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Covenant History Notes

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

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Covenant 'Covenant': Legally binding agreement (conventio). Action to enforce a binding right, rather than to challenge wrong. Before 1200: There was a royal writ in the form praecipe to enforce covenants. Writ was usually brought to enforce covenants concerning land, such as leases, but its wording comprehended all sorts of agreements. 13th century: Formula was settled: 'order the defendant to keep the covenant' made between him and the plaintiff. According to the Statute of Wales 1284, c.10, the variety of writs of covenant was infinite. The form of action was applicable to all consensual agreements and gave specific performance where appropriate, damages where not. Decline: + Baker: 'The seemingly comprehensive action of covenant was soon reduced to playing a very minor role in the history of contract'. Dies out because of the introduction of the deed.
--------------------------------------------------------------------------------------------------------------------------------------------Development of the deed:
? Before 1321:+ Glanvill and Bracton: Early royal cts did not hear minor disputes. Stated that the royal courts had little to do with 'private' agreements - meaning those not recorded in ct (i.e. final concord used to transfer title to land). Oral agreements were best left to local cts, where proof by compurgation was used.

Mode of proof: Agreement evidenced by 'suit' (witnesses). This was C's burden before D answered. First, C had to show the covenant existed by using parol (external documents) or witnesses (suit). Then have to attack the document, to take any deed out of the equation - cannot attack what the deed says through witnesses. Provided C produced suit, D was put to answer, and could either wage law if there was no deed (Esthanney v. Drayton (1248; covenant denied), or put himself on a jury (Aubrey v. Flory (1321); when C had a deed, a plea of performance had to be tried by jury.At first this was not a rigid rule: Occasional covenant cases have been found in the 13th c. eyre rolls in which the claimant has no written evidence, and this is fatal only if he has no suit (transaction witness) either:Dun v. Basset (1234); C loses as he 'produces no suit save his own single voice nor shows a charter'.

- Corbet v. Scury (1292); Facts: C supplied the horse to S for jousting on the condition that if it was maimed or died in their keeping they would pay 30 marks. Horse died and S did not pay. Decision: Justices in eyre at Shrewsbury overruled an objection by counsel that the S need not answer an action of covenant without writing. Decision held into the next century. Principle: There was some kind of deed requirement in 1292. However, the deed did not apply on the facts of the case so this rule was not universal.

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