|
1.
|
General Outline
|
|
|
a.
|
Debt, detinue, covenant, and account are the contract actions, all exist
in the thirteenth century, and all are deficient from the point of view of
plaintiff:
Debt—the necessity for a sum certain, the requirement of a quid pro quo, and wager of law
Detinue—only for goods, the problem of bailment, wager of law
Covenant—the requirement of a sealed instrument
Account—eleborate procedure, manorial stewards
|
|
|
b.
|
Trepass is the tort action
Trespass—vi et armis and contra pacem
Case—1370 the rise of the notion of negligence
|
|
|
c.
|
Assumpsit—mysterious if we’re
thinking in these terms, because it is a trespass action for breach of
contract. In the 16th century it comes to replace debt and covenant, a
development that is capped by Slade’s
Case 1597–1602.
|
|
|
d.
|
16th & 17th centuries—case takes over: trover, nuisance, ejectment—the
forms of action you learned in the first year (to the extent that you
learned them at all) are all variants of the trespass action
|
|
2.
|
Problems with this way of looking at it
|
|
|
a.
|
Assumes that the idea = the form
|
|
|
b.
|
It forgets about other courts
|
|
|
c.
|
Our ideas are not theirs
|
|
3.
|
Debt-detinue
|
|
|
a.
|
The orginal notion in the action is that you have something of mine—be
it because you owe me money or because I lent you my goods but not that I
lost them.
|
|
|
b.
|
Paid and so non debet is a possible plea, a
concession to the jury.
|
|
|
c.
|
Important exceptions to the general rule of availability of wager: the
defendant cannot wage his law against his own bond. He must plead non est factum (which will go to the
jury) or accord and satisfaction, and for this he needs a specialty. The
defendant’s executor cannot wage the debtor’s law. Thus, if your debtor is dead you must
have a bond.
|
detinet in
the 16th century, maybe a bit earlier. The general action of debt has two
important subcategories.
|
|
|
i.
|
Debt on an obligation—the penal bond, avoids incidental damage question
[non-performance, on the other hand, will go to the jury]
|
|
|
|
ii.
|
Debt on a contract—the notion of quid
pro quo—to this the law admits an exception in the 15th c. in the case
of sales which need not have a delivery of the goods if the seller could
have delivered them.
|
|
|
f.
|
Detinue, the general action for return of goods also has two
subcategories:
|
|
|
|
i.
|
Sur bailment—Glanvill suggests that all debts are
like the Roman mutuum, strict
liability (c.13 Mats., p. VII–3);
Bracton gives the opposite answer (Mats.,
p. VII–5); 14th c. cases tend to follow Bracton but in the late 15th c.
liability tightened up [only as to bailment]—only an act of God, or the
king’s enemies will do because the bailee can sue the robber.
|
|
|
|
ii.
|
Sur trover. An odd ball which
doesn’t fit our emerging scheme that is at once contractual and
proprietary. Perhaps the first case involves a woman named Haliday (1355) (Mats., p. VII–10),
and the process of fictions leads to the proposition that the loss and
finding alleged in the count cannot be traversed. The development is
related to the devenit ad manus
count in detinue of charters and to de
re adirata, an action in the local courts for recovery of stolen goods.
Detinue sur trover is not fixed
until mid–15th c. (Mats.,
p. VII–11). (The key thing here is that in sur trover I don’t have the thing is a total defense.)
|
|
4.
|
Covenant. The tyranny of words—the problem of proof—the S/Wales (Mats. pp. VII–12) tells us that we
will go to the jury but there’s a problem with the jury unless they know
both ends of the story—early in the 14th century it was decided that you
must have a seal: ‘We will not undo the law for a cart of hay’ (Mats, p. VII–13)—the remedy is
performance, perhaps specific performance, then the value of the
performance. No incidental or consequential damages and that fact perhaps
more than the need for a seal is what causes the rise of the penal bond.
Building contracts seem to lead the way. In 1352 the availability of capias is extended to debt actions
but not to covenant actions, but by that time the action is dead, except
for leases and apprenticeship.
|
|
5.
|
Account. Another you have my money action, but with the extra attraction
of obligation to account. Arbiters and corruption, bailiff, guardian in
socage, and (early 15th c., perhaps late 14th) receivers –> a muddle. Is
the problem that the royal courts did not trust the merchants?
|