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.
From the foregoing historical discussion of the development of the law of contract,1 it can be seen that it is impossible to formulate a statement of the theory of contract which will apply alike to the early common law, to the common law in its classic form, and to modern law. Each of these periods must be considered separately. At common law, in its classic form, rights were classed as contracts if they were enforceable by some form of action ex contractu irrespective of their inherent nature. Conversely contracts at common law might be defined as those rights which could be enforced by some action ex contractu. In making this statement, however, we are attempting a generalization which was assumed by those who administered the law, but which was rarely stated. No general theory of con-tract existed. We have seen already that the idea of contract at first entertained by the king's court at first included whatever resulted in a fixed and liquidated indebtedness; and nothing else.2 By the reign of Henry III, the idea of contract also took in sealed promises.3 At the same time, the name "contract" had become associated with debt, and the courts were, for a long time, unwilling to admit that a sealed obligation was a contract unless it was given for a quid pro quo; that is, for a debt due from the debtor to the creditor for something received by the debtor from the creditor.4 The distinction was made between debt on a contract and debt on an obligation.5 In other words, the courts were unwilling to concede to the right enforced by the new remedy, the name which had been applied to the right enforced by the original remedy; and for a long time they were unwilling to admit covenant within the circle of contract actions. Indeed the courts were still dealing with special instances and they had not as yet evolved the generalization of the division of personal actions into actions ex contractu and actions ex delicto.
1 See ch, 1. 2 See Sec. 18.
3 See Sec. 20.
By the reign of Henry VI, the idea of contract had expanded beyond these limits.6 With the recognition of assumpsit the class of contracts, as we would call them, was widened greatly; but the courts of that day long insisted that assumpsit was not a contract.7 If it is a "perfect contract," the courts insist that assumpsit will not lie, but that the remedy is debt.8