CHAPTER 1

From Status to Contract and Beyond

SIR HENRY MAINE, ANCIENT LAW 163-165 (1864): "The movement of the progressive societies has been uniform in one respect. Through allits course it has been distinguished by the gradual dissolution of family dependency, and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. The advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. In Western Europe, the progress achieved in this direction has been considerable.

"The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to be me to be sufficiently ascertained, All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract."^[1]

[1] This does not mean that Maine underestimated the role of contract in feudal society (see 323).

The master who taught us that "the movement of the progressive societies has hitherto been a movement from Status to Contract," was quick to add that feudal society was governed by the contract. There is no paradox here. In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that can not be done now-a-days. They could contract to stand by each other in warfare "against all men who can live and die"; they could (as Domesday Book says) "go with their land" to any lord whom they pleased; they could make the relation between king and subject look like the outcome of agreement; the law of contract threatened to swallow up all public law. Those were the golden days of "free," if "formal," contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place.

For an evaluation and criticism of Maine's thesis, see Pollock's Notes Land R to the 1930 edition (190-193, 386-388); Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34,47 (1917) (Describing the development of status law, i.e., the standardizing of an increasing number of contractual relationships in which society has an interest. Status law in many instances increases "social enfranchisement," i.e., freedom in a positive sense. See further, Rehbinder, Status, Contract and the Welfare State, 23 Stan. L. Rev. 941 (1947); Macneil, The Many Futures of Contract, 47 S. Cal. L. Rev. 691 (1974); on Maine, see further P. Stein, Legal Evolution, ch. 5 (1980).

ADAM SMITH, LECTURES ON JUSTICE, POLICY, REVENUE AND ARMS 131 (Cannan ed. 1896): "Breach of contract is naturally the slightest of all injuries, because we naturally depend more on what we possess than what is in the hands of others. A man robbed of five pounds thinks himself much more injured than if he had lost five pounds by a contract. Accordingly in rude ages crimes of all kinds, except those that disturb the public peace, are slightly punished, and society is far advanced before a contract can sustain action or the breach of it be redressed. The causes of this were the little importance of contracts in those times, and the uncertainty of language."

-- 

We all repeatedly make contracts; they are a routine part of our lives. It is not always appreciated, however, that the perfection of the system of contract law, as we know it today, has been accomplished only during the last few centuries. To be sure, the term "contract" appeared early in the common law, but it had, in the beginning, a rather restricted meaning, including within its scope only a few of the transactions that we now would not hesitate to classify as contracts.^[2] Indeed, it was not until the end of the eighteenth century that the term came to acquire its modern connotation with its emphasis on the promissory basis of the contractual branch of civil liability.^[3] And, well into the next century, the law of contracts was still not fully prepared to cope with such important matters as the contract by correspondence,^[4] and the formulation of precise rules for the measure of damages.^[5] Even Adam Smith's contemporary, Blackstone, whose Commentaries were first published in 1765, thought, we are told, so little of the importance of contract that he covered it in little more than forty pages.^[6] 

Since the days of Blackstone, the law of contract has been gradually improved to meet the needs of modern society. Yet the idea of contract is still influenced by the principle of reciprocity, a notion that can be traced back to the early period of the common law and that has stayed with us ever since in the form of the consideration doctrine.^[7] "Contract," according to its famous definition in Termes de la Ley, a widely used text first published in 1527, "is a bargain or covenant between two parties where one thing is given for another which is called quid pro quo."^[8] To be sure, our notions of reciprocity have become quite sophisticated as the needs of society have required a broader and more liberal enforcement of promises, and "exceptions" to the consideration requirement have been introduced by case law to protect reasonable expectations. In addition, resort has increasingly been had to legislation broadening promissory liability.^[9] And yet, even if we take into account all of these changes, Anglo-American law has not yet caught up with its great rival, the civil law, in making promises generally enforceable (although it is coming closer).

"Group persistencies" (to use Pareto's term), so characteristic of the evolution of the common law,^[10] have prevented the legal profession from completely remodeling the law of contracts to meet modern needs. Thus, only a study of the past can enable us to understand adequately the present law of contracts and its deficiencies.

Notes:

[2] Jackson, The Scope of the Term "Contract," 53 L.Q. Rev. 525 (1937). Medieval lawyers, like their Roman counterparts, had no comprehensive theory of contracts and for the same reason: the substantive law of contract was shaped in a formulary system. Simpson at 185-196. For a modern view of just when a general law or theory of contract came into being, see Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q. Rev. 247, 250 et seq. (1975). For a different view, at least in connection with this country, see G. Gilmore, The Death of Contract 5 et seq. (1974).

[3] For the modern definition of contract, see I Corbin §3 (1963); Restatement Second §l; U.C.C. §1-201(11); pp. 2 et seq. supra and Ch. 3, §1.

[4] Cooke v. Oxley, 3 Durnford & East 653, 3 T.R. 653, 100 Eng. Rep. 785 (1790). The law of offer and acceptance goes back only to the nineteenth century. The common law borrowed this doctrine, along with many other doctrines, from civilian writers. Simpson, supra note 2, at 247, 258 et seq.

[5] C. T. McCormick, Law of Damages 24 et seq. (1935). The rules relating to damages have also been traced to the civilians. Simpson, supra note 2, at 273 et seq. (1975).

[6] 2 Blackstone, Commentaries 422-470 (1766). This is not quite accurate. 3 Blackstone, ch. 9, which is entitled Injuries to Personal Property, discusses contracts in SS202-223. Also, as Atiyah reminds us, at 215, the discussion of the Law of Persons in the first volume contains much material that we would now classify under the heading of contract. See further Horwitz at 162-163,170-171. Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205, 231 (1979).

[7] Indeed reciprocity, a universal principle of social action, can be seen at work in primitive exchange transactions in the form of gifts. Reciprocity, we are told by anthropologists and sociologists, is at the core of exchange and survives in the modem consensual contract. Gouldner, The Norm of Reciprocity, 25 Am. Soc. Rev. 171 (1960); Blau, Interaction Social Exchange, 7 Int. Enc. Soc. Sci. 452 (1968). On the bargain theory of consideration, see pp. 279 et seq. infra.

[8] The quotation is taken from Jackson, supra note 2, at 525-527. In the Mirror of Justices, contract is defined as "a discourse (purparlance) between persons that something that is not done shall be done." 7 Selden Society 73 (Whitaker & Maitland eds. 1895).

[9] See Ch. 5, S2.

[10] For a description of the English judicial process in Weberian terms see Marsh, Principle and Discretion in the Judicial Process, 68 L.Q. Rev. 226 (1952).

A. Background

The early development of what we now call contracts (or torts, for that matter) took place not in the King's courts at Westminster, but (leaving aside the Courts Christian)^[11] in local courts: county, borough, and manor courts, courts of the fair and of staple.^[12] The law developed by these courts provided for the protection of such transactions as sales, loans, bailments, and suretyship. Much of this law was "unsophisticated" customary law; however, some courts, particularly those of the great cities of London, Bristol, and York, developed a highly flexible commercial law (law merchant), a matter of no small consequence since England all through the Middle Ages was an important commercial country. The law developed by the courts of London, in particular, may have significantly influenced the law of the royal courts in medieval and Tudor times.^[13]

The story of the growth of the common law in contract and elsewhere is the story of the expansion of the common law jurisdiction at the expense of other jurisdictions and the consequent development - whether by invention or reception - of a common law with which to regulate the newly acquired business.^[14]

In the twelfth century the royal courts had already acquired jurisdiction over criminal and property law but had hardly begun to handle contracts. Glanvil, to whom tradition has attributed a treatise, "On the Law and Customs of the Kingdom of England" (c. 1188), informs us that the royal courts could not be troubled with a breach of "private conventions" (ch. X-8). Yet, in building up a system of feudal law, the royal courts inevitably had to protect many rights that would now arise out of contract but that then arose out of more permanent relationships, which we might call proprietary.^[15] To quote Maitland, "the feeble law of contract [was] supplemented by a generous liberality in the creation of incorporeal things."^[16] 

In the interest of a smooth administration, the techniques of dispensing royal justice became standardized in a formulary system. Royal justice was set in motion by "writs,"^[17] obtained for a fee from the Chancellor's office, that received the plaintiff's complaint and authorized the courts to take his case. Gradually, common forms were established and the writs themselves became, according to Fitzherbert, the " 'fundamentals' on which the whole law depends.”^[18] The process of standardization of writs resulted in a rigid and formal system of justice, which could only develop through judicial fictions and evasions and what Baker calls "jurisdictional shifts," the spread of one form of action to remedy the deficiencies of others.^[19] Small wonder that the evolution of the law of contract was not an unbroken line of principle, for if the logic of the writs had been meticulously followed, the "development," in the words of Milsom, "would have been impossible."^[20]

In choosing the form of action with which to proceed in the royal courts, a plaintiff had to consider, with respect to each writ, the nature of the judicial process available, the remedy that could be obtained, the mode of proof called for, and the factual and formal requirements of the particular writ. Some forms of action were clearly more advantageous than others to a plaintiff in any or all of these respects. The evolution of the substantive law of contracts therefore has to be explored in terms of adjective law: the slow but steady extension of the forms of action most procedurally advantageous to the enforcement of private agreements.^[21]

Covenant. Of the two older writs, debt and covenant, debt is the more ancient.^[22] Covenant, however, as Milsom has said, represents "an elementary legal idea ... familiar to the modem mind." To the medieval lawyer the word covenant (Latin, conventio) meant agreement.^[23] The writ of covenant, which became available in the royal courts "as a matter of course" in the thirteenth century,^[24] held out the promise of a form of action applicable to all contracts. But the destiny of covenant lay in a different direction. By the late thirteenth or early fourteenth century the common law courts had imposed on the writ of covenant the requirement of a sealed instrument (a specialty) as evidence of the agreement.^[25] "Simple" (informal) contracts were thus eliminated from the scope of the writ, the enforcement of such contracts being left to the local courts.^[26] This shift in jurisdiction reduced the influx of cases from the local to the royal courts.^[27]

The writ of covenant was rarely used except in apprenticeship litigation.^[28] Its unpopularity, however, cannot be attributed entirely to the requirement of a seal. Drawing up a specialty and affixing a seal was no "great chore,"^[29] and, as we shall see, sealed instruments were very common, especially among the commercial classes. More probably, the demise of the writ of covenant was due to the fact that it had certain disadvantages when compared with debt, the next writ to be discussed: after 1352 the rigorous process of arrest or outlawry was available in debt but not in covenant.^[30] Another explanation is that the remedy given by covenant was inadequate. Originally, the remedy may have been specific performance.^[31] Eventually, however, a plaintiff suing in covenant could only recover damages for the wrong or tort of nonperformance. But damages for nonperformance were insufficient in many cases, since the plaintiff might not recover for consequential losses caused by the nonperformance. Thus, the losses occasioned by poor or tardy performance might not be compensated.^[32] For example, a defendant whose failure to fulfill his promise to strengthen a river wall caused the plaintiff's land to be flooded and his crop to be lost had only to strengthen the wall to avoid liability in covenant.^[33] The sealed instruments used by the commercial classes avoided this problem of inadequate damages by providing for substantial liquidated damages in case of nonperformance.^[34] These instruments, known as bonds, were actionable in debt; they will be discussed in more detail in the next section.

