(iii)  Unilaterality and bilaterality in early English contract law

As the above discussion of debt and covenant disclose, the underlying contractual agreements in early English law which, prior to the rise of assumpsit, might trigger these two actions could be either formal or informal. If formal, the contractual agreement essentially took effect unilaterally: a debtor committed his pledged performance to writing, sealed the document, and delivered it to the creditor. If informal, the contract took effect bilaterally: consent to the agreement was exchanged by the parties, often accompanied by acts expressing agreement such as a handshake, the sharing of a drink, or the exchange of tokens (such as a coin) as a symbol of agreement.51 A formal contract, a sealed document pledging the performance of the one party, thus had very much the characteristic of a unilateral promise, whereas the informal contract had more of the bilateral nature which one associates with what today would be called a genuine contractual agreement. Even today in English law, the successor to the sealed document, the document declared to be a deed, remains a valid, if exceptional, way of effecting a contractual undertaking by way of unilateral act.

There was no doctrine of consideration in English contract law before the mid-sixteenth century. Rather, there was an understanding that informal contracts (though not formal ones) must demonstrate reciprocity, a requirement which became settled during the fourteenth and fifteenth centuries.52 Thus, neither an agreement to pay damages, nor to pay for past services, would be enforced.53 In support of this position, reference might even occasionally be made by the courts to the Roman law maxim ex nudo pacto non oritor actio.54 This development was, in time, to assist the law in developing from Glanvill’s list of recognised informal contracts, with their reciprocal causes, towards a generalised understanding of contract as a reciprocal relationship.

(iv)  Assumpsit

Promise provides an appropriate characterisation not only for contracts under seal, but also for the action of assumpsit which had, by 1600, largely

51On such symbols of agreement, see Ibbetson, ibid., pp. 73–4.

52See Simpson, A History of the Common Law of Contract, pp. 148–60; Ibbetson, An Historical Introduction, p. 81.

53Ibbetson, ibid., pp. 81–2.

54YB M.9 Hen V f.14 pl.23; YB P.11 Hen VI f.35 pl.30 at f.38; YB T.17 Edw IV f.4 pl.4; Luyt v. Boteler (C1/60/142); Grene v. Capell (C1/94/22) (all cit. by Ibbetson, ibid., p. 82).

taken over the field previously occupied by the action of debt.55 Assumpsit, in form an action for breach of promise, grew out of the older action of trespass on the case. Though trespass on the case was originally used in a contractual context to deal with cases of misperformance, by the end of the fifteenth century it was beginning to be recognised as applicable to cases of non-performance also.56 In such cases, the plaintiff would allege that the defendant had ‘assumed and faithfully promised’ (assumpsit et fideliter promisit) to do something for the plaintiff, but had failed so to do. This wrongful behaviour was what constituted the trespass on the case, though it is clear that courts were willing to see the substantial contractual nature of the claim which lay below the trespassory form of the action. This is evident from the granting of damages for non-performance in the performance measure,57 as well as by decisions such as Fyneux v. Clyfford from 1518, in which the substance of the claim was non-perform- ance under a sale of land constituted by mutual promises.58 By 1530 the action was also being used for non-payment of monetary debts, where it was called indebitatus assumpsit.

The language of the claim of assumpsit – that the defendant had ‘assumed and faithfully promised’ something – was evidently promissory. It was also clearly unilateral, there being no requirement to mention any agreement by the plaintiff or other action on his part which might be necessary to perfect such promise. To begin with, this formal language also mirrored the substance of the action. However, as the seventeenth century wore on, assumpsit was transformed into a bilateral, contractual claim. This transformation may be seen in judicial statements such as this from Hurford v. Pile in 1618:

A person who promises cannot countermand and recall his own promise, because every assumpsit is made by the mutual agreement of both parties and on reciprocal consideration, and through this creates a contract … and because of this the person who assumes cannot make a countermand, for a bargain is a bargain and a contract is a contract.59

Indeed, from the middle of the sixteenth century, the nature of assumpsit had become fairly clearly established as contractual in substance and merely promissory in form. The judges had begun to doubt whether the

55See Simpson, A History of the Common Law of Contract, Part II (pp. 199–620).

56Ibbetson, An Historical Introduction, pp.139–40.

57See Baker, Oxford History of the Laws of England, vol. vi, ch. 49, esp. pp. 848–51, 860.

58(1518) KB 27/1026.

