This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In enlarging their jurisdiction under this statute the common-law courts did not approach contract as a separate subject in its nature distinct from other rights; but they treated breaches of contract as wrongs, in principle indistinguishable from non-contract wrongs. To find breach of contract classed as a tort is in some respects startling to us. Our tendency today is to contrast tort and contract very sharply. We regard the original source of the duty as the substantive right, the invasion of which gives rise to the remedial right which the courts are called upon to recognize and to protect; and we base our technical classification upon this source of duty. It may be doubted whether this is the popular view as distinguished from the technical view even today. A man whose rights are invaded is more likely to consider the wrong that is done to him rather than the original source of the duty. He is likely to regard breach of contract especially if intentional as a form of fraud and bad faith. The thing that impresses him is the fact that the law gives him a means of compelling the adversary party to respond in damages, to make restitution or to desist from his wrongdoing. In this respect the popular view is that of the early common law. In the earlier digests, breach of contract and tort are grouped together under the heading of action on the case; and it is not until a later time that the assumpsits are separated from what we today would call the torts.1 This was due in part to the fact that the action on the case was, at the outset, not a tort action exclusively, nor a contract action, as such; but rather an action for all wrongs not involving the direct application of force, and not provided for by some preexisting form of action. The consequence has been a strong tendency to confuse breach of contract with tort. A standard elementary writer groups breach of contract under private wrongs or torts.2 In making which classification he follows Blackstone.3 The idea that breach of contract is a kind of a tort is, therefore, one which can not be said to have become obsolete for centuries after the passage of 13 Edw. I. It was adopted by the king's courts in the period when assumpsit, the last and broadest of the contract actions was developing. The crying need for a new form of action was not at the outset in the domain of contract; but in tort. Under the statute, in consimili casu, the class of cases which first seem to have impressed the courts as being in like case and requiring like remedy with existing forms of action were those in which a wrongful act had been done, which caused damage and yet could not support an action of trespass because the wrongful act did not involve the direct application of force to the person or property injured. Negligence is a typical example of wrongs of this class. To meet such cases, an extension of the writ of trespass known as trespass on the case was devised. This writ was at first allowed in cases which we should class as pure tort. The question which, however, soon came up for discussion was this. If negligence is actionable and trespass on the case will lie, why should it be the less actionable because the transaction by means of which negligence and resulting damages were possible, originated in the agreement of the parties To this the courts promptly replied that trespass on the case would lie on such facts. Accordingly where a blacksmith shod a horse and negligently drove a nail into the horse's hoof, thereby laming him, it was held that trespass on the case would lie.4 So if one undertook to carry a horse safely across a river, and overloaded the boat, by reason of which the horse was killed, it was held that trespass on the case would lie.5 This form, of action was allowed against the specific objection that it should have either been in trespass, or on the agreement. The latter objection, though in form a mere matter of procedure really raised a question of substantive law; for if on contract, the action must have been covenant, since the damages were unliquidated, and no recovery could then be had as the contract was not under seal. Accordingly where suit was brought for undertaking to cure a horse and performing so negligently that the horse died, it was held that the action need not be covenant, but that trespass on the case would lie.6
