The term "real contract" is in common use in the civil law, and though not commonly used by judges or writers in the common law, nevertheless describes certain obligations known to the common law from very early times. A real contract is an obligation arising from the possession or transfer of a res. The real contracts known to the common law were enforced by the actions of account, detinue and debt. All of these forms of action fell into disuse to a great extent after the rise of the action of assumpsit. This action gave the plaintiff a more favorable and simpler remedy for the enforcement of the obligations in question than any other form of action. To the general allowance of this remedy as a substitute for the earlier forms of action is due the forgetfulness of modern lawyers of some distinctions which were vital in our early law and which are still of importance in appraising early authorities and occasionally also in determining the rights of parties saro (Mass. 1919), 123 N. E. 346, and cases cited. 23See infra, Sec.Sec. 136 et seq.
24 See 2 Ames' Cae. Bills and Notes, 872 el seq.
25 See 2 Ames' Cas. Bills and Notes, 873,874.
in present controversies. As procedure was inextricably interwoven with the early substantive law, the nature and incidents of the real contracts known to the common law may best be learned by an examination of the forms of action by which they were enforced.