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Debt and Contract in the Common Law

Published online by Cambridge University Press:  12 February 2016

A. V. Levontin
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The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental. A debt represents what a man is entitled to claim, but because of its proximity to a claim in detinue and for other reasons to be hereafter discussed, it is for many purposes treated as if it were something that a man already owns. The owner of a debt may not help himself by seizing what he is owed and must, like the owner of any chose in action, implement his right with the cooperation of the debtor or else by resort to the courts. Nevertheless, he who owns a debt enjoys a peculiarly “strong” right. This strength derives in part from the “real” nature of the right; by virtue of this a creditor, such as a lender or an unpaid vendor, is treated in some respects almost as if he were already the owner of what is owed, in particular a lender as if he went on owning the money lent to the borrower. And even in cases where a debt does not originate in a real transaction (as, for instance, a judgment-debt or income tax owed to the government, in which cases the creditor has not previously given that, or the equivalent of that, which he now claims) it is still “strong” because the object in obligatione, viz. money or other fungibles, is “indestructible” and therefore a debt cannot be frustrated by impossibility.

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Israel Law Review , Volume 1 , Issue 1 , January 1966 , pp. 60 - 98
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1966

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References

1 Thus, by “an extension of the principle that rights of property are not destroyed or confiscated on the outbreak of war”, an accrued claim to payment of money under a contract is saved from forfeiture although it “is not strictly speaking a right of property—the creditor has no property in the debtor's money before it is paid to him”: Lord Reid, in Arab Bank v. Barclays Bank [1954] A.C. 495, 530–31. Sometimes the barrier between property and obligation is crossed and a debt is spoken of as “property”: Atkin L.J., in Swiss Bank Corporation v. Boehmische Industrial Bank [1923] 1 K.B. 673, 684; Hill J., in Richardson v. Richardson [1927] P. 228, esp. 232–35. In Rex v. Lovitt [1912] A.C. 212, 230 the Judicial Committee of the Privy Council referred to a deposit account (i.e. a debt not immediately payable) as “property situate within the province” of New Brunswick; and see Feuchtwanger v. Central Hanover Bank (1942) 288 N.Y. 342 (where a bank credit is treated as “specific personal property” within the State of New York); McNair, Legal Effects of War (3rd ed., 1948) 119–20. In Re United Railways of the Havana, etc. [1960] 1 Ch. 52, 88, Jenkins L. J. says: “The contractual right to receive payment of a debt is an item of property …”—without singling out debts immediately payable. On the other hand, Upjohn J. would probably lean against considering as property a debt not yet payable: In re Claim by Helbert Wagg [1956] 1 Ch. 323, 339–40.

2 “In the placita Anglo-Normanica we read of one Ailward who broke into a house to recover payment of a debt. But he was caught and bound as a fur manifestus, and was finally adjudged to undergo the ordeal by water, and, being convicted, was mutilated.” Stone, Gilbert, “Concerning the Action of Debt at the Time of the Year Books”, 36 L.Q.R. (1920) 61Google Scholar, citing the P.A.N., ed. Bigelow, p. 260.

3 Cf. Sinclair v. Brougham [1914] A.C. 398, 432.

4 “Loan or the like”: Y.B. 41 Edw. III, Pasch. No. 5. See Plucknett, , A Concise History of the Common Law (5th ed., 1956) 645Google Scholar, n. 2; Simpson, A.W.B., “The Place of Slade's Case in the History of Contract”, 74 L.Q.R. [1958] 381, 391Google Scholar. The word “obligation” generally means a document under seal.

5 Ames, , Lectures on Legal History (1913) 92Google Scholar; 3 Holdsworth, H.E.L., 423–24; Gilbert Stone, op. cit., 63–65.

6 Ames 128.

7 It expressly laid down that “by parol the party is not bound”: Y.B. 29 Edw. III 25, 26, quoted by Holmes, , The Common Law (1881) 263Google Scholar; and see Glanvill, caps. 8 (“…the court of our lord the king is not wont to protect or warrant private agreements…”) and 18, and Bracton f. 100 (with conventional stipulations “the King's court does not concern itself, save sometimes as a matter of grace…”), in Fifoot, , History and Sources of the Common Law (1949) 236, 237Google Scholar.

The very success and expansion of the King's justice tended to the suppression of local beneficial exceptions, including exceptions in favour of contracts: 3 Holds-worth 424. The growing consistency and hardening within the common law also resulted in changes not always desirable. Thus until Edw. III a surety could be sued in debt, even on a parol undertaking. Thereafter, the absence of quid pro quo received by the surety led to the banishment of guaranty from the realm of debt and sureties could only be sued in assumpsit. (Cf. Holmes 269–70, 287.) It was with reference to claims against sureties, among others, that Lord Holt Said: “… it is an error to think that every contract which obliges one to pay money raises a debt.” (Smith v. Aiery (1705) 6 Mod. 128, 129, quoted by Lücke, H.K., “Slade's Case and the Origin of the Common Counts”, 81 L.Q.R. [1965] 422, 423Google Scholar.)

8 On a covenant to pay a sum certain in money or other fungibles the remedy normally (i.e. whenever the covenant took the form of a grant as distinct from that of a mere promise) was not covenant but debt. 2 Pollock, and Maitland, , H.E.L., 217Google Scholar; 3 Street, The Foundations of Legal Liability (1906) 131–32; 3 Holdsworth 418. In the 17th century covenant became concurrent in such cases with debt.

The distinction between suing for breach of covenant and suing on the debt is of great importance: it secretes in embryonic form the future difference between assumpsit and debt-detinue. A suit for damage suffered from breach of covenant (as distinct from a suit in debt for specific recovery of the grant in the covenant) constituted the only possibility known to the early common law of obtaining satisfaction for loss arising from breach of promise.

9 The Anglo-Saxon daed appears to be cognate with the Latin do, dedi: 3 Street 131.

10 Cf. n. 126 post.

11 Sharington v. Strotton (1566) Plowden 302.

12 On the early distinction between words of grant in a deed (which would support an action of debt) and words of acknowledgement or promise (which could only be sued upon by action of covenant) see Anon. Y.B. 37 Hen. VI Mich. f. 8, pl. 18 (1458), in Fifoot 249–50. And cf. In re Cook's Settlement Trusts [1965] 2 W.L.R. 179, 183–84.

13 For the reasons see Stoljar, , “The Transformations of Account”. 80 L.Q.R. [1964] 203, 214–15Google Scholar; Snell's Principles of Equity (25th ed., 1960) 573.

14 For the “bailiffs, receivers and guardians” formula, see Stoljar, op. cit., 211.

15 3 Holdsworth 428; Stoljar, op. cit., 215–16. Yet an action of account has the advantage that it “may well accrue before a debt becomes payable”: Atkin L.J., in Joachimson v. Swiss Bank Corporation [1921] 3 K.B. 110, 130.

16 Salter v. Pearce (1843) 4 Ala. 669, quoted in 3 Street 157.

17 3 Holdsworth 425–26, n. 8 quotes Ames: “…trusts for the payment of money were enforced at common law long before Chancery gave effect to trusts of land. It need not surprise us, therefore, that upon delivery of money by A to B to the use of C or to be delivered to C, C might maintain an action of account against B… The words ‘to the use of’ still bear witness to the trust relation.” (And see Ames 119; Winfield, The Law of Quasi-Contracts (1952) 5; Stoljar, op. cit., 210, 212. It was the want of such an action where land was in question that has given rise to uses and trusts in Equity.) It is conceivable that, because of the non-equitable origins of quasi-contract and of account, beneficiaries of trust-relations in money might succeed where beneficiaries of similar relations in land would be hampered by equitable requirements (such as “clean hands”) and fail.

18 In Maitland's words, “own sister to Detinue”: Forms of Action (1936 ed.) 63. Under the old pleading, counts in these two were joinable, as they were in trover and case. Cf. Atkinson, and Chadbourn, , Civil Procedure (1948) 142 n. 6.Google Scholar

19 Initially, the defendant was said to “deforce” the plaintiff of the money. By the time of Bracton the semantic change had occurred (3 Street 130). See 2 Pollock and Maitland 173, 205. Cf. the text in Glanvill with that in the Statute of Wales of 1284: Fifoot 234, 238.

