Towards a General Law of Contract [1 ed.] 9783428468096, 9783428068098

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Towards a General Law of Contract

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte Herausgegeben von Prof. Dr. Dr. h. c. mult. Helmut Coing und Prof. Dr. Knut Wolfgang N ö r r

Band 8

Towards a General Law of Contract

Edited by John Barton

Duncker & Humblot - Berlin

Gedruckt mit Unterstützung der Gerda Henkel Stiftung, Düsseldorf

CIP-Titelaufnahme der Deutschen Bibliothek Towards a general law of contract / ed. by John Barton. — Berlin: Duncker u. Humblot, 1990 (Comparative Studies in Continental and Anglo-American Legal History; Bd. 8) ISBN 3-428-06809-2 NE: Barton, John [Hrsg.]; GT

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 1990 Duncker & Humblot GmbH, Berlin 41 Satz: Klaus-Dieter Voigt, Berlin 61 Druck: Druckerei Gerike GmbH, Berlin 36 Printed in Germany ISSN 0935-1167 ISBN 3-428-06809-2

Inhaltsverzeichnis John Barton Introduction

7

John Barton The Medieval Contract

15

John Barton The Action on the Case

39

Richard H. Helmholz Contracts and the Canon Law

49

David J. Ibbetson Consideration and the Theory of Contract in Sixteenth Century Common Law Jean Bart Pacte et contrat dans la pratique française (XVIe - X V I I I e siècles)

67

125

Italo Birocchi La questione dei patti nella dottrina tedesca dell'Usus modernus

139

Robert Feenstra Pact and Contract in the Low Countries from the 16 th to the 18 th century

. . . 197

Ugo Petronio Sinallagma e analisi strutturale dei contratti aH'origine del sistema contrattuale moderno 215 Italo Birocchi Tra tradizione e nuova prassi giurisprudenziale: la questione dell'efficacia dei patti nella dottrina italiana dell'eta' moderna 249 James Gordley Natural Law Origins of the Common Law of Contract Verzeichnis der Mitarbeiter

367 467

Introduction As Professor Petronio points out in this collection, 1 how far in practice we have a general law of contracts, and how far a law of different contracts is a question which can still be debated at the present day. It is, however, a question which could hardly be asked so long as an agreement was not actionable as such, but only if it belonged to one or other of certain recognised types. The history of the abandonment of the rule that no action lies upôn a naked pact in different countries of Europe is traced in detail in no less than four of the papers printed below. 2 In the Low Countries and in Germany, where the jurists were progressively more willing to hold that their national law had derogated from the ius commune, the distinction between the stipulation and the bare promise might be deemed to have been repudiated as inconsistent with mores hodierni, or never to have been received, since it was irreconcilable with that respect for one's given word which had been characteristic of the Germans since the age of Tacitus, though it could also be held that it was unknown to the law of Justinian, if his legislation were rightly understood. Since, in the law of the compilation, no particular form of words was required for a stipulation, the only naked pact which would not bear an action was a pact by which the party promising had not intended to bind himself. The attacks (entirely justified, if it be the law of Justinian that is in question) which this opinion had provoked when Maestertius first proposed it led its later supporters to refrain, somewhat unjustly, from mentioning him by name.3 The political fragmentation of Italy, where, in any case, the Roman law could not be deemed a foreign importation, made it more difficult for the Italian jurists to appeal to their national law, but it was an opinion as old as the fourteenth century that since a naked pact creates a natural, though no civil obligation, and the prince (at least if he recognise no superior) is above the positive law, he may, and according to some, he is even obliged to enforce the performance of bare pacts manu regia upon the petition of his subjects. From this it might be taken to follow that bare pacts were enforceable officio iudicis , 1 Sinallagma e analisi strutturale dei contratti aH'origine del sistema contrattuale moderno, below. 2 J. Bart, Pacte et contrat dans la pratique française; I. Birocchi, La questione dei patti nella dottrina tedesca dell'Usus modernus; Tra tradizione e nuova prassi giurisprudenziale: La questione dell'efficacia dei patti nella dottrina italiana dell'eta moderna; R. Feenstra, Pact and Contract in the Low Countries from the sixteenth to the eighteenth century. 3 I. Birocchi , La questione dei patti, below.

Introduction

8

though not iure actionis, by the judges of any tribunal to which the prince had delegated, or was to be deemed to have delegated, his prerogative of justice: and the judges of the grandi tribunali were at one in holding that this prerogative had been delegated to themselves. To permit the judges to supply a remedy in cases where the positive law gave none was, however, to invest them with a discretion of formidable extent, not merely in matters of contract, and even at the end of the sixteenth century Scaccia could take a restrictive view of the prince's authority. The prince might, indeed, change the positive law, but he could not ignore rights founded upon it, and if the distinction between pact and stipulation were unknown to the law of nature, it was no more contrary to the law of nature to require that a legally enforceable promise should be made in a certain form than to require that a testament be proved by seven witnesses rather than by two or three. 4 In France, the adoption of the principle that solus consensus obligat had rendered this method of enforcing bare promises obsolete by the second half of the sixteenth century, 5 but it was not yet wholly obsolete when Connanus was writing, and it is possible that a certain distaste for the manus regia was one of the motives which led him to attack the logical basis of the doctrine that the prince might intervene to enforce naked pacts by denying that a naked pact was obligatory in the law of nature. In the law of nature, an obligation was raised not by a simple promise, but by Synallagma. His doctrine is discussed in detail below by Professor Petronio and Professor Gordley. 6 The latter points out that whether or not Connanus, and his master Alciatus, who had provided him with his definition of Synallagma , may properly be accused of mistranslation, the schoolmen had already found it difficult to hold the non-performance of a merely gratuitous promise a breach of that commutative or corrective justice which Aristotle is treating in the famous passage upon synallagmata in the fifth book of the Ethics. Since one who is disappointed of an expected benefit is no worse off than he was before, the non-performance of a promise to give causes no new inequality between the parties. Indeed this difficulty had led Aquina's commentator Cajetanus to anticipate Connanus, by holding that if it were not an offence against justice to refuse another a promised benefit, a promise to give was not properly obligatory, even in conscience. Connanus was arguing against the common opinion of the jurists, and he did not succeed in convincing the natural lawyers of the following century, but the doctrine of Grotius, whose refutation of him is generally taken to have settled the question for posterity, shows that if it be a necessary condition for the development of a general law of contract that bare promises should be enforceable, it is not a sufficient one. Grotius is treated in detail below by Pro4 5 6

I. Birocchi, Tra tradizione e nuova prassi giurisprudenziale, below. J. Bart , Pacte et contrat, below. Sinallagma e analisi strutturale; Natural law origins of the common law of contract.

