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English Legal History
4/30/2007
Outline
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CONTRACT AND TORT:
AN OVERVIEW OF 17TH AND 18TH CENTURY DEVELOPMENTS
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1.
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19th century ideas of contract: the will theory and its relationship to
economic liberalism
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2.
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We last left contract at Slade’s Case (1602). Coke’s resolutions
as interpreted by Baker (see Mats., pp. VII–48 to VII–49).
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a.
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You can bring assumpsit even
if debt is available, the authority for this is
other cases of duplication, e.g., assumpsit
for covenant, trover for detinue, case for nuisance.
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b.
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Every contract executory imports in itself an assumpsit.
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c.
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If only the debt (as opposed to special damages) is sued for, the
damages will be the same in either case—hence one action will bar the other
(that may not be a resolution of Slade’s
Case, but it is never again doubted)—hence debt is dead — WHAT IS NOT
COVERED
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d.
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Problem of consideration not really considered—the fictional promise by 1612
has an equally fictional consideration—there is nothing in this case about
a promise for a promise.
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e.
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Doesn’t say anything about quasi-contract.
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f.
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No discussion of indebitatus
assumpsit because that was not what was pleaded and the contract was
laid out quite specifically and so proven. General declarations not
involved—the subsequent distinction between general and special assumpsit.
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i.
Wager of law wasn’t all that bad
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ii.
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The problem of the general pleading in assumpsit
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3.
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Developments before and after Slade’s
Case
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a.
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Slade’s Case and the problem
of perjury->the S/Frauds—a remarkable effort of the late 17th century
involving both Nottingham (LC, 1675–1682) and Lord North (CJCP, 1675–1682),
return of wager of law arguments, limitation of damages suggested (cf.
continental parallels (legislation of Louis XIV)), the ultimate resolution
is the Statute of Frauds, requiring a writing but not a seal for most
important kinds of contracts.
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b.
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Slade’s Case and the problem
of indefinite pleading
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i.
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Indebitatus assumpsit — not
enough notice
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ii.
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The common counts: goods sold and delivered, goods bargained and sold,
work done, money lent, money spent by plaintiff to defendant’s use, money
had and received by defendant to plaintiff’s use, and money due on an
account stated.
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iii.
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Quasi-contract: (a) quantum meruit
and quantum valebat counts
rapidly become fictional, (b) fictional insumul
computasset for customary payments, (c) money had and received for
mistaken payments, but Holt (1689–1710) stops further developments here,
(d) assumpsit for use and
occupation (becomes a kind of quantum
meruit, never allowed to substitute for ejectment), (e) money had and
received in a recission context develops after Holt’s time, (f) waiver of
tort and suit in assumpsit (again
money had and received), even Holt accepts this in the context of a
tortious sale, (g) fictitious money had and received also allowed for
certain contribution situations, e.g., among co-sureties. Curiously in England
the restitutionary actions died with the forms of action only to be revived
quite recently. What happens in the 17th & 18th centuries has curious
analogies to the S/Uses, people ask what could have been brought in debt
prior to Slade’s Case, even
though there is little evidence that these things ever were brought in
debt.
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c.
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Consideration, a 16th century story—merger of quid pro quo,
action taken in reliance, civilian causa—the
first clear promise for a promise cases do not come until shortly after
Slade’s Case, but there are strong hints of it long before Slade’s Case.
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d.
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Merger of warranty into the assumpsit
action is a development just hinted at at the end of 17th c. (origins, as
we have seen, in deceit).
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e.
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Contract as we know it, offer and acceptance, covenants and conditions,
general and special damages, is largely the creation of the late 18th and
19th centuries. The importance of Lord Mansfield and Continental law.
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f.
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Is the will theory of contract of contract the invention of 19th century
liberalism? Atiyah thinks so. Baker
has more doubts. In the case of both Atiyah and Horwitz for America both
authors may put too much emphasis on the relatively few cases in which courts
in our period were willing to examine into the worth of consideration.
Leaving that mistake aside, the fact is that the number of reported cases
of special assumpsit prior to
Lord Mansfield is very small. The medieval idea of contract died hard, and
if the current developments are any indication, it may not be dead yet.
