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Assumpsit

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229:, it was necessary for the plaintiff to specify how the antecedent debt had arisen. It was insufficient for the plaintiff to merely allege that, being indebted, the defendant promised to pay. This gave rise to the "common counts": common ways of pleading how the debt arose. It is important to note that where assumpsit was brought in lieu of debt, the plaintiff's action was for a liquidated sum. In contrast, where a plaintiff brought special assumpsit, the action was for an unliquidated sum assessed by the civil jury. 418: 376:. Where a claimant brings an action in contract for non-performance of a promise contained in a deed, there is no need to show that the claimant supplied consideration for the promise. The reason for this is historical: where there was no deed, the correct action was assumpsit for nonfeasance; in the latter, in debt 138:
To bring the claim within trespass on the case, the plaintiff would characterise the defendant's breach of agreement as a wrong. During the 15th century, the received learning was that an action on the case did not lie for mere inaction ("nonfeasance"). By the beginning of this 16th century, this was
102:
and the sum claimed had to be a sum certain fixed at the date of contract. Such rules could easily work hardship. What if a promisor (A) orally agreed to supply grain to a promisee (B), but failed to do so? In such a case, B would be unable to bring a writ of covenant due to the absence of a deed. B
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or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit.
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In order to bring assumpsit, the plaintiff would plead that, the defendant being indebted to the plaintiff, the defendant had later promised to pay the debt. In short, the plaintiff would separate the existence of the debt (which generated an action of debt
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These actions were subject to various limitations. For example, by the middle of the 14th century at the latest, it was necessary for a plaintiff in an action of covenant to have a deed. In an action of debt
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The question that arose in the 16th century was whether assumpsit could be brought in lieu of debt. For a plaintiff, assumpsit was the more desirable course: the defendant would not be able to elect to
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no longer the case. Provided a plaintiff could show that the defendant was guilty of misfeasance, deceit, or the plaintiff had made a pre-payment, the plaintiff could bring assumpsit for nonfeasance.
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differed during the course of the 16th century. In the King's Bench, it was not necessary for the plaintiff to prove the subsequent promise. The Common Pleas disagreed. Matters came to a head in
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In the early days of the English common law, agreements were enforced in local courts. Where one wished to enforce an agreement in the royal courts, it was necessary to fit one's claim within a
90:
form, meaning that they commanded the defendant to perform an act: for example, to keep a promise; to yield up a sum of money or chattel unjustly withheld; or to render accounts.
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in 1602. The case effectively established that assumpsit could be used in lieu of debt: the law would imply a promise to pay the debt from the existence of the debt itself.
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By the beginning of the 16th century lawyers recognised a distinct species of action on the case known as assumpsit, which had become the typical phrase in the pleadings.
65:. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the 294:: B is enriched by the receipt of money at the expense of A in circumstances which are 'unjust' (viz., that A's intention to benefit B is vitiated by the mistake). 286:
In other cases, however, the implication of a promise to pay was wholly fictitious. For example, where A mistakenly paid money to B, A would bring an action for
127:. By the middle of the 14th century the royal courts were recognising that a writ of trespass would lie even without an allegation that the defendant had acted 86:. In the 13th and 14th centuries the forms of action for the enforcement of agreements were covenant, debt, detinue, and account. These were all writs in the 283:), the implication might be a true reflection of reality. If so, in modern terms, this is simply an action in contract for breach of an implied term. 167:) from a promise to pay the debt (which would generate an assumpsit for nonfeasance). This form of pleading gave rise to the name of the action: 433: 438: 279:
In some cases, such as actions for a reasonable remuneration for services provided to the defendant at the defendant's request (a
646: 609: 17: 337: 107:, bringing a number of transaction witnesses. But what if A elected wager of law and simply hired his eleven oath-helpers? 453: 175: 707: 395:. The practice is often deprecated by English unjust enrichment scholars but is frequently encountered in Australia. 572:
The Latin phrase means "being indebted, he promised," or, more literally, "he undertook" or "he assumed the duty ."
332: 689: 179: 619: 198:, and with it wager of law. Of course, it was not possible to bring assumpsit where the proper action was debt 717: 507: 384: 291: 290:. In such a case, the law would imply a promise by B to pay the debt. In modern terms, this is an action in 543: 471: 369: 327: 635:
Form PLD-C-001(2), Cause of Action-Common Counts, Judicial Council of California (Rev. Jan. 1, 2009).
582: 275:
that the law would import or imply a promise to pay the debt paved the way for other implications.
