History Of Contract And Tort Law Introduction Notes

History of Contract and Tort Law

Law of Obligations

‘Law of Obligations’: Comprises the law of contract, quasi-contract (restitution) and torts.

Law of torts: Governs infringements of interests protected by the law independently of private agreement.

Law of contract: Governs expectations arising out of particular transactions between individual persons. Can be analysed in terms either of the right to performance, or of the wrong of breaking the contract.

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Law of Contract

+ Baker: Has not evolved lineally from a single starting point. History has been affected by evidential problems, jurisdictional shifts, and the extension of trespass actions to remedy the deficiencies of the praecipe writs.

Medieval terminology:

‘Contract’: Denoted a transaction, such as a sale or loan, which transferred property or generated a debt; it did not mean a mere consensual agreement.

‘Covenant’: A legally binding agreement (conventio). Modern sense of the word ‘contract’.

Medieval Enforcement:

• Ancient communal assemblies/medieval town cts - Plaintiff made complaint in some standard form, and proof was by oath. Everyone knew that contracts ought to be performed.

• Royal courts - Answer governed by the writ system.

Development:

• ‘Covenant’ was to acquire a restricted technical meaning because of the limited way in which actions of covenant were allowed to work in the central courts, and it then became necessary to find a general word to replace it. ‘Contract’ would not do because of its special connotations.

• Word which ultimately prevailed was ‘undertaking’ (assumptio). This was brought about by the development of forms of action designed to remedy wrongdoing, by in effect making it a tort to damage someone in breach of...

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