Debt. The royal courts did not leave the enforcement of all informal contracts to the local courts for very long. As early as the twelfth century, the common law courts recognized the writ of debt, which could be used to enforce "real" contracts, in the terminology of the civilians. The writ of debt was originally used, for example, by a lender to recover money lent, by a buyer to recover specific goods or fungible goods from stock, by a seller to recover the purchase price of goods sold, etc. Later the writ of detinue came to be distinguished from the writ of debt, the latter being restricted to recovery of specific goods (or their value^[35]), the former being used to recover a fixed sum in the remaining instances mentioned above and others. Tradition has it that detinue was based on property, on an owning, debt on a duty or an owing.^[36] In the language of the controversial theory of Barbour, debt and detinue illustrate the distinction between obligation and property.^[37]

The action of debt was not limited to informal contracts. "As anything that we should call contract was not of its essence. . . it could be used whenever a fixed sum, a sum certain, was due from one man to another.^[38] There was, to use the traditional classification, debt on the record, debt on an obligation (when the creditor produced a deed or bond), and debt sur contract (when a creditor sued for a fixed sum owed under an informal agreement).^[39]

According to Ames, "[a] simple contract debt, as well as a debt by specialty, was originally conceived of, not as a contract, in the modern sense, that is, as a promise, but as a grant.^[40] Although the medieval lawyers did not emphasize the consensual nature of the debts actionable by the writ of debt, they were aware that in many cases a debt arising out of an informal. contract or a debt by specialty was the result of a voluntary agreement. The relationship between "contract," which gave rise to a writ of debt, and "covenant," which was the medieval word for agreement, was not lost on the legal profession of this period.^[41]

The most striking example of the consensual nature of debt comes in the field of sales. A seller could sue in debt not only if he delivered the goods, but also if he was willing to deliver. For the seller, the contract had the effect of passing property in the goods sold to the buyer.^[42] The buyer was in a different position. Unless there was an express agreement for credit, the buyer could not bring an action of debt (in the case of fungible goods) or detinue (in the case of specific goods) until he paid or tendered payment. The seller could withdraw from the contract until such time. The interesting aspect of this rule respecting buyers is that it was rationalized on the basis of the intent of the parties.^[43]

Whatever the consensual aspects of the writ of debt may have been, promise was not of its essence. If, for example, a debtor defaulted in an installment, and therefore broke his promise to pay in a timely manner, the creditor generally had no recourse by the action of debt to recover the installment.  He had to wait in most cases until the last installment fell due and then sue for the entire debt. The breach of promise to pay on time was later redressed by the action of assumpsit.^[44] The contractual debt itself was not considered to be based on promise. Debt lay to enforce an obligation or duty of payment arising out of a transaction re.^[45] Thus, the remedy afforded by an action of debt was recuperative in nature. A successful plaintiff received the amount owed, plus damages for wrongful detention.^[46] 

The recuperative nature of the remedy in debt may help to explain the statement frequently found in the old case law that debt sur contract presupposed a quid pro quo.^[47] The requirement of a quid pro quo is the basis for the theory advanced by Ames and others that debt presupposed a half-performed bargain, and that medieval law recognized only two types of contracts: sealed and real (unilateral, half-performed) contracts.^[48] Simpson has pointed out, however, that quid pro quo did not mean that one party had to perform his side of the agreement for the contract to be binding. As we have seen in the case of sales, wholly executory contracts were binding and actionable. In those cases, the quid pro quo meant simply that a reciprocity of exchange was required, a reciprocity that could be satisfied where a debtor-buyer had a reciprocal remedy against a creditor-seller for the goods sold but not yet delivered.^[49]

In most cases, a defendant in an action of debt sur contract could elect com purgation , or wager of law, as the mode of trial The defendant, along with eleven others (or however many the court might designate), would swear that he owed or detained nothing.^[50] This mode of trial, viewed today as having distinct advantages over jury trial for the debtor, may have enjoyed more popularity with creditors than one might expect.^[51] Be that as it may, a prudent creditor rarely had to take the risk of a debtor successfully waging his law. Wager of law was unavailable if the plaintiff was able to introduce a sealed instrument or if the obligation had become a debt of recognizance. To be on the safe side, a creditor either insisted on a bond under seal containing a defeasance clause making the bond null and void when the debtor performed (in which case the creditor sued in debt, but, to use the traditional classification, on the "obligation"); or he refused to make an advance until a judgment (by default) against the prospective debtor had been obtained or a recognizance had been recorded on the plea rolls, often with the covenant that the sheriff could levy execution in case of default. A mercantile creditor could also have his claim recorded on a roll kept by the mayor of each important town, and could obtain speedy execution.^[52]

In transactions of financial importance, the business community and its lawyers hit upon a most ingenious device to cope with the slow development of contract law, and to avoid wager of law and the arbitrariness of damage awards by juries. If the parties wanted to enter into what we now call a bilateral contract, they set up their agreement indirectly by the exchange of bonds: two independent unilateral contracts were used. A seller of land that had been sold at one hundred pounds, for instance, deliverd to the buyer a bond promising two hundred pounds in case of default. The buyer in turn delivered a bond for double the purchase price. These bonds contained defeasance clauses, typically written on the back; the bond became void on performance of the terms of the contract laid down in the sealed indenture.^[53]

Any kind of agreement (for example, large family settlements) could be cast in this mold. Penal bonds were quite popular even though the argument that the penal sum was excessive was unavailable, as was the defense of usury.^[54] Contests about the performance of the conditions in the indenture, by contrast, went to the jury.^[55]

These conditional bonds, which were the means of doing large scale business, were in use for a long time in both England and this country, and they involved some of the most important transactions coming before the central courts.^[56] Their importance began to wane in the seventeenth century, however, when equity and common law courts began to show an increasing willingness to give relief against excessive bonds, a movement that culminated in the distinction between penalties and liquidated damages.^[57]

Like covenant, debt never succeeded in becoming the principal means of enforcing contracts. It could not, because of its shortcomings with respect to informal contracts. Quid pro quo was rather narrowly defined, pleading rules were most complex, recoverable damages were apparently inadequate, debt did not lie against a debtor's executor, and the defendant in most cases was entitled to wage his law. Prudence dictated the use of formalities, but promisees were not always prescient or educated enough to avail themselves of the necessary forms, nor were formalities always convenient.

Assumpsit. Debt and detinue covered a very considerable area of informal contract law, the sale of goods, bailments and loans of money. Covenant was appropriate for the residue of promises. However, the development of these "personal actions" was stunted by formal requirements, technical rules, inadequate remedies, and antiquated modes of trial.^[58]

Covenant, as we have seen, could not be used in suits at common law on informal agreements or on formal promises to do something; e.g ., promises to build a house or to convey land were unprotected.^[59] As a result, it became increasingly frequent for there to be "just -claims" for which no remedy was available.^[60]

So long as local courts adequately handled most contractual obligations, the need for an expanded royal jurisdiction was hardly felt. But the local courts were reluctant or unable to change their archaic procedures to accommodate the changing needs of society.^[61] Furthermore, the drop in the value of currency due to inflation meant that more and more informal contracts fell within the jurisdiction of the royal courts,^[62] all the more since the extensive role played by ecclesiastical tribunals in disputes over breach of faith had begun to decline, and by 1550 had disappeared completely.^[63]

In the fifteenth century. the Chancellor began to intervene to fin the gaps left by debt and covenant. Equity granted specific performance on parol contracts and even entertained actions on the ground that at common law the defendant could wage his law.^[64] During the reign of Henry VIII it came to be said that "a man shall have remedy in the Chancery for covenants made without specialty if the party have sufficient witnesses to prove the covenants."^[65] This liberal attitude of the Chancellor toward contracts could not remain unnoticed; it doubtless gave encouragement to the common law courts to "remedy the defects of their own system."^[66] This was all the more necessary since there was a phenomenal increase in the amount of litigation in the course of the sixteenth century due to the rise in population, the growth of industry and, according to the controversial theory of Coke, the increase of wealth by lay persons resulting from the dissolution of monasteries.^[67]

One of the many problems facing the legal system was how to reform the writ system, i.e., how to construct another writ to do the work of the writs of debt and covenant (without being too conspicuous about it, for by the reign of Henry VIII the rule against double remedies had become a settled rule of law).^[68] The form of action chosen to accomplish this task was trespass on the case,^[69] and (to anticipate the future) by the sixteenth century a species of case, assumpsit, had acquired "its own identity" and was well on its way to supporting a law of consensual contract.^[70] 

Assumpsit and Covenant. In the fourteenth century a plaintiff bringing an action of trespass on the case against a defendant for doing badly what he had undertaken to do, i.e., for misfeasance, would face the argument that he was using the wrong writ. "This sounds in covenant." But the plaintiff could not sue in covenant if he lacked a sealed instrument. Nor would a person in his position be likely to have formalized his agreement with the defendant. He might be a patient suing his surgeon for maiming his hand, a customer suing his smith for incompetently shoeing his horse, thereby causing its death, or a bailor suing a ferryman for overloading the ferry, causing it to sink and the plaintiff's goods to be lost.^[71] Even if the plaintiff could have brought an action of covenant, "[i]t would have been useless to order [the defendant] to keep his covenant.”^[72] The damage was done, and the plaintiff had been wronged.

In the course of the fourteenth century, the royal courts began to reject the defendant's argument that actions for negligent misfeasance of this sort should be brought in covenant and not case. At the time it was not asked whether the basis of the defendant's liability was negligence or breach of contract; it would be several centuries before the law would draw the distinction between tort and contract. It can be said, however, that the undertaking, the assumpsit, played an important (if not decisive) role in actions on the case for misfeasance.^[73] If a carpenter undertook to build a house and did nothing, no action would lie without a sealed instrument. This was decided in 1400,^[74] the courts drawing a distinction between misfeasance and nonfeasance. "A mere failure to perform cannot be anything but a matter of covenant."^[75] The distinction was often difficult to make, and lawyers attempted to devise artful ways of getting around it; at times, courts would simply characterize a nonfeasance as a misfeasance.

Early on, plaintiffs successfully brought actions of assumpsit for nonfeasance against innkeepers and others who by virtue of their calling were required by the common law or custom to contract with the publicJ6 In other cases a plaintiff might allege that he had been deceived by the' defendant's promise. The allegation of deceit, borrowed from the law of warranty developed in the mercantile courts, was first successfully used in cases against attorneys who had taken fees from both .sides, or revealed counsel to adversaries. These were also public offenses. An action of assumpsit in which deceit was alleged was also held proper in a case against a counsellor who had agreed to try to procure a piece of land for his client, but who instead bought it himself and sold it to a third party.^[76] A vendor was then held liable in assumpsit for conveying land to a third party, land which had been promised to the plaintiff and for which he had prepaid.^[78] The allegation of deceit, which apparently meant that the promisee was deceived and not necessarily that the promisor was deceitful, became increasingly popular in the sixteenth century.

The distinction between misfeasance and nonfeasance was finally abandoned in the sixteenth century with the case of Pickering v. Thoroughgood (1533).^[79] This "momentous development" posed problems, however. Pickering itself was a case of a buyer suing a seller in case for failure to deliver malt that had already partially been paid for. The problem posed by this and other cases was that, in theory at least, the plaintiff already had an action against the defendant in debt sur contract. As we have mentioned, there was a rule against double remedies. A second problem, posed by all nonfeasance cases, was in drawing a line between enforceable and unenforceable promises. Without the "doctrine of nonfeasance," the potential existed for the enforcement of any promise or undertaking. The first problem was eventually resolved in Slade's Case.^[80] The second problem was answered with the development of the doctrine of consideration.^[81]

Assumpsit and Debt. The story of assumpsit's encroachment on the domain of debt is long, complex, and controversial. Its details need not detain us here; a few observations must suffice.^[82]

If a debtor promised to payoff an existing debt, a creditor might argue that assumpsit should lie on the basis of the promise. The creditor's case would be enhanced if, relying on the promise, he delayed in suing for the debt, or was otherwise injured. Of the two great royal courts, King's Bench and Common Pleas, King's Bench for various reasons permitted a creditor to bring assumpsit to collect a debt, and was not particularly concerned about the promise made by the debtor, so long as the debt was proved. Common Pleas, a more conservative court with a larger interest in the preservation of the writ of debt,^[83] insisted on proof of the promise, and insisted as well that the promise be supported by some consideration other than the debt itself. This conflict between the two courts came to a head in Slade's Case,^[84] where it was decided that the King's Bench view should prevail.

