#1679 - Trespass On The Case For Deceit - History of English Law

Tortious Side of Assumpsit: Trespass on the Case for Deceit

Later 14^th c: Introduction of actions on the case also brought into the central courts an action for deceitful contract-making, primarily for use against sellers who made a false warranty of the goods sold. Seen as claiming damages for having been deceived into a bad bargain; not enforcing the bargain or warranty.

Rationale: The essence of deceit was not D’s deceitfulness, but C’s having been deceived. This was an anti-covenant development because C would argue that he is not trying to enforce an agreement, but that he was deceitfully encouraged to make an agreement. Hence no deed was required.

First known writ:

• Aylesbury v. Wattes (1382);

Facts: A brought a writ against W on the grounds that W had warranted to him that a horse he was selling was sound, but in fact it was blind. Hence W sold the horse fraudulently and falsely. W asserts the he himself did not bargain with A – his master did. The deceit lay in persuading buyer to buy something which he would not have bought had he known the truth. A succeeds - The seller’s state of mind was never much regarded. A had no proof of the warranty so claimed his action was not brought on a warranty but on the deceit which D committed. The essence of deceit for this purpose was not the D’s deceitfulness, but the plaintiff’s having been deceived.

• Rempston v. Morley (1383);

D objected that the action was in effect an action of covenant, yet C showed no proof of the covenant ‘except bare word’. Objection failed. One judge stated, ‘Do you suppose that a man can always carry his indentures in his purse’.

Judicial policy had clearly been changed since 1321, but still the law was not quite being undone. In suing for breach of warranty, the buyer was not seen as enforcing the bargain or warranty as such, since the contract had been performed, but as claiming damages for having been deceived into a bad bargain. Trespass is because of cheating, not because of a broken word.

Warranty: A warranty was generally essential to an action for deceit; without one the rule was caveat emptor. Most of the pleadings in such actions therefore involved denials of warranty, or assertions that C bought at his own risk:

• Fitzwilliam’s Cases (1406);

Facts: F brought a writ of trespass against J and counted that J sold his a tun of unwholesome wine, knowing the wine to be unwholesome, to his damage. D submitted that F had tasted the wine before he bought it. F retorted that he bought the wine on the condition that it would still be good after it was delivered to his house. D claims no condition.

Success? Not likely because the warranty was for the future, not present, condition of the wine.

15^th c:

• Agreed the action would not lie even on a warranty if the untruth of the statement was evident to senses: Drew Barantine’s Case (1411).

• Action would not lie in respect of statements relating to the future as such things were either outside of human control (hence unwarrantable) or were promises which sounded in covenant. They were not statements about the present conditions of the goods when sold, and so they were not misrepresentations of fact which could deceive (Anon (1471)).

= Warranty is not the same as a promise or covenant. It is a statement of present fact.

Justification: Main reason for drawing the distinction was to justify the use of the action on the case without a deed.

However, in reality the distinction between promise and warranty may not have been as clear as some lawyers tried to make it (Mauncestre v. Bolom (1305); a warranty was treated as a covenant).

• Certainly the word ‘warranty’ was not always used precisely as ‘misrepresentation’. A warranty that fungible goods would be equal to sample might be seen as a promise de futuro rather than a misrepresentation.

• In land context, a warranty was thought of in contractual terms, so that a deed was necessary for enforcement.

• It was sometimes said in the 15^th c. that if a warranty were put into a deed an action of covenant would lie upon it: Somerton v. Colles (1433).

Assumpsit as a contractual remedy

Another view: Looks as though Mrs Doige has simply changed her mind on receiving a better offer, and on that footing the plaintiff had two alternative causes of complaint:

1. Failure to convey the land;

2. Failure to return the deposit.

The language of...