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 formal contract is an obligation which owes its validity not to consideration, nor in some cases, as in contracts of record, to the agreement of the parties, but solely to the form of the transaction. There is an inclination to explain the contract of record on the theory that the law implies an agreement and presumes a consideration.1 Such an explanation is of course a gross anachronism. The formal contract at Common Law antedated the executory simple contract, and was enforceable by reason of its form long before consideration was thought of as having any place in the law of contract.2 At Common Law primary rights were classed with reference to the form of actions by which they were enforced. Accordingly we find that as the action of debt would lie on a record and the action of covenant on a sealed contract, both were classed as contracts.3 Assumpsit could not be brought on a contract under seal, to recover damages for breach thereof.4 The tendency of Modern Law to classify primary rights according to their own inherent nature, and to define contract as an agreement enforceable at law, has excluded the greater number of the so-called contracts of record from the class of true contracts.5 They are here included for historical reasons. The formal contract consisted of two great classes: the contract of record and the contract under seal. Each of these will be discussed separately.
1"In an action upon a record or upon a contract under seal, a lawful consideration was presumed to exist and could not be denied." Hilton v. Guyot, 159 U. S. 113, 199.
2 See Ch. I.
3 "At Common Law an action of debt would lie on a debt appearing by a record, or by any other specialty, such as a contract under seal; and would also lie for a definite sum of money due by simple contract. Assumpsit would not lie upon a record or other specialty; but would lie upon any other contract, whether expressed by the party or implied by law." Hilton v. Guyot, 159 U. S. 113, 199. The statement that covenant and debt were concurrent remedies where a fixed sum of money was due and owing under a sealed instrument was true of the classic period of the Common Law, Black. Com. III. 154, but it was not true at the early Common Law after covenant was differentiated from debt. Pollock and Maitland History of English Law (2d ed.), Vol. II., 219.