20 The object in obligatione is normally money. It may, however, be other fungibles, ascertained generically. Fungibles which are ascertainable specifically, as also of course non-fungibles, lie in detinue. Debt was the appropriate action for mutuum; detinue for commodatum and depositum. See Statute of Wales, 1284, in Fifoot 239; Maule J. in Deacon v. Gridley (1854) 15 C.B. 295, 303–04, and in Owen v. Routh and Ogle (1854) 14 C.B. 327, 338; Langdell, , Summary of the Law of Contracts (1880) 125Google Scholar; Fitzherbert's, Nat. Brev. (9th ed., 1794) 138AGoogle Scholar; 7 Viner's Abridgment, tit. Debt (2nd ed., 1791) 324, 363; 8 ibid., tit. Detinue, 21.

When fungibles other than money are owed, as in case of rent-corn, judgment is entered for their value in money. (3 Street 130.) Even in detinue for specific chattels it was not until the Common Law Procedure Act, 1854 (s. 78) that the courts were first empowered to order restitution in specie. The possibility of ultimately obtaining not the thing itself but its pecuniary value is common to detinue and to debt, and does not detract from the proprietary quality of either: value is recovered, not damages at large—whether or not damages for consequential loss are also added.

The form of debt for the recovery of chattels other than current money of the realm was debt “in the detinet”. See Ward v. Kidswin (1626) Latch 5, 77, 78. On the distinction between debt “in the debet and detinet” and “in the detinet only” see Fitzherbert's, Nat. Brev. (9th ed. 1794) 119H, I, M, 121B, 152CGoogle Scholar; Sutton, , Personal Actions at Common Law (1929) 15–16Google Scholar; Fifoot 28. On the possible influence of the split between these two varieties of debt upon the separation of debt and detinue into two forms of action, see 3 Street 127 ff.

21 In the “count”, the cause of the debt would be mentioned: Gilbert Stone, op. cit., 63.

22 Cf. Holmes 252. In this respect the writ is curiously modern: it neither sets out the evidence, nor does it argue law. On the other hand, the writ does not state the facts giving rise to liability.

23 The defendant is given opportunity to satisfy the claim (similarly to cases, in modern procedure, of a specially endorsed writ) and thus avoid further proceedings. Milsom, “Not Doing is No Trespass”, [1954] C.L.J. 105, 110–11, 116–17, suggests that in the praecipe writs, which include covenant, debt and detinue, the defendant is told “to keep his promise, pay what he owes, or hand over what he detains.” This he can still do, albeit tardily, and therefore “only if he does not do it is he to be brought to court.” “In the quare writs, on the other hand, which include trespass in all its forms and senses, it is assumed that the defendant's primary duty has been irrevocably broken, that there has been a wrong which can only be compensated for by damages.”

24 Cf. catalogue in Glanvill, X, 3 (Fifoot 234).

25 Otherwise, the King's court would not concern itself with the plaint (cf. n. 7 supra) and the plaintiff, as Holmes 254 said, would be “turned over to the limited jurisdiction of the spiritual tribunals”.

26 See Pothier, , Traité du Prêt de Consomption, 5 Oeuvres (ed. 1847) 49Google Scholar; Justinian, , Institutes III, 14Google Scholar; BGB § 607. Cf. Parke B.: “The debt which constitutes the cause of action arises instantly on the loan” (Norton v. Ellam (1837) 2 M. & W. 461, 464); Lord Goddard: “…a debt incurred when the marks were put at the disposal of the German company.” (Schering Ltd. v. Stockholms Enskilda [1946] A.C. 219, 268.) A transaction is not real merely because something has been given, if the transaction could have been legally effected without such giving. Thus, a contract for work and labour is not, in its nature, real: it would therefore make no difference that in a particular contract payment is made in advance. (Cf. p. 92 post.)

27 The expression (unknown, it appears, in this sense outside England) is here used in the sense of “old consideration”, as distinct from the “new consideration” that suffices to support an assumpsit in the modern law. It is characterized by Langdell as follows: “…the thing given or done in exchange for the obligation assumed, shall be given or done to or for the obligor directly;…it shall be received by the obligor as the full equivalent for the obligation assumed, and be, in legal contemplation, his sole motive for assuming the obligation; and, lastly, …it shall be actually executed, i.e. … the thing to be given or done in exchange for the obligation be actually given or done, it not being sufficient for the obligee to become bound to do it.” (Op. cit., 59.) Elsewhere Langdell says: “…a consideration to create a debt must, in legal contemplation, be commensurate with the debt, but … anything which the law can notice will, so far as regards its extent or value, be sufficient to support assumpsit.” (Ibid. 67.) As to giving or doing “for the obligor directly”, there comes, in the 15th century, an extension of quid pro quo to benefits conferred upon third parties. See for Year Book references: Kiralfy, The Action on the Case (1951) 184. The sale of a specific chattel appears to have constituted an exception to the requirement of quid pro quo. See Langdell, op. cit., 145; Simpson, op. cit., 392; Lücke, op. cit., 542–45. Year Book references are given by Fifoot 227–29, 251.

28 Fitzherbert's, Nat. Brev. (9th ed., 1794) 122GGoogle Scholar.

29 Possibly corresponding to the differentiation between detinue sur bailment and detinue sur trover (p. 63 and n. 16 supra) was the distinction, in debt (already alluded to, n. 20 supra), between debt “in the debet et detinet” (which lay against a defendant on his personal undertaking) and debt solely “in the detinet” (which lay against executors and others who could not be said to “owe” the money). The existence of a parallel between the two varieties of debt and those of detinue appears to be accepted by Milsom, op. cit., 113 n. 38. For a different, though related, reason debt solely “in the detinet” had to be used whenever what was in obligatione was anything other than current money (see n. 20 supra). By means of the debet-detinet dichotomy the common law strove, without, however, attaining clarity or consistency, to express the difference between (1) a debtor, such as a surety or a tax payer, of whom it can be said that he debet, but not that he detinet, and (2) a debtor, such as an executor or administrator, who “detains” assets of the deceased but does not personally “owe” the debts of the latter. The outlines of the dichotomy were overlaid and blurred by other discriminations and it ceased to be useful.

30 P. 63, supra.

31 Though not of indebitatus assumpsit.

32 Taylor v. Caldwell (1863) 3 B & S. 826.

33 Cf. Ames 119.

34 Sinclair v. Brougham [1914] A.C. 398, 414, 433.

35 Cf. Lister & Co. v. Stubbs (1890) 45 Ch. D. 1, esp. 12, 15.

36 No consideration having moved from C to B, there is no contract between them. (It is assumed that A's direction to B does not amount to an assignment, legal or equitable.)

37 Cf. Shamia v. Joory [1958] 1 Q.B. 448.

38 Foley v. Hill (1848) 2 H.L.C. 28, 35; and cf. Re Hallett (1880) 13 Ch. D. 696 and Re Diplock [1948] Ch. 465, 519, 542.

39 See, for example, Speight v. Gaunt (1883) 9 App. Cas. 1; Trustee Act, 1925, ss. 23, 30(1), 61; Bowstead's Law of Agency (11th ed., 1951) 78, 81.

40 2 Pollock and Maitland 210; 3 Street 127, 132; Ames 88, 160; 3 Holdsworth 425.

41 On the modern meaning of liquidity, cf. 1 The Annual Practice (1965) 55, 1094–95, 1098–99.

42 2 Pollock and Maitland 216; Noyes, , The Institution of Property (1936) 408Google Scholar. A leading authority on this requirement was Young v. Ashburnham (1587) 3 Leon. 161 (see n. 55 post). 3 Street 135 refers to Blackstone's statement that “if one brought an action of debt for thirty pounds and only proved twenty pounds he could no more recover than if in detinue he sued for a horse and proved that the defendant detained his ox.” In 1424 (Anon., Y.B. Mich. 3 Hen. VI f. 4, pl. 4) Martin J. said: “If I demand only £ 20, and the Inquest says that the defendant owes me £ 40, the Justices…cannot give me judgment for the £ 40, because I did not demand £ 40 …; and for the £ 20 they cannot give me judgment, because they cannot sever the judgment from the verdict…nor can they portion out from the verdict.” (Quoted by Fifoot 230.) Late in the 18th century, long after it had been settled that assumpsit would lie for quantum meruit and quantum valebant, the idea that the plaintiff's proof may not vary from the exact amount laid in the declaration began to be abandoned, it being now said that the strict rule against variance should be confined to debts of record, specialties and statutory penalties, and was inapplicable to simple debts. (See 3 Street 135–36.) Cf. Atkinson, and Chadbourn, , Civil Procedure (1948) 103 n. 18Google Scholar. This departure could have enabled the recovery in debt of unliquidated amounts according to the proof, as long as the plaintiff assigned a definite sum in the declaration. The development came, however, late and was not destined to last long enough before the general abolition of forms of action. (Cf. n. 112 post.)