In Slade's Case, plaintiff brought an action on the case in King's Bench for the purchase price of wheat and rye that he had sold the defendant at the defendant's special instance and request. According to the pleadings, the defendant then and there promised to pay sixteen pounds. The defendant disputed not the money owed but the availability of assumpsit. The jury found that the sale had taken place, but "there was no [other]^[85] promise or undertaking other than the said bargain." The purpose of the special verdict was probably to determine whether case could lie on a contract (debt) in the absence of an express promise to pay. This issue was argued for over five years by the best lawyers of the day, among them Francis Bacon for the defendant and Edward Coke for the plaintiff. According to Coke, the problem was considered by "all the judges of England" in the Exchequer Chamber and eventually the King's Bench view triumphed.^[86] 

After Slade's Case, the term "contract" lost its intimate connection with debt.^[87]  The availability of assumpsit in place of debt marked the end of wager of law for all practical purposes,^[88] the action of assumpsit being tried before a jury. Although the demise of wager of law might seem to be a step forward from the modern point of view, it should be kept in mind that jury trial in the sixteenth century was a much cruder means of determining truth than it is today. The problem of perjured oath helper-s was now replaced by the problem of perjured jurors, or of jurors who had a far greater freedom in deciding cases than they have today.^[89] Slade's Case has therefore been cited as a contributing factor in the passage of the Statute of Frauds in 1677, which required a writing for transactions having large consequences for the parties.^[90]

Another possible advantage of assumpsit was that, in contrast to debt, special damages caused by nonpayment were recoverable, e.g., losses' caused by a rise in the market and other losses suffered by plaintiff in his business.^[91] Whatever the availability might have been, before or even during the sixteenth century, of damages in debt for losses due to non- payment, a frequent argument in favor of the action of assumpsit was that it allowed recovery of such damages.^[92] Indeed, in theory at least, a plaintiff suing in assumpsit could only obtain damages;^[93] the action was not for the recovery of debt, though Slade's Case decided that the "whole debt" should also be awarded in addition to damages, so that an action in assumpsit would bar a later action in debt.^[94] Slade himself recovered sixteen pounds damages, which iust happened to be equal to the debt owed.^[95]

Whatever the mysteries surrounding the genesis, historical soundness, and meaning of Slade's Case,^[96] one thing is certain: after it, debt sur contract became obsolete and assumpsit (case) became almost the sole remedy for contracts by parol that did not involve a bailment.^[97] In this sense Slade's Case marks a break with the past and, according to some authors, the beginning of the modem law of contracts.^[98] 

Elaboration of Assumpsit: The Common Counts. However important a step Slade's Case was towards the unification of contract law, the process was not complete. Assumpsit had come to be divided into two classes: special and indebitatus assumpsit. The distinction between the two was in the manner in which they were pleaded; in indebtitatus assumpsit the plaintiff merely alleged a debt in a certain sum and a promise to pay, while in special assumpsit all the detail of the underlying transaction had to be set out specifically.^[99] Both types of assumpsit could be used in place of the action of debt after Slade's Case, though special assumpsit harbored many teclmical traps for the careless pleader and indebitatus assumpsit was frequently attacked as invalid.^[10] However, because of the opposition to general indebitatus assumpsit, and in order to avoid the pitfalls of faulty pleading in special assumpsit, the legal profession after Slade's Case revived the indebitatus count, but with a new twist.^[101] Since after Slade's Case there were still a few transactions that could only be enforced by the action of debt,^[102] the cautious pleader would not simply plead that the defendant was indebted to the plaintiff; he had to impress upon the court that the debt arose out of a simple contract and not out of a transaction within the exclusive jurisdiction of debt.^[103] So, to be on the safe side, lawyers adopted the practice of pleading that the defendant was indebted for the price of goods sold and delivered, for money lent, for work and services performed, etc.^[104] These became the so-called common counts, embodying and standardizing everyday transactions that could be enforced by assumpsit The use of the common counts had its disadvantages for the defendant, however, particularly since the various counts could be and were combined in the pleadings so that the defendant could not know until trial what evidence was needed to contest the plaintiff's allegations.^[105] Still, the common counts survived until the pleading reforms of the nineteenth century.^[106]

Implied Contracts. Indebitatus assumpsit proved to be a highly flexible device for enforcing obligations. A central feature of that form of action, and one that accounts for its flexibility, was the implied promise. When indebitatus assumpsit was brought in lieu of debt, the promise, though alleged, did not have to be proved. The idea of an implied promise permitted. the expansion of indebitatus assumpsit into areas where the implied promise could only be a fiction. In the eighteenth century, the areas covered by indebitatus assumpsit had expanded so far that Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005 (1760), could make the assertion that an action of indebitatus assumpsit would lie "whenever natural justice and equity required a defendant to return money."^[107]

Debt could only be brought to recover a sum certain. There were, however, situations in which parties had failed to fix the amount due. A victualer may have supplied food or a servant services without coming to an agreement beforehand about payment. Since debt was unavailable to recover a reasonable payment,^[108] indebitatus assumpsit, it was thought, was also unavailable.^[109] The plaintiff did, however, have an action in assumpsit on a quantum meruit or quantum valebat. Thus began the evolution of the implied (in fact) contract, as contrasted with the express contract.^[110] It may be that quantum meruit and quantum valebat grew up in connection with claims by those who were bound by law to provide services, e.g., the common carrier or innkeeper.^[111] Be that as it may, sometime after the seventeenth century it came to be held that indebitatus assumpsit lay on a quantum meruit or quantum valebat.^[112]

Indebitatus assumpsit eventually came to be used to enforce other obligations that were not strictly contractual at all. This category of civil liability in modern terminology is called quasi contract, an anglicization of the Roman category of obligation quasi ex contractu. Quasi contracts are contracts implied in law, and unlike contracts implied in fact, which are genuine contracts that differ from express contracts only in that the promise is circumstantially proved, quasi contracts are not contracts at all.

Instances of what we now call quasi-contractual liability were known to the common law (and to equity) long before the advent of indebitatus assumpsit. Where, for instance, a bailiff had failed to account for rents collected, or a person had neglected to remit the proceeds of goods sold for the account of another or had failed to pay over money received from a third person for another's use, the injured party was accorded protection by the "cumbersome" action of account.^[113] Gradually the action of account was replaced by the action of debt in cases where the plaintiff could allege and prove a sum certain due him. After Slade's Case, indebitatus assumpsit naturally expanded to cover these areas of arguably non- consensual liability. Under the name of the action for money had and received, indebitatus assumpsit became available for the recovery of money paid or received by mistake or because of improper conduct or on a consideration that had failed.^[114] By an expansion of the action of quantum meruit (valebat), indebitatus assumpsit could be used for the recovery of the value of goods or services rendered to a party guilty of breach of contract or under the mistaken assumption that there was a contract.^[115]

In the nineteenth century, treatise writers on the common law came to realize, under the influence of civilian writers, that indebitatus assumpsit included more than contractual obligations^[116] and that a court, when allowing recovery under an implied-in-Iaw contract, was merely pretending "that there was a contract because it thought there ought to be recovery."^[117] The English courts, however, failed to pick up on this suggestion to acknowledge the difference between implied-in-fact and implied-in- law contracts.^[118] It was not until 1937 that Lord Wright in Brooks Wharf and Bull Wharf Ltd. v. Goodman Bros., 1 K.B. 54, introduced to the case law the textbook learning of the nineteenth century, although there is evidence that the textbook learning was tacitly recognized in many nineteenth-century cases.^[119]

Consideration. When at common law assumpsit came to be used to enforce informal parol promises problems arose. No legal system can afford to enforce "any old promise," as Corbin put it. Different legal systems have developed different techniques for separating the sheep from the goats; yet however different the techniques used by various legal systems to accomplish this end, they can all be traced back to a "common stock of ideas prevailing in medieval Western Europe," and in particular to the idea of reciprocity,^[120] a concept that has influenced the development of the law not only in central Europe, but also in England.

In England, the consideration doctrine was gradually developed to set limits to the enforcement of promises. Its early history is still controversial and so is its genealogy. The question has often been asked whether it is an "indigenous product" or the adaptation of notions coming from civil, canon and natural law fitted into the framework of the writ system. Simpson, for example, relates the early beginnings of consideration to the law of uses of land and through it to the canon and civil law. Simpson, chs. IV-VII; Simpson, Historical Introduction at 89; Milsom at 356-360. This controversy, however, need not detain us.

Roughly speaking, it is sufficient to point out that English law took the course of protecting the promisor against the consequences of unguarded utterances made without consideration, i.e. deliberation. Strangeborough v. Warner, 4 Leon. 3 (1589). If, on the other hand, the promisor had begun to perform his promise, for instance to repair a roof but had abandoned the job in midstream, the courts did not find the problem of recovery insuperable. Tort (trespass) and later contract (assumpsit) were expanded to protect the promisee who had lost his cattle due to defendant's misfeasance. But the problem became really serious if the defendant  had done nothing at all. "Not doing is no trespass." Milsom, [1954] Cambridge L.J. 105. But this solution became intolerable, and violated the sense of common decency and fairness, particularly if the promisor had received full or partial payment or other recompense. The changing attitude of the case law in favor of liability can be traced back as far as a remark of Fineaux, C.J., referred to by Frowicke, C.J.C.P., in Orwell v. Mortoft, supra note 46.

When the common law inherited a large part of the business of the iocal used by courts, the local it was courts only natural in deciding for it contract to take over cases.^[121] Furthermore, of reciprocity the common law courts could not remain unaware of the existence of a link between the notion of consideration and the idea of a quid pro quo used in explaining and justifying the liability of the borrower to his lender in debt. The borderline between these ideas was, for a while at least, rather fluid, as some of the misfeasance cases which use quid pro quo indicate.^[122]

Gradually the various strands of liability came together and found an untidy alliance in the technical meaning of consideration, defined as a detriment to the promisee or a benefit to the promisor. Stone v. Wythipol, Cro. Eliz. 126, 1 Leon. 113, Owen 94 (1588): "Every consideration that doth charge the defendant in an assumpsit must be to the benefit of the defendant or charge to the plaintiff and no case can be put out of this rule." This was all the more natural since there is hardly a situation where a benefit to the promisor is not at the same time a detriment to the promisee (though the reverse is not necessarily true). (Manwood v. Burston, 2 Leon. 203 (1587). Simpson suggests a "more helpful way of looking at the decisions" and urges us "to distinguish between detriment consideration, benefit consideration and meritorious consideration as three different categories." Simpson at 489.

Consideration aided the emergence and recognition of "pure" executory bilateral contracts. Strangeborough v. Warner (1589) - a promise against a promise will maintain an action on the case - reflects existing case law.^[123] It was the task of succeeding generations to amplify and refine the consideration doctrine.

Notes:

[11] The role of the ecclesiastical courts in the enforcement of private agreements should not be underestimated. Helmholz, Assumpsit and Fideii Laesio, 91 L.Q. Rev. 106 (1975); 2 Pollock & Maitland at 200-203.

[12] Fifoot, ch. 13 (1949). R. Henry, Contracts in the Local Courts of Medieval England (1926)' J. J. Dawson The History of Lay Judges, 178-186 (1960). On law merchant and the merchant's court , see F. R. Sanborn, Origins of the Early English Maritime and Commercial Law (1930); R. Speidel, R. Summers & J. White, Commercial and Consumer Law 647-648 (2d ed. 1974); Baker, The Law Merchant and the Common Law Before 1700, 38 Cambridge L.J. 295 (1979).

[13] Milsom at 343 and passim.