712: 586: 267:
By the 18th and 19th centuries, the action of assumpsit was used to enforce both contractual and
124: 647:"THE LIMITATIONS OF THE ACTION OF ASSUMPSIT AS AFFECTING THE RIGHT OF ACTION OF THE BENEFICIARY" 388: 287: 260: 685: 360:
The traces of the law relating to assumpsit are still felt today, particularly in the law of
423:
One or more of the preceding sentences incorporates text from a publication now in the
634: 380:. These were two distinct forms of action with their own distinct procedural requirements. 132: 66: 8: 615: 365: 308: 62: 535: 237: 373: 348: 316: 184: 479: 392: 312: 268: 244: 83: 46: 701: 429: 424: 323: 131:(with force and arms against the King's Peace). This action became known as 344:. However, many states continue to recognize assumpsit as a common law or 341: 152: 99: 336:
in 1938. Thirty-five states have moved to rules similar to the FRCP (see
442:. Vol. 2 (11th ed.). Cambridge University Press. p. 787. 50: 326:, assumpsit, like the other forms of action, became obsolete in the 311:. Furthermore, assumpsit as a form of action became obsolete in the 361: 77: 58: 345: 221:(b) special or express assumpsit, founded on an express promise. 611:
The Law of Restitution in Canada: Cases, Notes, and Materials
34: 340:), which have replaced the various forms of action with the 54: 53:
used to enforce what are now called obligations arising in
98:, a deed was not necessary, but a defendant was able to 225:
Where a plaintiff brought assumpsit in lieu of debt
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Claims in actions of assumpsit can be divided into:
298: 256:
For money laid out to the use of the defendant; and
561:Historical Introduction to the Law of Obligations 484:Historical Introduction to the Law of Obligations 411: 409: 407: 699: 682:Fistar v Riverwood Legion and Community Club Ltd 78:Fragmentation of actions for breach of agreement 581: 404: 476:An Introduction to English Legal Historically 288:money had and received to the defendant's use 261:money had and received to the defendant's use 307:abolished the common law forms of action in 218:, brought usually on an implied promise, and 145: 651:University of Pennsylvania Carey Law School 194:effectively put an end to the use of debt 559:See generally, Professor David Ibbetson, 110: 548:An Introduction to English Legal History 428: 61:; and in some common law jurisdictions, 540:A History of the Common Law of Contract 232:Examples of the common counts include: 14: 700: 355: 608:Smith, Lionel D; et al. (2004). 607: 669:Principles of the Law of Restitution 614:. Emond Montgomery. pp. 72–75. 338:Civil procedure in the United States 587:"The Forms of Action at Common Law" 253:For money due on an account stated; 202:(that is, debt on a deed or bond). 24: 389:actions for money had and received 119:writs of covenant and debt to the 25: 729: 372:is only necessary in relation to 115:Litigants began to turn from the 416: 333:Federal Rules of Civil Procedure 299:Abolition of the forms of action 205: 674: 657: 639: 628: 600: 575: 667:(3rd ed, 2011); Graham Virgo, 566: 553: 529: 513: 501: 489: 464: 446: 129:vi et armis contra pacem regis 13: 1: 454:"The Modern Law of Assumpsit" 398: 387:, reference is still made to 305:Common Law Procedure Act 1852 27:Form of action at common law 7: 271:claims. The recognition in 33:("he has undertaken", from 10: 734: 508:The Humber Ferryman's Case 330:after the adoption of the 72: 315:after the passing of the 146:Assumpsit in lieu of debt 103:would instead bring debt 708:Legal history of England 480:Professor David Ibbetson 458:West Virginia University 385:law of unjust enrichment 686:[2016] NSWCA 81 439:Encyclopædia Britannica 111:Emergence of assumpsit 692:(NSW, Australia). 498:(1321) Eyre of London 216:indebitatus assumpsit 180:Court of Common Pleas 169:indebitatus assumpsit 18:Indebitatus assumpsit 718:English contract law 663:See Andrew Burrows, 496:Waltham Carrier Case 174:The practice of the 155:as he would in debt 133:trespass on the case 67:trespass on the case 550:(4th ed, 2004) 330. 520:Wootton v Brygeslay 356:Modern significance 43:action in assumpsit 680:See, for example, 665:Law of Restitution 510:(1348) B&M 358 319:of 1873 and 1875. 