Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0020
J. Baker
This chapter is concerned with the action on the case for deceit, chiefly in the context of false warranties made by sellers of goods. The availability of the action was at first contested on the ground that a warranty was a covenant, and therefore required written evidence, or perhaps a writ of covenant. But it became well established before 1400, and the next difficult question was how to distinguish a warranty, for this purpose, from a misdescription. The general principle was ‘caveat emptor’, but this did not apply in the case of food and drink or in cases where a buyer was unable to ascertain the facts for himself. A major debate in 1606 over the sale of a stone misdescribed as a ‘bezoar’ confirmed that, in the absence of a warranty (or guarantee) at the time of sale, the buyer of a misdescribed object had no legal redress.
{"title":"Actions on the case for deceit","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0020","url":null,"abstract":"This chapter is concerned with the action on the case for deceit, chiefly in the context of false warranties made by sellers of goods. The availability of the action was at first contested on the ground that a warranty was a covenant, and therefore required written evidence, or perhaps a writ of covenant. But it became well established before 1400, and the next difficult question was how to distinguish a warranty, for this purpose, from a misdescription. The general principle was ‘caveat emptor’, but this did not apply in the case of food and drink or in cases where a buyer was unable to ascertain the facts for himself. A major debate in 1606 over the sale of a stone misdescribed as a ‘bezoar’ confirmed that, in the absence of a warranty (or guarantee) at the time of sale, the buyer of a misdescribed object had no legal redress.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115094925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0001
J. Baker
The law of real property began in the context of feudal tenure. This chapter contains thirteenth-century materials relating to the services and incidents due from a tenant to a lord under the ‘feudal system’, ending with three pieces of legislation intended to protect the economic interests of lords from diminution or avoidance.
{"title":"Tenure: services and incidents","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0001","url":null,"abstract":"The law of real property began in the context of feudal tenure. This chapter contains thirteenth-century materials relating to the services and incidents due from a tenant to a lord under the ‘feudal system’, ending with three pieces of legislation intended to protect the economic interests of lords from diminution or avoidance.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122886087","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0007
J. Baker
The principal purpose of this chapter is to show how the tenant by copy of court roll evolved from a manorial tenant in villeinage, with no protection against his lord at common law, into a landowner with a property right enforceable in the central courts. The means was the action of ejectment, which rested on a lease of the copyholder’s possessory interest. This was settled in the King’s Bench by the 1570s, though the Common Pleas did not at first acquiesce. The copyholder’s estate was governed by the custom of the manor of which the land was held, and this gave rise to difficulties over its legal qualities, particularly with regard to entailed copyhold.
{"title":"Copyhold","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0007","url":null,"abstract":"The principal purpose of this chapter is to show how the tenant by copy of court roll evolved from a manorial tenant in villeinage, with no protection against his lord at common law, into a landowner with a property right enforceable in the central courts. The means was the action of ejectment, which rested on a lease of the copyholder’s possessory interest. This was settled in the King’s Bench by the 1570s, though the Common Pleas did not at first acquiesce. The copyholder’s estate was governed by the custom of the manor of which the land was held, and this gave rise to difficulties over its legal qualities, particularly with regard to entailed copyhold.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"144 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123637452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0012
J. Baker
This chapter is concerned with the writ of trespass vi et armis, available for wrongs committed ‘with force and arms and against the king’s peace’. The first part explores the meaning of this phrase, and reveals how in some cases it may have been extended by fiction. The second part shows what defences could be raised by special pleading. Justifications could be specially pleaded, but the few attempts to plead lack of fault failed because the absence of fault was not a justification. In 1466 it was held, after earlier uncertainty, that intention was irrelevant. However, the cases do not suggest that liability was strict. Unavoidable accident was a defence in principle, though it amounted to Not Guilty and was therefore a matter entirely for the jury. Attempts to frame special pleas of accident all failed, but the discussions which they occasioned throw light on what the underlying law was thought to be.