Introduction

fessors Feenstra and Petronio. 7 The distinction between the stipulation and the simple promise is ignored in the province of Holland, as contrary to germanica fides. Any promise made for a reasonable cause is obligatory, whatever form of words the parties use, and whether or not they be present together. Promises, however, may be either written or verbal, and either expressed or implied by the law. Promises implied by the law may be implied with a contract, or without. The distinction between the different contracts of the ius commune, and even between nominate and innominate contracts, is not obsolete. A n express promise, indeed, is always enforceable, and it is not material that it alters the nature of the contract, but in so far as the parties have not expressed a contrary intention, the different contracts are still governed by different rules. Promises differ from contracts even in the law of nature. As the positive law of Holland imposes obligations upon the parties which they have not expressly assumed, so, in the law of nature, those who conclude a contract are subject as a matter of justice to certain obligations which vary with the character of the contract, though they have not promised to perform them. This, indeed, is the true reason of the distinction, in Justinian's compilations, between nominate and innominate contracts. The former, by their more frequent use, had acquired a certain force and nature which might be sufficiently understood from the name though nothing were said, which is why the actions by which they were enforced bore the name of the contract upon which they lay. If the agreement sued upon were not of any regular type, the defendant could be bound to no more than he had expressly undertaken, and it would therefore be enforced not by a common and customary action, but by an action which was framed upon the terms of the particular agreement, and was therefore termed an actio praescriptis verbis. 8 The parties to an agreement rarely express their obligations so minutely as to leave no room for implication, and may sometimes have dealt together without any express agreement at all. If in modern practice the naked pact may be enforced officio judicis, or is deemed a pactum legitimum, 9 or has the force of a stipulation, the implied obligations of the parties still depend upon the type of contract which they have concluded. Moreover, though the Roman categories may be positive, the principle is not. What the parties are obliged to in justice also varies with the character of their agreement. In his Inleidung, Grotius follows the Roman categories as closely as his subject-matter will admit. Bills of exchange are dealt with under mandate, though they are mandates of so special a character that they require a separate section, as indeed do contracts for carriage by sea, and for the employment of 7 8 9

Pact and Contract in the Low Countries; Sinallagma e analisi strutturale. De Jure Belli ac Pacis I I , 12, 3, 2. I. Birocchi, La questione dei patti, below, at [pp. 2 0 - 2 1 ] .

10

Introduction

seamen, which are undoubtedly contracts of location, but have many incidents which other contracts of location do not. The contracts of 'admiralty', for mutual defence between masters of ships, and of maritime joint venture, are categorised as societas , but are distinct forms of it. He is, however, obliged to admit that the law of Holland has one nominate consensual contract unknown to the Roman law: insurance, which is a modern invention. 10 His less eminent brother William, who followed his general doctrine, divided the nominate contracts of the law of Holland into the old and the new. The new were cambium, assecuratio, and societas classis navalis. 11 It may be held that in the modern law, a type of agreement which has acquired a certain force and nature by usage will qualify as a distinct nominate contract, though it be not mentioned in Justinian's texts. The relationship between promise and contract caused similar difficulties to the English common lawyers, though they had never developed a theoretical typology of the Roman type. The distinction between the enforceable 'contract' and the unenforceable verbal 'covenant' had depended not upon any theory of obligation, but upon the limitations of the action of debt, which lay only for certa pecunia or certa res (whether in the latter case it were more properly an action of detinue than of debt was a doubtful question). Though there are some signs, in the fourteenth century and the earlier years of the fifteenth, of an opinion that debt lies only for money due under certain kinds of agreement, it was settled in the second half of the fifteenth century that whether an agreement were a contract or what the common lawyers had learned from the civilians to term a naked pact was to be taken to depend not upon the type of agreement under which the debt was alleged to be due, but upon whether the alleged debtor had or had not quid pro quo, which was to be deemed a unitary concept in principle, even if there were cases in which it was not altogether easy to reconcile principle with settled law. 1 2 Similarly the jurisdiction which the ecclesiastical courts exercised, by usurpation in the view of the common lawyers, over the contracts of laymen was founded upon the non-performance of promissory oaths, or of that pledge of faith which might be deemed equivalent to an oath, and the guilt of perjury did not vary with the type of agreement. 13 A n action for damages for the non-performance of a promise, as distinct from the failure to pay a promised sum or to deliver promised goods, was first allowed at the beginning of the sixteenth century, but by the second half of the same century it was settled that whether an action lay for the non-performance of a promise depended neither upon what was promised, nor upon the type of 10 11 12 13

Inleidung, I I I , 13, 20, 22 - 24. Isagoge ad praxin fori batavici, I, c. 6, xxvii - xxxi. J. Barton , The medieval contract, below. R. Helmholz , Contracts and the canon law, below.

Introduction

agreement of which the promise which the defendant had broken formed a part, but upon whether the promise were supported by a 'consideration'. 14 This requirement, like the requirement of a cause in the civil law, could be justified upon the ground that verbal promises are often made without deliberation, 1 5 but unlike a promise sine causa, a promise made without consideration could not be supported as a donation if it were proved to have been deliberately made. The intention of the parties was a question of fact, and questions of fact were for the jury, whose verdict was in practice immune from challenge, for the procedure of attaint which was the only means of overturning it was at once so penal and so cumbersome that it had practically fallen out of use. To hold that want of consideration merely raised a rebuttable presumption of error or inadvertence would have been to place the distinction between actionable promises and promises not actionable in the breasts of the jury, for since, in the sixteenth century, there was nothing which could be termed a law of evidence, it was of little consequence upon whom the burden of proof lay, and in England, there were no special requirements of form for donations. In principle, however, an assumpsit would lie upon any promise not merely gratuitous. Not many years after it had been finally settled that a promise was actionable, Christopher St. German put a case. I sell another a rent issuing out of my land. From ignorance of the law, he pays his money without insisting upon a grant under my seal. He may be helped by a subpoena. Had I said that I would grant him the rent before a stated day, an action on the case would have lain against me at common law had I refused to do so. 16 A sale is undoubtedly a contract. It does not follow that it is a promise. If I sell another a rent, he will no doubt expect me to grant it to him in due form. Indeed, I am obliged in conscience to do so, and a court of conscience may very properly compel me, since the common law gives an action for goods sold, but no action for a rent. If, however, I have not stated that I will make him a grant, I have not promised, and the new action on the case upon a promise will not lie. Thirty years later, counsel could assert in argument that every contract executory is an assumpsit in itself, 17 and it was settled by the end of the century that on all considerations in fact, such as the lending of money, although there may be no express assumpsit an action on the case lies on the implied assumpsit.18

14

D. Ibbetson, Consideration and the theory of contract in sixteenth century common law, below. 15 Sharrington v. Strotton (1566) 1 Plowd, 298, at 308 - 309, per Bromley and Plowden. 16 A Little Treatise concerning Writs of Subpoena, ed. J. A . Guy, Seiden Society Supplementary Series V I , 108 - 109. 17 Norwood ν. Read (1558) Plowd. 180, at 182.

