60. THE HISTORY OF PAROL CONTRACTS PRIOR

TO ASSUMPSIT1

BY JAMES BARR AMES 2

T is generally agreed by the Continental writers that in early German law, from which our law comes, only real and formal contracts were binding. The same is unquestionably true of the English common law from the time of Edward III. to the introduction of Assumpsit towards the end of the fifteenth century. But Mr. Justice Holmes in his Common Law, 260-264, and again in his essay on Early English Equity, 1 L. Q. Rev. 171-173,3 endeavors to show that the rule requiring a quid pro quo for the validity of a parol undertaking was not of universal application in England, and that a surety, in particular, might bind himself without a specialty prior to the reign of Edward III. If this opinion is well-founded, an innovation and the abolition of the innovation must be accounted for. The evidence in favor of the validity during the two centuries following the Norman Conquest, of any parol obligation which was neither based upon a quid pro quo, nor assumed in a court of record, should, therefore, be very strong to carry conviction. The evidence thus far adduced has failed to convince the present writer.

Prior to the appearance of Assumpsit the contractual remedies in English law were Debt, Detinue, Account, and Covenant. Detinue and Account, every one will agree, were

This Essay was first published in the Harvard Law Review, vol. VIII (1895), pp. 252-264. Additions made by the author in revising for this Collection are in brackets.

A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection.

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EDS.]

[Reprinted as Essay No. 41, in Volume II of this Collection.

based upon real contracts. Covenant lay only upon sealed instruments, that is, formal contracts. If, therefore, parol undertakings, other than real contracts, were ever recognized in early English law they must have been enforced by the action of Debt. But no instance of such an action in the royal courts, it is believed, can be found.

Glanvil, Bracton, and Britton all recognize the validity of debts founded upon a specialty.1 Glanvil also says in one place that no proof is admissible in the king's court, if the plaintiff relies solely upon fidei laesio; and in another that the king's court does not enforce "privatas conventiones de rebus dandis vel accipiendis in vadium vel alias hujusmodi,' unless made in that court, that is to say, unless they were contracts of record.2 Bracton makes the statement that the king's court does not concern itself except occasionally de gratia with "stipulationes conventionales," which may be infinite in their variety. The language of Fleta is most explicit against the validity of formless parol promises. Oportet igitur ex hoc quod aliquis ex promissione teneatur ad solutionem, quod scriptura modum continens obligationis interveniat, nisi promissio illa in loco recordum habenti recognoscatur. Et non solum sufficiet scriptura, nisi sigilli munimine stipulantis roboretur cum testimonio fide dignorum." The same principle was expressed a few years later in a case in Y. B. 3 Ed. II. 78. The plaintiff counted in Debt on a grant for £200, showing a specialty as to £140,

1 Glanvil, Lib. X. c. 12. “De debitis laicorum quae debentur. . . de cartis debita continentibus." Bracton, f. 100, b. "Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit sive non, obligatur ex scriptura, nec habebit exceptionem pecuniæ non numeratæ contra scripturam, quia scripsit se debere." 1 Nich. Britton, 157, 162.

"Glanvil, Lib. X. c. 12, and c. 18.

8 Bracton, f. 100, a. As there are several cases in Bracton's Note Book, in which the validity of covenants affecting land are assumed to be valid, Bracton, in the passage just referred to, probably had in mind miscellaneous covenants. See Pollock, Contracts (6 ed.), 136. It is certainly true that the rule that any promise under seal may give rise to an action was a comparatively late development in the history of covenant. As late as the middle of the fourteenth century, Sharshull. J., said in Y. B. 21 Ed. III. 7-20: "If he granted to you to be with you at your love-day, and afterwards would not come, perhaps vou might have had a writ of covenant against him if you had a specialty to prove your claim."

