English Common Law in the Age of Mansfield

By James Oldham | Go to book overview

CHAPTER THREE
Contract and Quasi-Contract

Background

The modern law of contracts grew out of the common law writ system. The early writs that governed interpersonal consensual obligations, covenant and debt, bore procedural and evidentiary constraints that corresponded to a limited jurisdiction in the royal courts. Those constraints—the requirement of a document under seal and the availability of only specific performance in covenant; the requirements of a sum certain and quid pro quo and the availability of wager of law in debt— left the writs largely frozen in the medieval common law and invited the emergence of a more flexible form of action.

The more flexible form of action was assumpsit, derived from the expanding scope of the action known as “trespass on the case.”1 By the early seventeenth century, assumpsit had given coherent shape to the law of contracts. Contractual liability in the law courts, however, was largely left to the jury until the late eighteenth century. Thus, even if the basics of consensual contract theory existed earlier, the theoretical framework of contract law was not fully articulated until after Lord Mansfield’s term as Chief Justice.

As in other areas of the law, Mansfield emphasized basic fairness and the intentions of the parties as governing principles. He did so to the point of construing narrowly the Statute of Frauds and in attempting to reduce the doctrine of consideration to a rule of evidence. Although these efforts laid the groundwork for an era of freedom of contract that was to follow, Mansfield cannot be taken to have been an unquestioning exponent of freedom of contract. His approach was an equitable one, grounded in a sense of fairness. He policed limitations upon enforceable intentions, and his embrace

1. For representative sources discussing the origins of trespass on the case, see chapter 15, n. 9.

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English Common Law in the Age of Mansfield
Table of contents

Table of contents

  • Studies in Legal History iii
  • Title Page v
  • Contents vii
  • Illustrations ix
  • Preface xi
  • Editorial Statement xv
  • Abbreviations xvii
  • Part One - Mansfield and the Court of King’s Bench 1
  • Chapter One - Lord Mansfield 3
  • Chapter Two - The Court of King’s Bench 12
  • Part Two - Commerce and Contract 77
  • Chapter Three - Contract and Quasi-Contract 79
  • Chapter Four - Bankruptcy 107
  • Chapter Five - Insurance 124
  • Chapter Six - Negotiable Instruments 152
  • Chapter Seven - Usury 165
  • Chapter Eight - Prize and Trade 177
  • Chapter Nine - Intellectual Property 190
  • Part Three - Crime and Tort 207
  • Chapter Ten - Libel 209
  • Chapter Eleven - Restrictions on Religious Observance 236
  • Chapter Twelve - Nuisance 248
  • Chapter Thirteen - Assault, False Imprisonment, and Offenses against Public Order and Welfare 260
  • Chapter Fourteen - Perjury 268
  • Chapter Fifteen - Negligence 276
  • Chapter Sixteen - Trespass and Trover 292
  • Part Four - Status and Property 303
  • Chapter Seventeen - Slavery 305
  • Chapter Eighteen - Marriage 324
  • Chapter Nineteen - Labor and Employment 343
  • Chapter Twenty - Property and Wills 356
  • Conclusion 364
  • Appendix- Table of Regnal Years 371
  • Bibliography 373
  • Table of Statutes 393
  • Table of Cases 395
  • General Index 409
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