12

Introduction

But it was still not wholly clear that this was universally true. Anderson C. J. had observed in 1586 that an assumpsit would lie for the redelivery of goods bailed at will, without proof of an express promise to redeliver them upon request, 19 but as late as 1635, Berkley J. ruled at Nisi prius that a promise to redeliver must be proved: if nothing were said, the bailor's only remedy would be detinue , or an action for the conversion of his goods. 20 If a contract might be deemed an assumpsit in itself, whether the promise for the non-performance of which the creditor might sue were a promise which the debtor had made, or a promise which the law would impute to him was a debatable question. In 1677, the Statute of Frauds provided that no action should lie upon a promise to answer for the debt, default, or miscarriage of another without written evidence. A benefit conferred upon another was a good consideration to support a promise of payment, but it was arguable, at least, that it was no quid pro quo to raise a debt, and that though an assumpsit would lie upon the promise, debt or indebitatus assumpsit would not lie for the money. If the party who had promised payment were not indebted, because he had received no quid pro quo, it might be taken to follow that whether the party who had received the benefit had promised or not, he was indebted, because he had received quid pro quo. Hence, any promise to pay for a benefit conferred upon another was a promise to answer for another's debt, and unenforceable without written evidence.21 This doctrine was energetically repudiated by Holt C. J. When counsel argued before him and Powell J. in a case upon this section of the statute that the party who receives goods which the plaintiff has hired out is liable for the hire upon a contract in law, they replied that there was no such thing as a contract or promise in law, though there was such an expression in some books. 22 On another occasion, Holt had been even more emphatic. To the suggestion that to draw a bill of exchange is a promise in law to pay the amount of the bill if the drawee do not, he replied that a promise in law was a metaphysical notion, for the law makes no promise but where there is a promise of the party. This did not prevent him from holding, after argument, that to draw a bill was an actual promise to pay it upon the drawee's default. 23 There was room, however, for more than one opinion. Carthew, in his report of this latter case, takes it as an authority in favour of what appears to have been the argument of counsel 'that the law did raise the promise upon the 18 Manwood v. Burston (1588), cited infra, D. Ibbetson , Consideration and the Theory of Contract in Sixteenth-Century Common Law, n. 174. 19 Fooley and Preston's Case 1 Leo. 297. 20 Evans v. Yeoman Clayt. 53. 21 Anon (1682) 2 Show. 184. 22 Burkmire v. Darnell (1704) 6 Mod. 248, at 250. 23 Starke v. Cheeseman (1699) 1 Ld. Raym. 538.

Introduction

custom of merchants', and omits Holt's observations. 24 For Blackstone, any obligation which will be enforced against the parties, though they have not undertaken it expressly, is implied by the law. My obligation to pay at a reasonable rate for goods or services for which I did not agree a price in advance is one of those contracts which 'arise from this general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires', in the same manner as my obligation to repay money not due which was paid to me in error, or which I have obtained by fraud or extortion. The workman is liable for his want of skill, as the sheriff is liable if he fail to execute process, upon the contract implied by reason and construction of law by which 'everyone who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill'. From this, he takes it to follow that the defendant who has contracted to do work which is not within the scope of his common business or profession is not answerable for want of skill unless he have expressly promised to perform his work skilfully, 25 though his only authorities for this proposition are two observations in the reports that before the statute of 5 Eliz. 1 c. 4 a man might follow a trade to which he had not been apprenticed, but would be liable to an action on the case for bad work, 2 6 which we are apparently to take a contrario sensu: one who does not follow a trade is not answerable for bad work. If it may be argued that to place my obligation to pay for goods or work which I have ordered upon the same foot as my obligation to repay money which I have obtained by fraud is to confuse an obligation founded upon a tacit but genuine consent with one imposed upon me without my consent, the same criticism may be levelled against Pufendorf , who holds that I may be bound by a tacit pact, if my consent be not expressed, but may be clearly inferred from the nature of the transaction and from other circumstances. I am bound by a tacit pact to pay for a meal which I order at an inn, though nothing be said of payment when I order it, for it is notorious that innkeepers are not accustomed to provide refreshment gratis. I am also bound by a tacit pact to indemnify a negotiorum gestor, for it is to be presumed that I would have consented to do so expressly, had I known of his intervention. The obligations of tutor and pupil are also founded upon a tacit contract. 27 If the obligation of the guest at an inn to pay for his dinner be founded upon an implied consent, the same may be deemed true of the obligation to a negotiorum gestor, though one who would have consented had he known the facts has certainly not consented in 24

Carthew 509. 3 Bl. Comm. 161 - 165. 26 The Ipswich Tailors' Case (1615) 11 Rep. 53a at 54a; R. v. Kilderby Saund. 311 at 312 (the author's reference, 1 Saund. 324, is mistaken). 27 De lure Naturae et Gentium, I I I , 6, 2. 25

(1669) 1

14

Introduction

fact, and even of the obligations of tutor and pupil, though the pupil does not choose his tutor, and the tutor cannot refuse his office. As the obligations of the parties differ with the type of contract in the law of nature as well as in the positive law, so, whether those obligations which will be enforced against the parties though they have not in terms accepted them be founded upon their tacit consent, or imposed upon them without their consent is a question equally independent of the distinctions between Roman contracts and between English remedies, but a question too large to be discussed in an introduction. I am under particular obligations to Herr Herwig Unnerstall (University of Tübingen), who has undertaken the tedious and thankless duty of reducing the conventions employed by an assortment of writers of different nationalities to uniformity for the benefit of the printer, and has discharged it with admirable diligence and accuracy.

