tORT AND cONTRACT, 14TH AND 15TH CENTURY DEVELOPMENTS

1.	Property, tort and contract in modern legal thought.

Property

		i.	Real (land)
		ii.	Personal (watches, money)

Tort

		i.	Intentional (assault, punch in the nose)
		ii.	Negligence (auto accidents)

Contract: enforceable agreements, normally involving a promise for a promise

2.	Trespass takes over (dates approximate at best)

	a.	1300--debt, detinue, covenant, account, and trespass vi et armis
	b.	1350–80--trespass vi et armis-->action on the case
	c.	1500--action on the case in assumpsit substitutes for covenant
	d.	1550--trespass vi et armis in ejectment substitutes for real actions
	e.	1600 (or slightly earlier)--action on the case in trover substitues for detinue
	f.	1600--action on the case in assumpsit substitutes for debt

3.	Developments discussed this week:

	a.	The emergence of the action on the case, in which the plaintiff is allowed to tell a story in the central royal courts that does not involve force and arms or against the peace, but lays out in the whereas clause a duty that the defendant is alleged to have breached.
	b.	By the end of the 14th century it seems clear that this action on the case will be allowed in a wide variety of situations in which the defendant has undertaken to do something and does a bad job, so that the plaintiff is in some way damaged: the ferryman, the blacksmith, the surgeon, and the horse-doctor.
	c.	We also saw one case quite early on (1368), where the defendant had done nothing at all and was still held liable, but that was said to be according to the custom of the realm. The Innkeeper’s Case.
	d.	By the end of the 15th century, it has become clear that if I suffer damage because someone has promised to do something for me and doesn’t do it, I can bring an action on the case called assumpsit against him. The example frequently given is the carpenter who agrees to put a roof on the barn and doesn’t do so, so that the crop is lost. Dictum in Gray’s Inn.
	e.	By the end of the 16th century, it has become clear that if I lend money to someone and he doesn’t pay it or deliver goods on a sale to someone and he hasn’t paid for them, I can bring an action of assumpsit against that person, and need not bring the action of debt against him. Slade’s Case.

4.	Do these developments give us a system that corresponds to the modern notions of property, tort, and contract?

Where’s property?

		i.	Ejectment substitutes for the real actions in the 16th century
		ii.	Hints of a distinction between property in chattels and contract in mid-13th century, when the action of detinue, which had originally been a part of the action of debt begins to be thought of in somewhat different terms from debt. Something like the modern distinction seems to emerge in the mid-15th century, when the courts begin to distinguish between two sorts of counts in detinue actions: detinue sur bailment and detinue sur trover. Interestingly enough, the element of obligation returns when the action on the case for trover substitutes for detinue sur trover in the 16th century.

	b.	The temptation to think that we have a general contractual action after Slade’s Case is strong. If we do, Slade’s Case has virtually nothing to do with it. Slade’s Case is about the substitution of assumpsit for debt, and debt is about money obligations that arise out of partially performed contracts. The last lecture in the course will deal with this problem.
	c.	That brings me to the problem of tort. The problem can be stated quite simply. There are two writs, trespass vi et armis and case. In the situation where there is no undertaking, no common calling, and no possibility of proceeding under the statute of Labourers, what are the limits on the wrongs that are actionable under either form, and granted that the wrong ought to be actionable, what is the appropriate writ? I’d like to get at that by focusing on Burden v. Burton.

Berden v. Burton (1382, Mats., VII-24): “A man brought a writ of trespass against Davy Houlgrave and Thomas de Burton and twelve others for his house burnt and broken, his servants beaten and maltreated, twelve oxen and a hundred sheep taken and driven off, and other goods and chattels taken and carried away, and other wrongs etc., to his damage etc. …

“And as to the arson of the houses, the defendants showed how after the distress, which was taken in the morning, some of the servants came after the defendants, and others remained inside the manor; thus the burning which was done was by reason of the negligence of the servants inside, who should have watched the fire. And they asked judgment whether etc. And he also showed the court that he came at the third hour with the constable of the town without any more people.

Holt (for the plaintiff). We say that they came with a great assembly and multitude of armed men and entered the manor and in the morning before sunrise, broke the doors and then entered the hall and threatened the servants, with the result that the servants were in fear of death and let the fire lie unattended and did not dare to return. Thus it was the fault of the defendants that the manor burned. And we ask judgment etc.

“Burgh. Now we ask judgment on the writ, for you notice how they have alleged by their writ how we burned their house in fact, and now they have pleaded nothing on that point but show how we were the cause of the burning, in which event they ought to have had an action on their case and not this action. And we ask judgment etc., upon their admission etc.

“BELKNAP, C.J. I also believe that the writ is improperly framed, for you ought to have brought your special writ upon your case, since it was not their intention to burn them, but the burning happened by accident. Even though it stemmed from their act, still it was done against their will. It is as if you broke my close and entered therein, and my animals went away through this opening and fled, so that I lost them forever; while you know nothing of this, I shall never have a writ of trespass against you alleging that you drove off my animals, but I really think that I shall have a general writ of trespass for breaking my close, with no mention of the driving away of the animals, and everything will be accounted for in the damages for the breaking of the close, for by the breaking of the close all the damage occurred and has been fully effected. And, furthermore, if you break my houses, and you go away, and then other strangers carry off my goods without your knowledge, I shall have a writ of trespass against you for the breaking into my houses etc. and recover everything in damages, as above. But, if you should be knowledgable or plotting or willingly present when the trespass is done, you shall be adjudged a principal feasor, for in trespass no one is an accessory etc.

“And then Holt said that they came in the morning with certain assemblies of people, as above, and broke the doors and entered and took some straw and fired it in order to see around them, and the straw, while afire, threw sparks on the ground. Thus they burned etc.

“And in this case it was also agreed that if your house be next to my house and my house is burned and your house as well by the accident of my house, you shall never have a writ against me alleging that I have burned your house, but rather a special writ upon your case. And, also, if I lie in your house and place a candle on the wall, and the candle falls on the straw, so that your house is burned, you shall have a special writ.

“And later the parties reached an agreement etc.”

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last modified: 05/02/09