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and offering suit as to the rest. Frisk, for defendant, said: 'Every grant and every demand by reason of grant must be by specialty, but of other contracts, as of bailment or loan, one may demand by suit. Therefore as you demand this debt by reason of grant and show no specialty but of part, judgment," etc. The plaintiff was nonsuited. In Y. B. 2 Ed. III 4-5, Aldeburgh (Judge of C. B. four years later) said: "If one binds oneself to another in a debt in presence of people sans cause et sans especialtie,' never

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shall an action arise from this." The same doctrine is repeated in later cases in the fourteenth century. 2 In the light of these authorities it seems highly improbable that Debt was ever maintainable in the king's court, unless the plaintiff could show either a specialty or a quid pro quo received by the defendant. 3

1 The word contract was used in the time of the Year Books in a much narrower sense than that of to-day. It was applied only to those transactions where the duty arose from the receipt of a quid pro quo, e. g., a sale or loan. In other words, contract meant what we now mean by "real contract." What we now call the formal or specialty contract was anciently described as a grant, an obligation, a covenant, but not as a contract. See, in addition to the authorities cited in the text, Y. B. 17 Ed. III. 48-14. A count in debt demanding "part by obligation and part by contract." Y. B. 29 Ed. III. 25, 26, "Now you have founded wholly upon the grant, which cannot be maintained without a specialty, for it lies wholly in parol, and there is no mention of a preceding contract." Y. B. 41 Ed. III. 7-15. Thorp, C. J.: "You say truly if he put forward an obligation of the debt, but if you count upon a contract without obligation, as here (a loan), it is a good plea." Y. B. 43 Ed. III. 2-5. Debt on a judgment. Belknap objected "for there is no contract or covenant between them." 8 Rich. II. Bellewe (ed. 1869), 32, 111. "In debt upon contract the plaintiff shall shew in his count for what cause the defendant became his debtor. Otherwise in debt upon obligation." Y. B. 11 Hen. IV. 73, a-11; 8 Rich. II. Bellewe (ed. 1869), 32, 111; Y. B. 39 Hen. BI. 34-44; Sharington v. Strotton, Plowd. 298, 301, 302; Co. Lit. 292 b. The fanciful etymology given in Co. Lit. 47 b should be added: "In every contract there must be quid pro quo, for contractus est quasi actus contra actum."

Y. B. 11 & 12 Ed. III. 587; Y. B. 18 Ed. III. 13-7; Y. B. 44 Ed. III. 21, 23; [Y. B. 48 Ed. III. 29-15] Y. B. 9 Hen. V. 14, 23. The only statement in the Year Books to the contrary is the dictum of Candish, J., in 48 Ed. III. 6-11: “ And also this action of covenant of necessity is maintainable because for so slight a thing one cannot always have his clerk to make a specialty." The case in Y. B. 7 Ed. II. 242 can hardly be said to throw any light upon the question under discussion.

By the custom of London and Bristol, Debt was allowed upon a parol grant without quid pro quo. Y. B. 43 Ed. III. 11-1; Y. B. 14 Hen. IV. 26-13; Y. B. 22 Ed. IV. 2-6: F. M. v. R. C., 1 M. & G. 6 n. (a.); Y. B. 38 Hen. VI. 29-12; Y. B. 1 Hen. VII. 22-12; [Y. B. 1 Ed. IV 6-13; Dy. 370, pl. 58] Williams v. Gibbs, 5 A. & E. 208; Bruce v.

In the essay upon Early English Equity, already referred to, the distinguished writer makes the further suggestion that, although the formless parol undertakings ultimately failed of recognition in the King's Courts, the Church for a long time, with varying success, claimed a general jurisdiction in cases of læsio fidei; and that after the Church was finally cut down to marriages and wills, the clerical Chancellors asserted for a time in Chancery the power of enforcing parol agreements, for which the ordinary King's courts afforded no remedy. It is believed that undue importance has been attached to the proceedings in the spiritual court for læsio fidei. It is doubtless true that this court was eager to enlarge its jurisdiction, and to deal with cases of breach of faith not properly within its cognizance. We may also concede that the court was sometimes successful in keeping control of such cases when the defendant did not dispute the jurisdiction. But the authorities would seem to make it clear that from the time of the Constitutions of Clarendon, a prohibition would issue as a matter of course from the King's Court upon the application of one who was drawn into the spiritual court upon breach of faith in a purely temporal matter. 1

