Assumpsit

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Assumpsit ("he has undertaken", from Latin, assumere), [1] or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case. [2]

Contents

History

Fragmentation of actions for breach of agreement

In the early days of the English common law, agreements were enforced in local courts. Where one wished to enforce an agreement in the royal courts, it was necessary to fit one's claim within a form of action. In the 13th and 14th centuries the forms of action for the enforcement of agreements were covenant, debt, detinue, and account. [3] These were all writs in the praecipe form, meaning that they commanded the defendant to perform an act: for example, to keep a promise; to yield up a sum of money or chattel unjustly withheld; or to render accounts.

These actions were subject to various limitations. For example, by the middle of the 14th century at the latest, it was necessary for a plaintiff in an action of covenant to have a deed. [4] In an action of debt sur contract, a deed was not necessary, but a defendant was able to wage his law and the sum claimed had to be a sum certain fixed at the date of contract. Such rules could easily work hardship. What if a promisor (A) orally agreed to supply grain to a promisee (B), but failed to do so? In such a case, B would be unable to bring a writ of trespass due to the absence of a deed. B would instead bring debt sur contract, bringing a number of transaction witnesses. But what if A elected wager of law and simply hired his eleven oath-helpers?

Emergence of assumpsit

Litigants began to turn from the praecipe writs of covenant and debt to the ostensurus quare writ of trespass. By the middle of the 14th century the royal courts were recognising that a writ of trespass would lie even without an allegation that the defendant had acted vi et armis contra pacem regis (with force and arms against the King's Peace). [5] This action became known as trespass on the case.

To bring the claim within trespass on the case, the plaintiff would characterise the defendant's breach of agreement as a wrong. During the 15th century, the received learning was that an action on the case did not lie for mere inaction ("nonfeasance"). [6] By the beginning of this 16th century, this was no longer the case. Provided a plaintiff could show that the defendant was guilty of misfeasance, deceit, or the plaintiff had made a pre-payment, the plaintiff could bring assumpsit for nonfeasance.

By the beginning of the 16th century lawyers recognised a distinct species of action on the case known as assumpsit, which had become the typical phrase in the pleadings. [7]

Assumpsit in lieu of debt

The question that arose in the 16th century was whether assumpsit could be brought in lieu of debt. [8] For a plaintiff, assumpsit was the more desirable course: the defendant would not be able to elect to wage his law as he would in debt sur contract.

In order to bring assumpsit, the plaintiff would plead that, the defendant being indebted to the plaintiff, the defendant had later promised to pay the debt. In short, the plaintiff would separate the existence of the debt (which generated an action of debt sur contract) from a promise to pay the debt (which would generate an assumpsit for nonfeasance). This form of pleading gave rise to the name of the action: indebitatus assumpsit. [9]

The practice of the King's Bench and the Court of Common Pleas differed during the course of the 16th century. In the King's Bench, it was not necessary for the plaintiff to prove the subsequent promise. The Common Pleas disagreed. Matters came to a head in Slade's Case in 1602. The case effectively established that assumpsit could be used in lieu of debt: the law would imply a promise to pay the debt from the existence of the debt itself. [10]

Slade's Case effectively put an end to the use of debt sur contract, and with it wager of law. Of course, it was not possible to bring assumpsit where the proper action was debt sur obligation (that is, debt on a deed or bond).

Common counts

Claims in actions of assumpsit can be divided into:

Where a plaintiff brought assumpsit in lieu of debt sur contract, it was necessary for the plaintiff to specify how the antecedent debt had arisen. It was insufficient for the plaintiff to merely allege that, being indebted, the defendant promised to pay. This gave rise to the "common counts": common ways of pleading how the debt arose. It is important to note that where assumpsit was brought in lieu of debt, the plaintiff's action was for a liquidated sum. In contrast, where a plaintiff brought special assumpsit, the action was for an unliquidated sum assessed by the civil jury.

Examples of the common counts include:

By the 18th and 19th centuries, the action of assumpsit was used to enforce both contractual and quasi-contractual claims. The recognition in Slade's Case that the law would import or imply a promise to pay the debt paved the way for other implications.

Abolition of the forms of action

The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales. Furthermore, assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875. [1]

In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938. Thirty-five states have moved to rules similar to the FRCP (see Civil procedure in the United States), which have replaced the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory cause of action or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit. [12]

Modern significance

The traces of the law relating to assumpsit are still felt today, particularly in the law of contract and unjust enrichment. For example, consideration is only necessary in relation to simple contracts. Where a claimant brings an action in contract for non-performance of a promise contained in a deed, there is no need to show that the claimant supplied consideration for the promise. The reason for this is historical: where there was no deed, the correct action was assumpsit for nonfeasance; in the latter, in debt sur obligation. These were two distinct forms of action with their own distinct procedural requirements. [13]

In the law of unjust enrichment, reference is still made to actions for money had and received and quantum meruit. The practice is often deprecated by English unjust enrichment scholars [14] but is frequently encountered in Australia. [15]

Related Research Articles

A quasi-contract is a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems. Quasi Contract laws have got deduced from the Latin statement “Nemo debet locupletari ex aliena jactura”, which proclaims that no man should grow rich out of another person’s loss. It was one of the central doctrines of Roman law. The word Quasi means having some similarities but not entirely. Similarly, such a Contract means laws like ordinary contract law but not totally.

