§ 1.18 N1 Assumpsit: Implied Assumpsit, Indebitatus or General Assumpsit, Special Assumpsit

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At early common law, contracts, as we know them, were difficult to enforce in the King's or Queen's courts of England. While contracts under seal were enforced in actions commenced by the writ of covenant and debts were collectible under the writ of debt, damages for breach of informal contractsn2 was not an available remedy except in local, merchants' and ecclesiastical courts. The form of trial in an action commenced by the writ of debt-wager of law-boggles the contemporary mind.n3 Many promises, however, in reliance on which the promisee materially changed position, neither created a money debt nor were under seal. As the demand for the enforcement of such promises in the Royal courts arose, a remedy was invented to meet it. This remedy was afforded by the writ of assumpsit, created by making only a slight variation in the wording of the older writ of trespass on the case. This variation consisted merely in an allegation in Latin that the defendant promised (super se assumpsit ) and that the plaintiff had relied thereon to his injury. Trial was by jury.

In the course of time, this writ was applied to the enforcement of promises actually made, whether express or implied in fact from conduct other than words, and also to the enforcement of obligations hereafter described as quasi contracts. The writ was sustained in all cases in which the court was willing to hold that the law would imply an assumpsit; and in Slade's casen4 the court held that whenever a debt existed the law would imply an assumpsit. The result of this holding was that the action of debt was largely replaced by assumpsit. The subsequent growth of contract law took place mainly in cases in which assumpsit was used as the form of action. Thereafter, for some centuries in our legal history, promises were enforced by the use of the common law writ of assumpsit, this word having the literal meaning ''he promised.'' Although the common law writ of assumpsit has become, in most jurisdictions, something of a legal dinosaur with the general movement toward notice pleading without regard to the forms of action,n5 this has, of course, no effect on the courts' ability to predicate relief on the breach of an express or implied promise.

Sometimes a promise is said to be ''implied in law,'' such a promise being distinguished from a promise that is implied in fact. This distinction and these terms have a long history in Anglo-American law. A promise that is implied in fact is merely a tacit promise, one that is inferred in whole or in part from expressions other than words on the part of a promisor. It is a question of fact whether or not in a particular case a promise should be so inferred.n6

[A] Implied Assumpsit

When a promise is said to be ''implied in law,'' the meaning is that neither the words nor the other conduct of the party involved are promissory in form or justify any inference of a promise. The term is used to indicate that the party in question is under a legally enforceable duty, just as he would have been if he had in fact made a promise.

For a number of reasons the action of common law that was initiated by the use of the writ of assumpsit was a very convenient one, by use of which justice was more likely to be satisfactorily attained than under some of the other forms of action. Pressure arose to allow the use of the action of assumpsit for the collection of non-contractual money debts; debts arising out of transactions that included no promise whatever, either express or tacit. The courts yielded to this pressure, and justified themselves by saying that in these cases a promise was implied in law. The legal duties that were enforced by use of this fictitious promise have come to be described as quasi-contractual. In other words, a promise ''implied in law'' is a constructive promise, a term that denotes a set of facts that will be treated as if a promise has been made.n7

Such terms as ''special assumpsit,'' ''express assumpsit,'' ''implied assumpsit'' and ''indebitatus assumpsit'' came into use; but this does not indicate that they were different forms of action or that separate writs were invented for them. Since the action would be sustained if the plaintiff proved an express promise, or a promise inferred from acts other than verbal expression, or a money debt, or any quasi-contractual obligation that the court was willing to recognize, it became unnecessary to draw sharp lines among them or to distinguish clearly between contracts implied in fact and quasi contracts.n8 The use of the form of action called assumpsit required the making of no such distinction; and in many reported cases it does not appear whether the court found that the defendant had promised or merely that the defendant ought to be compelled to pay money by which the defendant otherwise would be enriched or to redress the impoverishment of the other.