Nor has the present writer been able to discover any traceable connection between the ecclesiastical claim of jurisdiction over læsio fidei and the jurisdiction of the Chancellor in the matter of parol agreements. If the Chancellor proceeded in the same spirit as the ecclesiastical judge, purely upon the ground of breach of faith, it would follow that in the absence of a remedy at common law, equity would give relief upon any and all agreements, even upon gratuitous parol promises. And Mr. Justice Holmes seems to have so interpreted the

Waite, 1 M. & G. 1, and cases cited in Pollock, Cont. (6 ed.), 138 n. (p.). See also the cases of parol undertakings in the Bishop of Ely's Court, 4 Seld. Socy. 114-118.

1 Constitutions of Clarendon, c. 15, Stubbs, Sel. Chart. 134; Glanvil, Book X. c. 12; Abb. Pl. 31, col. 1, rot. 21 (1200); 2 Br. N. B. No. 50 (1219); Fitz. Abr. Prohib. 15 (1220); 2 Br. N. B. No. 1893 (1227); Stat. Circumspecte Agatis, 13 Ed. I.; Y. B. 22 Lib. Ass. 70; Y. B. 2 Hen. IV. 10-45; Y. B. 11 Hen. IV. 88-40; Y. B. 38 Hen. VI. 29-11; Y. B. 20 Ed. IV. 10-9; Y. B. 22 Ed. IV. 20-47; Y. B. 12 Hen. VII. 22. b-2; Dr. & St. Dial. II. c. 24.

following statement, which he cites from the Diversity of Courts (Chancery): "A man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants, and yet he is without remedy at the common law; " for he adds that the contrary was soon afterwards decided, citing Cary, 7: "Upon nudum pactum there ought to be no more help in Chancery than there is at the common law."1 But, without all deference, the passage in the Diversity of Courts seems to have been misapprehended. There is really no contrariety between that passage and the extract from Cary. It is not asserted in the Diversity of Courts that one should have remedy for all parol covenants, where there was no remedy at common law. Full effect is given to the language used if it is taken to import that relief was given upon some parol covenants. So interpreted the Diversity of Courts accords with other authorities. For while it is confidently submitted that no instance can be found prior to the time of Lord Eldon in which Equity gave relief upon a gratuitous parol promise, it is certainly true that Chancery did in some cases furnish a remedy upon parol covenants. But in all these Chancery cases it will be found that the promisee, acting in reliance upon the promise, had incurred expense, or otherwise parted with property, and that the Chancellor, upon an obvious principle of natural justice, compelled the promisor to make reparation for the loss caused by his breach of promise. Three such instances, between 1377 and 1468, are mentioned in an essay upon "The History of Assumpsit," in an earlier

[In Anon. Litt. R., 3 Richardson said that Lord Ellesmere used to say that there were three things which he would never relieve in equity, 1 such leases aforesaid, 2 concealments, 3 nude promises. See also Alexander v. Crosh, Toth. 21.]

At the present day a gratuitous undertaking by the owner of property to hold the same in trust for another is enforced in equity. It is a singular fact that this anomalous doctrine seems to have been first sanctioned by the conservative Lord Eldon, in Ex parte Pye, 18 Ves. 140. It was well settled that a use could not be created by a similar gratuitous parol declaration. Indeed, as late as 1855, Lord Cranworth, in Scales v. Maude, 6 D. M. & G. 43, 51, said that a mere declaration of trust by the owner of property in favor of a volunteer was inoperative. In Jones v. Lock, 1 Ch. Ap. 25, 28, he corrected this statement, yielding to the authority of what seemed to him unfortunate decisions.

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Essay No. 59, Volume III.