DOCSLIB.ORG

The History of Contract in Early English Equity

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The History of Contract in Early English Equity CHAPTER III THE DOCTRINE OF CONSIDERATION THE history of parol contracts raises two distinct problems: (1) How did parol contracts become actionable at all? (2) How did consideration become the test of the enforceability of such contracts P Before it is possible to classify agreements and determine what are enforceable and what are not, it must be first settled that a contract will support an action. Any classification or generalization is a matter for later considera tion. In consequence, nothing but confusion will result if we fail to observe the historical sequence of these two problems. Now the answer to the first question is to be found in the history of Assumpsit. Starting as an action on the case, it was extended after the struggle of a century from cases of misfeasance to cases of non-feasance. Throughout this struggle there appears no theory of contract, nor was it apparent even that the judges considered the promise as the basis of the action. The delictual origin of the action overshadowed its development. The result is that at the beginning of the sixteenth century Assumpsit has in fact become an action to enforce parol contract, but such an achievement is not realized by contemporary lawyers. The reason is to be found in the principle upon which the action was allowed. A detriment to the plaintiff was an essential condition to its use; or, stated differently, a breach of promise supported an action when, and only when, it could be regarded as a deceit to the plaintiff. There was still a very strong element of tort in the theory of the action. Some time in the sixteenth century another principle ob tained a foothold. Men begin to speak of consideration, of promises as made in consideration of some act or forbearance. The early history of this doctrine is wrapped in obscurity. We 6o CONTRACT IN COMMON LAW [PART I do not know how or when it made its first appearance, and there is much dispute as to its source. But we do know that the first use of the word at common law was in the action of Assumpsit, and that ultimately it became settled that no promise was enforceable unless it were made upon a valid consideration. To-day in the interests of logic it is deemed advisable to resolve every consideration into a detriment to the promisee. Such a definition, however, does not meet the situation in the sixteenth century. The word was then of wider use than it is to-day; for when we now speak of consideration, only a valuable consideration is meant. Historically, consideration seems to have meant any motive or inducement which was sufficient to support a promise." It included such diverse species as (1) a benefit to the promisor, (2) detriment to the promisee, (3) a moral obligation, (4) natural love and affection. All of these are not found in Assumpsit, but it would be a mistake to confine the doctrine to that action. The quid pro quo which was essential to Debt became ultimately absorbed by the wider idea. Now in a certain phase, namely as a detriment to the promisee, consideration bears a striking resemblance to the original limitation in Assumpsit, the detriment to the plaintiff. But the question remains, Is this more than an analogy? Is there any historical connexion between the detriment to the plaintiff in Assumpsit, and the detriment to the promisee into which consideration was ultimately resolved? This is the crux of the matter. We may therefore notice three principal theories of the origin of consideration. I. ‘The requirement of consideration in all parol contracts is simply a modified generalization of the requirement of quid pro quo to raise a debt by parol.’” This is the theory advanced by Mr. Justice Holmes. But there are great difficulties in the way of its acceptance. * Salmond, Anglo-Am., iii. 331. * L. Q. R., i. 171. And see Holmes, Common Law, 258ff. Mr. Justice Holmes endeavours to connect the requirement of guid pro quo in Debt with the secta, and transaction witnesses. For a criticism of this see P. & M., ii. 214, n. 4. CH. III] THE DOCTRINE OF CONSIDERATION 61 (1). It assumes that the doctrine started from a narrow basis and became widened. Originally a benefit to the promisor, consideration came to embrace the notion of detri ment to the promisee. But there is no evidence that this is what happened. Consideration as a rule of contract made its first appearance in the action of Assumpsit, and not in Debt. If this theory be correct, then the basis of one action must in some way have become the basis of the other. From the sharp line which was always drawn between Debt and As sumpsit, it seems in the highest degree improbable. (2) The consideration in indebitatus assumpsit was not a modification of quid pro quo, but identical with it." (3) The