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1.
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The 19th century settlement:
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a.
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Intentional torts
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b.
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Torts based on negligence
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c.
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Strict or absolute liability
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2.
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Torts—we last left it some place in the 15th c. in order to pursue assumpsit. The word assumpsit continues to be used in tort actions and no
consideration need be shown (16th c).
Contract and tort are thus differentiated in one action, but they
remain very close particularly in cases of trade and professional
negligence.
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3.
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The next development is somewhat surprising: the seeds that are sewn in
the action on the case wither. The custom
of the realm goes only so far: innkeepers, fire, that’s about it. Scienter
goes only so far; animals account for most of the actions. It has recently been suggested that the
courts were concerned with limiting the new action. Perhaps that is right. In any case people sue either in vi et armis (battery) or assumpsit.
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a.
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The Case of Thorns (1466) (Mats., p.
IX–165) a mistaken attempt to plead accident. This clearly weren’t no
accident.
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b.
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Weaver v. Ward (1616) (Mats.}, p. IX–165), a shooting
accident case, again the plea of accident is offered and rejected with
dicta about “inevitable accident.”
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c.
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We are still in world of pleading.
If the defendant has a justification he can plead confession and
avoidance. If his story is “not my
fault,” he should plead not guilty.
“Not my fault” is properly a jury question. Gibbon
v. Pepper (1695) (Mats.}, p.
IX–169) (a runaway horse case) says as much.
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4.
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Mitchell v. Alestree (1676) (Mats., p.
IX–172) waiver of force and suit on the case for negligence. Lord Hale and breaking in horses in Lincoln’s Inn
Fields. The case is pled in case and
rejected at nisi prius on the ground that the horses were not badly
controlled. But a new action is
allowed on the ground that they were improvide
brought into the fields. This may be
the beginning of a generalized notion of negligence. It was certainly so seen at later times.
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5.
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18th century emergence of the reasonable man standard and the notion of
duty of care. Also the continuing
problem of trespass vs. case, culminating in Scot v. Shepherd, 2 Wm. Bla. (1773). Williams v. Holland, 10 Bing. 112 (1833) allows
waiver of trespass and suit on case except where there is a direct, wilfull injury.
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6.
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19th century abolition of the forms of action and rearrangement
according to the plaintiff’s fault
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7.
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Meanwhile other torts are developing around other actions:
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a.
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Trover last of the great fictions parallels assumpsit in development, including a resolution around 1600 of
the problem of concurrence of detinue and trover.
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b.
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Assize of nuisance and the action on the case for nuisance—same
resolution at the same time as Slade’s
Case—gradual development thereafter. Note this is the action for interference
with easements. Lots of interesting
smells cases in the 16th and 17th centuries. Private vs. public is, alas, also a
distinction of this period.
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c.
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Defamation—the ecclesiastical courts—the 16th and 17th centuries and the
mitior sensus rule—criminal libel
is another story
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d.
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Economic torts—the most important one in our period is the public law
story of the Case of Monopolies,
11 Co. Rep. 84 (1602) and the subsequent statute. Tortious interference with economic
relations: loss of services of apprentices, wives and daughters, inducing
breach of contract; unfair competition: commercial slander, misuse of
trademarks, intimidation (a notion that will have unfortunate consequences
in 19th century cases about trade unions)
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8.
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It is a commonplace that English law knows no generalized conception of
tort, only a law of torts (in the plural).
In the 19th century the idea of intention/negligence came to develop
a unifying capability. We are
probably mistaken in seeing too much of this before the 19th century. Like the contract problem, it’s not that
the roots of the 19th century development are not found in our period; they
are. But if we look at the whole
range of tort actions, their multiplicity strikes us. If in contract the old notion of contract
lasted for a long time, in tort that old notion that not doing is no
trepass lasted for a long time. The
converse of this proposition is that if you did it, you’re going to have to
show a pretty good reason why you did it, or persuade the jury. Relatively few direct inflictions of harm
will escape going to the jury, practically no intentional inflictions of
harm will escape going to the jury, except competition.
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