Assumpsit (Contract Law) Definition
In Latin, the term assumpsit means ‘he has undertaken.’ It is used in common law to define an action of recovering damages resulting from a breach of contract. This action covers many types of agreements although it was initially developed in the 14th century as a form of recovery for the negligent performance of an undertaking.
A Little more on What is Assumpsit
A contract is an agreement between two parties where one party promises to do some act or pay something to the other. It may be in an oral form or writing, but it’s not under seal. It is considered express if the promisor puts his promise in a distinct and definite language. It’s deemed to be implied in the case where the law infers a commitment from the conduct of the party or the circumstance of the situation although a formal promise was not made.
In practice, an assumpsit is a form of action for the recovery of damages for the non-performance of parol or simple contract (which is of neither recorded nor made under seal).
This action is divided into two:
- Common or indebitatus assumpsit. An implied promise mostly brings this.
- Special assumpsit. This is founded on an express promise.
The action of assumpsit is different from trespass and trover because they are founded on tort and not on a contract. It is also different from covenant and debt because they are appropriate where the ground of recovery is a sealed instrument or a special obligation of paying a fixed sum. It is different from replevin which seeks the recovery of specific property instead of damages.
References for Assumpsit
Academic Research on Assumpsit
- The History of Assumpsit. I. Express Assumpsit, Ames, J. B. (1888). Harvard Law Review, 1-19. This paper studies the history of assumpsit and the theories created to explain its origin and development over time.
- Parol Contracts Prior to Assumpsit, Ames, J. B. (1894). Harvard Law Review, 252-264. This paper investigates the contractual remedies that existed in English law before the appearance of assumpsit. These contractual remedies were Debt, Detinue, Account, and Covenant.
- Waiver of Tort and Suit in Assumpsit, Corbin, A. L. (1910). The Yale Law Journal, 19(4), 221-246. This paper revisits this topic of waiver of tort and suit in assumpsit citing the reason as the substantive principles that developed for the common law were just mere incidents to forms of action and procedure.
- Debt Assumpsit and Consideration, Holdsworth, W. S. (1912). Mich. L. Rev., 11, 347. This paper applies the remark made by Lord Mansfield saying that ‘nothing in law is so apt to mislead as a metaphor,’ to other branches of the law which contain the principles that are fully developed and illustrated by decided cases to find out if it is true.
- Assumpsit, consideration and third party rights, Cruz, S. D. (1986). The Journal of Legal History, 7(1), 53-67. This article assesses the impact the doctrine of consideration and assumpsit on third party rights of action in contract.
- Toward a Reformulation of the Law of Contracts, Evers, W. M. (1977). Journal of Libertarian Studies, 1(1), 3-13. This paper provides a sketch of the title-transfer approach that is more consistent and can be rationally defended than the current law of contracts or a promised expectations approach.
- Supply versus Demand for Efficient Legal Rules: Evidence from Early English Contract Law and the Rise of Assumpsit, Sechler, M. J. (2011). U. Pitt. L. Rev., 73, 161. This article argues that judge-made law leads to efficiency and various doctrines and institutions of the legal system are better understood and explained as efforts for promoting the efficient allocation of resources.
- Money Had and Received, an Equitable Action at Law, Bishop, E. T. (1933). S. Cal. L. Rev., 7, 41. This paper argues that when an idea is based on a word that is used in two trains of thought unless care is taken to establish which specific train is the idea to be used in, the idea can be claimed to be used in both contexts of thought.
- Recovery of Money Paid Under Mistake of Fact, Keener, W. A. (1887). Harv. L. Rev., 1, 211. This article maintains that according to law, the recovery of money that is paid under a mistake requires an illustration of the equitable nature of obligations which are quasi-contractual.
- The standardizing of contracts, Isaacs, N. (1917). The Yale Law Journal, 27(1), 34-48. This article studies contracts and states that the movement of progressive societies can be equated to the movement from status to contract in the same societies.
- Freedom of Contract, Williston, S. (1920). lq, 6, 365. This is a study of the right that people have to form contracts between themselves that legally bind them.
- The Measure of Recovery for Breach of Contracts Requiring the Payment or Loan of Money, Carlock, J. K. (1941). Brief, 40. This paper investigates how to measure the damages arising from a breach of contract and how these damages are recovered.