Humber) accepted his mare for carriage, but overloaded his boat with other animals so that the mare perished. D’s counsel argued the action should have been covenant. If he had succeeded C would have been without remedy because covenant did not then lie in the KB and no-one used deeds when taking ferries.

Decision: Held D did trespass C when he overloaded the boat. This is because, unlike the Waltham Carrier, who had done nothing, the ferryman was guilty of a wrongful act which would have been wrong, even if there had been no agreement between the parties.

Second reported case:

• Dalton v. Mareschal (1369);

Facts: An action on the case against a veterinary surgeon who had killed a horse by his negligence. Here the word used for undertaking was manucepisset (he had taken in hand), a word familiar to pleaders in London, although it was altered in a second writ to assumpsisset. D argued the action should have been covenant. Serjeant Belknap decided that C could not bring covenant because he had no deed, and so it was reasonable to bring this action on his case. D also argued the writ should have been for vi et armis, but this could not be as negligent treatment was not ‘force’.

Decision: Writ was upheld.

• Stratton v. Swanlond (1374);

Facts: Action against a London surgeon for negligently maiming the hand he had undertaken to heal.

Decision: Writ quashed because it omitted to name the place where the undertaking was made.

= Undertaking was evidently seen as the basis of the action. Cavendish CJ significantly called it an action of ‘covenant’, and said it could be maintained without a deed, ‘because a man cannot always have a clerk to make a speciality in respect of such a small matter’.

NB. In 1388 (Skyrne v. Butolf (1388) CP settled that the writ could be brought either in the county where the undertaking was made or in the county where the damage was done.

Numerous cases followed. It was no distortion of language to regard misfeasance in performing an undertaking as a trespass; but everyone knew they were beginning to encroach on the action of covenant. The cases of 1374 and 1388 show that, although the action lay for the wrong, the undertaking was recognised both as a covenant and as being part of the cause of action. Nevertheless, where trespass was brought for an act of misfeasance, no one suggested there should be a deed. The law that could not be undone for a cartload of hay could at least be circumvented.

Issue: D’s sounding in covenant argument. How did Cs respond to this argument?

In early 14^th c. the complaint could not be trespass because it was not vi et armis. It was argued that force cannot be alleged where contact is consented to, i.e. in the veterinary cases. This led to the adoption of fictions to so Cs could force their facts into the vi et armis category.

In the mid-14^th c. it was decided that grounds of trespass would be expanded. Unclear why happened. Theories:

+ Palmer: Black Death argument – the traditional view was modified to accept the slight impact of the plague.

+ Judges

15^th c: Key phrase used in writs on the case based on undertaking was that the D ‘took upon himself’ (assumpsit super se) to do something, and then did it badly to the damage of the plaintiff. The word assumpsit, which gave its name to the new action, was soon inseparably paired with fideliter promisit (‘faithfully promised’), but in origin it need not have had a promissory connotation. Like ‘undertaking’, it also had the primary meaning of taking something on; and this purely factual assertion...