43 1 Williston on Contracts (3rd ed., 1957) 21; Ames 88.

44 This is the significance of the “deforcing”: 2 Pollock and Maitland 205. Cf. Maitland, , The Forms of Action (1936 ed.) 38, 63Google Scholar; 3 Street 129 n. 2; Langdell 124. Pollock thus described the lender's abiding ownership of the money lent, in accordance with the old ideas of debt: “Giving credit, in this way of thinking, is not reliance on the right to call hereafter for an act, the payment of so much current money or its equivalent, to be performed by the debtor, but merely suspension of the immediate right to possess one's own particular money, as the owner of a house let for a term suspends his right to occupy it.” 6 Enc. Brit. (14th ed., 1929) 340.

45 The similarity between mutuum, on the one hand, and commodatum (and depositum), on the other hand, is sufficiently close to speak of “returning” a lender “his” twenty bushels of wheat or “his” bottle of sherry. Cf. C.C. § 1902; BGB § 607. See Lord Brougham in Foley v. Hill (1848) 2 H.L.C. 28, 43: “I am now speaking of the common position of a banker, which consists of receiving money from his customer on condition of paying it back when asked for, or when drawn upon.” (Italics added.) See second Dialogue of Doctor and Student, Ch. 38, quoted in part in South Australian Insurance Co. v. Randell (1869) L.R. 3 P.C. 101, 112; SirJones, Wm., An Essay on the Law of Bailments (3rd ed., 1823) 63–64Google Scholar; Story, Commentaries on the Law of Bailments (9th ed., 1878) §§ 228, 283, 284; Paton, , Bailment in the Common Law (1952) 147Google Scholar; Buckland, and McNair, , Roman Law and Common Law (2nd ed., 1952)CrossRefGoogle Scholar and esp. Langdell 123–24.

46 Cf. Bouvier's Law Dictionary (3rd rev., 1914) 752; Sheppard's Touchstone (6th ed., 1791) 386.

47 Robinson v. Bland (1761) 1 Wm. Bl. 256, 263. Cf. White and Carter (Councils), Ltd. v. McGregor [1962] A.C. 413, 446.

48 N. 20 supra.

49 As Pollock and Maitland point out (2 op. cit. 207 n. 1), “in the early records of debt and detinue the active party does not complain (queritur) he demands (petit); in other words he is a ‘demandant’ rather than a ‘plaintiff’ and the action is ‘petitory’.” While the writ of debt was one of the “personal” writs, and the action was not, strictly, one in rem, it was nevertheless “in the nature of an action in rem”. (Langdell 125.)

50 Cf. 1 The Annual Practice (1965) 1093, 1096, 1097. See, in particular, Ex p. Kemp (1874) 9 Ch. 383; Booth v. Trail (1884) 12 Q.B.D. 8; Mapleson v. Sears (1911) 105 L.T. 639. A so-called “contingent debt” is no debt. “Until a sum certain has become due,” said Mellish L.J., “and is to be paid in all events, there is…no debt due.” (Ex p. Kemp, supra, at 390.) “[S]ums which may or may not become due in the future are not debts owing or accruing…” (Lord Coleridge C.J. in Booth v. Trail, supra, at 10.) “[U]nless the performances for the whole week are given, nothing was due to the artiste…that being so, I am of opinion that upon this particular Wednesday nothing had been earned by the artiste, and consequently there was no debt due to him in respect of which a garnishee order could be made,” (Lush J., in Mapleson v. Sears, supra, at 642). Cf. also Atkinson and Chad-bourn, Civil Procedure (1948) 78; Ex p. Charles (1811) 14 East 197'; In re Newman (1876) 3 Ch. D. 494. There is also no debt where the promisor has an option of performing the main undertaking or paying a sum of money. (Cf. Flanagan v. Camden Mutual Insurance Co. (1856) 25 N.J.L. 506.) A claim upon an insurance policy is considered to be for unliquidated damages (see Łuckie v. Bushby (1853) 13 C.B. 864 and cases cited by Pearson J. in Jabbour v. Custodian of Absentees' Property [1954] 1 All E.R. 145, 150). It is not a claim in debt, not only because the mere fact of loss does not liquidate the sum due but also because, in many cases, the insurer has an option to reinstate, so that the insured's right to the money is contingent upon non-exercise of the option; and in some kinds of insurance the insurer has the right to pay not to the insured but somebody else toward whom the insured has incurred liability. (See the garnishment cases of Israelson v. Dawson [1923] 1 K.B. 301; Randall v. Lithgow (1884) 12 Q.B.D. 525, esp. 529.) It is said that “the word 'damages' is puzzling and seems to be used in a rather unusual sense, because the right to indemnity arises not by reason of any wrongful act or omission on the part of the insurer (who did not promise that the loss would not happen or that he would prevent it) but only under his promise to indemnify the insured in the event of loss.” (Pearson J., in Jabbour v. Costodian, loc. cit.). But the cause of action is perhaps the insurer's wrongful omission to pay. (And see n. 158 post.) The liability of a trustee to make good a breach of trust is not a debt, not only because it is in principle unliquidated, but because it is potentially defeasible by the court in exercise of its discretion to relieve the trustee and is thus not unconditional: Trustee Act, 1925, s. 61. Somewhat similarly, a right to maintenance which is liable to be altered on proof of change in the personal circumstances of the person liable, or of the person entitled, can hardly be said to create a debt (cf. Harrop v. Harrop [1920] 3 K.B. 386; Re Macartney [1921] 1 Ch. 522; Beatty v. Beatty [1924] 1 K.B. 807).

51 There is an apparent class of debt which is unconditional in the sense that there is nothing left to be done by the creditor (or by anyone else) to “earn” it, but which is nevertheless contingent—upon an event rather than upon an act. Such is a covenant to pay money if the payee reaches a stipulated age: Fletcher v. Fletcher (1844) 4 Hare 67. This “debt” suffers from its dependence on the contingency of reaching an age. In Fletcher v. Fletcher it was also vitiated by uncertainty in sum, as long as title has not absolutely vested, according to the terms of the deed, in one payee rather than in two. These infirmities of the liability were not considered by Wigram V.-C, who referred to it as a common-law debt (nor by Buckley J. in In re Cook's Settlement Trusts [1965] 2 W.L.R. 179, 183–84). It is doubtful whether such an uncrystallized liability is a debt: it is thought that on Fletcher v. Fletcher facts a debt first arises only after it vests, i.e. after the contingencies as to reaching an age, as to amount and as to identity of the obligee are resolved.

52 See p. 90 ff. post.

53 Cf. 3 Street 186; Ames 89; Jackson, , The History of Quasi-Contract in English Law (1936) 30, 42Google Scholar; Fifoot 229–30; 3 Holdsworth 446.

54 In 1471 (Y.B. 12 Edw. IV, 9, pl. 22) it was tentatively suggested that a guest at a tavern who did not pay could be sued for trespass, “for he did not do that which was incident to coming to a tavern.” Brian C.J. preferred the view that in such case debt could be brought, “for in the case of victuals and wine at a tavern the price is put in certain by the clerk of the tavern.” Special assumpsit, however, would not lie, there having been no promise in fact (Thursby v. Warren (?1630) W. Jones 208); and indebitatus assumpsit could not yet, at this time, lie where debt did not: so that the question of its availability merely raised once again the question of the availability of debt. See 3 Street 186 and n. 5.

55 What was in 1587 (n. 42 supra) impossible in debt (nor then, because of the want of an express promise, in assumpsit) became in 1610 admissible in indebitatus assumpsit: Warbrook v. Griffin (1610) 2 Brownl. 254—an innkeeper recovered from a guest who had not agreed on the price. And see Jackson, op. cit., 42 ; 3 Holdsworth 446–47.

56 “A special action on the case in the nature of debt” began to be brought. The plaintiff alleged that the defendant, already being indebted, promised to pay. As, however, for want of sum certain, a true technical debt had never been created, the allegation of indebtedness was impossible rather than merely fictitious. Such a “common count” was in form indebitatus assumpsit, but differed from the “genuine” indebitatus assumpsit in a case such as Slade's (p. 76 ff. post) in that there was not also concurrent liability in debt. Cf. 3 Street 186–88.

57 Lücke suspects that after the introduction of assumpsit “a narrow definition of quid pro quo was in many ways a more progressive course of action, since it gave wider scope to assumpsit, the more modern remedy”. (Op. cit., 431.) There may thus have arisen a deliberate reluctance to see debt develop.