{"title":"Trespass","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0012","url":null,"abstract":"This chapter is concerned with the writ of trespass vi et armis, available for wrongs committed ‘with force and arms and against the king’s peace’. The first part explores the meaning of this phrase, and reveals how in some cases it may have been extended by fiction. The second part shows what defences could be raised by special pleading. Justifications could be specially pleaded, but the few attempts to plead lack of fault failed because the absence of fault was not a justification. In 1466 it was held, after earlier uncertainty, that intention was irrelevant. However, the cases do not suggest that liability was strict. Unavoidable accident was a defence in principle, though it amounted to Not Guilty and was therefore a matter entirely for the jury. Attempts to frame special pleas of accident all failed, but the discussions which they occasioned throw light on what the underlying law was thought to be.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"115 21","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120851631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0021
J. Baker
The action of detinue was unsatisfactory for plaintiffs in that defendants could escape by waging law, and indeed could truthfully deny a detainer of goods if they had destroyed or parted with them. The action on the case offered a solution. This chapter shows how it was first used against bailees who converted goods by damaging or destroying them. The extension to finders, including constructive ‘finders’, by a subtle shift in the meaning of ‘conversion’, provoked a controversy between the King’s Bench and the Common Pleas similar to that over the use of assumpsit to replace debt. It was resolved in favour of allowing the action, but with the qualification that not every detainer was a conversion. In its settled form, ‘trover and conversion’ was an action to try the relative title of the parties rather than an action in tort based on fault.
{"title":"Actions on the case for conversion","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0021","url":null,"abstract":"The action of detinue was unsatisfactory for plaintiffs in that defendants could escape by waging law, and indeed could truthfully deny a detainer of goods if they had destroyed or parted with them. The action on the case offered a solution. This chapter shows how it was first used against bailees who converted goods by damaging or destroying them. The extension to finders, including constructive ‘finders’, by a subtle shift in the meaning of ‘conversion’, provoked a controversy between the King’s Bench and the Common Pleas similar to that over the use of assumpsit to replace debt. It was resolved in favour of allowing the action, but with the qualification that not every detainer was a conversion. In its settled form, ‘trover and conversion’ was an action to try the relative title of the parties rather than an action in tort based on fault.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131314345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0022
J. Baker
This chapter shows how actions on the case were used to obtain compensation for various forms of harm caused by negligence even when there was no undertaking to use care. Early examples were those brought on ‘the custom of the realm’ against innkeepers and those who failed to control domestic fires. The arguments over what defences could be pleaded in such actions show that liability was generally strict. Although a later custom of the realm was invented for use against carriers, it was not necessary to formulate more customs, since a custom prevailing throughout the realm was common law. Miscellaneous examples are found of actions for negligence per se, for instance in respect of accidents arising from hazards in public places, and these were eventually seen as representing a general principle of common law that everyone should take reasonable care not to injure his neighbour.
{"title":"Actions on the case for negligence","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0022","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0022","url":null,"abstract":"This chapter shows how actions on the case were used to obtain compensation for various forms of harm caused by negligence even when there was no undertaking to use care. Early examples were those brought on ‘the custom of the realm’ against innkeepers and those who failed to control domestic fires. The arguments over what defences could be pleaded in such actions show that liability was generally strict. Although a later custom of the realm was invented for use against carriers, it was not necessary to formulate more customs, since a custom prevailing throughout the realm was common law. Miscellaneous examples are found of actions for negligence per se, for instance in respect of accidents arising from hazards in public places, and these were eventually seen as representing a general principle of common law that everyone should take reasonable care not to injure his neighbour.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131797314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0019
J. Baker
This chapter shows how the doctrine of consideration emerged as an amalgam of the factors which would justify bringing an action of assumpsit for nonfeasance. The principal factors were a benefit conferred on the promisor (the essence of a bargain) and a detriment suffered by the promisee (the essence of a tort founded on reliance). Though lacking coherence, consideration was the closest approach to a basic substantive principle of contract law. Closely connected with it was the doctrine of privity. There was much debate over this, and in particular whether it was necessary for a plaintiff to be privy both to the consideration and to the promise. The reported arguments show how far it was thought possible for parties to make enforceable contracts for the benefit of others.