[14] Simpson, Historical Introduction, at 2. The essay by Francis, The Structure of Judicial Administration and the Development of Contract Law in Seventeenth Century England, 83 Colum. L. Rev. 35 (1983), is an attempt to go beyond “doctrinal legal history” traditionally used and "to link law to the dynamics of common law administration. (See p. 29 infra.) Simpson at 1-16 and L. Fuller & M. Eisenberg, Basic Contract Law, at 40-17 (4th ed. 1981) contain admirable overviews of the evolution of contract law.

[15] Milsow's Introduction to Pollock & Maitland at Iii. See also I W. H. Page, The Law of Contracts II (1920):

In place of contracts for work and labor of the modern law, we find land held by tenure of rendering services for the overlord. At a time at which interest could not be recovered, the favorite means by which a landowner borrowed money was by granting a lease for years at a nominal rent in consideration of present payment of money…Contracts for support in money or in kind were treated as grants or realty and this theory was extended even to cases in which no charge was made upon any corporeal realty to secure payment.

[16] The quotation is taken from Milsom's introduction to Pollock & Maitland at liii.

[17] For a description of the writs, see F. Maitland, Forms of Action at Common Law (1909, repr. 1962).

[18] Baker at 52, citing the Preface to De Natura Brevium (c.1530); see also id. at 49.

[19] Baker at 263.

[20] Milsom at 249.

[21] 2 Pollock & Maitland at 568. "The subsequent development of forms will consist almost entirely of modifications of a single action, namely, Trespass, until at length it and its progeny - Ejectment, Case, Assumpsit, Trover - will have ousted neary all the older actions." Id. at 564.

[22] Simpson at 9.

[23] Milsom at 246.

[24] Simpson at 9.

[25] Simpson at 10·11. This made all the more sense since the parties could not testify. As a result the word "covenant" eventually lost its meaning as "agreement"; indeed the very idea that an agreement could be the basis of an action got lost. Covenant came to mean a formal executory contract under seal. Milsom at 248-249.

[26] Provided the claim was for less than 40 shillings, a sizable sum before the decline in the purchasing power of money resulting from the influx of silver from the New World. Milsom at 60, 240, 241; Beckerman, The Forty Shilling Jurisdictional Limit in Medieval English Personal Actions, Legal History Studies 110 (D. Jenkins ed. 1972). See further p. 29 infra.

[27] Milsom at 65; sce also id. at 244-246; Baker at 265, 266; Simpson at 10-13.

[28] Milsom at 251-252.

[29] Simpson at 90.

[30] Milsom at 252.

[31] Simpson at 13-14.

[32] Milsom at 252, 326-328; Baker, Introduction at 264 et. seq.

[33] The example is taken from Milsom at 252.

[34] See also Simpson at 117 for the procedural advantages of debt sur obligation over covenant.

[35] For a discussion of the splitting of the composite writ of debt-detinue, see Fifoot at 217.

[36] Baker at 267, 2 Pollock & Maitland at 206.

[37] W. T. Barbour, The History of Contract in Early English Equity 26-28 (1914). See Simpson at 75 for a criticism.

[38] 2 Pollock & Maitland at 210.

[39] See Jackson, The Scope of the Term "Contract," 53 L.Q. Rev. 525 (1937). The word "contract" was intimately connected with the action of debt until after Slade's Case (discussed infra p. 32), while the scope of the action of debt was wider than what we now call contract. A penalty imposed by statute, for instance, could be recovered in debt. Lawyers in describing this phenomenon frequently spoke of contracts-in-law. ld. at 529. See also 2 Pollock & Maitland at 204.

[40] J. B. Ames, Lectures on Legal History and Miscellaneous Legal Essays 150 (1913); Simpson at 79-80.

[41] Simpson at 188.

[42] Milsom, Sale of Goods in the Fifteenth Century, 77 L.Q. Rev. 257, 282-284 (1961); Simpson at 161-J64; Stoljar, A History of Contract at Common Law 27 (1975) (maintains that bargain and sale remained a real eon tract until the advent of assumpsit); Francis, supra note 14, at 79-80.

[43] Simpson at 164-169; see also Barton, Review of Simpson, 27 Toronto L. Rev. 373, 375 (1977), referring to the "eccentric" view of Brian, C.J. in Y.B. Pasch. 17 Edw. IV, f. 1, pl. 2 (1478), and Y.B. Hil. 18 Edw. IV, f. 21, pl. 1 (1479), that property passed to the buyer immediately on sale even when credit was not given, a view that passed into the law of sales in the nineteenth century. See Blackburn, Contract on Sale 196 (1845).

[44] Simpson at 66-68.

[45] Baker at 267.

[46] The measure of damages in debt is a matter of controversy. Frowicke, C.J.C.P., in Orwell v. Mortoft, Y.B. Mich. 20 Henry VII, f. 8, pI. 18, Keilway 69, 72 (1505), argued that a plaintiff buyer could only receive back his down payment in an action of debt against a defaulting seller. See Stoljar, supra note 42, at 40-41(1975). Cases do exist,  however, where the plaintiff suing in debt obtained substantial damages for wrongful detentlon. See Wolf v. Meggs, Cm; Eliz. 545, 78 Eng. Rep. 70 (Q.B. 1597); McGovern, The Enforcement of Informal Contracts in the Later Middle Ages, 59 Calif. L. Rev. 1145, 1161 (1971); 2 Pollock & Maitland at 215.

[47] Mervyn v. Lyds, Dyer 9OA, 73 Eng. Rep. 195 (1553); "quid pro quo is necessary to every contract." See Simpson at 193-194.

[48] See generally Ames, supra note 40, Lecture Vlll (1913), and Fifoot, ch. 10.

[49] Simpson at 194-195; Baker, Review of Atiyah, 43 Cambridge L.J. 467, 468 (1980). On the development of "pure" executory contracts in assumpsit, see Baker, id., al 467, 468; note 123 infra; Simpson at 459 et seq.

[50] Simpson at 137 et seq.

[51] T. F. T. PJucknett, A Concise History of the Common Law 116, 647 (5th cd. 1956); Simpson at 139-140.

[52]] Plucknett, supra note 51, at 391; Thorne, Tudor Social Transformation and Social Change, 26 N.Y. U. L. Rev. 10, 19-20 (1951); Simpson at 140-144.

[53] Milsom at 250-251; 2 Pollock & Maitland 213 et seq.; Simpson at 90-112.

[54] Simpson at 113-117. On usury see generally J. T. Noonan, The Scholastic Analysis of Usury (l957); R. Tawney, Religion and the Rise of Capitalism (l926); R. Tawney's Introduction to T. Wilson, A Discourse upon Usury (1925); B. Nelson, The Idea of Usury (1949).

[55] Simpson at 101. The law of conditions was developed in connection with conditional bonds. See Kingston v. Preston, infra p. 979.

[56] Simpson at 88; Baker at 270.

[57] Simpson at 118-125; Baker at 271. For the American experience, see Horwitz at 167-170.

[58] Simpson, Introduction at 3.

[59] Baker, 2 Spelman’s Reports, 94 Selden Society 51-53 (1978).

[60] Milsom at 342-343.

[61] Simpson, Introduction at 3, 4.

[62] Baker, supra. note 59.

[63] Id.

[64] Helmholz, supra. note 11, at 426-428.

[65] Baker at 272-273. Simpson, Historical Introduction, at 4. For details of the theory of contracts developed by Chancery, see Barbour, supra. note 37, ch. 4. The competition of Chancery is alluded to in Y.B. Mich. 21 Hen. VII, f. 41, pl. 66 (1506).

[66] According to the thesis developed by Francis (supra. note 14), the judiciary and the legal profession had a substantial interest, pecuniary and otherwise, in preserving the existing structure of adjudication. To do this, the caselaw capacity of the court system had to be maximized. An administrative structure emerged that conserved judicial energy by permitting delegation of function and at the same time facilitated tight judicial control over the delegated task. This "controlled delegation system" strongly influenced the development of procedural and substantive contract law, e.g., the form of pleading, the law of evidence, the roles of judge and jury, the law of conditions and of substantial performance, and the law of damages.

[67] Francis, supra note 14, at 41 et seq. See further Milsom at 60·81.

[68] Baker, Introduction at 76-77.

[69] Trespass (Latin, transgressio) meant wrong, and trespass on the case gave a plaintiff damages as compensation for the wrong done to him. The development of trespass on the case in the fourteenth century, which represented a relaxation of a jurisdictional boundary that barred royal courts from entertaining suit for wrongs other than those alleging force and arms (vi et armis) or a breach of the king's peace (contra pacem regis), need not detain us here. For details of the controversial origins of the action on the case, see Milsom at 244 et seq.; P1ucknett, Case and the Statute of Westminster II, 31 Calif. L. Rev. 778 (1931); Holdsworth, Note, 47 L.Q. Rev. 334 (1931);Landon, The Action on the Case and the Statute of Westminster II, 52 L.Q. Rev. 68 (1936); Dix, The Origins of the Action of Trespass on the Case, 46 Yale L.J. 1142 (1937); A. K. Kiralfy, The Action on the Case (1951); Baker at 58-59.

[70] Simpson at 199, 273, 274.

[71] See Simpson at 203-204.

[72] Baker at 274. On the limitations to the remedy in covenant, see p. 24 supra.

[73] Simpson at 207.

[74] Walton v. Brinth, Y.B. Mich. 2 Hen. IV, f. 3, pl. 9; Fifoot at 91.

[75] Milsom, Reason in the Development of the Common Law, 81 L.Q. Rev. 496, 507 et seq. (1965).

[76] In Y.B. 21 Hen.VI, f. 55, pl. 12 (1443), a judge observes:

If I'm riding on the highway and I come to a village in which a smith lives, who has sufficient stuff to shoe my horse, if my horse has lost a shoe and I request him to shoe him at proper time, and I offer him sufficient for his labor, and he refuses, and if my horse is lost for want of shoes, and by his default, I say that in that event, I will have trespass on the case.

See also Baker, supra note 59, at 262 et seq.

[77] Somerton's Case, Y.B. Hil. 11 Hen. VI, f. 18, pl. JO (1433). See Simpson at 253, Baker at 278-279.

[78] Doige's Case, Y.B. Trin. 20 Hen. VI, f. 34, pI. 4 (1442), 51 Selden Society 97 (Hemmant); Simpson at 255 et seq.

[79] Spelman's Reports, 93 Selden Society 4,5 (1977); 94 Selden Society 247; also given in Simpson at 608.

[80] 76 Eng. Rep. 1072,4 Co. Rep. 91a, Yelv. 20; Moo. K.B. 433 (K.B. 1602).

[81] On consideration and nonfeasance, see BaKer at 279 et seq.; Simpson at 271-272. On consideration in general, see p. 37 infra and the introduction to Ch. 3, §7.

[82] For more details, consult Baker, Slade's Case; Simpson at 289 et seq.; Baker at 282 et seq.; Baker, Introduction at 275 et seq.; Baker, Dark Age at L

[83] The popular explanation for the reluctance of Common Pleas was jealousy of its monopoly over debt cases. Although Common Pleas in theory had a monopoly over cases in debt in practice King's Bench could entertain such suits by means of a fiction involving the Bill of Middlesex. Moreover, Common Pleas itself had a general jurisdiction permitting it to entertain assumpsit actions. Thus, Common Pleas would benefit by an expansion of assumpsit. The modern explanation for the position taken by Common Pleas is that judges of that court were simply more conservative in outlook See Simpson at 294.

[84] 4 Co. Rep. 91b, 76 Eng. Rep. 1074; Yelv. 21,80. Eng. Rep. 439, Moo. K.B. 433,29 Eng. Rep. 677. For a discussion of Slade's Case and its background, see Baker, Slade's Case; Baker, Introduction at 275; Baker, Dark Age at 4; Simpson at 292 et seq.; Milsom at 339-353.

[85] We have borrowed the insertion from Milsom at 303.