58 Dates can hardly be laid down with precision. Let us say with Langdell, 126, that the introduction of assumpsit as a general remedy on promises came “not earlier than the latter half of the fifteenth century”.

59 The word “assumpsit” was first used in actions on the case toward the end of the 14th century; but had already been used earlier in other contexts: Kiralfy, op. cit., 166–67.

60 Cf. 3 Street 173.

It is interesting that the action of account had likewise been considered for a time not (only) from the angle of the defendant's conduct but in respect of his being “a certain kind of person”. See Stoljar, op. cit., 208, 211 and n. 46. Here indeed may be discerned a movement “from status to contract”.

61 According to Milšom, op. cit., the significance of assumpsit-nonfeasance for breach of executory promises lay not so much in breaking the barrier of the requirement of “direct force” implict in trespass (and therefore lingering on in case), as in enabling a man to express or “dress”, with the aid of a fictitious deceit, as a tort an action which, had it been brought not as a tort, would have “sounded in covenant”, and, as such, would have failed for want of the requisite form.

62 Cf. Anon. Keilway (1504) 77, 78.

63 Cf. Strangborough v. Warner (1588) 4 Leon. 3; and see Peeke v. Redman (1555) 2 Dyer 113a.

64 Plucknett 644 n. 2, quoting 1 Pollock-Holmes Letters 146, 177.

65 Cf. 3 Holdsworth 429 for the “chronological stages” of the development of assumpsit “from a delictual remedy to the chief contractual remedy of the common law.” And see Plucknett 648. For a somewhat narrower view of “a promise against a promise”, see Lücke, op. cit., 540 ff.

66 On the hurt or detriment suffered, and on the relation between it and the requirement of consideration, see Kiralfy, op. cit., 170–85.

67 Milšom, op. cit., 109.

68 The Statute of Frauds, 1677, would not have been enacted but for the direct encouragement given informal contracts by Slade's Case (n. 84 post): on the other hand the Statute would not have been required if at that time litigants could give, and be made to give, evidence on their own behalf.

69 Cf. Holmes 285 for “the often repeated notion that an assumpsit was not a contract.”

70 Such as in Currie v. Misa (1875) L.R. 10 Ex. 153, 162.

71 See, in particular, 3 Holdsworth 441; Kiralfy, loc. cit.

72 See infra, p. 81 ff. An instance of this is Canili v. Carbolic Smoke Ball Co. [1893] 1 Q.B. 256. A somewhat neglected facet of this famous case is Mrs. Carlill's unearned enrichment. There was no proof, and it was not the case, that she had suffered a loss of anything like the £100 to which she was held entitled.

73 Perhaps, after all, inspired by the text of In consimili casu, 1285—in spite of the tendency of modern criticism to question the existence of a tie between the Statute of Westminster II and the development of the action on the case. Cf. Lücke, op. cit., 427–28.

74 Holmes 264. To the extent that the common law sought to found the debtor's duty on his effective will, the content of that will was the making of a grant, not of a promise: Ames 77–78, 91, 150, 167; 3 Holdsworth 354–57, 436–38. But see n. 86 post.

75 Actions of debt were “actions of property”, whereas by a breach of promise “no man hath property … but must be repair'd in damages”: Vaughan C.J., in Edgcomb v. Dee (1670) Vaughan 89, 101.

In the 16th century a seller or lender would sometimes pay a small sum as special consideration for a promise by the buyer or borrower to pay. In such case, he could sue in assumpsit for breach of that promise and would be able to circumvent detinue or debt. See Kiralfy, op. cit., 184–85.

76 Here again dates can hardly be precise. Let us say, with Lücke, op. cit., 425, that this development came “quite early in the sixteenth century”. See also ibid. 548.

77 This was not formally abolished until 3 & 4 Will. 4, c. 42 in 1833. In assumpsit, on the other hand, being a form of case and therefore ultimately modelled on trespass, the proceedings were notionally designed to protect the King's peace and it was inconceivable that a defendant should be allowed to wage his law against the King. For the same reason (see Sutton, op. cit., 82) there was no wager of law, even in debt, in the Court of Exchequer: for proceedings there notionally revolved around the King's revenues. By custom, wager of law was not open to a defendant in the City of London. There was no wager in actions of debt based upon formal docu ments nor, it seems, for rent. In Chancery wager was not acknowledged; but there the defendant could be put on his oath, and the procedure was “inquisitorial”. See generally Viscount Simon L.C., in United Australia v. Barclays [1941] A.C. 1, 13; 3 Holdsworth 423.

In the United States, the constitutional assurance of the right to trial by jury precluded the defence of wager of law.

78 It is possible that executors were allowed to wage law: Y.B. 17 Edw. III, pp. 6–10, cited by Gilbert Stone, op. cit., 72, n. 4.

79 Cf. Fifoot 231. Specialty debts and record debts were not subject to defence by wager of law (3 Street 138; Fifoot 230). Debt on a specialty survived, at first where the successor (normally the heir) was bound expressly, and later (by the reign of Edw. III) even without express words. Street dismisses the existence of a tie between the mortality of debt and the right to a wager of law as a medieval afterthought, arguing that if the explanation for non-survival lay in wager, this explanation should have equally embraced detinue (in which, likewise, wager of law was in many cases available), yet this was not so. (Op. cit., 66.) Nevertheless, the story of the gradual exclusion of the “actio personalis” rule from the action of account lends support to the orthodox view of a connexion with wager of law. Cf. Stoljar, op. cit., 213.

80 Cf. Sutton, op. cit., 28.

81 Ames 153–54; Gilbert Stone, op. cit., 67.

82 Sam. Warren, quoted by Winfield, , The Law of Quasi-Contract (1952) 22Google Scholar. And see Lücke, op. cit., 444. In modern law, to the extent that a plaintiff still sues “in debt” in the formal sense (which is no longer the case in England but is in some parts of the United States), it is not required that the claim be as “particular” as of old. Subject to the difference that in indebitatus assumpsit a promise and a breach must be alleged, the forms of debt and of indebitatus assumpsit have become practically identical.

83 For a somewhat different reading of this chapter of legal history, see Simpson, A. W. B., “The Place of Slade's Case in the History of Contract”, 74 L.Q.R. [1958] 381Google Scholar and Lücke, H. K., “Slade's Case and the Origin of the Common Counts”, 81 L.Q.R. [1965] 422 and 539Google Scholar.

84 4 Co. Rep. 92a. It had already been held in 1573 (Edwards v. Burre, Dalison, 104 no. 45) that the subsequent assumpsit need not be proved, i.e. that it could in effect be “constructive” or presumed. The famous dictum in Slade's Case makes appearance some fifty years earlier, in argument (Norwood v. Reed (1558) 1 Plow, 180, 182), worded thus: “every contract executory is an assumpsit in itself”.

85 See, however, Simpson, op. cit., 394.

86 Ever after Slade's Case it is true to say that in English law a debtor's (or, at all events, a borrower's) duty to pay arises both re and consensu. The unpaid creditor is injured because he relied on the debtor's promise, but also because the debtor has been withholding from him his property. It may, however, deserve to be pointed out that in the case of everyday transactions such as loan and sale even the old law of debt, for all its “realness”, gave effect if not to the recipient's promise, express or implied, then at least, to his consent to (re) pay. A person on whom a commodity or a service had been inflicted officiously would not be liable in debt. The idea that “the old debts were not conceived of as raised by a promise” (p. 74, and n. 74 supra) is true, in the case of simple contract debts, only in the sense that a promise was not sufficient. For all “the defendant's receipt of property”, no “duty” of debt would “spring” if such property was given him as a present. Viewed in this light, the innovation of indebitatus assumpsit, and of Slade's Case, appears to have lain not so much in enabling the creditor to sue upon the debtor's promise (for this was also the case in most actions of debt): it rather consisted in enabling the plaintiff to sue remedially, for the breach of promise, for the debtor's misappropriation of the credit. The suit in assumpsit was originally brought in respect of the loss from having parted with the consideration for nothing, as it subsequently turned out. Paradoxically it can be said that assumpsit, based as it originally was on loss to the plaintiff of what he had given, was more “real” than debt, based and measured as it has always been on the defendant's promise, though a promise requiring for its efficacy receipt by the promisor of a good quid pro quo. It was in assumpsit, rather than in debt, that “[1] lability was not derived from the promise, and where the fact that the defendant did enter upon the enterprise sufficiently appeared on the facts of the case, no allegation of assumpsit was, as a matter of law, necessary.” (Cf. p. 72 and n. 60 supra.) In time, however, the plaintiff's lost consideration ceased to furnish the yardstick of defendant's liability. See nn. 118, 126 and pp. 84–86, post.