JOHN B A R T O N

The Medieval Contract For the medieval common lawyer, "contract" was an ambiguous term. A n action of debt may lie upon a contract, and this proposition is sometimes reversed: if debt lies, there is a contract. A man who brings suit upon two "obligations" - sealed writings by which the defendants' testator has acknowledged that he is indebted to the plaintiff - is said to demand the debt by divers contracts. 1 It is more usual, however, to distinguish debt on contract from debt on obligation. In debt upon obligation, the defendant must either deny that he had executed the deed, or prove, by another deed, that the sum which he had confessed to be due was paid, or was due only upon a condition, which had not happened.2 In debt on contract, he might disprove the debt by his "law": by his own oath, and the oaths of eleven compurgators. Sometimes, reporters use language which suggests that a defendant who cannot disprove the debt by his law is not charged upon a contract. We hear of a plaintiff who brought debt part upon contract and part upon a lease, and was barred by his debtor's law as to the contract. 3 There was no wager of law in debt for the arrears of a rent reserved upon a lease of land. The law was admissible in an action for a weekly sum payable for the defendant's board, and the reason, we are told, is that such an arrangement n'est que come contract. 4 However a lease, if no contract in one sense, was a contract in another. If land were leased by indenture, and the landlord declared in debt for rent arrear, a variance between the declaration and the deed which would be fatal in an action of debt on obligation would not necessarily abate the writ, for the action was brought on the contract and the deed was merely proof of it. 5 If a creditor took an obligation for his debt he could no longer sue on the contract, 6 but if the contract were made by indenture under the seals of the parties he might either declare upon the indenture, or declare upon the contract and use the indenture as evidence.

1

M. 41 E. 3, Double plee 78. For a general account of the properties of the "obligation" see A. W. Β. Simpson, A History of the Common Law of Contract, the Rise of Assumpsit, Oxford 1975, 88 2

126.

3 H. 21 H. 6, Dette 44. M. 19 H. 6, 10. pl. 15. 5 M. 44 E. 3, 42, pl. 46; Long Quinto 43, but see P. 4 H. 6, 17, pl. 1, contra. 6 P. 4 H. 6, 17, pl. 1; P. 3 H. 4, 17. pl. 19; T. 11 H. 4, 79, pl. 14. 4

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John Barton

The latter course was an imprudent one. The defendant could not wage his law against the indenture, but it was at least arguable that if he were sued on the contract he would be admitted to his law notwithstanding the indenture. 7 That it should have been possible, however, shows that "contract" had a substantive as well as a merely procedural meaning. A contract was not less a contract because it has been concluded by writing under seal, though the writing might give the creditor a better remedy. Until the last years of the fifteenth century, however, it is very much easier to say what a contract is not than to say what it is. A contract differed from a grant of a debt. In the earlier years of the fourteenth century, it could already be said that no grant of a debt could be good without deed, 8 but this was not yet a proposition upon whose truth a prudent lawyer would stake his client's case. In 1356 a former bailiff of the defendant's manor declared that for the service which he had done the defendant, the defendant had granted that he would be bound in a hundred shillings to be paid at a certain day, and that the money had not been paid. Fifhide, for the defendant, objected that the plaintiff had not shown a deed, but was careful to stress that he was pleading to the count, not to the action. If an exception to the count were overruled, the judgment was merely that the defendant answer over, but if the exception were to the action, peremptory judgment would be given for the plaintiff. If, however, the defendant were pleading to the count, he must give the plaintiff a better count. Fifhide suggested that the plaintiff might have counted that the defendant had hired him to be his servant, for which cause the defendant granted him the hundred shillings for his salary and labour. Skipwith, for the plaintiff, answered that his client could have no other count, for the grant had been made after he had done his service, and Fifhide was therefore pleading to the action. Fifhide thought it more prudent to join issue rather than to demur. 9 It would seem that he was not alone in his opinion. Whatever views might be expressed obiter from the bench, until the last years of the century many defendants who were sued in debt upon grants without deed preferred to wage their law rather than to risk demanding judgment whether they were bound to answer. 10 Thereafter such actions cease to be brought at Westminster, though debt would still lie upon a concessit solvere in London, and in some other municipal jurisdictions.

7 M. 44 E. 3, 42, pi. 46. per Candish, sjt. This seems also to be assumed in M. 39 H. 6, 34, pi. 46, where it is said that the custom of London is to the contrary. « 11 & 12 E. 3 (Rolls Series) 587. 9 P. 29 E. 3. 25. See also 3 & 4 E. 3, Iter North. (Seiden Society xcviii) 473, where a bill of debt against executors upon the "grant" of their testator to pay the debt of a third party was held good. 10 S. F. C. Milson, Account Stated in the Action of Debt, Law Quarterly Review lxxxii, 534, at 539.

The Medieval Contract

17

A contract also differed from a covenant. The English, or law-French "covenant" is the Latin conventio. In the middle of the thirteenth century, the actions of debt and covenant had much resembled one another. The plaintiff might offer to prove his demand either by a writing under the seal of the defendant, or by suit. 11 If he produced a writing, the defendant must answer the writing. If he offered suit, then, in accordance with the maxim that lex vincit sectam, 12 the defendant might disprove the debt or the covenant by his law. 13 For reasons which are not altogether clear, 14 it had come to be held by the early years of the fourteenth century that a covenant could be proved only by a sealed writing. A debt remained, technically speaking, provable by suit, but the plaintiffs tender of suit became merely formal. In 1344 the Common Pleas effectively discouraged any further experiment by holding that the plaintiffs suit was not examinable, but that the defendant, by praying that it be examined, had tendered an inadmissible issue, and giving peremptory judgment against him. 1 5 Since the action of covenant was the only remedy for the non-performance of an obligatio faciendi, a covenant, in the stricter sense, is an agreement to do, as distinguished from an agreement to give. The old writ de plegiis acquietandis, which lay at the suit of the surety against the principal debtor, was held to be in the nature of covenant rather than of debt, because the surety recovered not the debt which he had guaranteed, but the sum which he had been obliged to pay. This had practical consequences. The statute which gave arrest on mesne process in debt did not extend to the writ de plegiis acquietandis. 16 The same agreement, however, might be both a covenant and a contract. If I were to retain J. S. in my service for a year at an agreed wage, he might have an action of debt for his wages at the year's end though, as Hankford J. pointed out in 1410, before the enactment of the Statute of Labourers 17 his covenant to serve was no more enforceable without deed at his employer's suit than any other covenant would have been, and for this mischief was the statute ordained and action given upon this. 18 11 The suit which the plaintiff tendered were properly witnesses to the fact, since it was improper, according to traditional ideas, to put the defendant to his law upon the simplex loquela of the plaintiff. By the fourteenth century, it was recognised that a tender of suit was ordinarily mere form. 12 Bracton, fo. 315 b. 13 Bracton, fo. 320. 14 See D. Ibbetson, Words and Deeds: the Action of Covenant in the Reign of Edward I, Law and History Review iv, 71 and R. C. Palmer , Covenant, Justicies writs, and Reasonable Showings, American Journal of Legal History xxxi, 97. 15 M. 17 E. 3, 48, pi. 14. H. 43 E. 3, 1. pi. 2; H. 48 E. 3, 29. pi. 15. 17 25 E. 3, st. 2, c. 1. 2 Barton

