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.
The great change in modern law affecting contract, though indirectly, has been the abolition of forms of action. In many jurisdictions forms of action have been completely abolished and the civil action substituted therefor. In other jurisdictions, the old forms have been retained, but simplified and with a freedom of amendment that makes the distinction between the different actions of much less importance than under the old system. The effect of this change in procedure has reacted on the law of contract, as it has on other branches of substantive law. Some classification of law is necessary. The old system of classifying on a basis of procedure is practically obsolete; and we are driven to a more rational and logical but more difficult classification upon the basis of the inherent principles of substantive law. Instead of classing as contract everything for which debt, covenant or assumpit would lie, we now endeavor to classify rights of action in accordance with their inherent principles. The result is that certain rights of action which have always been classed as contract because enforced by one of the actions ex contractu are now seen to be distinct from contract. If still classed with contract it will be for reasons purely historical.1 The change in social customs during the past seven centuries has produced a corresponding change in the relative importance of the different branches of substantive law. The law of contract has gained at the expense of most of the other branches. Thus in Glanville's book, about nine percent. of his space is devoted to contract; in Blackstone's, about two per cent.; while it is perhaps not too much to say that of modern law books, about one-half, outside of the subject of procedure, is devoted to contract. It may be said, therefore, as a summary, that the law of contract has been of late and retarded development. Down to a comparatively recent period in the development of our law there has been no general or comprehensive theory of contract. This has on the one hand prevented the law from becoming fixed with certainty, but on the other hand it has spared us that premature development that results in rigidity and loss of power to meet the needs of progress. Prom its very insignificance, the law of contract was not elaborated in the early common law, as, for example, the law of real property was. It was therefore left in a rudimentary state, and for that very reason, far more free to expand on its substantive side into a rational and harmonious system, in sympathy with the scope and spirit of the completed Roman law, than it would have been had its principles been developed in detail at an early stage of growth.
11 Slade's case, 4 Coke Rep. 92b, Moore, 667, pl. 916.
12 "It was resolved, that every contract executory imports in itself an assumpsit, for when one agrees to pay money,or to deliver anything, thereby he assumes or promises to pay, or deliver it, and therefore when one sells any goods to another, and agrees to deliver them at a day to come, and the other in consideration thereof agrees to pay so much money at such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case, as well as actions of debt * * * . Also it is good in these days in as many cases as may be done by the law, to oust the defendant of his law, and to try it by the country, for otherwise it would be occasion of much perjury * * * . And therefore it was concluded, that in all cases when the Register has two writs for one and the same case, it is in the party's election to take either": Slade's Case, 4 Coke 92b.
13 See ch. XLIV.
1 See Sec. 34, 47, 1493 et seq.
In this development there was, it may be added, very little direct and" conscious borrowing from the Roman law. Many of the common-law judges were more or less versed in Roman law, sometimes in its classic form, sometimes in the form in which it was studied on the continent and in which it was beginning to displace the native law of west Europe by the great reception of the Roman law. Glanville was familiar enough with Roman law to model the commencement of his book at least upon the Institutes of Justinian. Bracton had a much wider acquaintanceship with Roman law; although he undoubtedly made many blunders in his attempt to understand its real spirit and to apply it to the conditions which existed in England in the thirteenth century. Later judges were often able to illustrate common-law rules by reference to the civil law. The canon law undoubtedly affected the devel-opment of the common law in part directly and in part through its influence on equity; and the canon itself was greatly influenced by Roman law. At the same time, making allowance for all these various influences, there was little direct borrowing. The greatness of the common law is due to the fact that its courts often unconsciously were animated by the same spirit that transformed the law of Borne from the archaic law of a little town to the mighty jurisprudence of a world empire. The fact that the common law was able to take a position by the side of the Roman law as a great legal system which passed through a course of development, complete in the case of the Roman law and still taking place in the case of the common law, is due to the fact that the English courts were strong enough to turn away from the Corpus Juris and, more Roman than the Romanists, to make the grand experiment of a new. formulary system.2