87 Cf. Ames 87.

88 Vaughan C. J., in Edgcomb v. Dee (1670) Vaughan 89—where Slade's Case is referred to as “that illegal resolution … grounded upon reasons not fit for a decla mation, much less for a decision of law.” (Ibid, 101.)

89 Wrongly, “by note takers who did not understand the force of what was said” at Nisi Prius: Lord Mansfield in Moses v. Macferlan (1760) 2 Burr. 1005, 1008. The true position is “that an action of assumpsit will lie in many cases where debt lies and in many where it does not lie” (ibid.) Nevertheless, indebitatus assumpsit, in its narrow sense, is coterminous with debt on a simple contract. Therefore it does not lie upon mere mutual promises, or upon a collateral guaranty: 3 Street 185. In such cases it is necessary to declare specially on the contract. See, however, n. 56 supra.

90 In Slade's Case the debtor had made, contemporaneously with the transaction, an express promise to pay: yet it was not on that promise that the action was brought.

91 Cf. Ames 152; Jackson, op. cit., 42; 1 Williston, op. cit., 627; 3 Street 184; Milsom, op. cit., 111–12. See, however, Lücke, op. cit., esp. 554.

92 The circumstance that in indebitatus assumpsit it was a precedent debt that sup ported the promise was destined to raise doubts and confusion about the rule that past consideration is no consideration (Simpson, op. cit., 395; 8 Holdsworth 25)—doubts not finally removed until the 19th century: Eastwood v. Kenyan (1840) 11 Ad. & El. 438; Roscorla v. Thomas (1842) 3 Q.B. 234. And see Milsom, op. cit., 112. At the same time, there was a pleading advantage in dressing up a debt as a promise supported by past consideration: such a non-simultaneous bargain was not a proper old-style debt; and thus would be overcome the objection that a writ of debt was already available. (Cf. Lücke, op. cit., 435, 445.)

93 3 Holdsworth 444. The action of debt became, in the language of Milsom, S.F.C., a “disused enclosure”. (“Reason in the Development of the Common Law”, 81 L.Q.R. [1965] 496, 500.)Google Scholar

94 Thus, with Pinchon's Case (1611) 9 Co. Rep. 86b; Sanders v. Esterby (1616) Cro. Jac. 417, it was finally established that the personal representatives of the deceased were fully liable for his assumpsits, as for his covenants. Cf. Ames 145; 3 Holdsworth 451. Posthumous liability was not, however, made to extend to all assumpsits indiscriminately. Such personal and non-proprietary assumpsits as promises to marry continued to be exposed to the rule “actio personalis moritur cum persona”: Finlay v. Chirney (1888) 20 Q.B.D. 495.

95 Ames 149–50; Maitland op. cit., 170; Viscount Haldane L.C., in Sinclair v. Brougham [1914] A.C. 398, 416–17.

96 3 Street 133.

97 Sinclair v. Brougham [1914] A.C. 398, 452, 454; and cf. Ministry of Health v. Simpson (Re Diplock) [1951] A.C. 251, 275.

98 See also Boissevain v. Weil [1950] A.C. 327, 341.

99 Cf. [1914] A.C. 398, 415, 417, and esp. 452.

100 This terminology is not used strictly as, on contracts for necessaries, such persons may be liable even on their executory promises: Roberts v. Gray [1913] 1 K.B. 520. The terminology, which expresses an important partial truth, is suggested by the judgment of Fletcher Moulton L.J., in Nash v. Inman [1908] 2 K.B. 1, 8.

101 (1760) 2 Burr. 1005, 1008.

102 This is pointed out by Lord Wright in the Fibrosa Case [1943] A.C. 32, 62; and see Stoljar, , “Re-Examining Sinclair v. Brougham,” 22 M.L.R. (1959) 21, 27CrossRefGoogle Scholar.

103 Kiriri Cotton v. Demani [1960] A.C. 192, 204.

104 Cf. Anson, , Law of Contract (19th ed., 1945) 427Google Scholar. But see n. 86 supra.

105 Cf. 3 Street 205–06. See n. 17 supra.

106 Cf. Anson, op. cit., 424, and Bullen and Leake, Precedents of Pleadings (3rd. ed., 1868) 35–36, therein cited.

107 See, however, Wright, Lord, Legal Essays and Addresses (1939) 31Google Scholar; Stoljar, , “Re-Examining Sinclair v. Brougham”, 22 M.L.R. (1959) 21, 27CrossRefGoogle Scholar.

108 “The substitution of our Practice Act for the common law system of pleading has not changed the situation save as it has abolished certain formal distinctions and employed a new nomenclature. The same facts will entitle one to the same redress as before, and to no other redress.” Avery v. Spicer (1916) 90 Conn. 576 (quoted in Atkinson and Chadbourn, op. cit., 110).

109 Holmes 274. Holmes also refers (ibid.) to covenants as surviving “in a somewhat weak old age”. Yet covenants in their old age show remarkable vitality. Over eighty years have now passed since Holmes' writing, and in almost half the States of the United States (for a table of statutory provisions on seals see 1 Williston, op. cit., § 219A) statutes have been passed to “abolish” private seals. In some of the States the seal was supposedly reduced to the level of presumptive evidence of consideration—”supposedly” reduced, because the statutes in question fail to say that the seal will be unenforceable if there is no consideration. (See 1A Corbin on Contracts, 1963, § 254.) Yet in England, in many of the American States and in other common-law jurisdictions a seal retains its vigour unimpaired. See, for example, Can v. Roberts (1833) 5 B. & Ad. 78; Re Parkin [1892] 3 Ch. 510; Re Cavendish-Browne's S.T. [1916] W.N. 341; Fletcher v. Fletcher (1844) 4 Hare 67; Cannon v. Hartley [1949] Ch. 213. It is still true that “[t]he distinction between the effect of a deed under seal, and that of an agreement by parol, or by writing not under seal, may seem arbitrary, but it is established in our law.” (Per Earl of Selborne L.C., in Foakes v. Beer (1884) 9 App. Cas. 605, 613.) “This rugged fragment of ancient law remains embedded in our elaborate modern structure.” Pollock, in 6 Enc. Brit. (14th ed., 1929) 341.

Indeed, in one respect deeds have gained in efficacy. A voluntary bond, though provable in bankruptcy, used to be postponed to all other debts. But since the Act of 1869 (see now s. 33(7) of the Bankruptcy Act, 1914) even a voluntary bond must be paid pari passu with other regular debts. (See Williams on Bankruptcy (16th ed., 1949) 176.)

110 Cf. Salmond, and Williams, , Law of Contracts (1945) 577, 589–90Google Scholar.

111 Holmes, loc. cit.

112 As a matter of fact, after wager of law had fallen into desuetude in the 18th century, litigants occasionally bethought themselves of certain advantages of debt (as that final judgment could be entered if the defendant failed to appear), and there came a moderate revival of it. (See 3 Street 69, 139; cf. n. 42 supra.) Another rediscovered advantage of an action in debt was that it could, whereas indebitatus assumpsit could not, be joined with counts in non-contractual debt, as on specialty or on record.

113 p. 90 ff. post.

114 [1961] A.C. 1007. (In re United Railways of Havana, etc.)

115 Two of the Lords (Viscount Simonds, at 1043–44 and Lord Denning, at 1069; Lord Morris of Borth-y-Gest, at 1086, may have held the same view) considered that a lender's claim for foreign money could not lie in debt, because in proceedings before an English court foreign money must be deemed chattels not currency; and therefore the only action that can be brought is one for damages, as for breach of contract to deliver goods. Assuming dollars to be chattels, a loan of dollars is still a loan of fungibles for consumption, i.e. a mutuum; and it is abundantly clear that in such case debt has always lain even where the object in obligatione was not money: n. 20 supra. That an action of debt was never confined to loans of money does not appear to have been considered by their Lordships.

Lord Reid (at 1051–52) and Lord Radcliffe (at 1059–60) rejected the idea that in English proceedings dollars must of necessity be deemed “a commodity”.

116 “[T]here seems to be no valid reason for importing into the very ancient theory of debts any flavour of the comparatively modern doctrine of contractual rights and obligations; … the distinction between an action of debt and an action for damages for breach of contract remains a sharp one…” Negus, “Rate of Exchange in Reference to Foreign Debts and Debts Expressed in Foreign Currency”, 40 L.Q.R. (1924) 149, 161.