59Ibbetson, An Historical Introduction, p. 140, citing HLS MS 105f f.291.

presence of a promise actually made any difference to the nature of the transaction, and began to assert that what mattered was the underlying agreement of the parties.60 Though the promissory language remained, it did not denote a unilateral promise but merely a promise in the broader sense of a contractual undertaking.61

It has been argued by a number of legal historians that the promissory language which found its way in to the action of assumpsit was borrowed from the canon law, in particular the canonical action of fidei laesio.62 The fidei laesio had proven to be a popular action before the ecclesiastical courts for the reason noted earlier: those courts were willing to grant a remedy based purely on the violation of the faith of a contractual undertaking backed by an oath.63 The popularity of this action was decreasing precisely at the time that assumpsit was becoming more popular, which has given rise to the conjecture that pleaders in assumpsit cases were borrowing the language and ideas popular in the ecclesiastical courts. The wording of claims in assumpsit and fidei laesio is virtually identical,64 and though this does not conclusively prove a borrowing by the former from the latter, this is hardly surprising: if pleaders were borrowing from the canon law, such a borrowing would most likely have been an unacknowledged process.

The apparent borrowing from the canon law was important not simply in linguistic terms, but also because the canonical insistence that promises have a valid causa to support them was, it seems, influential in the common law’s development of the doctrine of contractual consideration.

(v)  The doctrine of consideration

A great deal has been written about the origins of the doctrine of consideration in the common law of contract,65 though this has produced

60Ibid., pp. 137–8.

61Ibbetson remarks that, after Slade’s Case in 1602, ‘if the action of assumpsit was an action based on promise, it was a promise only in the weakest sense of the word, denoting nothing more than a voluntary undertaking’ (ibid., p. 138).

62See Martínez-Torrón, Anglo-American Law and Canon Law, and Ibbetson, ibid. Helmholz has argued that there is a possible correlation between the decline of fidei laesio and the rise of assumpsit, but that no definitive case can be made out: see Helmholz, ‘Assumpsit and Fidei Laesio’; ‘Contracts and the Canon Law’, 62.

63See Jones, ‘The Two Laws in England: The Later Middle Ages’, 125; Ibbetson, ibid., p. 136.

64Helmholz, ‘Contracts and the Canon Law’, p. 62.

65See, for instance, Simpson, A History of the Common Law of Contract, Part 2, chs. 4–7; Ibbetson, An Historical Introduction, pp. 141–5, and ‘Consideration and the Theory of Contract’; Baker, ‘Origins of the “Doctrine” of Consideration’.

no universal agreement on the precise nature of those origins. Simpson, for instance, has argued that the origins of the doctrine lie in the equitable doctrine of consideration which applied in the law of uses, itself developed from the common law of real property, and has accordingly argued that the influence of the canon law was much less than have other writers.66 However, even Simpson has recognised the likely influence of Christopher St Germain’s work Doctor and Student,67 an imagined discourse between a Doctor of Divinity and a student of the common law. The work contains a lengthy discourse on the nature of promise, including a passage where the Doctor equates the canonical notion of causa with the idea of consideration,68 though, as Simpson notes, much of this passage is concerned with whether promises bind in conscience rather than at law. The appearance of this work at the very moment to which the origin of the doctrine of consideration is commonly attributed strongly suggests that the central idea of the doctrine of consideration was at least popularised by the work, if not the details of the doctrine as it came to be applied in the common law.69 Ibbetson has presented a case for a clearer connection of linguistic and ideological borrowing, though again not necessarily of substantive content, while Martínez-Torrón believes that ‘[w]hether the action of assumpsit and the doctrine of consideration were the result of canon law influence, or rather emerged from within the common law, will likely remain one more of those secrets which are jealously guarded by history’.70 If there was any equation at this stage between the civilian and canonical notion of causa and consideration, it was gradually lost sight of, and not confidently reasserted again until the English translation of Pothier’s Treatise on Obligations began to circulate freely in England in the early nineteenth century.71

Whatever borrowing by the common law from canon law that there may have been, this produced different long-term effects for the common law than those produced by the assumption of canonical jurisdiction by the civil courts in Scotland. Whereas the common law chose to interpret the canonical idea that causa clothed a bare promise and gave it enforceability as excluding unreciprocated promises, the Scottish courts took the exact opposite view and interpreted the notion of causa in a wider sense

66Simpson, ibid., pp. 327–74.

67Published in Latin (the first English edition appearing in 1528).

68Doctor and Student, ch. 23.

69Simpson, A History of the Common Law of Contract, p. 396.

70Martínez-Torrón, Anglo-American Law and Canon Law, p. 135.

71See further below on this, at p. 154.