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It is indeed sometimes suggested in argument that covenant is the more proper remedy for the non-performance even of an agreement to pay a sum certain in money. The reason seems to be that an obligation was ordinarily framed as a confession that the sum secured was due. In the last years of the twelfth century, the author of Glanvill treats a deed as proof of a mutuum. 19 That it should be incontrovertible proof is not at this date particularly remarkable, for the King's court still makes extensive use of formal proofs, and the proof which the law requires is ordinarily conclusive. In the later middle ages, it is accepted that it is the writing which creates the debt. The reason that a creditor may no longer sue upon the contract if he has taken an obligation for his debt is that if he might, the debtor would be liable twice over, once on the contract and once on the obligation. 20 Hence in the early fourteenth century it is already being suggested that if the deed which the plaintiff produces contain, not a confession that the money is due at the date of the instrument, but an undertaking by the defendant that he will pay it at a day to come, the plaintiff's remedy is covenant for the non-performance of this undertaking, not debt for the money due. One of the reporters of the Kentish eyre of 1313 - 1314 was of opinion that a defendant sued for rent due under a lease by indenture might have abated the writ had he objected that it was a writ of debt, and that the writing by which the plaintiff sought to recover the debt was a writing of covenant, which was no obligation. 21 As late as 1396, in an action of debt on an indenture by which the plaintiff was to take the daughter of the defendant to wife, and the defendant was to pay twenty pounds to the plaintiff, Gascoigne, for the defendant, objected that the words quod solvat were no words of obligation, and that the plaintiff should have sued in covenant. The answer of the court was that enough had been shown, for there was a contract precedent which gave the action: as if you buy a horse for payment to me, by reason of the contract the debt is due. 22 The objection was evidently not thought frivolous: indeed, the court seems almost to accept by implication that a deed upon which an action of debt is brought must contain a confession of a debt but a confession of a contract will be good enough. As late as 1482 Vavisor could argue that no action of debt lies on a "promise" under seal to pay a sum of money, for "promise" is no word of obligation. He was moving in arrest of judgment after verdict for the plaintiff, so that his client had nothing to lose, and his argument did not much impress the court. Catesby J. said that he knew of no better word of obligation. 23 18

M. 11 H. 4,23, pi. 46. at 24a. Lib. X , cc. 3, 12. 20 Thus the debtor who was unwise enough to give an obligation for a debt already due by obligation or by matter of record would have to pay twice over: T. 11 H. 4, 79, pi. 21. 21 Eyre of Kent, 6 & 7 E. 2, Seiden Society xxvii, 33, at 34. 22 T. 19 R. 2, Dette 166. 19

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Although there seems to be no case, at least in the printed books, in which a writ of debt for money which the defendant had covenanted to pay was actually abated because the deed proved a covenant but not a debt, these observations have been taken as evidence that for the medieval common lawyer a "contract" was not an agreement, and one particularly vigorous statement of the distinction has attracted much attention from modern commentators. In 1458, a plaintiff in the Common Pleas declared that it had been agreed between himself and the defendant that he should take the daughter of the defendant to wife, and that the defendant should pay him one hundred marks. The marriage had been duly celebrated, but the hundred marks had not been paid. Danby J. held against the plaintiff, because this was neither contract nor accord, but merely covenant, for the words concordatum est signified neither contract nor accord, but merely covenant. Suppose an action brought upon an indenture drawn in these terms: Concordatum est quod praedictus J. accipiet in uxorem A. filiam praedicti S., et praedictus S. debet ei C marcas. No action of debt would lie upon this deed, because it contained no word of grant, as, if he had said pro qua materia concessit se dare C marcas , he might perhaps have had an action of debt on this deed by the word concessit , but in the principal case there was no word to give an action of debt, and if debt would not have lain had the agreement been in writing, a multo fortiori when it was by parole. 24 Danby, however, did not consistently hold that an agreement to pay is no contract. In 1470, a plaintiff in an action of debt declared that the defendant had put his wife and son at table with the plaintiff for three years, and the plaintiff had demised the defendant a chamber for his wife and son, paying for their chamber and their board 6s. 8d. weekly. Choke J. held the count defective, for the plaintiff was demanding a single sum as a debt due under two distinct contracts. The fault could be cured by amendment, if he declared that it was agreed between him and the defendant that the defendant's wife and son should have their chamber and their board, paying 6s. 8d. weekly. Danby agreed, and the plaintiff amended his count accordingly. The form of words suggested, accorde se prist , is the same to which Danby had objected so violently in the earlier case.25 There is, moreover, no reason to think that it was generally held in earlier times that an agreement to pay money is no contract. The plaintiff in debt who declared that a covenant was made between himself and the defendant did indeed invite the objection that he had alleged a covenant and shown no deed, 23 24 25

2*

T. 22 E. 4,21, pi. 49. M. 37 H. 6, 8, pi. 18, at 9a. P. 9 E. 4, 1, pl. 1.

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but it is not an objection which ordinarily succeeds.26 So, debt might lie on a "promise" of a sum of money for the plaintiffs service. 27 In 1306, a plaintiff had actually recovered upon a "promise" to pay him a sum of money if he would marry the daughter of the defendant. 28 In 1429, Vampage argued that if an action on the case would lie at common law against a gaoler who had allowed a prisoner taken in execution to go at large, this was a proof that no action of debt could lie against him for the amount of the condemnation, for the one action commences by contract and the assent of the parties, and the demand is a duty, and the other commences by wrong and without assent of the parties, and the demand is to have a wrong punished, which is prima facie for an uncertain punishment. 29 This, however, does not exhaust the interest of the principal case. Ashton J. held that the plaintiff should have sued in the spiritual court, for the marriage was a matter for the spiritual jurisdiction and the accessory should follow the principal, for had the plaintiff refused to marry the defendant's daughter he could not have been compelled to do so by the secular law, but only by the law of Holy Church. Prisot C. J. held the declaration insufficient because it was not founded upon a contract, 30 as upon a sale, as if a man buy a cow or a horse of me for twenty shillings, now I shall have a good action of debt against him by reason of his sale, and yet it may be that the buyer has not quid pro quo, for it may be that I have no horse, and yet I shall have a good action of debt, for it is no plea for him to say that I had no horse at the time of the sale, but if I have the horse he may take it out of my possession by reason of the sale. And I may have a good action of debt against a man by reason of a sale though I have the thing and he cannot take it by reason of the sale, as if I sell a man the manor of D., of which I am seised, for a hundred pounds, I shall have a good action of debt against him upon this contract, and yet by this contract the property in the manor is not in him, and he cannot enter on the manor by reason of the contract without livery of seisin, and so I shall have an action of debt though I have no manor, and thus a contract is sufficient matter to maintain an action. So I may have an action of debt upon a retainer with a man to be of his counsel, but in this case I must declare in my count how I was with him, or was willing to give him counsel had he demanded it. As if a servant be retained with 26 11 & 12 E. 3 (Rolls Series) 587; P. 3 H. 6, 42, pi. 13. 27 P. 7 E. 3, 12, pi. 2. 28 M. 34 E. 1, Dette 159. 29 M. 7 H. 6, 5, pl. 9, at 6b. 30 The Vulgate text of 1678 has "covenant", which makes nonsense of the argument. Fitzherbert in his Abridgment (Contract, 1) has "contract". The only manuscript which I have consulted uses the ambiguous contraction ct. throughout, which may explain the Vulgate reading.