117 (1854) 9 Ex. 341. Hadley v. Baxendale is concerned with putting limits to the damages recoverable by a plaintiff in respect of loss occasioned by breach of con tract. That the plaintiff has actually suffered a loss is assumed: otherwise he would be entitled, at most, to nominal damages. The question dealt with was: how much of the loss is eligible for reparation?

118 Cf. Anson, op. cit., 10; Kiralfy, op. cit., 168: “The measure of damages in Debt had never been related to actual loss or damage, as it did not sound in ‘wrong’.” The inapplicability of the duty of mitigating loss to a claim in debt is now illustrated by White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413. Cf. a Note by K. Scott, in [1962] C.L.J. 12, in which the writer says (at 14) that “since the claim was in debt, the question of mitigation of loss … does not arise. That is only relevant in a case involving a claim for damages.”

119 Lord Atkin in Banco de Portugal v. Waterlow [1932] A.C. 452, 490; cf. France v. Gaudet (1871) L.R. 6 Q.B. 199.

120 “‘Mesne profits’ are a sum recovered for the value or benefit which a person in wrongful possession has derived from his wrongful occupation of land between the time when he acquired wrongful possession and the time when possession was taken from him.—Martin v. Smith, 7 N.W. 2d 481, 214 Minn. 9.” 87 C.J.S. Thespass § 120, n. 65. The assessment does not build on any suffering caused to the landlord. That the plaintiff would not himself have used the land or let it to others is of no importance, as is illustrated by the so-called “wayleave” cases in connexion with coal mining. See, in general, Whitwham v. Westminster Brymbo Coal Co. [1896] 2 Ch. 538. Admiralty cases which award damages for temporary loss of use of a ship even where no pecuniary detriment to the owner is shown are, again, founded on a proprietary approach: for example, The Greta Holme [1897] A.C. 596; The Mediana [1900] A.C. 113; The Marpessa [1907] A.C. 241.

The idea of mesne profits, though not under this name, applies in the unauthorized user of goods: Strand Electric v. Brisford Entertainments Ltd. [1952] 2 Q.B. 246. All judgments in the Court of Appeal mention that there may be a difference in the amount of damages between a case where goods are negligently damaged and a case where goods are misappropriated. The analogy to mesne profits in ejectment is expressly recognized; and the claim is said (per Denning L.T., at 255) to resemble “an action for restitution rather than an action for tort”. The underlying conception is that it is the owner who is entitled to the benefit produced by his property in somebody else's hands even if it can be shown that he himself would not have derived such benefit, i.e. had not in truth lost such benefit. (Cf. Reading v. A.G. [1951] A.C. 507. See also Granby v. Bake-well U.D.C., cited in 2 Sm. L.C. (13th ed., 1929) 527.)

121 Law Reform (Miscellaneous Provisions) Act, 1934, s. 3; Arbitration Act, 1950, s. 20.

122 Chitty J., in Western Wagon v. West [1892] 1 Ch. 271, 277; on the other hand, obtain more than the interest on the money (Trans Trust v. Danubian Trading Co. [1952] 2 Q.B. 297; Westesen v. Olathe State Bank (1925) 78 Colo. 217; Manehester & Oldham Bank v. Cook (1883) 49 L.T. 674; Astor Properties v. Tunbridge Wells [1936] 1 All E.R. 531). The borrower cannot presumably argue that he is entitled to the sum promised as a loan as damages: cf. Re Hooley [1899] 2 Q.B. 579, 583. And see n. 143 post.

123 The difference between torts where the damages are uncertain and torts where damages are designed to compensate for lost “value” has been known to the common law since early days, and is reflected in the rules on assignability of claims in tort. See T. Cyprian Williams, “Is a Right of Action in Tort a Chose in Action?”, 10 L.Q.R. (1894) 143, 148, 157.

124 Cf. Ames 144–45; 3 Holdsworth 452. This trend away from delict and toward the modern idea of “contract” appears to have been associated in the first half of the 17 th century with the desire to save assumpsit from the operation of the rule “actio personalis moritur cum persona”. Cf. also 3 Holdsworth 578.

125 Hadley v. Baxendale itself does not bring this out very clearly. Two years later, language is still used which is at least consistent with the idea that all the plaintiff is entitled to is not to be the worse off for having entered into the contract: “The law lays down this, that if the contract is broken, the party is to be put in the same position, as far as money is concerned …” (Pollock C. B., in Hamlin v. Gt. Northern Rly. Co. (1856) 26 L.J. Ex. 20, 22.) “in the same position” is an ambivalent phrase: it may well refer to a position that had already once existed, i.e. the factual pre-contractual position, not the hypothetical post-contractual position. Subsequent statements tend, however, to be clearer. Thus Fletcher Moulton L. J., in Chaplin v. Hicks [1911] 2 K.B. 786, 794: “[I]t is the aim of the law to ensure that a person whose contract has been broken shall be placed as near as possible in the same position as if it had not.” Here it is clear that “the same position” refers to the hypothetical post-contractual position. Nevertheless, the cutting down of damages to “such as might naturally be supposed to be in the contemplation of the parties at the time the contract was entered into” (ibid., 794–95) results in many cases in a person not being put in the same position as if the contract had been performed. Herein is perpetuated in the modern law a cardinal difference between damages and debt.

126 “Damages for breach of contract cannot as a general rule be measured by the consideration for the contract but are to be determined by the value of the thing contracted for”: 25 C.J.S. Damages § 74. See esp. Kiralfy, op. cit., 168. Where a sum of money is payable by covenant, then even when the action was for damages for breach of covenant, not in debt (cf. nn. 8, 12 supra), the plaintiff was entitled to the stipulated sum. Cf., for example, Carr v. Roberts (1833) 5 B. & Ad. 78; Lethbridge v. Mytton (1831) 2 B. & Ad. 772. It was later natural to apply the same idea to cases of simple contract. Cf. Ashdown v. Ingamells (1880) 5 Ex. D. 280, 286. The development of the law would appear to have moved as follows: recovery of stipulated amount (1) by action of debt (whether simple or contained in a covenant); (2) by action for damages for breach of (executory) covenant to pay a sum certain; (3) by action for damages for breach of simple contract (neither debt nor covenant) to pay a sum certain.

127 For the idea that a promisor is bound to carry out his promise rather than to make good the loss arising from breach, and for the controversy on this between Pollock and Holmes, see: Buckland, W. W., “The Nature of Contractual Obligation,” 8 Camb. L.J. (1942–1944) 247CrossRefGoogle Scholar. This idea runs as a leitmotif through the majority speeches in White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413 in the House of Lords.

128 [1893] 1 Q.B. 256.

129 A rule which does not appear to stand well with the tortious origins of assumpsit. If, as Milšom put it (op. cit., 109), “what the plaintiff has been tricked out of when the transaction is expressed as a tort will be the consideration when it is viewed as a contract”, then the law should have been eminently concerned with the size of the consideration furnished by the plaintiff. This consideration would have measured his admissible loss and would have defined the quantum of damages. And see the same writer at 81 L.Q.R. [1965] 514.

130 In the matter of formation, the rule largely functioned to neutralize the very require ment of a consideration. It in fact almost reduced consideration to the level of cause, or an assurance of seriousness in contracting (“consideration” was occasionally used in this sense in law, as it still is in common speech; cf. p. 62 and n. 11 supra). This is not far removed from the modern requirement that the parties intend to create “legal” (as distinct from gentlemanly or familial) relations. See, for example, Rose and Frank Co. v. Crompton [1925] A.C. 445; Spellman v. Spellman [1961] 1 W.L.R. 921.

131 E.g. Schlesinger v. Mostyn [1932] 1 K.B. 349.

132 [1893] 1 Q.B. 256.

133 The £ 100 constituted a “debt” in accordance with the modern definition which no longer regards a seal or a quid pro quo as essential. Cf. the definition from the 11th ed. of Mayne on Damages quoted in Jabbour v. Custodian of Absentees' Property [1954] 1 W.L.R. 139, 144: “Where under a contract… a person is entitled to a sum certain… the sum constitutes a debt and can be recovered as such…”

134 It is assumed that Mrs. Carlill's claim, whether regarded as one for specific implementation of the company's promise or as one for liquidated damages for breach thereof, is assignable: cf. County Hotel v. London & N.W. Rly. Co. [1918] 2 K.B. 251, esp. 260–61. Another weakness of Mrs. Carlill's debt is that she (unlike an unpaid vendor, for example) has nothing on which a lien or privilege can be enjoyed: but this is true of a great many undoubted debts.