{"title":"Consideration and privity","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0019","url":null,"abstract":"This chapter shows how the doctrine of consideration emerged as an amalgam of the factors which would justify bringing an action of assumpsit for nonfeasance. The principal factors were a benefit conferred on the promisor (the essence of a bargain) and a detriment suffered by the promisee (the essence of a tort founded on reliance). Though lacking coherence, consideration was the closest approach to a basic substantive principle of contract law. Closely connected with it was the doctrine of privity. There was much debate over this, and in particular whether it was necessary for a plaintiff to be privy both to the consideration and to the promise. The reported arguments show how far it was thought possible for parties to make enforceable contracts for the benefit of others.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122803248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0002
J. Baker
This chapter contains thirteenth-century cases (and one from 1334) relating to the early ‘real’ actions and petty assizes for the recovery of land. They show how questions of title could be raised by pleading even when they were not indicated by the standardized formulae of writs which may have been designed for more limited purposes.
{"title":"Actions concerning land","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0002","url":null,"abstract":"This chapter contains thirteenth-century cases (and one from 1334) relating to the early ‘real’ actions and petty assizes for the recovery of land. They show how questions of title could be raised by pleading even when they were not indicated by the standardized formulae of writs which may have been designed for more limited purposes.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129888152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0004
J. Baker
The materials in this chapter relate to the early history and legal recognition of ‘uses’ of land, and to the legislation designed to prevent them from harming others, particularly by depriving the king and lords of their feudal incidents. The legal background to the Statutes of Uses (1536) and Wills (1540) is revealed from miscellaneous sources. Subsequent cases show the survival of equitable interests in the form of ‘trusts’ created by means of the ‘use upon a use’. The post-1535 trust was recognized judicially in The Duchess of Suffolk’s Case (1560), printed here in translation for the first time.
{"title":"Uses, wills and trusts","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0004","url":null,"abstract":"The materials in this chapter relate to the early history and legal recognition of ‘uses’ of land, and to the legislation designed to prevent them from harming others, particularly by depriving the king and lords of their feudal incidents. The legal background to the Statutes of Uses (1536) and Wills (1540) is revealed from miscellaneous sources. Subsequent cases show the survival of equitable interests in the form of ‘trusts’ created by means of the ‘use upon a use’. The post-1535 trust was recognized judicially in The Duchess of Suffolk’s Case (1560), printed here in translation for the first time.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121543069","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0014
J. Baker
The principal species of action on the case in the fourteenth century was that brought for a non-forcible wrong causing physical damage, such as negligence by a carrier or surgeon. The cases in this chapter contain discussions of the distinction between such actions on the case for ‘misfeasance’, actions of trespass for battery with force, and actions of covenant for breaking a promise. The boundaries were important for practical reasons. Although the actions were seen to rest on undertakings – assumpsit means ‘he undertook’ - it was important for plaintiffs that they should be trespassory in form; this meant that the plaintiff did not have to produce a sealed document as proof, as in the action of covenant, and that the defendant could not wage his law.
{"title":"Assumpsit for misfeasance","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0014","url":null,"abstract":"The principal species of action on the case in the fourteenth century was that brought for a non-forcible wrong causing physical damage, such as negligence by a carrier or surgeon. The cases in this chapter contain discussions of the distinction between such actions on the case for ‘misfeasance’, actions of trespass for battery with force, and actions of covenant for breaking a promise. The boundaries were important for practical reasons. Although the actions were seen to rest on undertakings – assumpsit means ‘he undertook’ - it was important for plaintiffs that they should be trespassory in form; this meant that the plaintiff did not have to produce a sealed document as proof, as in the action of covenant, and that the defendant could not wage his law.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116177079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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