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me, when he has done his service he will have a good action of debt against me, but he must declare how he was in my service during the time, and though this be not a mere contract, yet it is a retainer, and there is quid pro quo, and he shall have nothing until he has done his service. In the case at bar, however, the plaintiff had not declared upon a mere contract, but only that accorde se prist, so that it seemed that this action was not maintainable. Davers J. held for the plaintiff. Though this were not a mere contract, yet it was the same in effect, for the agreement was that the plaintiff should take the defendant's daughter to wife, in which case the defendant had quid pro quo, for the defendant had been charged with the marriage of his daughter, and by the espousals he was discharged, and so the plaintiff had done the thing for which the sum was to be paid: as if Davers were to say to a man that if he would carry twenty quarters of corn to Prisot at G. he should have forty shillings, if he carried the twenty quarters he would have a good action of debt for the forty shillings, though the thing were not done for Davers, but by his order. So here, the plaintiff had shown that he had performed the espousals, and therefore a good right of action had accrued to him, but it would have been otherwise had he not performed the espousals. Moyle J. also held for the plaintiff. The objection that the action sounded in covenant was not to the purpose when the thing was done. As if I retain a carpenter to build a house, who is to have forty shillings for the building of it, if he make the house he will have a good action of debt against me, and yet this sounds in covenant, for if he will not make the house I shall have no action against him without specialty because it sounds in covenant, but when he has done the thing, then an action has accrued to him to demand the duty, for when the thing is done this suffices for him to maintain his action. As if I say to a surgeon that if he will go to one J., who is sick, and make him safe and sound he shall have a hundred shillings, he will have a good action of debt against me for the hundred shillings, and yet the thing is for another and not for me, so that I do not have quid pro quo, but the same in effect. So here, when the defendant had promised the plaintiff a hundred marks to take his daughter to wife, which the plaintiff had done, the action was maintainable. Prisot C. J. concluded the discussion with the observation that that was a good case to prove the case at bar, as was the case which Davers had put of the carriage of corn, but it must now be seen whether there were any difference between them. With that, the case was adjourned, and unhappily we hear no more of it. For Prisot, debt lies upon a "mere contract", whether the defendant have quid pro quo or not. It will also lie upon a retainer, but only if the defendant have quid pro quo. According to Fitzherbert, 31 who seems to have used a 31

Contract 1.

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report which differed from the Vulgate text, his reason for holding against the plaintiff was that he had shown neither a contract nor a retainer, but a mere agreement. Davers and Moyle are willing to hold that a quid pro quo will be sufficient to give the plaintiff an action in any case whatever - if the plaintiff have done what he was to be paid for, the objection that the action sounds in covenant is beside the point - though Moyle seems to distinguish between a benefit to the defendant himself, which is properly a quid pro quo, and a benefit conferred upon a third person by the defendant's order, which is not strictly a quid pro quo, but has the same legal effect as if it were. Prisot appears to accept that the cases which Davers and Moyle have put in argument are, at least, not clearly bad law, but to question the general principle of which they are said to be applications. It is a principle which is not to be found in any earlier reported case, though the idea that a quid pro quo might validate an act which would have been invalid without it was not new. Tenant in tail could not ordinarily prejudice his heir, but it was arguable that if a stranger had right, and tenant in tail granted him a portion of the land, or a rent out of the land, in return for a release of that right, the heir, who took the benefit of the release, would be bound by the grant, for he had quid pro quo.22 The grant of a parson would not bind his successor unless it were made with the consent of patron and ordinary, but if his title to a portion of tithes were disputed, and to settle the dispute, the claimant granted him the tithes, and he granted the claimant an annuity, his successor, who had the tithes, must pay the annuity, for he had quid pro quo.33 The law was the same, and for the same reason, if the master of a college made a similar grant without the consent of the brethren. 34 In two cases, nominally of 1470 and 1476,35 the Common Pleas had to determine whether, if the grantor of the tithes should subsequently collect them, the grantee might stop payment of the annuity, upon the principle that cessante causa cessât effectus. Littleton and Brian held that he might not, for the taking of the tithes was a wrong for which he might have a remedy. Choke held the contrary. In his view, there is a distinction between an executed and an executory cause. If a man give me an acre of land, and I grant him an annuity for the acre, he shall have the annuity though he enter upon the acre, for the cause was executed; but if a man grant that he will be of my counsel, and I, by an indenture reciting the grant, grant him an annuity for the same cause, and he then refuse to give me counsel, the annuity is extinguished, for the cause is 32

M. 6 E. 3, 56, pi. 65; T. 44 E. 3, 21, pi. 24. » 16 E. 3, I I (Rolls Series) 587. 34 T. 39 E. 3, 17. 35 T. 9 E. 4,19, pi. 22; M. 15 E. 4, 2, pi. 5. The facts and the parties differ in the two reports, but the arguments are so nearly identical as to justify a suspicion that they are two variant reports of the same case.