135 Similarly in the case of goods. The seller cannot normally maintain an action for the price where the property in the goods has not passed. His remedy is an action against the buyer for non-acceptance: Shell-Mex v. Elton (1928) 34 Com. Cas. 39. The action must be in assumpsit as a debt has not arisen: Weiss v. Sheet Metal Fabricators (1955) 110 A. 2d 671; 206 Md. 195. The vendor cannot be said to “lose” the price, that price having been promised him against the goods, not absolutely. But: “Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the con tract.” (Sale of Goods Act, 1893, s. 49(2).) See also Note in 5 Col. L. Rev. (1905) 168. The “action for the price” is not, in this case, an action of debt: Langdell 126 n. 1. See also n. 142 post.

136 Ruddenklau v. Charlesworth [1925] N.Z.L.R. 161, 164, quoted at length in Salmond and Williams, op. cit., 591–92.

137 Ibid.

138 Cf., for example, the well-known (and similar) case of Pordage v. Cole (1669) 85 E.R. 449, in 1 Wms'. Saunds. (1871 ed.) 548.

139 Indeed, the existence of the creditor's corresponding promise may weaken his position, because it may invite the construction that the promise which he owns, though binding, has been given “against” or “in consideration of” his own undertaking, in the sense that it was only intended to take effect conditionally on his own performance.

140 Per Dixon J., in McDonald v. Lennys Lascelles Ltd. (1933) 48 C.L.R. 457, 477. quoted by Salmond and Williams, op. cit., 569 n.(b).

141 Joachimson v. Swiss Bank Corporation [1921] 3 K.B. 110, 128.

142 On “earning” the debt cf., in general, Schering Ltd. v. Stockholms Enskilda [1946] A.C. 219, and see the definition quoted in n. 133 supra. In White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413, 437 Lord Keith of Avonholm assumes that “where parties have contracted for payment on a day certain, irrespective of delivery or the passing of property [t] his is a clear case of a contractual debt unconditioned by any question of performance by the other party.” This statement cannot be read without reservation: (1) if the promise to pay is made “irrespective of delivery or the passing of property”, then the promise appears not to be supported by consideration and will therefore be binding only if under seal; (2) if, as is very much more likely, “irrespective of” means only that delivery or the passing of property is not a condition precedent (or concurrent), then the promise is still conditional—and prior to delivery or to the passing of property no debt is “earned”: there is only an assumpsit for a quasi-debt. That “advance payment clauses were unenforceable in Debt”, cf. Lücke, op. cit., 539.

143 Western Wagon v. West [1892] 1 Ch. 271, esp. 277; South African Territories v. Wallington [1897] 1 Q.B. 692, esp. 695; [1898] A.C. 309, esp. 314, 315. Nor will equity specifically enforce a contract for the loan of money, as it considers that the borrower can obtain the money elsewhere. It may, of course, happen that the borrower does not succeed in obtaining the money elsewhere. In principle, he may sue for substantial damages (cf. n. 122 supra). Yet he may fail if the reason for his not obtaining the money elsewhere was his own impecuniosi ty. (Cf. Bahamas Sisal Plantation v. Griffin (1897) 14 T.L.R. 139.) This strange doctrine means in effect: (1) that the intended lender may break the contract with impunity (paying only nominal damages) simply because the contract is risky; (2) that the borrower is disappointed in his contractual expectation to have the use of money when he most needs it. One could have thought that in these circumstances, where common-law damages manifestly fail to provide an adequate remedy, equity should have intervened. Of course, if a contract to advance money as a loan created a common-law debt, the plaintiff would have faced no difficulty. (A contract to take up and pay for debentures in a company is, by statutory exception, specifically enforceable: Companies Act, 1948, s. 92, replacing s. 105 of the Act of 1908.)

144 This is also true of a claim for declared dividend, which accordingly creates a debt. Re Severn, etc. Rly. [1896] 1 Ch. 559; 26 C.J.S. 10.

145 It goes without saying that in a modern, post-formulary, setting “in debt” means simply “for a debt”.

146 Cf. argument of counsel in Graumann v. Treitel [1940] 2 All E.R. 188, 190 and Atkinson J.'s restatement thereof at 192. See also Joachimson v. Swiss Bank Corporation [1921] 3 K.B. 110; Rekstin v. Severo, etc. [1933] 1 K.B. 47 and 58.

It is noteworthy that at an earlier period of legal history the idea that the debt itself remains even though no longer actionable as such was invoked to warrant proceedings after the death of the testator: Pinchon's Case (1611) 9 Co. Rep. 86b. (See n. 94 supra.) This idea is at least as applicable to detinue. According to Littleton if one has a cause of action in detinue against another and releases to him all personal actions, he may nevertheless retake his goods, because no right in the goods is released. See T. Cyprian Williams, op. cit., 153.

147 Lord Maugham L. C, in New Brunswick v. British and French Trust Corporation [1939] A.C. 1, 23; Holt C. J., in Giles v. Hartis (1698) 1 Ld. Raym. 254; 20 Viner's Abridgment, tit. Tender (2nd ed., 1793) at 193. For some older authorities see Harris, The Law of Tender (1908) 171 n. (t).

148 A debtor who owes a debt (and also, it appears, any liquidated liability) also enjoys an advantage in that he can, while a person subject to an unliquidated liability in damages cannot, make an effective tender: Lindley L. J., in Davys v. Richardson (1888) 21 Q.B.D. 202, 205; Lord Denman C. J., in Dearie v. Barret (1834) 2 A. & E. 82, 83–84; 20 Viner, loc. cit., 198. Tender being as much performance as lies in the debtor's hands (Dixon v. Clark (1848) 5 C.B. 365; Read's Trustee v. Smith [1951] Ch. 439; Farquharson v. Pearl Assurance Co. [1937] 3 All E.R. 124), a tendering debtor is relieved of liability to further interest and is entitled to have any future suit against him dismissed with costs: New Brunswick v. British and French Trust Corporation, supra; Cockburn C. J., in James v. Vane (1860) 29 L.J. (Q.B.) 169; Roxburgh J., in Read's Trustee v. Smith, supra. He is also relieved of the debtor's common-law duty of seeking out his creditor to pay him. Also after a valid tender the creditor is bound to restore securities: by detaining a pledge after tender “he is a wrongdoer” (Donald v. Suckling (1866) L.R. 1 Q.B. 585, 610, 618). See also Griffiths v. School Board of Ystradyfodwg (1890) 24 Q.B.D. 307.

A person subject to an unliquidated liability cannot effectively tender (but see n. 184 post). He can try to negotiate an accord: but over this he does not have sole control. He can, if and when an action is brought (an event outside his control), make payment into court “in satisfaction” (R.S.C., O. 22 r. 1), which payment is “an offer to dispose of the claim on terms” (Devlin L. J., in French v. Kingswood Hill Ltd. [1960] 3 All E.R. at 252). (Such payment of “amends” may prove wise in saving or reducing costs: cf. Supreme Court Costs Rules, 1959, R. 5.) There does not, however, appear to exist any way in which a person who is not capable of tendering (but only of paying into court after action brought) can rid himself of the unliquidated liability or cause an early liquidating thereof. In particular, it does not appear that such a person could obtain a declaratory judgment fixing the amount of his liability. Cf. In re Clay [1919] 1 Ch. 66; 1 The Annual Practice (1965) 281–85. As long as the period of limitation has not run out, his position is uncertain.

149 Cf. 20 Viner's Abridgment, loc. cit., and tit. Tout temps prist, 30; Harris, op. cit., 191, 193.

150 It is probably true that any difference between the effect of rejected tender upon direct liability and its effect upon collateral liability must ultimately depend on the terms of the engagement. Middleton v. Brewer (1790) Peake 20 appears to support, as far as it goes, the idea that a tendering guarantor is not necessarily relieved of his substantive liability any more than a tendering principal debtor is. 38 C.J.S. Guaranty § 77 is, however, unqualified: “a tender by the guarantor of payment of a debt which he is legally bound to pay, if refused by the guarantee, relieves the guarantor from further liability.”

151 Arab Bank v. Barclays Bank [1954] A.C. 495. And cf. Ledeboter v. Hibbert [1947] 1 K.B. 964; Re Helbert Wagg [1956] Ch. 323. “[T]he cause of action, the debt, is unaffected; the right of action is postponed till after the war”: Lord Goddard, in Schering Ltd. v. Stockholms Enskilda [1946] A.C. 219, 269.

