Front Page Titles (by Subject) CHAPTER 2: THE FOURTEENTH CENTURY - A Concise History of the Common Law
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CHAPTER 2: THE FOURTEENTH CENTURY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE FOURTEENTH CENTURY
In this chapter we shall describe the forms of action which might be used in contractual matters from the days of Bracton until the general use of the action of assumpsit, which only becomes common at the beginning of the fifteenth century.
THE ACTION OF DEBT
The oldest and most important was the action of debt1 which lay for formal contracts (“obligations”) under seal if they specified a sum certain, and for a number of real contracts, that is to say, contracts where a res has passed between the parties. Debt could thus be used to recover the price of goods sold and delivered, to recover money lent, and to recover the rent on a lease even although the lease was not written.2 It could also be used for certain special purposes such as the recovery of statutory penalties and for the enforcement of obligations arising out of suretyship. On the other hand there were grave defects attaching to the action of debt. The most notable of these was the form of trial by wager of law;3 early in the fifteenth century, petitioners would go to Chancery alleging that their debtor either intends to or actually has waged his law in defence of the debt, and Chancery openly treated this as amounting to the absence of remedy at common law.4 Then, too, as the middle ages proceeded the method of pleading in the action of debt became remarkably complicated, and, as we shall see, the law of contract was influenced considerably by various procedural devices which were designed to avoid having to bring an action of debt. It will be noticed that in all the real contracts which are actionable by debt the defendant has received something—money, goods, a lease—from the plaintiff; in the language of the fifteenth century, there has been a quid pro quo, which is in fact a generalisation from those real contracts which were actionable by a writ of debt.
Of the general nature of covenant in royal and local courts we have already spoken.1 By the close of Edward I’s reign it becomes a rule that covenant cannot be used in cases where debt would lie,2 and also that it is best to support an action of covenant by a writing of some sort, and very soon this becomes a strict requirement for an enforceable covenant to be under seal.3 From this it has been conjectured that the covenant under seal changed its character; originally merely “a promise well-proved”, as Holmes neatly expressed it, we now find that it has become a promise “of a distinct nature for which a distinct form of action was provided”.4 In the middle of the sixteenth century it begins to be said that a “seal imports a consideration”. This was merely a loose way of saying that just as a simple contract was enforceable because there was consideration, so a contract under seal was enforceable in debt or covenant because there was a seal—because it was made in a binding form. The expression must not be allowed to obscure the fact that sealed contracts did not need a consideration, and were enforceable solely on the ground that they were formal. Nor was there any presumption of consideration, for sealed contracts were enforceable centuries before the doctrine of consideration came into existence.
It was more convenient, however, to sue on a debt than a covenant in the royal courts in the fourteenth century, and hence there arose a very common device of a bond under seal in a sum of money with a “defeasance” endorsed upon it saying that the bond shall be null and void upon the performance of certain acts. This was a practical method, for the courts by now refused to allow wager of law against a deed, and so we find manuscript collections containing a great variety of “defeasances”. For those who were prepared to risk a judgment on the bond if they failed to fulfil the contract (there was no relief against penalties in either law or equity in this century), and whose affairs were considerable enough to warrant so formal a deed, the bond and defeasance provided many possibilities.
In some of its aspects the action of account has a bearing upon our subject, but during the fourteenth century its scope was very limited. In its origin it lay between lord and bailiff and was based upon a personal relationship. In view of this the procedure upon the writ of account was made exceptionally stringent—for example, a lord could appoint auditors, and if they found the account unsatisfactory they could commit the bailiff to the King’s prison without any trial whatever.1 Soon we find that account could also be used between partners, but here again the basis of the action is a particular relationship. If one were not the lord of a bailiff (or receiver), nor a partner, the action of account was little good. Its fate was finally settled when it was held that one could not contract to become liable to an action of account; the action only applied to certain relationships.2 This very factor, however, afforded an opportunity for development in cases which could not be brought within the sphere of contract. If A. gives money to B. for the benefit of C., there was no contract between B. and C. Since 1367, however, it was held that B. was accountable to C.3 From this significant beginning important developments in the field of quasi-contract took place in the late sixteenth century.