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always executory. If a man hold of me by the service of making a new pale about my park, taking the old pale, and I will not permit him to take the old pale, he need not make the new. 36 If a man grant that I may have a gutter over his land, and I grant him an annuity for the gutter, I may cease to pay the annuity if he stop the gutter. 37 Littleton agreed that the case which Choke had put, of an annuity granted for counsel, was good law, and the same would be true of any other corporal service. The two last cases were good law also, but the reason was that no action would lie for the old pale in the first case, or for the stopping of the gutter in the second. This Choke denied. 38 The reporter of the first case adds a reference to a decision of 1322,39 in which a right of pasture was granted in return for a way, and in a replevin for distraining the cattle of the grantee, a replication that he had stopped the way was held good. The majority of the judges inclined against the defendant, but for our present purposes, the arguments are of more interest than the decision. The whole court are agreed that there is a difference between a grant for something received, and a grant for something to be done or not to be done. Choke was obliged to admit that had the defendant granted an annuity merely for the tithes which the plaintiffs predecessor had granted to his, he would have had no answer to the plaintiffs action, but he felt able to construe the grant as a grant not merely for the tithes, but for the peaceable possession of them, and on that ground, he held that the annuity would be extinguished if the grantee disturbed the grantor's possession. In the second place, if the question be whether a cause be sufficiently "executory" to entitle the party who has not received it to refuse to perform his own part, it is a strong argument in his favour that he has no remedy by action to recover it. It is not wholly clear that these two propositions are distinct. The first reported action of debt in which it was held material that the defendant had quid pro quo was brought in 1338 by an attorney, who declared upon a "covenant" by which he had been retained at an annual fee. To the objection that the plaintiff had shown no deed, Shareshull J. answered that if he had counted simply of the grant of a debt he would not have been received without a specialty, but in this case the defendant had the plaintiffs service for his allowance, of which knowledge might be had, and had quid pro quo.40 There 36 T. 9 E. 4, at 20b. The case is P. 32 E. 1, Avowrie 245. In M. 15 E. 4 at 4a, where this case is put in argument by Catesby, he says that it is reported in the Liber Assisarum. If this be true (it does not appear in the printed copy) we must take the true date to be 32 E. 3. 37 Catesby says in M. 15 E. 4 at 4a that this case has been adjudged. I have not been able to find the report. 38 T. 9 E. 4, at 20b; M. 15 E. 4, at 4a. 39 The reference in the printed edition is to M. 15 E. 4. The case is M. 15 E. 2, 472. 40 11 & 12 E. 3 (Rolls Series) 587.

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was an excellent practical reason for holding that no action would lie upon a retainer unless the plaintiff had done his service. Statute apart, if he had refused to serve, his employer's only remedy was to refuse to pay him. It could be argued a contrario that if the master had another remedy, the servant might claim his remuneration whether he had done his service or not. In 1312 Scrope contended that if an annuity were not granted merely pro consilio impendendo in the ordinary form, but the deed contained an express covenant by the grantee to give counsel, the annuity was payable though the grantee had refused to advise, and the grantor was put to his action of covenant for damages. He abandoned the point when he was reminded from the bench that if he wished to demur upon it he must first confess that his client had been asked for his counsel and had refused to give it, 4 1 so that a victory on demurrer would have been of little benefit to his client. If the grantor were then to bring an action of covenant, the grantee would be estopped by his confession, and the only question would be the amount of the damages. In the later years of the century it is accepted that even if the plaintiff sues upon a retainer by indenture, it is a good bar to his action that he has refused to serve, but in 1375 it is said that he may choose whether he will allege in his declaration that he has done his service, or declare generally and leave it to the defendant to plead that he refused to serve. 42 In this respect, the servant retained by indenture differs from the servant retained by parole, who must allege that he has done his service, and it is tempting to conjecture that it had only recently been settled that a plea that the plaintiff refused to serve would be good. Ordinarily, a plaintiff must allege in counting that he has performed every condition which he must perform to entitle himself to the thing demanded. A declaration in the traditional form will not necessarily be held bad merely because it might be open to objection if it were a new experiment, but if it has not been usual to allege that a covenant-servant has done his service, we may suspect that it was not formerly material whether he had. For Prisot, as we have seen, a quid pro quo might be necessary to give the plaintiff a cause of action, but it might not be sufficient, it the plaintiff did count on a retainer, and even in the last years of the century, some pleaders seem to have thought it best to allege a retainer, if the facts would bear it. As late as 1477, a plaintiff declared that he sold certain cloth to the defendant, and that the defendant retained him for a certain time ad aptandum et tondendum certain gowns and hoods. If the seller is to cut out the cloth for the buyer, the agreement may be stated as a sale of the cloth, and a retainer of the seller's services as a cutter. That this was the more prudent way of stating it seems to 41 P. 5 E. 2 (Seiden Society xxxiii), 1, at 4. There are four reports of this case. One of them (at 7) states that Scrope's objection was overruled. Another (at 5) states that he waived it, but does not give the reason. 42 H. 48 E. 3,2, pi. 6.

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have been, at this date, a somewhat conservative opinion. Catesby, who appeared for the defendant, objected that the retainer sounded in covenant, and submitted that no action of debt would lie on a retainer save for a labourer, to whom it was given by statute. The answer of the court was that this was a natural contract, for it well appeared that the defendant had quid pro quo.43 If it had still been usual to declare upon a retainer, Catesby would hardly have argued that this form of declaration was proper only for a labourer suing for his wages. His history, however, was gravely at fault. In the preceding century, actions of debt had been allowed without deed at the suit of a servant retained generally, 44 a bailiff, 45 a parker, 46 and an attorney, whether retained generally 47 or for a particular suit. 48 It is said in 1375 that if I hire a man to go upon my business to Rome, he may demand his hire at the common law, 49 and this becomes a standard example, 50 not because the proctor is no labourer, but because it shows that debt may lie for a service rendered beyond sea, if the contract be made within the realm. An observation of Thirning C. J. in 1411, that if I promise a man a sum of money to execute a release, and he executes it accordingly, he may have an action of debt for the money, has been taken as evidence that it was already law at the beginning of the fifteenth century that a sum of money promised for anything to be done by the plaintiff would be exigible if the thing were done, but unhappily this observation, taken in its context, is as ambiguous as it could well be. The action was brought by executors, who alleged that their testator was entitled to a corody in the abbey of which the defendant was abbot, and had surrendered his corody to the defendant, rendering twenty shillings a year, of which four pounds were in arrear at his death. The action failed, because no rent can be reserved without deed upon a disposition which operates by way of extinguishment, and in any event a corody must be surrendered by deed. If the testator in his life had brought an assize against the abbot for his corody, the abbot would have had no answer to the action. Skrene, who appeared for the plaintiffs, did at first attempt to argue that since the testator had in fact refrained from taking the benefit of his corody during his life, this was sufficient to support the action, but the court was so clearly against him that he 43 44 45 46 47 48 49 50

P. 16 E. 4, 10, pi. 3. H. 6 E. 2 (Seiden Society xliii), 32. P. 6 E. 3, 12, pi. 2. 17 & 18 E. 3 (Rolls Series) 623. 11 & 12 E. 3 (Rolls Series) 587. 15 E. 3 (Rolls Series) 345. H. 48 E. 3,2, pi. 6. H. 3 H. 6, 33, pi. 26.