idea of consideration as a detriment to the promisee never appeared in Debt; though repeated efforts were made to extend quid pro quo to cover detriment.” For these reasons we must reject this theory. It fails to take recognition of the wide idea embraced in the word consideration; it requires a transformation of quid pro quo which was never effected. II. Another theory is put forward by Professor Ames in a brilliant series of articles in the Harvard Law Review.” He there identifies consideration with the detriment to the plaintiff upon which the action of Assumpsit was founded. This theory has a certain decided advantage. It shows a regular and consistent development in Assumpsit culminating in the evolution of the principle of consideration from within the action itself. So far as the Year Book cases are themselves concerned it seems impossible of refutation. But the theory is open to the following objections: (1) It assumes that consideration is identical with the detriment to the plaintiff. As we have already pointed out, there is a strong analogy between consideration when resolved into a detriment to the promisee and the limitation fixed in the action of Assumpsit. But this analogy does not mean that the principles are identical. It is submitted that Professor Ames has not demonstrated this identity beyond peradventure. * Ames, L. R., ii. H. 18. * Salmond, Essays, 222. ii, * H. L. R., pp. 1 and 53. See also H. L. R., viii. 252–64. 62 CONTRACT IN COMMON LAW [PART I The principles may be extremely close to one another, and yet have no historical connexion. (2) It does not account for all the species of consideration, such as moral obligation, for example. A moral obligation is no longer a consideration, but it was once. Moreover, a precedent debt was recognized as a valid consideration in indebitatus assumpsit. It is difficult to see how a precedent debt can by any contortion be twisted into a detriment to the plaintiff. (3) This theory rests upon the assumption that the principle of consideration was a creation of the common law pure and simple. So keen is Professor Ames to emphasize this point that he is led to make certain unwarranted assertions with regard to equity. Not only does he contend that ‘in equity . a remediable breach of a parol promise was originally conceived of as a deceit’, but he goes on to say that ‘chancery gave relief upon parol agreements only upon the ground of compelling reparation for what was regarded as a tort to the plaintiff or upon the principle of preventing the unjust enrichment of the defendant’.” We shall take pains to examine both of these statements later on ; it is believed that neither of them is correct. If, on the other hand, the Chan cellor did exercise a general jurisdiction over parol contracts in if in the fifteenth century, fact he did evolve a principle upon promises it is which were held binding, surely fatuous to suggest that he borrowed this principle from the common law, which did not possess a general contractual action" till the century. if sixteenth Furthermore, parol contracts were so recognized in equity, that alone throws considerable doubt upon the correctness of this theory. It be noticed, finally, (4) should that all the early cases in Assumpsit a involve specific undertaking. There is no recog of or a nition agreement bargain as such. Indeed, it was found necessary in Slade's case to resolve that every contract executory an imported Assumpsit. That is to say, the fact of agreement of did not itself “raise’ any undertaking. In * L. R., ii. H. 15. * H. L. R., viii. 257. is, * That an action applicable to parol contracts generally. CH. III] THE DOCTRINE OF CONSIDERATION 63 consequence we are forced to the position that originally every enforceable contract took the highly technical form of an undertaking. But does this seem a natural way in which a contract should arise? Men make informal agreements or “accordes' without troubling to incorporate them into a par ticular form. I venture to suggest that there were many such agreements which fell without the scope of undertakings; that, in fact, the theory which relies upon the ‘undertaker’ fails to take account of many formless agreements which were the common experience of everyday life. For these reasons we may question the theory advanced by Professor Ames. We can, however, state our objections with more effect after examining contract in equity. III. Still another theory is advanced by Mr. Salmond." He refuses to admit that the doctrine of consideration was identical with the detriment to the plaintiff in Assumpsit. Rather does he think that it was not ‘a logical development from within the action at all, but was a ready-made principle imported ab extra'.” Now if we go back to the first cases in which Assumpsit lay for non-feasance, we find that the detriment to the plaintiff assumed one particular form.