41:), or more fully, 366:unjust enrichment 309:England and Wales 292:unjust enrichment 269:quasi-contractual 236:For goods sold (" 63:unjust enrichment 16:(Redirected from 725: 693: 678: 672: 661: 655: 654: 643: 637: 632: 626: 625: 604: 598: 597: 595: 593: 579: 573: 570: 564: 557: 551: 533: 527: 517: 511: 505: 499: 493: 487: 478:(4th ed, 2004); 468: 462: 461: 450: 444: 443: 422: 420: 419: 413: 374:simple contracts 243:For work done (" 238:quantum valebant 121:ostensurus quare 21: 733: 732: 728: 727: 726: 724: 723: 722: 713:Civil procedure 698: 697: 696: 690:Court of Appeal 679: 675: 671:(3rd ed, 2015). 662: 658: 645: 644: 640: 633: 629: 622: 605: 601: 591: 589: 583:Maitland, F. W. 580: 576: 571: 567: 558: 554: 534: 530: 518: 514: 506: 502: 494: 490: 470:See generally, 469: 465: 460:. January 1918. 452: 451: 447: 432:, ed. (1911). " 417: 415: 414: 405: 401: 368:. For example, 358: 349:cause of action 317:Judicature Acts 301: 250:For money lent; 208: 148: 113: 80: 75: 28: 23: 22: 15: 12: 11: 5: 731: 721: 720: 715: 710: 695: 694: 673: 656: 638: 627: 620: 599: 574: 565: 552: 544:Sir John Baker 528: 512: 500: 488: 472:Sir John Baker 463: 445: 430:Chisholm, Hugh 402: 400: 397: 393:quantum meruit 378:sur obligation 357: 354: 328:federal courts 313:United Kingdom 300: 297: 296: 295: 284: 281:quantum meruit 265: 264: 257: 254: 251: 248: 245:quantum meruit 241: 223: 222: 219: 214:(a) common or 207: 204: 200:sur obligation 147: 144: 112: 109: 84:form of action 79: 76: 74: 71: 47:form of action 26: 9: 6: 4: 3: 2: 730: 719: 716: 714: 711: 709: 706: 705: 703: 691: 687: 683: 677: 670: 666: 660: 652: 648: 642: 636: 631: 623: 617: 613: 612: 603: 588: 584: 578: 569: 562: 556: 549: 545: 541: 537: 532: 525: 524:Watkin's Case 521: 516: 509: 504: 497: 492: 485: 481: 477: 473: 467: 459: 455: 449: 441: 440: 435: 431: 426: 425:public domain 412: 410: 408: 403: 396: 394: 390: 386: 381: 379: 375: 371: 370:consideration 367: 363: 353: 350: 347: 343: 339: 335: 334: 329: 325: 324:United States 320: 318: 314: 310: 306: 293: 289: 285: 282: 278: 277: 276: 274: 270: 262: 258: 255: 252: 249: 246: 242: 239: 235: 234: 233: 230: 228: 220: 217: 213: 212: 211: 206:Common counts 203: 201: 197: 193: 189: 187: 186: 181: 177: 172: 170: 166: 160: 158: 154: 143: 140: 136: 134: 130: 126: 122: 118: 108: 106: 101: 97: 91: 89: 85: 70: 68: 64: 60: 56: 52: 48: 44: 40: 36: 32: 19: 681: 676: 668: 664: 659: 650: 641: 630: 610: 602: 590:. Retrieved 577: 568: 560: 555: 547: 539: 531: 523: 519: 515: 503: 495: 491: 483: 475: 466: 457: 448: 437: 382: 377: 359: 342:civil action 331: 321: 304: 302: 280: 273:Slade's Case 272: 266: 231: 227:sur contract 226: 224: 215: 209: 199: 196:sur contract 195: 192:Slade's Case 191: 190: 185:Slade's Case 183: 176:King's Bench 173: 168: 165:sur contract 164: 161: 157:sur contract 156: 153:wage his law 149: 141: 137: 128: 120: 116: 114: 105:sur contract 104: 100:wage his law 96:sur contract 95: 92: 87: 81: 42: 38: 30: 29: 536:AWB Simpson 702:Categories 621:1552391167 399:References 51:common law 606:See also 563:(2nd ed). 486:(2nd ed). 434:Assumpsit 346:statutory 31:Assumpsit 585:(1909). 542:at 199; 522:(1400); 362:contract 178:and the 125:trespass 123:writ of 117:praecipe 88:praecipe 59:contract 45:, was a 39:assumere 427::  383:In the 322:In the 73:History 618:  592:6 July 526:(1425) 421:  684: 35:Latin 616:ISBN 594:2007 391:and 364:and 303:The 259:For 57:and 55:tort 436:". 247:"); 240:"); 49:at 704:: 688:, 649:. 546:, 538:, 482:, 474:, 456:. 406:^ 171:. 159:. 135:. 69:. 37:, 653:. 624:. 596:. 263:. 20:)

Index

Indebitatus assumpsit
Latin
form of action
common law
tort
contract
unjust enrichment
trespass on the case
form of action
wage his law
trespass
trespass on the case
wage his law
King's Bench
Court of Common Pleas
Slade's Case
quantum valebant
quantum meruit
money had and received to the defendant's use
quasi-contractual
money had and received to the defendant's use
unjust enrichment
England and Wales
United Kingdom
Judicature Acts
United States
federal courts
Federal Rules of Civil Procedure
Civil procedure in the United States
civil action

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