1 Brooke's Abridgment, f. 4; Action sur le case; Fitzherbert's Grand Abridgment, ff. 9h, et eeq.
2 Robinson's Elementary Law, Sec. 228.
3 Blaokfitone'e Com. Ill, 153, et eeq.
In the cases thus far discussed, the defendant attempted performance, but performed in a negligent manner. The question was then further presented whether if the agreement was not under seal this form of trespass on the case would lie against one who had done nothing towards performance. The courts were at first strongly set against allowing this action in such cases. The reason was possibly in part that given by Reeves. "It was thought somewhat harsh to give the name of trespass to a thing which was never done; it took, therefore, some time, and needed the concurrent force of some strong motives, to induce the court to admit these new writs."7 In the reign of Henry IV, suit was brought against a carpenter for not building or causing to be built certain houses which he had agreed to build. The objection was made that the plaintiff was really counting on a covenant while he failed to show a sealed contract. This objection was sustained by the court, it being suggested in obiter that perhaps it would have been otherwise if it had been averred that the work was begun and by negligence left unfinished.8 This decision while outwardly on a question of procedure necessarily involved the idea that an executory contract could not be enforced in case of mere non-performance unless under seal. The same decision was rendered a little later in the same reign.9 If these cases really involved mutual executory promises, contract law had by this time reached its limit of development at the common law. It seemed that without further aid from the legislature the common law would abandon the purely executory informal contract. The bar did not, however, seem satisfied with this decision as a finality. In the reign of Henry VI,10 the attempt to enforce executory contracts by the action of trespass on the case was renewed. An action was brought for breach of a contract to build a mill. It was not alleged that the contract was under seal, or that the defendant had done anything thereunder. The question presented was therefore the same as that presented in the earlier cases. Two out of the three judges, however, held that the action of trespass on the case would lie. The third judge dissented on the ground that if this kind of action would lie in such a case, it would lie on every broken agreement. This was, of course, the real question. Historically the dissenting judge was right. The majority opinion was a departure from precedent. It was a departure, however, which marked the first lesson taken by the king's courts in the law of the local courts on executory contracts; and it forms the leading case on the elementary proposition that an executory contract, not under seal, is enforceable. It is true that the report of this case does not show the final decision on this point. This is a common failing of the memoranda in the Year Books. The report does show, however, that the defendant did not dare to demur, after the discussion in court, but that he pleaded a discharge "from everything concerning the mill." Later eases take the same view and regard the simple executory contract as enforceable in an action on the case.11 Some of the cases emphasize the element of deceit and bad faith which is found in the deliberate and intentional breach of the contract by transferring the property contracted for to another in violation of the contract.12 It is true that for a considerable period of time the courts vacillated on this point. Executory contracts will be enforced in one case; and in another case this relief will be denied on the ground that the plaintiff is suing in covenant and is not producing a specialty, which means, of course, that the court is willing to enforce a formal contract, but will not enforce a simple one.13 The cause for this vacillation in judicial opinion may be solved when a careful study is made of the records of these cases and of other cases during the same period and when we can really see whether the enforcement of the simple contract was the rule or the exception. Different theories have been advanced to answer for this phenomenon. On the one hand it is urged that the real rule was that simple executory contracts could not be enforced and that the cases in which such remedy was allowed were expressions of opinion byi individual judges, who on this point were out of harmony with the majority of the judges during this period.14 On the other hand the compilers of the abridgments explained the distinction in a simple way. The cases in which relief was given are classed by them as cases in which a consideration was present; and the cases in which relief was denied are explained by them on the theory that they were gratuitous promises and that the courts would not enforce a promise without a consideration.15 It is possible that a study of the records will disclose some line of demarcation between the two classes of cases which the memoranda of the Year Books do not indicate. The courts are evidently unwilling to enforce a promise against A, unless A can in turn enforce B's promise to A against B. To use the formula employed by many modern courts, they demand at least mutuality of obligation; although it is, of course, long before the doctrine of consideration develops in its modern form. Whenever the courts, whether rightly or wrongly, are able to find a means of enforcing the one promise, they enforce the other. In the absence of rules on the subject of the measure of damages, the only means of enforcing these covenants is to treat them as independent, and to give to each party the right to recover the value of what has been promised to him. Where this can be done with one promise, the courts, during this period of vacillation, are willing to enforce the other.16 The period of vacillation comes to an end when the courts have worked out a satisfactory means of enforcing each of the separate promises. When this result is reached, there is no longer any trouble about enforcing contracts which are executory on both sides.17 The courts of the king had finally learned the jurisprudence of the courts of piepowder.18 The allegation of the promise (super se assumpsit) which is originally inserted to show the duty becomes the mark of cases of this sort. As yet, however, these cases are regarded as merely a special type of wrong, and not as contracts, to be distinguished from torts.