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.
When we reach the classic period of the common law, as summed up for example by Blackstone, we find an attempt to classify rights according to their nature, but at the same time on a basis of the forms of action by which each could be enforced. Assumpsits are now definitely recognized as contracts. Contracts divided into two great classes; the formal, and the informal or the simple contract. Formal contracts divided into contracts of record and contracts under seal, or specialties.1 Contracts of record divided into judgments, recognizances, statutes merchant, statutes staple, and recognizances in the nature of statutes staple. Simple contracts divided into express and implied contracts. Express contracts were those in which the agreement was entered into by the parties in so many words. An implied contract was one in which the agreement was not entered into in so many words, but was inferred from the facts and circumstances of the case. As used at common law, this
4 Loveday's Caae, Y. B. 3 Ed. II, 78, pl. 4; Sharington v. Strotton, Plowd. 298, arguendo 301, 312; Y. B. 17 Ed. III, 48, pl. 14; Bellevne 32, 111 (tempore Rich. II, reprint 1869).
5 Bellevue 111 (argument of Watham).
6 See Sec. 25.
7 Banks and Thwaits' Case, 3 Leon. 78; Brooke's Abridgement (Action sur le Case) 5; Y. B. 27 Hen. VIII, 24, 25, pl. 3; Sidenham and Worlington's Case, 2 Leon. 224; Shandois v. Sim-son, Cro. Eliz. 880; Sands v. Trevilian, Cro. Car. 107; Jordan v. Thomkins, 6 Mod. 77.
8 Maylard v. Kester, Moore, 711.
1 Whether "specialty" can be used as including contracts of record, see
113a included two distinct classes of rights. The first class consisted of those rights which grew out of a genuine agreement between the parties, in which the parties arrived at such agreement by means of conduct, acts, gestures and the like, without expressing their agreement in the form of words. The second class consisted of those rights which did not grow out of any real agreement between the parties, but which the law enforced by the action of assumpsit.2