[86]The Exchequer Chamber referred to here was not the newly created statutory court, but the older, informal Exchequer Chamber consisting of common law judges. Baker. Slade's Case at 225.

[87] See note 39 supra.

[88] Wager of law was not abolished until 1832.

[89] Baker, Slade's Case at 230; Simpson at 298-299.

[90] Stoljar, supra note 42, at 85.

[91] On the controversy surrounding the measure of damages in debt, see note 46 supra.

[92] See the argument of Frowicke, C.J.C.P., in Orwell v. Mortoft, Y.B. Mich. 20 Hen. VII, f. 8, pl. 18, Keilway 69, 72 (1505).

[93] MiIsom at 353.

[94] 76 Eng. Rep. 1072, 1074,4 Co. Rep. 91a, 92b, YeJv. 15, Moo K.B. 433 (K.B. 1602).

[95] Baker, Slade's Case at 221 n. 45 (1971). Slade had asked for forty pounds. Kiralfy, supra note 69, at 228-229.

[96] Consult the sources cited in note 82 supra.

[97] On bailment, see Simpson at 299.

[98] Baker at 287.

[99] A plea in special assumpsit had to set out all the facts necessary to explain the intention of the parties and the nature of the transaction, plaintiff's performance of all he was bound to perform, defendant's nonperformance or breach of contract and plaintiff's damages. Even the Latin had to be impeccable (Gardner v. Fulford, 83 Eng. Rep. 369, 1 Lev. 204 (1688). See generally, Simpson at 301-307.

[100] Simpson at 308.

[101] Milsom at 354; Baker, Slade's Case at 214; Luecke, Slade's Case and the Origin of the Common Counts (pt. 3), 82 L.Q. Rev. 81, 91 (1965); Simpson at 309-313.

[102] For example, an action to recover rent, or by specialty, or by record. See Simpson at 299-300.

[103] Luecke, supra note 101.

[104] H. J. Stephen, A Treatise on the Principles of Pleading in Civil Actions 312 (1824). E. Bullen & M. Leake, Precedents of Pleadings 35 (3d ed. 1868), contains a specimen and a list. It is now assumed that Slade's Case did not deal with indebitatus assumpsit. See Simpson, The Place of Slade's Case in the History of Contract, 74 L.Q. Rev. 381, 384 (1958), and his change of mind in his book, Simpson at 305 n.2.

[105] The Baker's Case of Gray's Inn v. Occould, 78 Eng. Rep. 113, Godbolt 186 (C.P. 1612); Luecke, supra note 101, at 92.

[106] Fifoot at 370.

[107] Simpson, Historical Introduction at II.

[108] Young and Ashburnham's Case, 3 Leon. 161,74 Eng. Rep. 606 (1587); p. 146 infra.

[109] Simpson at 497.

[110] Simpson at 496-499.

[111] The Six Carpenters' Case, 8 Co. Rep. 146,77 Eng, Rep. 695 (1610).

[112] Simpson at 499.

[113] Fifoot at 365 et seq.; Simpson at 499 et seq.

[114] Simpson at 494-495; Fifoot at 364 et seq.

[115] In the last mentioned illustration, recovery was regarded as sufficiently similar to the action of quantum meruit (quantum vale bat), available for the enforcement of an implied-in-fact contract to merit the same label. As a result the tenn quantum meruit acquired a double meaning and covered both contractual and quasi-contractual recovery. P. Winfield, The Province of the Law of Tort 157 et seq. (1931); Martin v. Campanaro, p. 178 infra.

This triumph of indebitatus assumpsit did not mean, however, that special assumpsit had become superfluous; it was still indispensable for the enforcement of contracts executory on either side and for the recovery of damages. S. Warren, Introduction to Law Studies 486 et seq. (2d ed. 1845).

[116] Indebitatus assumpsit traditionally required the allegation of a promise to pay at plaintiff's request. The promise would be purely fictitious in the case of an implied-in-law contract. Nonetheless, liability in quasi-contract was rationalized as contract liability. 3 Blackstone, Commentaries 155 et seq. (1768).

[117] I. Stone, Legal Systems and Lawyers' Reasonings 260 (1964) contains an interesting discussion of the technique of "circuitous reference" involved here. The nature of quasicontractual liability was clearly understood by Lord Mansfield. who, in the celebrated case of Moses v. Macferlan, 2 Burr. 1005 (1760), attempted to develop its general theory within the framework of the action for money had and received "if the defendant be under an obligation, from the ties of natural justice to refund, the law implies a debt, and gives this action indebitatus assumpsit, founded in the equity of the plaintiff's case, as it were upon a contract ('quasi ex contractu’ as the Roman Law expresses it)." For the fate of this attempt, see Lord Wright, Sinclair v. Brougham, 6 Cambridge. L.J. 305 (1938); J. Dawson, Unjust Enrichment 10 (1951). According to Lord Justice Scrutton, "the whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought." Holt v. Markham, [1923] 1 KB. 504, 513. In this country the Restatement of the Law of Restitution, prepared by the American Law Institute, has undertaken to replace the "vague jurisprudence" of unjustifiable enrichment by a detailed enumeration of the typical fact situations in which the remedy is available; its provisions should be consulted in addition to the pertinent sections of the Restatement of Contracts. A Restatement Second of Restitution is now in preparation.

[118] Atiyah at 482. In this country the courts were quicker to pick up on the distinction. See Hertzog v. Hertzog. infra p. 147, which is referred to in 2 Kent, Commentaries 450 n.1 (Holmes 12th ed. 1873) (no clear-cut distinction is drawn in earlier editions).

[119] Atiyah at 482 et seq.

[120] Barton, Early History of Consideration, 85 L.Q. Rev. 372. 390 (1969); Baker, Introduction at 257 et seq.

[121] Milsom, supra note 58, at 323.

[122] Barton, supra note 120, at 374.

[123] Barton, supra note 120, at 390; Baker, Introduction at 292 et seq.

B. The Emancipation and Evolution of the Substantive Law of Contract

As J. H. Baker has observed, Slade's Case, decided in 1604, marked "the final stage in the unification of the law of contract through the action of assumpsit."^[124] But this does not mean that the modern concept of contract with all its constituent elements had arrived. The development of a unified theory integrating the strands contained in the various writs of assumpsit was retarded for some time by the intricacies and complexities of the writ system; the classical law of contract is really the child of the late eighteenth and nineteenth centuries.

Since the principles of the common law developed around the forms of action treatises it on is not pleading surprising enjoyed that such the great prestige.^[125] During and the golden age of pleading - the nineteenth century - pleading became an art in its own right. Its rules were regarded as logically derived from accepted principles and hence as inevitable, and the view was widely held that "any radical change would inflict damage not only on the law of pleading but on the common law as a whole."^[126]

To be sure, Lord Mansfield informs us that the "substantial rules of pleading were formed on a strong sense and soundest and closest logic."^[127] Unfortunately, however, quite a few rules did not live up to these high expectations, but rather shielded the unscrupulous pleader so that many a good case was lost and a bad one won before it came to trial.^[128] Pleading, in Maitland's words, had become "the most exact if not the most occult of the sciences." This affected the emerging substantive law, which was, in Maine's words "secreted in the interstices of procedure." In an action of assumpsit for breach of an informal promise, the forms of pleading "had been settled," according to the prevailing view, in the sixteenth and seventeenth centuries and remained unchanged until the nineteenth.^[129] Because of the technical pleading requirements peculiar to assumpsit, the inference was drawn, early on, that in an executory contract the exchanged promises were dependent in the making but independent in the performance stage, unless the parties had expressly agreed otherwise, with the result that the exchange relationship remained unprotected. Thus, the buyer of the cow in Nichols v. Raynbred^[130] had to pay for the undelivered cow and then bring his own separate action. The transition from promise to contract occurred very slowly indeed.^[131]

Another formidable roadblock to the development of a substantive law of contract was the dominant role of the jury in a lawsuit. The line of demarcation between the domains of court and jury, law and fact, was to begin with not clearly drawn. So long as this state of affairs persisted, a "mechanism" for the development of contract law was lacking.^[132] "What was a contract and what not was a question of fact."^[133] As late as 1847, the determination of the measure of damages in a contract action was still a jury matter.^[134] Not until 1854, when Hadley v. Baxendale was decided, did a law of damages begin to take shape.^[135]

This state of affairs was highly detrimental to the commercial community, which needed clear-cut rules of law. England had become the foremost commercial nation of the western world. New forms of commercial transactions had to be dealt with. The terms and risks involved were of greater complexity than those associated with the land-based transactions of an earlier period.^[136] An ordinary jury was not up to the task of dealing with these new fact situations. Small wonder that in the eighteenth century enlightened members of the profession reacted favorably not only to demands for ridding the legal system of inequities, uncertainties and delays, but also to the demand to bring order into the chaos by-creating a coherent system of substantive law.^[137] Living in a rational and cosmopolitan age, they became convinced that the law could be mastered only by going back to fundamental principles (frequently called axioms or maxims)^[138] and not by the "crude pragmatism" of Rolle's and others' Abridgments, which arranged their materials according to the forms of action, sometimes presented simply in alphabetical order.

The professional elite in search of a system sought guidance in the Digest, in the civilian literature on natural law and jurisprudence, and in writings on commercial and admiralty law.^[139] Unsurprisingly, these ideas had a strong influence on Lord Mansfield, who once declared: "The Law of England would be a strange science if it were [based] on precedents alone. Precedents serve only to illustrate principles."^[140]

Going beyond Lord Holt,^[141] Lord Mansfield had the courage to break with the dominant role of the jury in commercial cases. In remaking the laws of shipping, insurance and commerce, a thorough familiarity with the customs and practices existing in the world of trade and commerce was, he felt, indispensable, To bring the necessary information to his court, he dared to change the role of the jury drastically. He sought the advice of "knowledgeable" and "substantial" merchants who, informed of the issue in litigation, gave him the information on commercial practices needed to assure protection of good faith dealing between honest merchants.^[142] The role of "Lord Mansfield's jury" was advisory only. His court, when sitting in banc, was the final arbiter as to whether a given practice, carefully written down in his famous notebooks,^[143] deserved to become part of the law of merchants and thereby of the common law. Furthermore, Mansfield's technique of interpretation was guided by his conviction that it was the intention of the parties and not the accidental features of the particular forms of action which determined the scope of the contract.^[144] Mansfield also succeeded in streamlining the practice of procedure so as to enable his court to give speedy justice,^[145] but he failed in his effort to merge law and equity (this had to wait for another hundred years).^[146] Moreover, his success in rationalizing the doctrine of consideration by making a commercial promise in writing as binding as a promise under seal was short-lived;^[147] again he was ahead of his time.^[148]

The impact of Lord Mansfield's innovations was eloquently praised by Buller, J. in his valedictory address shortly before Lord Mansfield’s retirement.^[149]

Within the last thirty years the commercial law of this country has taken a very different turn from what it did before. We find in Snee v. Prescot [1 Atkyns 245] that Lord Hardwicke himself was proceeding with great caution, not establishing any general principle, but decreeing on all the circumstances of the case put together. Before that period we find that in Courts of Law all the evidence in mercantile cases was thrown together; they were left generally to a jury and they produced no established principle. From that time we all know the great study has been to find some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon, enlarged and explained, till we have been lost in admiration at the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case on this subiect which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.

Of course, Mansfield had his detractors as well.^[150]

Attempts to give a general account of English law in terms of its guiding principles were repeated time and time again. Blackstone's Commentaries on the Laws of England (1765-1769), preceded by an Analysis of the Laws of England (1765), is the most outstanding example.^[151] Blackstone was a contemporary and admirer of Lord Mansfield and his work shows Mansfield's influence, particularly in later editions.

