COVENANT, ACTION OF
One of the old common-law FORMS OF ACTION by
which the plaintiff claimed damages for breach of
a COVENANT, that is, a contract under seal.
When the common-law system was first
developing in England after the Norman Conquest
of 1066, the king’s courts were little concerned
with the personal disputes of private parties.
When the royal courts began assuming
more authority the procedure for asserting a
legal claim became more technical. A dispute
would not be heard unless the plaintiff could
make out a claim in an established form, or form
of action. The courts initially refused to hear
cases involving private agreements because parties
could not testify in their own cases, and
there often was no other way to prove the existence
of a contract or its terms.Gradually, judges
came to the conclusion that a contract could be
proved by introducing a written agreement
bearing a seal—an impression in wax or in the
paper itself—and by offering evidence that the
agreement had been properly delivered to the
party who held it. Such a sealed writing was
known as a covenant, and it was legally sufficient
to give the plaintiff grounds to sue on the rights
embodied in it.
The action of covenant gained recognition
in the thirteenth century and remained important
for centuries, as long as agreements were
enforceable only if they were under seal. It was
not until the end of the fourteenth century that
the law began to recognize as legally enforceable
a contract that was supported by consideration
but not under seal.
In very early times an action of covenant
could be used by a tenant who had been wrongfully
ousted from his or her premises before the
term of the lease had expired. If it were the
landlord who ejected the tenant, the tenant
could seek damages as well as recovery of tenancy,
but the only remedy against anyone else
was money damages. As time went by, the
action was not allowed for agreements involving
real property.
Originally, the action of covenant was
intended to force the defendant to perform his
or her part of the bargain.Where that performance
could not be forced and the defendant
remained adamant, the plaintiff was entitled to
damages in proportion to losses. The COMMON
LAW first collected amercements, or fines, from
the defendant and later ordered the defendant to
pay money damages to the plaintiff as well.
Today, the common-law forms of action
have been supplanted in U.S. law by modern
rules of CIVIL PROCEDURE, and the action of
covenant no longer exists. Even so, some states
have preserved certain legal consequences for
contracts under seal.
CROSS-REFERENCES
Assumpsit.
