ASSUMPSIT
[Latin, He undertook or he promised.] A promise
by which someone assumes or undertakes an
obligation to another person. The promise may be
oral or in writing, but it is not under seal. It is
express when the person making the promise puts
it into distinct and specific language, but it may
also be implied because the law sometimes imposes
obligations based on the conduct of the parties or
the circumstances of their dealings.
Assumpsit was one of the common-law
FORMS OF ACTION. It determined the right to
sue and the relief available for someone who
claimed that a contract had been breached.
When the COMMON LAW was developing in
England, there was no legal remedy for the
breach of a contract. RANULF GLANVILL, a
famous legal scholar, wrote just before the year
1200 that “[i]t is not the custom of the court of
the lord king to protect private agreements, nor
does it concern itself with such contracts as can
be considered private agreements.” Ordinary
lawsuits could be heard in local courts, but the
king was primarily interested in royal rights and
the disputes of his noblemen. As commerce
began to develop, the king’s courts did allow two
forms of action for breach of contract—the
actions of COVENANT and debt. Covenant could
be maintained only if the agreement had been
made in writing and under seal and only if the
action of debt was not available. One could sue
on the debt only if the obligations in the contract
had been fully performed and the breach
was no more than a failure to pay a specific sum
of money.
Finally, in 1370, a plaintiff sought to sue a
defendant who had undertaken to cure the
plaintiff ’s horse but treated it so negligently that
the horse died, and the action was allowed. In
1375, another man was permitted to sue a surgeon
who had maimed him while trying to cure
him. These cases showed a new willingness to
permit a lawsuit for monetary damages arising
directly from the failure to live up to an agreement.
For the next hundred years the courts
began to allow lawsuits for badly performed
obligations but not for a complete failure to perform
what was required by contract. Unexpectedly,
this restriction was abandoned also, and a
new form of action was recognized by the
courts, an action in special assumpsit for breach
of an express agreement.
Special assumpsit gave a new legal right to
parties who could not sue on a debt. Gradually,
it became possible to sue in assumpsit if the
defendant owed a debt and then violated a fresh
promise to pay it. This action came to be known
as indebitatus assumpsit, which means “being
indebted, he promised.”
As time passed, courts were willing to
assume that the fresh promise had been made
and to impose obligations as if it had. This
allowed lawsuits for a whole range of contract
breaches, not just those recognized by an action
on the debt or in special assumpsit. If the plaintiff
could claim that services had been performed
or goods had been delivered to the
defendant, then the law would assume that the
defendant had promised to pay for them. Any
failure to do so gave the plaintiff the right to sue
in assumpsit. This development allowed such a
wide range of lawsuits based on promises to private
parties that it came to be known as general
assumpsit.
Eventually, the right to sue was extended
even to situations where the defendant had no
intention to pay but it was only fair that he or
she be made to do so. This form was called
assumpsit on quantum meruit. Special assumpsit,
general assumpsit (or indebitatus assumpsit), and
quantum meruit are all ex contractu, arising out
of a contract. Their development is the foundation
of our modern law of contracts.
CROSS-REFERENCES
Quantum Meruit.
