#1663 - Covenant History - History of English Law

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.

13^th 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.

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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 13^th 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.

• Picton v. St Quintin (1304);

Facts: Action by a lessor (P) against a lessee (D) who had stayed in possession after the end of the term of years, after agreeing not to hold over. D argued covenant ‘naturally depends on speciality’ but P could show nothing of that. Decision: Held for plaintiff – holding over by the T was a fact that could be known by the jury. His staying is visible. Distinguished this case from a promise to give one land.

• Turgy v. Rokele (1304);

Facts: T was a tenant in dower (widow). She leased land to tenant R on condition he would not commit waste. He felled 300 trees and was evicted. R argued T needed a deed to show the covenant.

Decision: Held for T. Said was unlawful to commit waste whether or not there was a covenant – would only need it in the opposite case; if plaintiff ordered you to commit waste and you failed to.

By 1321: The royal judges had decided that the only acceptable evidence of a covenant in the royal courts was a deed (a written document under seal). Did not want royal courts blocked with trivial cases – if the parties were serious about their agreement then they would have executed a deed.

Rule: Fixed rule – needed a specialty to prove covenant.

• Case of the Waltham Carrier (1321);

Facts: A bill of covenant was brought against a carrier who had covenanted to carry a load of hay from Waltham to London and failed to do so. Counsel protested that surely it was not necessary to have a deed for a cartload of hay.

Decision: Action failed for want of deed. D won. Herle J retorted that the judges would not ‘undo the law for a cartload of hay’. The deed was evidence of the agreement/covenant. ‘Covenant is merely an agreement (assent) between the parties as shown by their words, but the words can only be proved by specialty’.

Significance: Policy of excluding minor cases had become an absolute rule, the test of jurisdiction being the ability to produce a deed. Rule could not be displaced for a particular county by showing that it had never been applied there in previous eyres. Had become common-law procedure, binding eyres as well as central cts (Wetenhale v. Arden (1346)).

Explanation: Rule did not imply a narrow understanding of what a covenant was – covenant was simply an agreement and a deed was evidence of an agreement. Unclear how ruled come into being and how it was justified.

+ Baker: Likely that it came in by degrees, starting perhaps with claims to real property. Evident that it was resisted longest and with some success in cases where a breach of covenant was associated with physical harm:

• Corbet v. Scury (1292); Damaged horse.

• Warner v. Leech (1330); Surgeon not treating arrow wound.

=Seems was general rule of evidence (not just limited to contract law) applied to any claim based on mere word (grant or warranty (Loveday v. Ormesby (1310); 140 in deed accepted, 60 warranty not) as opposed to visible conduct:

+ Herle Sjt: ‘A man’s will is a thing so secret that one cannot know it without a special deed bearing witness to it’.

For example, it applied to an assignment of a reversion (Lucy v. Plukenet (1312)), remainder (Anon (1341)), and a warranty of goods or land (Falston (1370)).

+ Baker: No doubt it was also influenced by the fictionalisation of suit. Whatever a C said in his count, an action on an unwritten covenant had come in reality to depend on the C’s own bare word.

Implications:

• It could still be said that any kind of agreement was enforceable by the writ of covenant, but now the C would only succeed if he had a deed to prove the agreement. Informal contracts were shut out from the central cts, and the development of a law of consensual contracts was stifled by the formal requirement of a seal.

• Contemporaries would not have viewed this as a drastic denial of justice, when local cts were quite competent to deal with informal agreements. Hardship of the Waltham Carrier was a temporary misfortune. Created injustice only in this case. C would have succeeded without question had no eyre been sitting at the tower of London. In the mayor’s court, and probably all other local courts, covenants continued to be actionable without a deed; and this was as much the law of the land as the stricter evidential rule of the central courts. It was geographically unfortunate. C should have brought detinue on bailment in Waltham, since the deed rule did not extend to detinue.

• Change was therefore not a change in the law, so much, as a demarcation of justice. Its restrictive character made excellent sense in the eyres, which were unable to cope with the volume of business brought to them.

Issue: Central courts came to regret the policy, and later in the century the argument that one could not make a deed for every little agreement was already being used to justify alternative remedies (Stratton v. Swonland (1374)).

• The fate of the action of covenant was not merely restricted to Cs blessed with deeds. Even for them covenant ceased to be the usual remedy. Problems: scope of specific performance was unclear and unliquidated damages were an unreliable remedy in other cases.

+ Ibbetson: Suggest specific performance was mainly a remedy for lessees.

14th century change in remedy: Cs seeking specific performance were drawn into the Chancery. It became usual for parties who chose to make contracts under seal to use the formula of the conditional bond, which gave a more secure remedy in debt.

15^th century demise of covenant: The covenant had become more peripheral to the law of contract. Then the nature of the action was artificially constrained. It was said that the formula praecipe quod teneat conventionem was appropriate only for Ds who were still able to keep their covenant, and not as a means of obtaining compensation for imperfect or tardy performance.

E.g. If a builder constructed a house so badly that it collapsed it was futile to order him to keep the covenant as the C just wanted compensation for the damage. Same if a man sold goods which turned out to be defective.

Justification: In the 13^th c. damages had been given in cases such as these where specific performance was inappropriate (Statute of Wales 1284, c.10). The reason for introducing the new learning was to justify the use of actions on the case, which did not require a deed, instead of covenant.

+ Ibbetson: This is an example of the unintended consequences of freezing a particular formula.

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Covenant – Essay Issues

Issue: Why did the common law decide to introduce the specialty rule and insist on a deed?

+ Simpson: Suggested it was always the rule that deeds were required – relied on Maitland cases in 1220s when D had no deed. Simpson...