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abandoned the point. 51 Unhappily it was a quite unarguably bad point on the pleadings as they stood, for this was not the contract which Skrene had declared upon. He had alleged that the defendant was to pay his clients' testator an annual sum for a surrender. He must therefore show a surrender. Thirning was speaking of a release of a right over the property of the releasee: a disposition of property in return for money. What view he would have taken of an agreement by the testator to make no use of his corody in return for an annual payment we cannot tell, for the question did not arise. On the other hand, Prisot C. J.'s opinion that an agreement to pay a marriage-portion was a mere covenant and no contract does not seem to have been widely shared. It was indeed questionable whether it might be enforced by action of debt at common law, but this was because the statute or reputed statute Circumspecte agatis had provided that the ecclesiastical courts should have jurisdiction of suits for marriage-portions unless lay fee were in demand. An action of debt was allowed despite objection in 1306.52 In 1349 a Master T. de S., who was presumably an ecclesiastical judge, consulted the judges upon the construction of Circumspecte agatis , and Thorpe took a distinction. If a contract be made between two men that one of them will take the daughter of the other to wife, and then the other will pay him ten pounds, in this case, if the ten pounds are to be demanded, they must be demanded in the King's court, for he did not promise the money with his daughter in marriage, but by covenant that he would marry the daughter, but if he had promised the money with his daughter in marriage, then it would have been demandable in court christian. 53 This distinction could have been easily applied only if those who arranged the preliminaries of a marriage had been accustomed to choose their words with the same precision as a pleader worded his declaration. If the parties had not expressed their intentions in the language of the law, an agreement to pay a portion might as readily be construed one way as the other, and whether the King's court would take jurisdiction of the cause would depend upon the manner in which the plaintiff framed his demand. It is perhaps for this reason that there seems to have been an opinion that the secular court should entertain the action only where the party could show a deed, 54 although an agreement to pay a portion might be deemed a contract. 55 A sealed writing would at least provide the court with conclusive evidence of the exact words used.

H. 12 H. 4, 17, pi. 13. M. 34 E. 1, Dette 159. 53 22 Ass. pi. 70. 54 The question was controversial. See P. 29 E. 3, 33a; P. 31 E. 3, Dette 8; T. 45 Ε. 3, 24, pl. 30. 55 T. 19 R. 2, Dette 166. 52

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In the later fifteenth century, it is taken for granted that the ecclesiastical court is the proper tribunal. 56 To argue that an action will lie upon a promise to pay a sum of money if the plaintiff will marry a named person is to argue that the sacrament may be bought and sold like a parson's tithe corn, 57 and were this argument accepted, Circumspecte agatis would be of very little effect. 58 This, at least, is the view of the bench. Some of the serjeants 59 and a reporter of the later years of Edward IV 6 ( ) suggest that the action will not lie at common law for another reason. The marriage of a third person is no quid pro quo to support the promise of the defendant. By this date, however, it is taken to be the quid pro quo which distinguishes the contract from what the common as well as the civil lawyers term the bare pact. It necessarily follows that if no action of debt will lie, though the plaintiff have performed his part of the agreement, what the plaintiff has done is no quid pro quo.61 A promise to pay a debt due from another had been held to be a grant rather than a contract. In the Eyre of Northampton of 1329 - 30, executors were put to answer a bill which alleged that whereas one Geoffrey was indebted to the plaintiff in twenty shillings for ten quarters of corn sold him, and the plaintiff had demanded the money in the presence of the defendants' testator, the defendants' testator had thereupon granted to pay the same money at a certain day for the same Geoffrey. 62 Such promises therefore ceased to be actionable when it came to be held that no action could lie upon a grant of a debt without

T. 14 E. 4, 6, pi. 3; T. 15 E. 4, 32, pi. 14; T. 17 E. 4, 4, pi. 4; H. 19 E. 4, 10, pi. 18; P. 20 E. 4, 3, pi. 17. 57 T. 17 E. 4, 4, pi. 4, per Choke and Littleton J. J.; P. 20 E. 4, 3, pi. 17, per Brian C.J. 58 H. 19 E. 4, 10, pi. 18, per Brian C. J. 59 T. 17 E. 4, 4, pi. 4, per Townsend. 60 T. 14 E. 4, 6, pi. 3; T. 15 E. 4, 32, pi. 14. 61 There is a decision in M. 7 H. 6, 1, pl. 1 which is sometimes cited to show that as early as 1429 the marriage of the defendant's daughter was no quid pro quo, but it is submitted that this is a misinterpretation of the decision. The action was not debt, but case, in nature of a writ of deceit. The plaintiff alleged that a bargain was made between himself and the defendant, that the plaintiff should marry the defendant's daughter, and that the defendant should enfeoff the plaintiff and his daughter of certain lands, which the defendant had refused to do, but had married his daughter to another. Paston J. held the writ bad for two reasons. It contained double matter: the marriage and the feoffment. The writ was bargainassent, and the plaintiff had declared that he was to have the defendant's daughter, but had not alleged that the defendant was to have quid pro quo, and therefore this could not be termed a bargain, for if I give or lend you my horse, this is no bargain. The point of the decision, it is submitted, is not that the marriage is no quid pro quo, but that there is no quid pro quo for the marriage. By laying the marriage of the defendant's daughter to another as the deceit for which he claimed damages, the plaintiff was treating the marriage as an advantage to himself, and if it were so taken, it was not an advantage for which he had parted or had promised to part with anything. 62 Iten North 3 - 4 E. 3, I I (Seiden Society xcviii) 476.

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deed. We do find a defendant surety waging his law without praying judgment whether the plaintiff should be answered as late as 1361,63 but the plaintiff was the Black Prince, against whom it might have been unwise to insist upon formal objections. If the declaration stated merely that a third person was indebted to the plaintiff, and the defendant promised to pay the debt, there would clearly be no quid pro quo for the defendant's undertaking. In 1371, a plaintiff counted that he had lent J. S. a hundred shillings, to be repaid upon a certain day. J. S. defaulted, and the defendant asked the plaintiff to accept him as his debtor and to give him time until next Michaelmas, when he would pay. The plaintiff could produce only a sealed tally, which was no deed. His action failed because, according to the court, the plaintiff, by accepting the defendant as his debtor, had not discharged the original debt, but the borrower remained debtor as he was before. 64 We might infer that it would alter the case if the original debtor were discharged. In the opinion of the judges, it did not. In 1422 another plaintiff alleged that he had recovered a debt of ten pounds in the Exchequer against one T., and the defendant promised that if the plaintiff would release execution against T., the defendant would become the plaintiff's debtor for the same ten pounds. The plaintiff had released execution accordingly. The reporter tells us that Cokayn J. held that the matter was not sufficient, and himself adds; Quaere , ex nudo pacto non oritur actio &c., issint est lopinion