Vinerian Professor of English law at Oxford, Blackstone set himself the formidable task of doing for the common law what had already been done for the civil law by the civilians, and to a large degree he succeeded. Inspired by the great philosophers of the Enlightenment^[152] (whom he used but did not always follow)^[153] Blackstone set out to cover the whole law of England, both public and private - an undertaking that had not been attempted since the days of Bracton.

The Commentaries - intended to justify and preserve the social order that the Revolution had established - open with praise for the English system of protecting life, liberty, and private property. "To Blackstone the common law was the most fitting and ingenious means for fulfilling the law of nature.”^[154] Intended as an elementary text addressed to beginning students^[155], and to the educated public, the Commentaries are written in an agreeable, often eloquent style that is easy to follow since it is not burdened with an embarrassing richness of detail. (Intricate parts of the law of inheritance and of property are often omitted or glossed over.)

The Commentaries came at the right moment and' satisfied a need for bringing the multilayered common law into a rational system of substantive rules. Blackstone transformed law, the "dreariest of all sciences," into a respectable subject matter worthy of being taught at the university. Moreover, the Commentaries did not offend the Establishment by advocating radical reforms.^[156]

“The eighteenth century,” as soon by Blackstone, "was stable and felt itself stable.”^[157] The French Revolution and the Napoleonic wars were still decades away, and the Industrial Revolution had just begun.

This introduction will not undertake to discuss the Commentaries as a whole, nor to examine their deficiencies, which have often been commented upon,^[158] but will focus on Blackstone's contribution to the law of contracts. The treatment of contracts in the Commentaries has "vexed" modern commentators, according to Milsom. Inspired by Hale's system (supra p. 42), the four books of the Commentaries distinguish between Rights of Persons (Book I), Rights of Things (Book II), Private Wrongs, including the organization of courts and the formulary system (Book III), and Public Wrongs (Book IV). The first book deals with constitutional law, the second with the law of property. Book III deals with civil procedure and the court system, Book IV with criminal law and procedure. Chapter 30 of Book II, devoted to the Rights of Things, contains a discussion of contract as a means of acquiring property. "A contract, which usually conveys an interest merely in action, is thus defined: 'an agreement, upon sufficient consideration, to do. or not to do a particular thing'" (at 442). The passage continues: "From which definition there arise three points to be contemplated in all contracts; 1. the agreement: 2. the consideration: and 3. the thing to be done or omitted, or the different species of contracts" (at 442). Express and implied executory and executed contracts are distinguished (at 443). Express contracts are those in which the terms of an agreement are openly uttered and avowed at the time of the making. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform (at 443). This is followed by the observation (at 446) that the most usual contracts whereby the right of a chattel may be acquired are "1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt[!]." The discussion of consideration is not of particular interest.

In the third book, Blackstone returns to the distinction between express and implied (implied-in-law) contracts. These are divided into two groups. The first includes judgment debts, forfeitures and statutory penalties (ch. 9, at 158-160); the discussion of this group is most interesting, for its shows Blackstone's indebtedness to natural law theory. According to Blackstone, these types of contracts "are necessarily implied by the fundamental constitution of government, to which every man is a contracting party" (at 158). With regard to sentences and assessments, he continues: "it is part of the original contract, entered into by all mankind who partakes the benefits of society, to submit in all points to the municipal constitutions and local ordinances of the state of which each individual is a member" (at 158).

The second group is made up of obligations "by natural reason and the just construction of law." These extend to "all presumptive undertakings or assumpsits; which though never perhaps actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man has engaged to perform what his duty or justice requires" (at 161). This group includes the common counts, the action for money had and received, and the action of account.

This last class of contracts, implied by reason and construction of law, "arises upon this supposition, that 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" (at 163). Nowhere, in all of this, is a clear distinction made between contracts implied in fact and those implied in law. (Hertzog v. Hertzog, infra p. 147).

The contract of employment is not mentioned in Books II and III.^[159] It appears instead in Book I, which is devoted to what Blackstone calls the Rights of Persons. In addition to public relations between magistrates and citizens, Book I deals with private relationships: master and servant, husband and wife, parent and child, guardian and ward.

Blackstone's abbreviated treatment of contracts has often been commented upon.^[160] Only a small fraction of the Commentaries is devoted to contracts, which suggests that Blackstone did indeed feel more at home in the field of land law than in the law of commerce. Still, there are many passages in the Commentaries that clearly show that Blackstone was aware of the commercial character of the England of his day. Thus, he quotes a foreign author who had said: "The English people know better than any other people on earth how to value at the same time these great advantages, religion, liberty and Commerce." Moreover, there are repeated references in the Commentaries to "this commercial age" and to the great change in property brought about by the expansion of trade.^[161] To be sure, Blackstone does not mention freedom of contract and he failed to anticipate that in the next century contract would come to be viewed as the principal form of social organization. But this lack of vision does not mean that the Commentaries represent only the typical eighteenth-century view that contract law is an adjunct of the law of property.^[162]

Blackstone has been called the Gaius of English law. Others surpassed him in depth and originality,^[163] but he had a rare gift of synthesis and made a unique contribution to the broad development of English law. To be sure, Bentham - who next to Austin^[164] was Blackstone's severest critic - faulted Blackstone for his quietistic conservationism and his uncritical admiration of the legal system as he presented it. But even Bentham had to admit that "first of all institutional writers, [he] taught jursprudence to speak the language of the scholar and the gentleman."^[165]

Though the Commentaries never achieved the reputation enjoyed by the work of Coke, they were a huge financial success.^[166] “Working edictions,” as Milsom calls them, appeared in England until the Judicature Act. Updated and modernized versions by Sergeant H. J. Stephen have been appearing until recently and have by now reached to more than twenty editions.^[167]

The success of the Commentaries in the United States was enormous.^[168] More than 2,000 copies went across the Atlantic before the Declaration of Independence; nine editions were published during Blackstone's lifetime. The Commentaries proved to be one of the dominant factors in the development of American law and its institutions, and after the Declaration of Independence their influence helped to prevent the reception of French law. The settlers of the West, who often lacked adequate libraries, were helped by the Commentaries to secure a modicum of order and to build new states out of the acquired territories. James Kent and John Marshall owed their learning and vocation, as they acknowledged, to Blackstone. Edition after edition, as well as condensations of the book, appeared,^[169] and were used as teaching tools in universities and law schools - at Harvard, judging by the catalogue, as late as 1850 and at other schools, including Yale, much longer.^[170]

Blackstone's success encouraged a new type of legal literature. Treatises appeared on various legal topics, many dealing with the law of contracts.^[171] Apart from the medieval work of Christopher St. Germain, Doctor and Student (1530, 1532)^[172] few English writers had attempted to speculate about the general principles of contract law until John Joseph Powell published his two-volume Essay Upon the Law of Contracts and Agreements in 1785.^[173] Powell’s work, and the treatises of English and American^[174] writers that were to follow, possessed, in the words of Simpson, an abstact and speculative character evolved outside the courtroom, a feature lacking in the legal literature of an earlier period.^[175]

The common law literature of the nineteenth century drew heavily from civilian writers. Speculative writing on contract and other branches of law had a long tradition on the continent. The works of Grotius, Pufendorf, Domat, Vattel and Burlamaqui, and later of Pothier and Savigny,^[176] were available to English and American lawyers and all influenced Anglo-American thinking about law and jurisprudence.

By far the most influential of the continental writers was the French jurist Robert Pothier, whose Treatise on Obligations was published in the United States in 1802 and in England, in the popular Evans translation with elaborate Notes, in 1806.^[177]

The influence of these writers on the common law cannot be overstated. English courts, sitting in banc on complex questions of law (a practice introduced by Lord Mansfield in commercial cases), made good use of the information on foreign law presented by the lawyers in their briefs, and frequently filled the gaps in the existing law to create a workable law of contracts.^[178]

Gradually, the classical law of contracts took shape, its emergence was reinforced by the teachings of the classical economists with their emphasis on individualism, freedom of trade and of contract. Economics was taught at the university as part of Moral Science and most if not all Victorian judges who had no legal but a broad liberal education were familiar with the works of Hume, Smith, Locke, Ricardo, the two Mills, and the "Philosophical Radicals."^[179]

The new, classical law of contracts found expression in a series of treatises which began to appear towards the end of the eighteenth century. Only a few works will be mentioned.^[180] William Paley's Principles of Moral and Political Philosophy (1785) contains an impressive discussion of the fundamental principles of contract law, missing in earlier treatments. Chitty's Practical Treatise on the Law of Contracts, enormously successful from the beginning, shows the spirit of the new age in its second edition, and Leake's Elements of Contracts (1867) states in its preface that there had existed previously no English work with the exclusive object of presenting contracts in a general and abstract form apart from its specific applications. Leake's most significant contribution to contract doctrine is the clear distinction between express and implied-in-fact contracts and constructive (implied-in-Iaw) contracts, a third category of civil liability covering cases of unjust enrichment. These treatises had their counterpart in the United States in the works of Kent, the two Storys, Parsons, and Sedgwick.

Simpson summarizes the result of the work as follows:

This survey of doctrinal innovation in contract law is perhaps unflattering to the common law tradition indigenous, judge-made law; the new ideas are largely plagiarized from the civil law, and it is to the rise of the treatise that we must attribute the change in the character and structure of basic contract law, rather than to judicial originality.

Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q. Rev. 247, 277 (1975).

In the latter half of the nineteenth century, the influence of these systematic treatise writers began to wane and was replaced for a time by the historical school centered in Germany. Maitland described Savigny, the founder of the historical school, as "the herald of the evolution, the man who substitutes development for manufacture, organism for mechanism, natural laws for Natural Law, the man who is nervously afraid that a code should impede the beautiful process of natural growth."^[181] Unsurprisingly, text writers in the next generation, like Pollock and Anson, were strongly influenced by Savigny.^[182] The chief representative of the historical school in England was Sir Henry Maine (1822-1888)^[183] who, unlike Savigny, believed in stages of evolution bringing the law into harmony with society.^[184]

Beginning in the middle of the nineteenth century, the effort to construct a comprehensive theory embracing the whole law of contracts was resumed and gained increasing momentum. Building upon the works of Powell, Chitty, Leake, W. W. Story, Kent, and Parsons,^[185] their successors sought to construct a closed and unitary system that would articulate the fundamental principles on which the legal system is based. A formalistic approach using high-level abstractions became the fashion. Thus, for example, in the first two editions of Pollock's Principles, the essential components of contract are said to be agreement and obligation, agreement being the outcome of two consenting minds or wills. Later editions of Pollock moved towards an objective theory of contracts stressing its historical basis and the element of good faith reliance rather than the artificial equations of will and intentions.^[186]

Langdell, whom tradition has credited with being the originator of the case method of teaching, also emphasized the consensual nature of contract as contrasted with tort liability, and developed an elaborately formalistic system of contract principles. Arguments of public policy had little, if any, bearing on Langdell's analytical constructs. To make his analytical approach work, Langdell had to severely limit the number of cases he included; cases which did not fit into his preconceived system were disregarded as "useless."^[187] Williston's "magisterial" treatise, which brought a great deal of order into the chaos of existing case law, was the high point of the formalist period, and the First Restatement of Contracts, for which Williston was the Chief Reporter, followed the lines of his famous text.^[188]

The Langdell-Williston scheme was eminently successful and responded to deeply felt needs for rationality and certainty. Inevitably, however, its impressive edifice began to crumble. Unruly case law, rejected by Langdell and Williston and reflecting a polytheism of values, clamored for recognition. It became evident that the "clear ideas" that had led the two to believe that "whatever seemed to be confused does not exist" did not work.^[189] Holmes, Corbin, and the Legal Realists (led by Llewellyn) launched an all-out "attack on the citadel."^[190] Holmes, who wrote The Common Law with the intention of freeing his generation from the past,^[191] tells us on the first page of his book that the life of law has not been logic but experience;^[192] law, in Holmes' view, is not a closed system of syllogistic reasoning: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed .... "^[193] According to Corbin, all generalizations should be regarded as tentative working rules, continually to be tested and reexamined in light of the sources from society, which they and are the drawn: prevailing the customs, morals of business the time practices, and place.^[194] This reexamination is all the more necessary since, "for every question worth calling a problem, at least two contradictory solutions and propositions can be found in past decisions."^[195] Corbin, and his disciple Llewellyn, constantly emphasized the significance of the facts of a particular case, the relative economic positions of the parties and the nature and purpose of their transaction. This new and non-formalistic conception of contract law was to have a considerable influence on the courts, and to play an important role in the drafting of both the Second Restatement of Contracts and the Uniform Commercial Code.