CONTRACT IN THE FOURTEENTH CENTURY
We therefore see that in the fourteenth century the only contracts which are actionable are those which Bracton had enumerated—those in fact which were enforceable by an action of debt, either because they are formal and supported by a deed under seal, or real, in which case the fact that the defendant has received a substantial thing will establish his liability. Some explanation is obviously needed for the extreme poverty and narrowness of the field of contract in our mediaeval common law. Westminster Hall had no monopoly as yet of English legal thought, and such records as the Littleport rolls4 show clearly that in towns and villages there were petty tribunals which gave remedies in cases which would have met a non possumus in the common pleas. There is no need to suppose that country stewards and bailiffs had analysed the conception of a contract; they had, however, developed a reasonable mass of settled practice in such cases, and the real cause for the backwardness of the common law is perhaps the fact that theorising began before practice had accumulated a sufficiently large mass of data.
As for mercantile affairs, there was special custom to govern them. Edward I by his charter to the merchants1 expressly saved to them their old custom of making binding contracts by more simple forms, such as earnest money, instead of by deed under seal, and such mercantile contracts were actionable in the local commercial courts. It may be said with some fairness that the existence on the one hand of mercantile jurisdictions, and on the other of the spiritual courts which could bring moral pressure to bear, together with the remedies available locally, afford some explanation for the common law courts declining to expend their law of contract. Debt, account and covenant covered the cases which usually arose in a jurisdiction which consisted so far of landlords; where extension was needed for the protection of this particular class a parliament of landlords was ready to give it—the statutory process on the action of account is an extreme example. For the rest, the common law apparently felt that it could abstain with a clear conscience, knowing that the matter was already in the expert hands of the Church and the merchants, and that the bond with defeasance was flexible enough to serve for a large variety of executory contracts, as its very frequent use abundantly proves. It is only in the fifteenth century that the common law was compelled to face the problem of the simple contract, and this will form the subject of the next chapter.
Of debt as a “real” action we have already spoken; above, p. 362.
The lessee would have to be in possession, apparently.
Except in actions on specialty, for the courts soon refused to allow wager of law against a seal. The wooden tally was a favourite proof of debt, but it did not become a true specialty unless it was also sealed. Cf. the curious case in Y.B. 21 & 22 Edward I (Rolls Series), 1 (1293).
Cases from 1413 onwards are collected in Barbour, Contract in Equity, 99, and 111 (detinue; petition and decree, 187). On the other hand, it is necessary to weigh carefully such statutes as 5 Henry IV, c. 8 (1404) which extends wager of law to debt upon account stated, since the practice has arisen of alleging fictitiously that an account had been taken. The preamble implies that compurgation is more likely to discover the truth than jury trial.
Above, p. 365.
It seemed generally understood that this was the case. Attempts to use covenant instead of debt appear again in the sixteenth century, and in the seventeenth were successful. Ames, Lectures on Legal History, 152-153.
The rule was applied as early as 1235, but a long period of hesitation followed. The cases are collected in Pollock and Maitland, ii. 220 n. 1.
Holmes, The Common Law, 272-273. This hypothesis seems to place the formal contract at too late a stage of our legal history.
Statute of Westminster II (1285), c. 11. Lords would gladly have committed defaulting accountants to their own private prisons; but the statute is explicit that it must be the king’s prison only.
The non-contractual nature of account is very well illustrated by Langdell, Equity Jurisdiction, 75; cf. Jackson, History of Quasi-Contract, 32.
Y.B. 41 Edward III. Pasch. no. 5.
Above, p. 98.
Carta Mercatoria (1303), printed in Munimenta Gildhallae,ii. i. 205-211, at 206-207.