Load more

Recommended publications
  • Modernizing Interpleader
    MODERNIZING INTERPLEADER ZECHAZAH CHAFM, JR. Professor of Law, Harvard Law School Interpleader possesses on first acquaintance an attractiveness which is not exceeded by any other remedy known to the law. "The mere "statement of the principle," declared Sir James Willes,' "shows its "jujstice." As a quick and simple way out of a complex situation, it has an intellectual fascination like the vx method for solving simul- taneous quadratic equations. Upon further study of 'the cases, how- ever, the lawyer's mental reaction changes to intense exasperation. Nowhere else, perhaps, can he encounter technicalities equal to those which hem in this admirable remedy. It is the purpose of this article to examine the most important of the restrictions on the general prin- ciple of interpleader, and consider how far they can properly be removed and how much some legislative efforts to accomplish this result have already succeeded. Here, as so often in the discussion of legal reforms, we have to discriminate between the accidental and the permanent, between limitations on judicial powers which are purely historical or arbitrary and those which are inherently desirable and cannot be discarded without causing grave injustice.2 The general principle of interpleader is simple and clear. Where two persons are engaged in a dispute, and that which is to be the fruit of the dispute is in the hands of a third party who occupies the posi- tion of a stakeholder and is willing to give up the stakes according to the result of the dispute, then if that stakeholder is sued or threatened with suit, he is not obliged to be'at the expense and risk bf defending two actions; but, on giving up the thing in dispute, he is to be relieved, and the court directs that the persons between whom the dispute really exists shall fight it out at their own expense.3 The principle may be illustrated by some situations where it is well settled that interpleader will be granted.
    [Show full text]
  • Quasi-Contractual Obligationsobligations
    YALEYALE LAWLAW JOURNALJOURNAL Yol.yol. XXIXXI MAY,MAY, 19121912 No.7No. 7 QUASI-CONTRACTUALQUASI-CONTRACTUAL OBLIGATIONSOBLIGATIONS ByBy Arthur Linton Corbin,Corbin, ProfessorProfessor ofof Contracts,Contracts, YaleYale LawLaw School.School. ForFor thethe perfect understanding ofof anyoneany one branchbranch of thethe law,law, aa knowledge of thethe whole fieldfield isis required. The law isis indeedindeed "a"a seamless web."web." ThisThis isis exceptionallyexceptionally truetrue ofof quasi-contractual obligations. But no attempt can be made in'thisinthis articlearticle toto classifyclassify law as a whole, or even toto discuss at lengthlength the one great-fieldgreat~field ofof obligations. An attempt will be made, however, toto determine just what obligations may properly be called quasi-contractual.qua-si-contractual. Legal obligations form one large class, within which there are many different species. No doubt it serves a useful purpose to define these species and to treat them under separate headings and in separate volumes. So, obligations arising out of an agree-agree­ ment of two parties are called contractual, the fact of agreement and its expression being called a contract; and obligations arising from illegal acts causing injury to others are called delictual, the illegal act being called a tort. But our courts have long enforced other obligations thatthat do not readilyreadily fall within the foregoingforegoing classes. Centuries before thethe time of Justinian, Roman jurists were referring toto thesethese obligations as quasi-contractual or quasi-quasi­ delictual. From thatthat day toto this,this, however, juristsjurists have very generally used thesethese terms without drawing distinct lineslines betweenbetween theirtheir variousvarious fields, and withoutwithout showing anyany veryvery clear bondbond of unityunity withinwithin thethe limitslimits of anyanyone one field.field.
    [Show full text]
  • Assumpsit - at Common Law, Under Modern Codes, Practice Act and Rules of Court (Continued)
    North Dakota Law Review Volume 34 Number 3 Article 2 1958 The Action of Indebitatus (General) Assumpsit - at Common Law, under Modern Codes, Practice Act and Rules of Court (Continued) Alison Reppy Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Reppy, Alison (1958) "The Action of Indebitatus (General) Assumpsit - at Common Law, under Modern Codes, Practice Act and Rules of Court (Continued)," North Dakota Law Review: Vol. 34 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol34/iss3/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. 1958] ACTIoN OF INDEBITATUS (GENERAL) ASSuMPSIT :217217 THE ACTION OF 1NDEBITATUS (GENERAL.) ASSUMPSIT- AT COMMON LAW, UNDER MODERN CODES, PRACTICE ACTS AND RULES OF COURT (Continued) ALISON BEPPY* (VI) The Common Counts. - The concessions made to the innkeeper, the carrier, the tailor and others having a common cal- ling, in making the quantum meruit and quantum valebant count available as a remedy, were granted because the Law had impos- ed upon them the duty to perform certain services for those who applied to them, and hence it was only just and logical that a cor- responding duty should be imposed upon those benefited. Such holdings opened up the way for an extension of the same doctrine to all persons who performed similar services, whether they carried on one of the so-called common callings or not.