Notes:

[124] Baker at 187.

[125] H.J.. Stephen, A Treatise on the Law of Pleading in Civil Action (1824). It appeared in innumerable editions in England and here. See further E. Bullen & M. Leake, Precedents of Pleading (3d ed. 1868).

[126] Holdsworth, The New Rules of Pleading at the Hilary Term, 1 Cambridge L.J. 261, 282 (1925), quoting Bryant v. Herbert, 3 C.P.D. at 390 (1878) per Bramwell, L.J.

[127] Robinson v. Raley, 1 Burr. 361, 319, 94 Eng. Rep. 330 (1757); Bristow v. Wright, 2 Doug. 665, 128. G. 99 Radcliffe Eng. Rep. & C. 421 Cross, (1781).

[128]. G. Radcliffe & G. Cross, The English Legal System, 181 (G. Hand & J. J. Bentley eds. 1977). As late at 1830 there were seventy variations from which plaintiff had to choose and each writ had its own prerequisites. Use of the wrong writ was fatal and forced plaintiff to begin all over again, so long as no verdict had been reached. In the latter case, the suit was lost forever. Fifoot at 151.

[129] Baker, From Sanctity of Contract to Reasonable Expectations?, 32 Current Legal Probs. 17, 20 (1979).

[130] Contrast Nichols v. Raynbred, infra p. 976, with Pordage v. Cole, infra p. 976; Kingston v. Preston, infra p. 979; Morton v. Lamb, infra p. 983. Francis, supra note 14.

[132] Baker at supra 291, at 20.

[133] Baker at 291. To give an illustration: If, for instance, in an action of assumpsit the defendant pleaded the general issue, i.e. denied plaintiff's allegation in toto, the only question of substantive law for the court to decide was the question of consideration; all the other prerequisites of contract were within the domain of the jury and its inscrutable verdict. Baker, supra note 129, at 20.

This state of affairs illustrates the importance of a special verdict, agreed upon by the parties. See Baker, Slade’s Case, supra note 82. The special verdict was unirvalled as a vehicle for legal development. Milsom at 77.

[134] Black v. Baxendale, 1 Ex. 410, 154 Eng. Rep. 174 (1847)

[135] 9 Ex. 341, 156 Eng. Rep. 145 (1854).

[136] Francis, supra note 14, at 121.

[137] John Stuart Mill on Bentham & Coleridge, at 76 (F. R. Leavis ed. 1962):

The law came to be like the costume of a full-grown man who had never put off the clothes made for him when he first went to school. Band after band had burst, and, as the rent widened, then, without removing anything except what might drop off of itself, the hole was darned, or patches of fresh law were brought from the nearest shop and stuck on.

[138] P. Stein, Regulae Juris 153-159 (1966). A venerable tradition was thereby revived, a tradition going back at least as far as Fortescue's De Laudibus Legum Angliae (lst ed. c.1470). Fortescue, following the approach of Scholastic Aristotelianism, attempted to penetrate to first principles. However we may feel about the success of his approach, the search for and insistence on principles (maxims) has been with us ever since, though maxims often were trivialized (particularly by Coke; the treatment by Bacon is far superior in this respect), This has affected our theories of the judicial process and bears upon the question whether law consists only of rules or includes principles as well as standards. See R. Dworkin, Taking Rights Seriously 14-80 (1977) (especially pp. 22-28). For a penetrating account of the judicial process, see E. Levi, An Introduction to Legal Reasoning (l949); Levi points out that legal analysis uses neither induction nor deduction, but reasoning by analogy.

[139] 1 W. Paley. Principles of Moral and Political Philosophy 15-20 (1825); T. H. Plucknett, A Concise History of the Common Law 299, 300 (5th ed. 1955); Atiyah at 345 et seq.

[140] Robinson v. Raley, supra note 127, at 319, 94 Eng. Rep. at 331. But he adds by way of qualification: ". . . and so appear, when well understood and explained; though by being misunderstood and misapplied, they are often made use of as instruments of Chicane." See further Bristow v. Wright. supra note 127. On Lord Mansfield, see C. H. S. Fifoat, Lord Mansfield (1936); 7 W. Holdsworth, History of English Law 44-45 (1926).

[141] Lord Holt consulted goldsmiths about their usages, Ford v. Hopkins, 1 Salk. 283, 91 Eng. Rep. 250 (1750). But he saw no need for making promissory notes negotiable, Clerk v. Martin, 2 Ld. Raym. 757. Eng. Rep. 1 (1702). A statute, 34 Anne, ch. 8 (1703), had to be passed to remedy the situation.

[142] Lord Birkenhead, Fourteen English Judges 186 (1926); Atiyah at 115-116.

[143] Howard, Lord Mansfield's Notebooks, 93 L.Q. Rev. 438 (1976).

[144] Fifoot, supra note 140, at 18.

[145] Id. at 52-81.

[146] A summary of his point of view is given in 3 Blackstone at 429 et seq. On the fusion of law and equity, see the Judicature Acts of 1873 at 175, briefly discussed at 429 et seq. in Baker On the at fusion 46-48. 97-99. For the evolution of the American law of civil procedure, see C. Hepburn, The Historical Development of Code Pleading in American and England (1897); R. Richard Millar, Civil Procedure of the Trial Court in Historical Perspective (1952); L. Friedman, A History of American Law, 49-51, 126-131, 340-347 (I973).

[147] Pillans & Rose v. Van Mierop & Hopkins, 8 Burr. 1663, 97 Eng. Rep. 1035 (K.B. 1765), infra p. 744. The opinion of Wilmot, J. shows that it was not impossible to find a consideration.

Lord Mansfield's heretical view on consideration was overturned in Rann v. Hughes, 7 T.R. 350 note, 101 Eng. Rep. 1014 note (1778).

[148] For the modern law, see Ch. 3, section 7 and p. 752 infra.

[149] Lickbarrow v. Mason, 2 T.R. 63, 100 Eng. Rep. 35, 40 (1787).

[150] 12 W. Holdsworth, History of English Law 464, 560 (1926). Mansfield was viciously attacked by the anonymous Junius for his leanings toward Roman law. Even Dean Ames of Harvard reportedly could not resist the temptation <;>f calling Mansfield a fraud in front of the law school class on account of his attempt to merge law and equity. See A. Sutherland, Law at Harvard 188 (1967). These criticisms contrast with Lord Birkenhead's high praise: "Coke captured the law merchant for the common law. Holt retained it; Mansfield formally incorporated it into our system." Birkenhead, supra note 142, at 186. See Baker, The Law Merchant and the Common Law Before 1700, 38 Cambridge 1.J. 295 (1979).

[151] In his analysis he mentions some of his predecessors: A. Finch, Law or a Discourse Thereof (1613) (originally in French); T. Wood, An Institute of the Laws of England (1720). He has high praise for M. Hale, An Analysis of the Civil Part of the Law (1713), to whom he acknowledges a great debt (Preface vii·viii). Coke is mentioned with only faint praise. The difficulties Blackstone encountered are illustrated by the frustrations Hale and Wood met in attempting to arrange their materials.

[152] 2 H. Grotius, The Rights of War and Peace (De Jure Belli ac Pacis), chs. XI-XII (F. W. Jure Kelsey Naturae ed. et 1964) (1st ed. 1625); 3 S. Pufendorf, Of the Law of Nature and Nations (De Jure Naturae et Gentium), ch. IV, section 3, and chs. V, VI, IX (1720); E. Vattel, The Law of Nations, or Principles of the Law of Nature (1760); J. Domat, The Civil Law in its Natural Order: Together with the Publick Law (2d ed. 1737); and J. J. Burlamaqui, Principes de Droit Naturel (1748).

It is not possible to reconcile Blackstone's positivism and his natural law theory. See Finnis, Blackstone's Theoretical Intentions, 12 Nat. Law Forum 163-187 (1967). We owe this reference to Doolittle, Sir William Blackstone and The Laws of England: A Biographical Approach, 3 Oxford J. of Legal Studies 89, 108 (1980).

[153] Examples are given in B. Gagnebin, Burlamaqui et le Droit Natural 270 (1944). Burlamaqui was a professor at the University of Geneva; his work appeared in translation shortly after its publication (1748). Burlamaqui's writing influenced the teaching of natural law at Cambridge. The work of Vattel (who also taught at Geneva) was cited for more than a hundred years by the U.S. Supreme Court, 2 J. B. Scott, Law, the State and the International Community 264 (1939). Vattel also influenced Kent’s Commentaries (1826).

[154]. 2 M. Howe, Justice Olive W. Holmes, The Proving Years 1870-1882, 141 (1963).

[155] This was Mansfield's evaluation. For a recent discussion of Blackstone see Milsom, The Nature of Blackstone's Achievements, I Oxford J. of Legal Studies 7 (1981). G. Jones, The Sovereignty of the Law: Selections from Blackstone's Commentaries on the Laws of England (1873), contains, in its Introduction, an admirable discussion of Blackstone. See also D. Boorstin, The Mysterious Science of Law (1941); Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 205 (1979).

[156] This does not mean that he was against reforming a tout prix. He strongly advocated, for instance, reforms of the penal law, Holdsworth, Some Aspects of Blackstone and his Commentaries, [1932] Cambridge L.J. 273, 274.

[157] Taken from G. M. Young, Victorian England, Portrait of an Age 47 (1953), describing the spirit of the period.

[158] H. Levy-Ullmann, The English Legal Tradltlon 148 (1935) (translated by M. Mitchell, revised and edited by F. M. Goadly, with a Foreword by Holdsworth).

[159] Rev. Kahn-Freund, 508-528 (1977). Blackstone's Neglected Child: The Contract of Employment, 93 L.Q. Rev. 508-528 (1977).

[160] Atiayh at 102, 215.

[161] According to Doolittle, supra note 152, at 103, Blackstone's contemporaries did not regard him as an academic, but as "a man of business." He was quite successful in managing the financial affairs of All Souls College as well as his own.

[162] See Horwitz at 162, 163.

[163] Grotius’ Treatment of Contracts is far superior.

[164] J. Bentham, in A Fragment of Government (1881), says of the Commentaries that “they are a superficial defense of an oligarchic constitution and inequitable law.” See Cross, Blackstone v. Bentham, 92 L.Q. Rev. 516 (1976). For Austin's critique see Dicey, Blackstone's Commentaries, 4 Cambridge L.J. 286, 287-288 (1932).

[165] J. Bentham, A Commentary on the Commentaries and A Fragment of Government 413 (J. H. Burns & H. L. A. Hart eds. 1977). In Baker's view, Bentham failed to realize that "Blackstone was both a final survey of the old common law and the first textbook of a new legal era." Baker at 166.

[166] 2 D.N.B. 595, 597.

[167] But the title page no longer states that it is based on Blackstone, and it is no longer called New Commentaries.

[168] L. Friedman, A History of American Law 16, 88 and passim (1975).

[169] Id.

[170] Yale used W. Robinson's version, "more than one hundred years out of date," according to Corbin. See Kessler, Arthur Corbin, 78 Yale L.J. 517 (1969).

[171] They are listed in Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chi. L. Rev. 632, 651 (1981).

