Page:Harvard Law Review Volume 8.djvu/269

PAROL CONTRACTS PRIOR TO ASSUMPSIT. 253 vadium vel alias hujusmodi," unless made in that court, that is to say, unless they were contracts of record.^ Bracton makes the statement that the king's court does not concern itself except occa- sionally de gratia with " stipulationes conventionales," which may be infinite in their variety.^ The language of Fleta is most explicit against the validity of formless parol promises. " Oportet igitur ex hoc quod aliquis ex promissione teneatur ad solutionem, quod scriptura modum continens obligationis interveniat, nisi promissio ilia in loco recordum habenti recognoscatur. Et non solum suf- ficiet scriptura, nisi sigilH munimine stipulantis roboretur cum tes- timonio fide dignorum." The same principle was expressed a few years later in a case in Y. B. 3 Ed. II. 78. The plaintiff counted in Debt on a grant for ;^200, showing a specialty as to ;^I40, and offering suit as to the rest. Frisk, for defendant, said : " Every grant and every demand by reason of grant must be by specialty, but of other contracts,^ as of bailment or loan, one may demand by suit. Therefore as you demand this debt by reason of grant and show no specialty but of part, judgment," etc. The plaintiff 1 Glanvil. Lib. X. c. 12, and c. 18. 2 Bracton, f. 100, a. As there are several cases in Bracton's Note Book, in which the validity of covenants affecting land are assumed to be valid, Bracton, in the pas- sage just referred to, probably had in mind miscellaneous covenants. See Pollock, Contracts (6 ed.), 136. It is certainly true that the rule that any promise under seal may give rise to an action wa^ a comparatively late development in the history of cov- enant. As late as the middle of the fourteenth century, Sharshull, J., said in Y. B. 21 Ed. III. 7-20 : " If he granted to you to be with you at your love-day, and afterwards would not come, perhaps you might have had a writ of covenant against him if you had a specialty to prove your claim." 8 The word contract was used in the time of the Year Books in a much narrower sense than that of to-day. It was applied only to those transactions where the duty arose from the receipt of a quid pro quo, e. g., a sale or loan. In other words, contract meant what we now mean by " real contract." What we now call the formal or spe- cialty contract was anciently described as a grant, an obligation, a covenant, but not as a contract. See, in addition to the authorities cited in the text, Y. B. 17 Ed. III. 48-14. A count in debt demanding " part by obligation and part by contract." Y. B, 29 Ed. III. 25, 26, "Now you have founded wholly upon the grant, which cannot be maintained without a specialty, for it lies wholly in parol, and there is no mention of a preceding contract." Y. B. 41 Ed. III. 7-15. Thorp, C. J.: "You say truly if he put forward an obligation of the debt, but if you count upon a contract without obligation, as here (a loan), it is a good plea." Y. B. 43 Ed. III. 2-5. Debt on a judgment. Belknap objected " for there is no contract or covenant between them." 8 Rich. II. Bellewe (ed. i86g), 32, iii. "In debt upon contract the plaintiff shall shew in his count for what cause the defendant became his debtor. Otherwise in debt upon ob- ligation." Y. B. II Hen. IV. 73, a-ii; 19 Rich. II. Bellewe (ed. 1869), 32, iii; Y. B. 39 Hen. VI. 34-44; Sharington v. Strotton, Plowd. 298, 301, 302; Co. Lit. 292 b. The fanciful etymology given in Co. Lit 47 b should be added : " In every contract there must be quid pro quo for contractus est quasi actus contra actum."