    [Show full text]
  • Writ of Assumpsit Definizione
    Writ Of Assumpsit Definizione Trevar impugn itinerantly? Unpraiseworthy Vale unkennelled amatorially. Superacute Reid hobbles downriver. The response to do substantial completion occurs when issuing written in justifiable reliance may permit the of writ assumpsit The generally-accepted definition which hay be paraphrased as fol-. One writ given, which is provided by deed to gender neutral language governing execution writs may have. The new procedure which she claimed an appropriate where real property from execution procedure for use is on blackstone comes naturally had not was not mean? Slate relies on advertising to support our journalism. Contract team is dry branch of roadway where obligations are voluntarily assumed. For a quasi-contractual recovery such as mother had and received the definition of unjust. Constitution wishes tried before that assumpsit and trover. Upon initiation of said said a writ of attachment for the amount paid on lease purchase. One five a writ is partisan and snatch like case falling under my law a. Id The relief provided by three common-law courts under the writ of assumpsit was. Habeas corpus definition and meaning Wordnik. Fun time when justice has had. They are necessary to state or to resolve disputes between the ground or simultaneously as they are. The basket of a writ of execution upon a garnishee is effective as of the date into service. Successive writs may be issued at the same hat different times without a prior return both an outstanding writ as required by having practice. Blackstone was sometimes a final survey frame the old common directory and bell first textbook of authority new legal era.
    [Show full text]
  • WHAT IS CONSIDERATION in the ANGLO-AMERICAN LAW of CONTRACTS? a Historical Summary
    WHAT IS CONSIDERATION IN THE ANGLO-AMERICAN LAW OF CONTRACTS? A Historical Summary. What is the theory of consideration in contract law under the Anglo-American legal system? In order properly to answer this question it will be helpful to consider, first, contract law in England prior to the sixteenth century, and, second, contract law in England and the United States since the sixteenth century. CONTRACT LAW IN ENGLAND PRIOR TO SIX- TEENTH CENTURY. Prior to the sixteenth century there was no contract law in England except as it was associated with the action of covenant,. with the action of debt, and with the procedure in equity. COVENANT. Covenant was available before the year 1201, and it has survived up to the present time, except as it has been supplanted by debt and assunipsit. In the beginning it is said to have been an action for the breach of every kind of promise, oral or writ- ten, both real and personal; and if it had continued as it began, it might today cover the entire field of contract iaw. But by the close of the reign of Edward I (13o7) it had become the law that, in order to be valid, a covenant must be in writing and under the seal of the covenantor. Since that time, 'consequently, the action of covenant has only lain to recover damages for breach of a sealed promise to d& some particular act.' In covenant no consideration was necessary to give a cause of action. All that was required, even after the reign of Ed- ward I, was writing, sealing and delivery, and, in more inodern times, signing.
    [Show full text]
  • 1. Slade's Case (1602) Slade's Case (Or Slade V. Morley) Was a Case In
    1. Slade’s Case (1602) Slade's Case (or Slade v. Morley) was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit, which was technically for deceit. The legal fiction used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, a case under assumpsit, which was brought between judges of the Common Pleas and King's Bench, was transferred to the Court of Exchequer Chamber where the King's Bench judges were allowed to vote. The case dragged on for five years, with the judgment finally being delivered in 1602 by the Chief Justice of the King's Bench, John Popham. Popham ruled that assumpsit claims were valid, a decision called a "watershed" moment in English law, with archaic and outdated principles being overwritten by the modern and effective assumpsit, which soon became the main cause of action in contract cases. This is also seen as an example of judicial legislation, with the courts making a revolutionary decision Parliament had failed to make.
