#1668 - History Of Contract And Tort Law Introduction - History of English Law

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 an undertaking. Shifted from a factual to a promissory meaning.

• By 1600 the action of assumpsit (‘he undertook’) had expanded to take over the work of the older actions based on covenants and contracts, and then the word ‘contract’ began to acquire a looser modern sense of ‘agreement’. Shift of meaning noted in 1651 by Serjeant Sheppard.

• ‘Contract’ took on the meaning formerly meant by ‘covenant’.

• By end of 17^th c. the modern distinction between contract and tort was in place.

Two forms of praecipe writ used before end of the 12^th c. to enforce contracts:

1) Writ of covenant (agreement); and

2) Writ of debt demanding intangible property (render/yield).

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Summary

Covenant – An agreement

1. Deeds

Debt

1. Debt on a contract or on an obligation

2. Conditional Bond

3. Significance of written evidence

4. Detinue

Misfeasance –...