C O N T R A C T lias now been introduced in many jurisdictions, have been of much use at a time when only a minority even of wellto-do laymen could write with any facility. There was no principle and no form of action in English law which recognized any general duty of keeping promises. But could not breach of faith by which a party had suffered be treated as some kind of legal wrong ? There was a known action of trespass and a known action of deceit, this last of a special kind, mostly for what would now be called abuse of the process of the court; but in the later Middle Ages it was an admitted remedy for giving a false warranty on a sale of goods. Also there was room for actions “on the case,” on facts analogous to those covered by the old writs, though not precisely within their terms. If the king’s judges were to capture this important branch of business from the clerical hands which threatened to engross it, the only way was to devise some new form of action on the case. There were signs, moreover, that the Court of Chancery would not neglect so promising a field if the Common Law judges left it open. The mere fact of unfulfilled promise was not enough, in the eyes of mediaeval English lawyers, to give a handle to the pplaw. But injury caused by reliance The on Assumpsit. ano er man’s undertaking was different. special undertaking or “ assumption ” creates a duty which is broken by fraudulent or incompetent miscarriage in the performance. I profess to be a skilled farrier, and lame your horse. It is no trespass, because you trusted the horse to me; but it is something like a trespass, and very like a deceit. I profess to be a competent builder; you employ me to build a house, and I scamp the work so that the house is not fit to live in. An action on the case was allowed without much difficulty for such defaults. The next step, and a long one, was to provide for total failure to perform. The builder, instead of doing bad work, does nothing at all within the time agreed upon for completing the house. Can it be said that he has done a wrong ? At first the judges felt bound to hold that this was going too far; but suitors anxious to have the benefit of the king’s justice persevered, and in the course of the 15th century the new form of action, called assumpsit from the statement of the defendant’s undertaking on which it was founded, was allowed as a remedy for non-performance as well as for faulty performance. Being an action for damages, and not for a certain amount, it escaped the strict rules of proof which applied to the old action of debt; being in form for a kind of trespass, and thus a privileged appeal to the king to do right for a breach of his peace, it escaped likewise the risk of the defendant clearing himself by oath according to the ancient popular procedure. Hence, as time went on, suitors were emboldened to use “ assumpsit ” as an alternative for debt, though it had been introduced only for cases where there was no other remedy. By the end of the 16th century they got their way; and it became a settled doctrine that the existence of a debt was enough for the court to presume an undertaking to pay it. The new form of action was made to cover the whole ground of informal contracts, and, by extremely ingenious devices of pleading, developed from the presumption or fiction that a man had promised to pay what he ought, it was extended in time to a great variety of cases where there was in fact no contract at all. The new system gave no new force to gratuitous promises. For it was assumed, as the foundation of the jurisdiction, that the plaintiff had been induced ky the defendant’s undertaking, and with the defendant’s consent, to alter his position for the worse in some way. He had paid or bound himself to pay money, he had parted with goods, he had spent time in labour, or he had foregone some profit or legal right. If
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he had not committed himself to anything on the strength of the defendant’s promise, he had suffered no damage and had no cause of action. Disappointment of expectations is unpleasant, but it is not of itself damnum in a legal sense. To sum up the effect of this in modern language, the plaintiff must have given value of some kind, more or less, for the defendant’s undertaking. This something given by the promisee and accepted by the promisor in return for his undertaking is what we now call the consideration for the promise. In cases where debt would also lie, it coincides with the old requirement of value received (cpuid pro quo) as a condition of the action of debt being available. But the conception is far wider, for the consideration for a promise need not be anything capable of delivery or possession. It may be money or goods ; but it may also be an act or series of acts ; further (and this is of the first importance for our modern law), it may itself be a promise to pay money or deliver goods, or to do work, or otherwise to act or not to act in some specified way. Again, it need not be anything which is obviously for the promisor’s benefit. His acceptance shows that he set some value on it; but in truth the promisee’s burden, and not the promisor’s benefit, is material. The last refinement of holding that, when mutual promises are exchanged between parties, each promise is a consideration for the other and makes it binding, was conclusively accepted only in the 17th century. The result was that promises of mere bounty could no more be enforced than before, but any kind of lawful bargain could; and there is no reason to doubt that this was in substance what most men wanted. Ancient popular usage and feeling show little more encoui’agement than ancient law itself to merely gratuitous alienation or obligations. Also (subject, till quite modern times, to the general rule of common-law procedure that parties could not be their own witnesses, and subject to various modern statutory requirements in various classes of cases) no particular kind of proof was necessary. The necessity of consideration for the validity of simple contracts was unfortunately confused by commentators, almost from the beginning of its history, with the perfectly different rules of the Homan law about nudum pactum, which very few English lawyers took the pains to understand. Hasty comparison of misunderstood Roman or canon law is answerable for a large proportion of the worst faults in our old-fashioned text-books. Doubtless many canonists, probably some common lawyers, and possibly some of the judges of the Renaissance time, supposed that ex nudo pacto non oritur actio was in some way a proposition of universal reason ; but it is a long way from this to concluding that the Roman law had any substantial influence on the English. The doctrine of consideration is in fact peculiar to those jurisdictions where the common law of England is in force, or is the foundation of the received law. Substantially similar results are obtained in other modern systems by professing to enforce all deliberate promises, but imposing stricter conditions of proof where the promise is gratuitous. As obligations embodied in the solemn form of a deed were thereby made enforceable before the doctrine of consideration was known, so they still remain. Deeds When a man has by deed declared himself bound, there is no need to look for any bargain, or even to ask whether the other party has assented. This rugged fragment of ancient law remains embedded in our elaborate modern structure. Nevertheless gratuitous promises, even by deed, get only their strict and bare rights. There may be an action upon them, but the powerful remedy of specific performance—often the only one worth having— is denied them. For this is derived from the extraordinary jurisdiction of the Chancellor, and the equity administered