    [Show full text]
  • Assumpsit - at Common Law, Under Modern Codes, Practice Acts and Rules of Court
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UND Scholarly Commons (University of North Dakota) North Dakota Law Review Volume 34 Number 2 Article 2 1958 The Action of Indebitatus (General) Assumpsit - At Common Law, under Modern Codes, Practice Acts and Rules of Court Alison Reppy Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Reppy, Alison (1958) "The Action of Indebitatus (General) Assumpsit - At Common Law, under Modern Codes, Practice Acts and Rules of Court," North Dakota Law Review: Vol. 34 : No. 2 , Article 2. Available at: https://commons.und.edu/ndlr/vol34/iss2/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. 1958] ACTION OF INDEBITATUS (GENERAL) ASSUMPSIT 105 THE ACTION OF INDEBITATUS (GENERAL) ASSUMPSIT- AT COMMON LAW, UNDER MODERN CODES, PRACTICE ACTS AND RULES OF COURT ALISON REPPY* PART I OUTLINE I. Historical Background The Term "Indebitatus Assumpsit"-Used in Two Senses Indebitatus Assumpsit as a Remedy to Recover upon an Express Promise to Pay a Simple Debt (I) Where the Promise to Pay the Debt was Made Subsequent to the Time the Debt was Created (II) An Explanation of Why a Promise Subsequent to the Creation of the Debt Sued on was Deemed Essential (III) Where the Promise to Pay
    [Show full text]
  • Actions in General Assumpsit Charles W
    ACTIONS IN GENERAL ASSUMPSIT CHARLES W. FORNOFF* I. WHY AND IN WHAT MANNER GENERAL AsSUmPSIT SURVIVES The forms of action have been dead for over a century-long live their terminology! Wrapped up in that terminology has been much basic learning about pleading, causes of action, and remedies, and the development of replacement language has been slow. Slowest has been progress in the action of assumpsit in the division called general as- sumpsit. Last of the common law forms of action to appear, assumpsit was developed by the courts to meet needs arising from the shift of English society from medieval rigidity and relative simplicity into the free- doms, flexibility, and complexity of modern life. Dragging along some of the old concepts, the ancient one of debt particularly, serving as the major vehicle for adding flexibility and complexity to relation- ships through modern contract law, it also served as the spawning ground in law actions for developing at a rather late date an entirely new remedial principle, early labelled quasi-contract and now more broadly identified as restitution. Untangling restitution from pro- cedural language, and adjusting substantive law concepts and other remedial ideas to its impact as it cuts through contracts and other fields, have been slow processes, still vigorously going on.1 The lan- guage of assumpsit has been a key to precedents old and often new, as its terms have served as landmarks for the pleader. The purpose of this study is to pull together the clearer Ohio precedents and the newer concepts into a pattern useful to the pleader, as a basis for classify- ing his cause of action and dealing with it in an appropriate fashion at various procedural stages.
    [Show full text]
  • Consideration in Contracts 601 A. D. to 1520 A. D
    CONSIDERATION IN CONTRACTS 601 A. D. TO 1520 A. D. The purpose of this article is to show the origin of the doctrine of consideration. Two agencies which may have had much to do with the shaping of the common-law doctrine of consideration will only incidentally be referred to. One is the jurisdiction of the chancellor over parol contracts before assumpsit. The other is the enforcement of parol contracts in the local courts. The first has already been ably treated.- The second should be worked out. It is felt, however, that research in that line is a large field in itself; and furthermore, that it is unnecessary for the purpose of proving the proposition to be submitted. It is believed that whatever influence the practice of the courts of chancery and the local courts may have had, and it is not sug- gested that it may not have been considerable, the doctrine of consideration would nevertheless have developed in the com- mon law much as we find it to-day. In other words, the matter can be satisfactorily explained without going outside of the law of the king's law courts and the Anglo-Saxon law prior to the undertaking of contract jurisdiction by the king's courts. Before an affirmative demonstration is taken up the ground must be cleared of an hypothesis, namely, that of Professor Ames, to the effect that consideration had its origin in the detriment suffered in deceit. The eminence of the author of the hypothesis and its very general acceptance make this task doubly necessary.
