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English Legal History
3/10/2009
Outline
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TORT AND CONTRACT—INTRODUCTION AND THE OLD PERSONAL ACTIONS
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1.
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Background institutional changes of the 14th century:
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a.
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The development of a bicameral parliament.
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b.
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The gradual growth of its involvement in taxation and legislation and
the custom of consulting it on great matters of the realm.
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c.
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The growth of the power of the council and of the departments of state.
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d.
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The attempt of the magnates to control them by controlling appointments.
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e.
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The attempt of the king to control them through the wardrobe and the
chamber.
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f.
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Statutes that attempt to deal with social change, e.g., the statutes of
labourers and statutes concerning livery and maintenance Mats. § 6G.
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2.
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General outline of the personal actions
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a.
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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 specific goods, the problem of bailment, wager of law
Covenant—the requirement of a sealed instrument, no general damages
Account—eleborate procedure, manorial stewards and guardians in socage
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b.
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Trepass is the tort action
Trespass—vi et armis and contra pacem
Case—appears mid–14th century, the rise of the notion of negligence?
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c.
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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.
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d.
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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.
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3.
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Problems with this way of looking at it:
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a.
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Assumes that changes in the forms of action reflect changes in
fundamental substantive ideas.
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b.
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It forgets about other courts.
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c.
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Our ideas are not theirs: property (real and personal), tort, and
contract; owing vs. owning; obligation vs. property; money vs. fungibles
vs. specific goods.
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4.
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Debt-detinue
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a.
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“The King to the sheriff greeting. Command N. that justly and without
delay he render to R. one hundred marks which he
owes, as he says, and whereof he complains that he unjustly deforces him.
And unless he will do this, summon him by good summoners that he be before me or my justices at Westminster within fifteen days of the
close of Easter to show [why he has not done it].” Glanvill, Mats. p. VII–3.
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b.
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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.
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c.
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Paid and so non debet is a possible plea, a
concession to the jury.
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d.
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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.
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e.
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Debt splits off from detinue probably for remedial reasons in the
mid-thirteenth century.
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f.
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By the sixteenth century debt has become an action for a specific sum
(no general damages please) of money or fungibles. The action for fungibles
is called debt in the detinet in
the 16th century, maybe a bit earlier. The general action of debt has two
important subcategories.
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i.
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Debt on an obligation—the penal bond, avoids incidental damage question,
non-performance will go to the jury
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ii.
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Debt on a contract—the medieval idea of contract, what we would call a
partially executed 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.
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g.
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Detinue, the general action for return of goods, e.g., the buyer’s
action in a sales contract, also has two subcategories:
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i.
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Sur bailment—Glanvill suggests that all debts are
like the Roman mutuum, strict
liability (c.13 Mats.,
p. VII–3: “I lend my chattel to you gratuitously to be taken and used in
your service. When the term of service is completed, you are bound to
return my chattel to me without deterioration, provided that it still
exists. But if the chattel itself has perished or has been lost, in
whatever way, while in your custody, you are bound absolutely to render me
a reasonable price for it.”); Bracton gives the opposite answer (Mats., p. VII–5: “he who has taken a loan for use is bound to restore the
very thing, and, [though] he is not excused if he shows as much care in its
safekeeping as he ordinarily bestows on his own goods if another could have
safeguarded the thing with greater care, [he] is not held liable for force
majeure or accidents unless there has been culpa [‘fault’] … .”); 14th c.
cases tend to follow Bracton but in the late 15th c. liability tightened up
as to bailment—only an act of God, or the king’s enemies will do because
the bailee can sue a robber.
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ii.
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Sur trover—an odd ball which
doesn’t fit our emerging scheme that is at once contractual and
proprietary. This one seems to be purely 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. (Carles v. Malpas; Mats., p. VII–11).
The key thing about it is that in detinue sur trover it is a total defense that the defendant does not
have the thing.
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5.
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When did English law perceive the property/obligation distinction the
way we do?
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a.
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Not at the time of the origins of the debt/detinue action, for there property
and obligation were merged.
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b.
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Not at the time that debt and detinue split in the mid-thirteenth century,
because then debt is available only for money as between the original parties
to the transaction.
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c.
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Bracton probably perceives the
distinction between property and obligation, but Britton does not (Mats., p. VII–7).
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d.
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At the end of the 15th century the notion that property passes with sale
will give the seller an action for the money even if he has not delivered, but
after some hesitancy the buyer will not have an action in detinue for the goods
unless he has paid. On the one hand, the rule about passage of property suggests
that the property-obligation distinction is being perceived but, on the
other hand, the imbalance in the two actions suggests that the emerging idea
has still not been integrated into the actions.
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e.
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Bracton’s rule about the bailee’s liability is followed in the 14th century,
so that there is little need in this situation to distinguish between the
bailee or the finder. When the bailee’s liability
becomes stricter in the 15th century we also see the emergence of a
distinction between detinue sur bailment and detinue sur trover. In the
latter the trover is fictional (property), and the defendant has no
liability if he or she doesn’t have the goods.
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f.
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CONCLUSION: The original idea is imbalance of accounts and this can be seen
most clearly in the admittedly relatively few restitution cases in the 14th
century. Hints of the distinction between property and obligation emerge at
the end of the 15th century in both sales and bailment cases, but the original
idea is never completely lost. This is a problem to which we will have to return
when we ask the question whether England had really developed a
unified notion of contract by the time of or shortly after Slade’s Case. The dramatic thing
about this development is how it parallels what happened about real
property. Property emerges out of obligation.
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6.
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Covenant.
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a.
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The tyranny of words: contract is not contract as we understand it but
covenant does come pretty close to what we mean by contract.
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b.
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The problem of proof may account for the emergence of the sealed
instrument requirement early in the 14th century. The S/Wales (Mats. pp. VII–12; 1284) tells us
that covenant goes to the jury but there’s a problem with the jury unless
they know both ends of the story. The problem is quite dramatically
illustrated in the Waltham Hay
Carrier’s Case (Mats, p. VII–13)
from the eyre of London
of 1321. The defendant was alleged to have agreed to carry a carry a barge
load of hay from Waltham, which is in Essex,
to London.
Indeed, he was alleged to have received the hay in Waltham,
but to have failed to have carried it to London. The defendant’s counsel points
out that Waltham
was outside the court’s jurisdiction, but the Chief Justice bullies him
into taking another plea, and he asks what the plaintiff has to show for
his covenant. The latter replies that it was a simple agreement. The
defendant alleges that the plaintiff must show a specialty, to which the
plaintiff replies: “For a cartload of hay?” But the CJ has the last word:
“We shall not undo the law for a cartload of hay. Covenant is none other
than the assent of parties that lies in specialty.” And the plaintiff was
non-suited.
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c.
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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.
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7.
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Account. Another you have my money action, but with the extra attraction
of obligation to account. The procedure is complicated. One first
establishes the obligation to account. The taking of the account is then
committed to auditors. The result of their accounting could then be
recovered by way of writ of debt. The action was at first available, it
would seem, only against manorial bailiffs, who had an obligation to
account to their principals. In 1267 the action was extended to guardians
in socage, who had a similar obligation. Early in the 14th century, it
became available against receivers more generally, particularly mercantile
ones, perhaps as a result of the statute of Westminster II of 1285. At
various periods in the later Middle Ages and early modern periods the
action seems to have been used for quasi-contractual recoveries, but for
reasons that are not completely clear, the action died out in the 16th
century. Perhaps its complexity did it in, but the problem may be that the central
royal courts did not trust the merchants.
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