152 Cf. Domat, 1 Les Loix Civiles, etc., (1767 ed.) 76; C.C. § 1897. (For the authority of Domat in the eyes of the common law: (1866) L.R. 1 Q.B. 585, 603.)

On the other hand, in case of depreciation the creditor may be entitled, in case the debtor broke his promise to return on or before a certain day, to appropriate damages for his loss, in addition to the res itself.

153 Cf. Pothier, Traité du Prêt de Consomption, 5 Oeuvres (ed. 1847) 46; 8 Viner's Abridgment, tit. Detinue (2nd ed., 1791) 40. (For the authority of Pothier cf. (1863) 3 B. & S. 826, 837; [1914] A.C. 398, 435.)

154 Pace Tomkinson v. First Pennsylvania Banking and Trust Co. [1961] A.C. 1007; see n. 115 supra.

155 P. 81 ff. supra.

156 But excluding a quasi-debt. Mrs. Carlill's claim of £ 100 from the Carbolic Smoke Ball Company was, once it vested, indestructible. Not so the landowner's claim for present payment against future conveyance: his promise to convey may yet be broken or frustrated and then his right to keep the money may be modified or defeated. See pp. 88–89 and n. 140 supra.

157 From Lord Buckmaster, in Celia v. Volturno [1921] A.C. 544, 548.

158 Cf. p. 87 and n. 134 supra. An unliquidated claim may invite litigation against a defendant who is perfectly honest and who does not dispute the existence of liability. The liability of an insurer after loss, and of a purchaser for the reasonable price of goods delivered, both of which are primary liabilities for payment of money (in a sense, “unliquidated debts” rather than damages), are not sufficiently crystallized, before the taking of further steps, to be debts. Cf. n. 50 supra.

159 Cf. Nussbaum, A., Money in the Law (2nd ed., 1950) 144Google Scholar.

160 P. 61, supra.

161 Cf. Williston, op. cit., § 1972; Central Hanover Bank v. Siemens (1936) 15 Fed. Supp. 927, esp. 929. When unappropriated fungibles are owed, impossibility by destruction of object cannot normally occur, for genera non pereunt. When the fungible in question is money, such impossibility cannot occur at all, one kind of money being “representative” of another. See Mann, F. A., The Legal Aspect of Money (2nd ed., 1953) esp. 42–44, 61–63Google Scholar. In Buckland's words, the common law “like the Roman, takes the optimistic view that it is never impossible to pay money.” (Op. cit., 248.) It is apparently because a contract of insurance in volves, on both sides, duties of paying money that this contract is essentially im mune to discharge by impossibility of performance: McNair, op. cit., 429. This is reflected in the exception of insurance from the operation of the Law Reform Frustrated Contracts) Act, 1943: s. 2(5) (b); and see 2 Chitty on Contracts (21st ed., 1955) § 634.

162 Blackburn J., in Taylor v. Caldwell (1863) 3 B & S. 826: see Coggs v. Bernard (1703) 2 Ld. Raym. 909; 1 Sm. L.C. (13th ed., 1929) 175.

163 Cf. Lawson, F. H., Introduction to the Law of Property (1958) 19, 22–23Google Scholar. See on the whole question: Torkington v. Magee [1902] 2 K.B. 427. Definitions of “chose in action” are legion, but all are agreed that the benefit of a contract for the payment of money is included. See Elphinstone, H. W., “What is a Chose in Action?” 9 L.Q.R. (1893) 311–12, 314–15Google Scholar; Sweet, Charles, “Choses in Action”, 10 L.Q.R. (1894) 303, 315, 317Google Scholar; Hall, J. C., “Gift of Part of a Debt”, [1959] C.L.J. 99, 101CrossRefGoogle Scholar.

164 Salmond and Williams, op. cit., 451, 468, 476–77.

165 As a rule, at common law the debtor must seek out his creditor to pay him. The new creditor's identity can therefore make some difference in so far as a change in the place of payment may be involved. This, however, the law of assignment appears to disregard.

166 Cf. 8 Holdsworth 39; 1 Sm. L. C (13th ed., 1929) 637. The Limitation Act, 1939, s. 23(4) limits the rule as to revival by admission or fresh promise to “any debt or other liquidated pecuniary claim”.

167 The explanation suggested by Holt C.J. and by Sir F. Pollock (see 8 Holdsworth 39, nn. 9, 10), viz. that limitation of actions is merely a rule of procedure made in favour of debtors and which debtors can waive, thus “reviving” their liability, is not convincing: for why should revival be limited, as it is, to debts and liquidated claims? Should not every form of liability be capable of revival? See, however, Langdell 91–92.

168 (1602) 5 Co. Rep. 117a.

169 Which it is not when the amount due is uncertain (or perhaps also disputed, cf. Tanner v. Merrill (1895) 108 Mich. 58); hence in such cases there can be a binding accord and satisfaction by receiving less than the sum claimed. (See, for example, Wilkinson v. Byers (1834) 1 Ad. & El. 106; Cooper v. Parker (1855) 15 C.B. 822.)

170 Which is roundly doubted in Lord Blackburn's protesting (though not dissenting) speech in Foakes v. Beer (1884) 9 App. Cas. 605, 614–23. In the modern law the rule in Pinnel's Case is in any event only presumptive: if the creditor accepts his debtor's substituted promise (still more, his substituted performance) in full satisfac tion, the original cause of action appears to be discharged—in the case of liquidated as of unliquidated damages: Morris v. Baron [1918] A.C. 1; British Russian Gazette, etc. v. Associated Newspapers [1933] 2 K..B. 616.

171 In Pinnel's Case itself the action was strictly in debt, not in assumpsit; and to debt the rule may be understandably applicable. Cf. Cheshire, and Fifoot, , The Law of Contract (6th ed., 1964) 79Google Scholar.

172 Cf. Maine, Ancient Law, Chap. 9 (esp. 334 in Pollock's ed., 1906); Noyes, , The Institution of Property (1936), e.g. 328, 404Google Scholar, and passim.

173 “Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust, shall not be provable in bankruptcy”: Bankruptcy Act, 1914, s. 30(1).

174 At creditors' meetings a creditor may not vote “in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained”: Bankruptcy Act, 1914, Sched. I, para. 9.

175 E.g. Companies Act, 1948, s. 322(1).

176 Noyes, op. cit., 332.

177 Distress for the recovery of rent is another instance of privileged treatment of a claim in debt. Distress damage feasant for the recovery of damage done by trespassing cattle is, on the other hand, a specialized privilege in respect of a claim which is not a debt: as are also some of the maritime liens.

178 Bankruptcy Act, 1914, s. 33.

179 Companies Act, 1948, s. 319.

180 Administration of Estates Act, 1925, First Schedule, Part I.

181 Some favoured claims are far removed from exchange—for example: alimony (which is not a provable debt), rates and taxes.

182 R.S.C. (Rev. 1962), O. 14 r. 1; cf. Schlesinger v. Mostyn [1932] 1 K.B. 349.

183 Cf. Lindley M. R., in Santley v. Wilde [1890] 2 Ch., 474: “…security for the payment of a debt or the discharge of some other obligation”. (The “other obli gation” in question was, however, also one for payment of money.)

184 Cf., for liens, Albemarle Supply Co. v. Hind & Co. [1928] 1 K.B. 307, esp. 318–19. But see, as to tender of (unliquidated) “amends” to release a distress damage feasant: Gulliver v. Cosens (1845) 1 C.B. 788; Sorrell v. Paget [1950] 1 K.B. 252.

185 The definition of pledge by Holt C. J., in Coggs v. Bernard (1703) 2 Ld. Raym. 909, 913, and the various descriptions in Donald v. Suckling (1866) L.R. 1 Q.B., 585, all assume that the right secured is a monetary debt. Similarly, in the Factors Act, 1889 (s. 1 (5)) pledge is spoken of as securing “an …advance or …any pecuniary liability.” This observation applies with greater force to mortgages. The definition in 27 Halsbury's Laws of England (Simonds) 155 speaks of it as security “for a debt”. The Trustee Act, 1925 (s. 68(7)) speaks of “a security for money”.

The true position perhaps is that the claim secured can be either one to the payment of a liquidated sum of money or one to the performance of an obligation (delivering a defined object or doing a defined act). Such undertakings, being tenderable, do not entail the risk of “mortmain”. On the other hand, an unliquidated liability (as for breach of contract, breach of trust, tort, insurance) is less fit to be secured by mortgage or pledge. It must, however, be admitted that the law is somewhat obscure.

186 Pp. 82–84 supra.