Page:Harvard Law Review Volume 8.djvu/268

252 252 HARVARD LAW REVIEW. PAROL CONTRACTS PRIOR TO ASSUMPSIT. IT is generally agreed by the Continental writers that in early German law, from which our law comes, only real and formal contracts were binding. The same is unquestionably true of the English common law from the time of Edward III. to the introduction of Assumpsit towards the end of the fifteenth cen- tury. But Mr. Justice Holmes in his Common Law, 260-264, ^"^d again in his essay on Early English Equity, i L. Q. Rev. 171-173, endeavors to show that the rule requiring a quid pro quo for the validity of a parol undertaking was not of universal application in England, and that a surety, in particular, might bind himself with- out a specialty prior to the reign of Edward III. If this opinion is well-founded, an innovation and the abolition of the innovation must be accounted for. The evidence in favor of the validity during the two centuries following the Norman Conquest, of any parol obligation which was neither based upon a quid pro quo, nor assumed in a court of record, should, therefore, be very strong to carry conviction. The evidence thus far adduced has failed to con- vince the present writer. Prior to the appearance of Assumpsit the contractual remedies in English law were Debt, Detinue, Account, and Convenant. De- tinue and Account, every one will agree, were based upon real contracts. Covenant lay only upon sealed instruments, that is, formal contracts. If, therefore, parol undertakings, other than real contracts, were ever recognized in early English law they must have been enforced by the action of Debt. But no instance of such an action in the royal courts, it is believed, can be found. Glanvil, Bracton, and Britton all recognize the validity of debts founded upon a specialty.^ Glanvil also says in one place that no proof is admissible in the king's court, if the plaintifif relies solely upon fidei IcBsio; and in another that the king's court does not enforce *' privatas conventiones de rebus dandis vel accipiendis in 1 Glanvil, Lib. X. c. 12. " De debitis laicorum quae debentur . . . de cartis debita continentibus." Bracton, f. 100, b. " Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit sive non, obligatur ex scriptura, nee habebit exceptionem pecunias non numeratae contra scripturam, quia scripsit se debere." i Nich. Britton, 157, 162.