<i>Quantum meruit</i>

Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make restitution, subject to defences such as change of position. Liability for an unjust enrichment arises irrespective of wrongdoing on the part of the recipient. The concept of unjust enrichment can be traced to Roman law and the maxim that "no one should be benefited at another's expense": nemo locupletari potest aliena iactura or nemo locupletari debet cum aliena iactura.

The law of restitution is the law of gains-based recovery, in which a court orders the defendant to give up their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court orders the defendant to pay the claimant for their loss.

Replevin or claim and delivery is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.

In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant.

Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself.

In the Roman litigation system, while the Legis Actiones procedure was in force during the early Republic, both parties had to lay down a wager at the preliminary hearing, probably to discourage frivolous litigation. In some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs. There were three different types of legis actiones, and the wager differed in each one.

<i>Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd</i>

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd[1942] UKHL 4 is a leading House of Lords decision on the doctrine of frustration in English contract law.

Bill of Middlesex Legal fiction

The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hinging on the King's Bench's remaining criminal jurisdiction over the county of Middlesex, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints would be substituted.

The English law of unjust enrichment is part of the English law of obligations, along with the law of contract, tort, and trusts. The law of unjust enrichment deals with circumstances in which one person is required to make restitution of a benefit acquired at the expense of another in circumstances which are unjust.

Court of Kings Bench (England) Former English common law court

The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421. The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices.

Baltic Shipping Company v Dillon

Baltic Shipping Company v Dillon, the Mikhail Lermontov case, is a leading Australian contract law case, on the incorporation of exclusion clauses and damages for breach of contract or restitution for unjust enrichment.

<i>Cutter v Powell</i>

Cutter v Powell (1795) 101 ER 573 is an English contract law case, concerning substantial performance of a contract.

<i>Slades Case</i> Case in English contract law that ran from 1596 to 1602.

Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit, which was technically for deceit. The legal fiction used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts.

<i>Foskett v McKeown</i>

Foskett v McKeown[2000] UKHL 29 is a leading case on the English law of trusts, concerning tracing and the availability of proprietary relief following a breach of trust.

An action for money had and received to the plaintiff's use is the name for a common law claim derived from the form of action known as indebitatus assumpsit. The action enabled one person to recover money which has been received by another: for example, where a plaintiff paid money to the defendant while labouring under a mistake of fact or where there was a total failure of consideration. The action was a personal action only available in respect of money, rather than other benefits. Where the benefit received by the defendant was services or goods, the appropriate action was a quantum meruit or a quantum valebant, respectively.

<i>Exall v Partridge</i>

Exall v Partridge (1799) 101 ER 1405 is an English unjust enrichment law case, concerning enrichment through discharge of a debt, and the unjust factor of legal compulsion to give another a benefit.

<i>Moses v Macferlan</i>

Moses v Macferlan (1760) 2 Bur 1005 is a foundational case in the law of restitution holding that in certain circumstances such as when money is paid by mistake, for failed consideration or under oppression; the law will allow the money to be recovered.

References

  1. 1 2 3 Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Assumpsit". Encyclopædia Britannica . Vol. 2 (11th ed.). Cambridge University Press. p. 787.
  2. ↑ "The Modern Law of Assumpsit". West Virginia University. January 1918.
  3. ↑ See generally, Sir John Baker, An Introduction to English Legal Historically (4th ed, 2004); Professor David Ibbetson, Historical Introduction to the Law of Obligations (2nd ed).
  4. ↑ Waltham Carrier Case (1321) Eyre of London
  5. ↑ The Humber Ferryman's Case (1348) B&M 358
  6. ↑ Wootton v Brygeslay (1400); Watkin's Case (1425)
  7. ↑ AWB Simpson, A History of the Common Law of Contract at 199; Sir John Baker, An Introduction to English Legal History (4th ed, 2004) 330.
  8. ↑ See generally, Professor David Ibbetson, Historical Introduction to the Law of Obligations (2nd ed).
  9. ↑ The Latin phrase means "being indebted, he promised," or, more literally, "he undertook" or "he assumed the duty [to pay]."
  10. ↑ Maitland, F. W. (1909). "The Forms of Action at Common Law" . Retrieved 6 July 2007.
  11. ↑ See also Smith, Lionel D; et al. (2004). The Law of Restitution in Canada: Cases, Notes, and Materials. Emond Montgomery. pp. 72–75. ISBN   1552391167.
  12. ↑ Form PLD-C-001(2), Cause of Action-Common Counts, Judicial Council of California (Rev. Jan. 1, 2009).
  13. ↑ "THE LIMITATIONS OF THE ACTION OF ASSUMPSIT AS AFFECTING THE RIGHT OF ACTION OF THE BENEFICIARY". University of Pennsylvania Carey Law School.
  14. ↑ See Andrew Burrows, Law of Restitution (3rd ed, 2011); Graham Virgo, Principles of the Law of Restitution (3rd ed, 2015).
  15. ↑ See, for example, Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 , Court of Appeal (NSW,Australia).
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