ASSUMPSIT

no comments
Tags: ASSUMPSIT

assumpsit (<>-s<>m[p]-sit). [Law Latin “he undertook”] 1. An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another .2. A common-law action for breach of such a promise or for breach of a contract < the creditor’s assumpsit against the debtor>. [Cases: Assumpsit, Action of 1. C.J.S. Assumpsit, Action of §§ 2, 4–6.]

“It was early known as ‘trespass on the case upon promises,’ but in time came to be designated assumpsit (he assumed or promised), and lies for damages for breach of all contracts, parol or simple, whether written or verbal, express or implied.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 9–10 (2d ed. 1899).

“In its origin an action of tort, [assumpsit] was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment. Surely, it would be hard to find a better illustration of the flexibility and power of self-development of the Common Law.” James Barr Ames, “The History of Assumpsit,” in 3 Select Essays in Anglo-American Legal History 298 (1909).

general assumpsit.An action based on the defendant’s breach of an implied promise to pay a debt to the plaintiff. — Also termed common assumpsit; indebitatus assumpsit. [Cases: Assumpsit, Action of 7. C.J.S. Assumpsit, Action of § 10.]

“General assumpsit is brought for breach of a fictitious or implied promise raised by law from a debt founded upon an executed consideration. The basis of the action is the promise implied by law from the performance of the consideration, or from a debt or legal duty resting upon the defendant.” Benjamin J. Shipman, Handbook of Common-Law Pleading § 59, at 153 (Henry Winthrop Ballantine ed., 3d ed. 1923).

“[T]he word ‘assumpsit’ suggest[s] the making of a promise. While that is true in the case of the action of special assumpsit, the promise alleged in the action of general assumpsit was only a fiction. Accordingly in the latter action, the word ‘assumpsit’ no more means that an obligation exists as the result of making a contract, than that a contract is involved because the obligation is described as quasi-contractual.” Charles Herman Kinnane, A First Book on Anglo-American Law 633–34 (2d ed. 1952).

indebitatus assumpsit (in-deb-i-tay-t<>s <>-s<>m[p]-sit). [Latin “being indebted, he undertook”] 1.Hist. A form of action in which the plaintiff alleges that the defendant contracted a debt and, as consideration, had undertaken (i.e., promised) to pay. • The action was equivalent to the common-law action for debt (an action based on a sealed instrument), but could be used to enforce an oral debt. In England, indebitatus assumpsit was abolished in 1873 by the Judicature Act. But it is still used in several American states, such as California. See CONCESSIT SOLVERE. 2. See general assumpsit.

“[I]f I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal …. [T]he plaintiff must recover the whole debt he claims, or nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same … action of debt …. But in an action on the case, on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the contract, but to recover damages for its non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration.” 3 William Blackstone, Commentaries on the Laws of England 154 (1768).

special assumpsit.An action based on the defendant’s breach of an express contract. — Also termed express assumpsit. [Cases: Assumpsit, Action of 6. C.J.S. Assumpsit, Action of § 4.]

“Special assumpsit lies for the recovery of damages for the breach of simple contract, either express or implied in fact. The term ‘special contract’ is often used to denote an express or explicit contract as contrasted with a promise implied in law.” Benjamin J. Shipman, Handbook of Common-Law Pleading § 58, at 148 (Henry Winthrop Bal-lantine ed., 3d ed. 1923).

“From the allegations concerning the ‘assumpsit,’ a new action which split off from the action on the case came to be known as the action of assumpsit. Since, however, the plaintiff had to allege and prove a specific or special promise, in order to get a judgment, the action came to be known as the action of ‘special assumpsit.’ When the special promise came to be regarded as the basis of the action, the action came to be regarded as a contract action, rather than one based on unclassified ‘wrongs.’ ” Charles Herman Kinnane, A First Book on Anglo-American Law 633–34 (2d ed. 1952). Black’s Law Dictionary (8th ed. 2004)