[172] 91 Selden Society (T. Plucknett & L Barton eds. 1974).

[173] American editions appeared in 1809 and 1823. Powell's treatise was preceded by Sir William Jones’ famous essay on Bailments (1781).  Jones, insisting that law was a science, treated his subject matter in an analytical (emphasizing the first principles of natural reason), historical (comparative law) and synthetic fashion. He aimed at the discovery of axioms flowing from natural reason, good morals, and good conscience. “[I]f law be a science, and really deserve so sublime a name,” he claims, “it must be founded on principle; … but if it be merely an unconnected series of decrees and ordinances, its use may remain, though its dignity be lessened, and He will become the greatest lawyer who has the strongest habitual or artificial memory” (at 123-124). Jones was the first author to call attention to the French jurist Pothier.

[174] See supra note 171.

[175] Simpson, supra note 2, at 252; J. C. Perkins published a fourth edition of Chitty’s Practical Treatise on the Law of Contracts, with appendices, in 1839.

[176] See note 146 supra on Grotius, Pufendorf, Domat, Vattel, and Burlamaqui; R. Potheir, Treatise on Obligations (1802, 1806); and Savigny, 3 System des Heutigen Roemischen Rechts (1840). The translation of Savigny dates to 1860 and was published in Madras.

[177] On the high regard in which he was held, see Cox v. Troy, 5 B. & H. 474, 481,106 Eng. Rep. 1266 (1822); see also Foster v. Wheeler, 36 Ch. D. 695, 698 (1887).

[178] Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854); infra p. 106 (damages); Offord v. Davis, 12 C.B. (N.S.) 748 (formation of contract); Taylor v. Caldwell, 3 B. & S. 826, 122 Eng. Rep. 309 (KB. 1863); Smith v. Hughes, L.R. 6 at B597 (1871) (mistake); Phillips v. Brooks [1919] 2 K.B. 243.

[179] Pollock, A Plea for Historical Interpretation, 9 L.Q. Rev. 163 (1923). English judges from Parke to MacNaughten had no legal education:

There was none to have. Until 1852, where the Common Law Procedure Act furnished at once the need and the opportunity for fudges to think in terms of principles there was no serious study of law at the universities and the old professional training in the Inns of Court where they dined had long disappeared. C. H. S. Fifoot, Judge and Jurist in the Reign of Victoria 21 (1959).

[180] Simpson, supra note 2, at 248.

[181] Introduction to O. Gierke, Political Theories of The Middle Age at xv (1900). We owe the reference to C. H. S. Fifoot, Judge and Jurist in the Reign of Victoria (1959).

[182] F. Pollock, Treatise on the General Principles of Contract Law Concerning the Validity of Agreements in the Law of England (1876). W. Anson, Principles of the English Law of Contract (1879). Anson's book is a good deal less sophisticated than Pollock's, which may explain its popularity. He had no wish to "oppress and dishearten" the students. 1 Oxford Studies at 269. Anson's book had many editions, the latest one by A. Guest (1979). One of the many American editions was edited by Corbin with American notes. The preface to the fifth edition sets out the purpose of the work and contains a critique of Leake as well as of Pollock.

[183] See squib, supra p. 19.

[184] For the theories of legal evolution beginning with the natural law tradition and ending with the aftermath of “Ancient Law,” see P. Stein, Legal Evolution, The Story of an Idea (1980).

[185] See p. 47 supra.

[186] Supra note 182 and p. 115 infra.

[187] Preface to the first edition of Cases on Contracts, reprinted in Cases all Contracts at viii (2d ed, 1879).

[188] Corbin served as a special adviser and Reporter on Remedies.

[189] This citation is taken from J. S. Mill's famous essay on Bentham, reproduced in The Dissertations and Discussions at 378 (1868). Essays on Politics and Culture by John Stuart Mill, 85, 103 (G. Himmelfarb ed. 1962).

[190] The expression is from the title of William Prosser’s article on products liability, The Assault upon the Citadel (Strict Liability and the Consumer), 69 Yale L.J. 1099 (1960).

[191] Law In Science and Science In Law, in Collected Legal Papers 210, 225 (1920).

[192] O. W. Holmes, The common Law I (1881)

[193] Ibid. To quote a modern author, it is "neither logical demonstration, nor inductive generalization, nor the comprehension of certain evident truths.” J.  Esser, Grundsatz and Norm 183, 184 (1956). See also J. Stone, Legal Systems and Lawyer’s Reasoning, 332 (1964).

[194] Corbin Section 331.

[195] Ibid.

C. Codifications and Restatements

In the creation of the law of contracts the courts have played a decisive role both here and in England. Our federal system of government granted almost complete control over private law to the states. Since the state legislatures failed to play a major role in developing a body of private law, the job remained for the courts.^[196] However powerful the forces working toward uniformity, the ideal of a "general law" of contracts was never fully realized, and each jurisdiction remained free to develop its own case law.^[197]

So long as commerce remained largely local, this state of affairs did not present a serious problem. But with the growth of commerce into an interstate activity, local differences of law began to impair the usefulness of contract as a planning device. To make matters worse, "the mass of law," as Story observed even in 1820, was accumulating with inordinate rapidity.^[198] Inevitably, conflicting decisions appeared even within the same jurisdiction. As a result, uniformity and predictability - the twin goals of any legal system were seriously jeopardized.

It is understandable, therefore, that a movement was begun to eliminate the defects of uncertainty and complexity. The first attempts to harmonize conflicting decisional law took place in commercially significant fields, such as negotiable instruments and sales. With legislative help, sensible common law rules were distinguished from less sensible ones and the good rules given statutory form. In this country, the National Conference of Commissioners on Uniform State Laws drafted model statutes for adoption by state legislatures. This approach succeeded only in part. The Uniform Sales Act, for instance, was never adopted in every state, and the uniform laws did not even cover such subjects as contracts, agency, torts or trusts. In the effort to achieve uniformity, another organization took the lead, using a different technique. The American Law Institute, a private organization of judges, practitioners, and law teachers, set itself the task of "restating" the law in a substantial number of fields so that a judge, lawyer or law teacher could "go to one source, find what the law in point [is] and with confidence state it to be so.”^[199] The various Restatements are systems of generalizations drawn from the welter of individual decisions. In form they consist of "concise rules analogous to those in a carefully drawn statute:”^[200] accompanied by comments and illustrations. Although they have only persuasive authority, it was hoped that the influence of the Restatements would be "greater than that. . . accorded to any legal treatise, more nearly on a par with that accorded to the decisions of the courts."^[201] No doubt, the impact of the Restatements has been substantial: this is certainly true for the Restatement of the Law of Contracts.

Once reform movements got underway, they did not stop with these attempts. Shortly before 1940, the American Law Institute and the Commissioners on Uniform State Laws joined forces and began a campaign to modernize the whole of commercial law by codification.^[202] The Uniform Commercial Code (U.C.C.) was the result. The Code has been adopted in all states but Louisiana (which has not adopted Article 2), and substantially affects the general law of contracts. To be sure, the Code does not displace all principles oflaw and equity,^[203] but in contrast to the Uniform Sales Act, it does state rules governing significant aspects of the law of contracts, such as offer and acceptance, consideration, and unconscionability, which are not always in harmony with traditional contract rules.^[204] To bring the general law of contracts into line with the provisions of the U.C.C., a revision of the Restatement, the Restatement Second, was begun in 1952 and published in 1981. Although its “black-letter” law occasionally departs from the provisions of the U.C.C., the technique used in the Second Restatement is a vast improvement on that employed in its predecessor. It is forward-looking^[205] and contains more open-ended provisions; the comments are a good deal more elaborate, and decisional law is always given to illustrate its general rules. Still, one may wonder whether it is the “vocation” of our time (Savigny) of transition to under-take an enterprise like the Restatement, as parts of contract law continue to spin off in a kind of centrifugal process and are made the subject of special legislation, while at the same time the remaining core is reinvigorated by new ideas^[206] and changing standards of behavior.^[207]

Notes:

[196] The provisions of the Civil Code drafted in the nineteenth century by David Dudley Field form an exception. Its contract provisions (sometimes in amended form) were enacted in California, Georgia, Montana, the Dakotas, and Idaho. Harrison, The First Half-Century of the California Civil Code, 10 Calif. L. Rev. 185 (1922). Contract law in Louisiana is based on the French Code Civil. See in general G. Gilmore, the Ages of American Law 27, 119 n. 113 (1977).

[197] On case law and common law, see Llewellyn, Our Case Law of Contract: Offer and Acceptance (pt. 1), 48 Yale L.J. 1-9 (1938).

[198] J. Story, Progress of Jurisprudence, in Miscellaneous Writings, 237-238 (1852).

[199] Goodrich, The Story of the American Law Institute, 1951 Wash. U.L.Q. 283, 286. According to Williston, the Restatement endeavors “to restate the law, as it is, not as new law.” 3 A.L.I. Proceedings 159 (1925). Even the famous section 90, qualifying the bargain theory (see Ch. 3., Section 7), is based on existing decisional law. The final draft of the Restatement First was approved in 1932.

[200] Williston, The Restatement of Contracts, 18 A.B.A.J. 775, 777 (1932).

[201] Goodrich, supra note 199, at 283, 286.

[202] On cofidication, its goals and disadvantages, see Pound, Sources and Forms of Law, (pt. 3), 22 Notre Dame Law. 1, 46, 61 (1946); Patterson, The Codification of Commercial Law in the Light of Jurisprudence, 1 N.Y. Law Rev. Commission Report 50 (1950); Gilmore, Legal Realism: Its Cause and Cure, 70 Yale L.J. 1037, 1042 (1961); Hawkland, Uniform Commercial “Code” Methodology, 1962 U. Ill. L.F. 291; Diamond, Codification of the Law of Contracts, 31 Modern L. Rev. 361 (1968); consult also the materials collected in J. Honnold, The Life of the Law, ch. 3 (1964).

[203] U.C.C. Section 1-103 provides as follows:

Supplementary General Principles of Law Applicable

Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating and invalidating cause shall supplement its provisions.

[204] Note, 105 U. Pa. L. Rev. 836 (1957).

[205] Wechsler, Restatements and Legal Change: Problem of Policy in the Restatement Work of the American Law Institute, 13 St. Louis U.L.J. 185 (1968).

[206] A survey of the ferment prevailing in today's legal scholarship is to be found in C. Fried, Contract as Promise 1-6 (1981) and in Barnett, Contract Scholarship and the Emergence of Legal Philosophy, A Review of Farnsworth's Contracts, 97 Harv. L. Rev. 1123 (1984); On the Law and Economics movement with its emphasis on efficiency (wealth maximization), see the Symposium, "Change in the Common Law: Legal and Economic Perspectives," 9 J. Legal Stud. (1980), continued in Symposium on Efficiency as Legal Concern, 8 Hofstra L. Rev. 485 (1980). This Symposium contains a challenging reply to the Law and Economics movement by scholars defending the legitimacy of nonnative discourse in Law. See further A. Kronman & R. Posner, The Economics of Contract Law (1979), an anthology with running commentary. On the Critical Legal Studies movement, see the bibliography attached to the article by Duncan Kennedy and Karl E. Klare in 94 Yale L.J. 461, 464-490 (1985). See also Forbach's review of The Politics of Law (D. Kairys ed. 1982), 92 Yale L.). 1041 (1983); p. 64 infra. For the most thorough discussion of the philosophical premises of the Critical Legal Studies approach, see Unger, The Critical Legal Studies Movement, 96 Harv, L. Rev. 561 (1983). An interesting collection of symposium articles on the movement, some more sympathetic than others, may be found in 36 Stan. L. Rev. 1-674 (1984). See further R. Unger, Knowledge and Politics (1975).

[207] Gordley, European Codes and American Restatements, 81 Colum. L. Rev. 140 (1981).