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
351:
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.
162:
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
93:
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
150:
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
139:
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.
182:
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
82:
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.
188:
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.
142:
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.
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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
210:
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
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478:(4th ed, 2004);
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374:simple contracts
243:For work done ("
238:quantum valebant
121:ostensurus quare
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713:Civil procedure
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671:(3rd ed, 2015).
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470:See generally,
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460:. January 1918.
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432:, ed. (1911). "
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368:. For example,
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349:cause of action
317:Judicature Acts
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250:For money lent;
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28:
23:
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430:Chisholm, Hugh
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393:quantum meruit
378:sur obligation
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328:federal courts
313:United Kingdom
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281:quantum meruit
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245:quantum meruit
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214:(a) common or
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200:sur obligation
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84:form of action
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47:form of action
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425:public domain
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206:Common counts
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44:
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36:
32:
19:
681:
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590:. Retrieved
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519:
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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
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436:".
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49:at
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688:,
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546:,
538:,
482:,
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456:.
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171:.
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653:.
624:.
596:.
263:.
20:)
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