Assumpsit
Assumpsit ("he has undertaken," from Latin, assumere), or more fully action of assumpsit, is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract (formerly known as an “assumpsit”), either express or implied, whether made orally or in writing not as a deed (i.e., not under seal or in presence of attesting witnesses).
The origin of assumpsit comes from trespass on the case, a form of action in tort. The basis of the action was deceit in breaking a promise. The Slade's Case in 1602 determined that assumpsit may be used to recover damages for breach of a simple contract even if an action of debt was also proper.[1]
Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit,[2] brought usually on an implied promise, and (b) special or express assumpsit, founded on an express promise.[3] The actual causes of action that could be pleaded through assumpsit were known as the "common counts," and could be pleaded in a very terse, compact style.
Where a voluntary contract existed, an action of assumpsit was commonly brought to enforce actual contracts in which a price was not agreed upon. Typically, assumpsit also served as a quasi-contractual remedy used to recover liquidated damages in the following common forms:
- condictio indebiti, to recover the payment of a thing not due (indebiti solutio);
- quantum valebant, to compensate for delivery of goods in the absence of a contract;
- quantum meruit, to compensate for performance of services rendered in the absence of a contract.[4]
Courts generally measured recovery in these situations by the fair market value of the goods or services.
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales. Furthermore, assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875.
In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938. Thirty-five states have moved to rules similar to the FRCP (see Civil procedure in the United States), which have replaced the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory cause of action or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit.[5]
References
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- ↑ The Latin phrase means "being indebted he promised," or more literally "he undertook, or he assumed the duty [to pay]."
- ↑ See Lionel D Smith, et al., The Law of Restitution in Canada: Cases, Notes, and Materials, pp. 72-75 (Emond Montgomery Publications 2004) (avail. Google Books)
- ↑ Jeffrey L. Oakes, “Article 2298, the Codification of the Principle Forbidding Unjust Enrichment, and the Elimination of Quantum Meruit as a Basis for Recovery in Louisiana”, 56 Louisiana Law Review (1996), p. 879. Available at: [1].
- ↑ Form PLD-C-001(2), Cause of Action-Common Counts, Judicial Council of California (Rev. Jan. 1, 2009).
Note
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