    [Show full text]
  • United States Court of Appeals
    IN THE SUPREME COURT OF FLORIDA _________________________________________________________ CASE NO.: SC10-2408 Lower Tribunal No(s).: 3D10-1331 10-16264 _________________________________________________________ MIA CONSULTING GROUP, INC. Petitioner, vs. HACIENDA VILLAS, INC. Respondent. ________________________________________________________ ON REVIEW FROM AN OPINION OF THE THIRD DISTRICT COURT OF APPEAL _________________________________________________________ PETITIONER’S INITIAL BRIEF _________________________________________________________ Brian J. Stack, Esq. (Fla. Bar No. 0476234) Sammy Epelbaum , Esq. (Fla. Bar No. 0031524) STACK FERNANDEZ ANDERSON & HARRIS, P. A. Attorneys for Petitioner 1200 Brickell Avenue Suite 950 Miami, Florida 33131 Tel: 305.371.000 Fax: 305.371.0002 TABLE OF CONTENTS I. TABLE OF CITATIONS……………………………………………... ii II. STATEMENT OF THE CASE AND FACTS………………………... 1 III. SUMMARY OF ARGUMENT……………………………………….. 3 IV. ARGUMENT………………………………………………………….. 4 A. The Third District’s Decision Expressly and Directly Conflicts with Multiple Decisions of this Court and of Other District Courts that Permit a Plaintiff to Bring Suit for Payments Due Under a Repudiated Contract in the County where Plaintiff Resides………………………………… 4 1. The Third District Failed to Apply this Court’s Venue Decisions………………………… 12 2. The Croker Venue Rule Permits MIA to File Its Cause of Action in Miami-Dade County.………… 21 B. The Third District’s Decision to Apply the “Service Contract” Venue Rule Expressly and Directly Conflicts with Decisions of this Court and of Other District Courts…….. 24 V. CONCLUSION……………………………………………………….. 27 CERTIFICATE OF SERVICE………………………………………………. 29 CERTIFICATE OF COMPLIANCE………………………………………… 30 APPENDIX………………………………………………………. A-1 i I. TABLE OF CITATIONS Case Citations Page(s) Bailey v. Crum, 120 Fla. 36, 162 So. 356 (Fla. 1935) 21 Baruch v. W.B. Haggerty, Inc., 137 Fla. 799, 188 So.
    [Show full text]
  • Case 1:11-Cv-00363-HG-KSC Document 139 Filed 04/30/13 Page
    Case 1:11-cv-00363-HG-KSC Document 139 Filed 04/30/13 Page 1 of 9 PageID #: <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ADAM FURGATCH, ) CIVIL NO. 11-00363 HG-KSC ) Plaintiff, ) ) vs. ) ) ONEWEST BANK, FSB; DEUTSCHE ) BANK NATIONAL TRUST COMPANY, as ) Trustee of the IndyMac INDX ) Mortgage Trust 2007-AR5, ) Mortgage Pass-Through ) Certificates, Series 2007-AR5 ) Under the Pooling and Servicing ) Agreement Dated March 1, 2007; ) CHARLES H. BUNDRANT and his ) wife, DIANE L. BUNDRANT; and ) DOES 1-100, inclusive, ) ) Defendants. ) _______________________________ ) ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO DENY DEFENDANTS ONEWEST BANK, FSB AND DEUTSCHE BANK NATIONAL TRUST COMPANY’S MOTION FOR ATTORNEY’S FEES AND COSTS (ECF No. 128) AND DENYING DEFENDANT’S OBJECTION TO THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION (ECF No. 137) Plaintiff Adam Furgatch filed a Complaint against Defendants OneWest Bank, FSB, Deutsche Bank National Trust Company, Charles H. Bundrant, and Diane L. Bundrant, asserting claims of specific performance, quiet title, and fraud. On January 4, 2013, the Court granted Defendants’ motion for summary judgment. Defendants OneWest Bank, FSB and Deutsche Bank National Trust 1 Case 1:11-cv-00363-HG-KSC Document 139 Filed 04/30/13 Page 2 of 9 PageID #: <pageID> Company filed a motion requesting attorneys’ fees and costs. On March 11, 2013, the Magistrate Judge entered a Findings and Recommendation denying the request. Defendants object to the Findings and Recommendation, arguing that Plaintiff’s lawsuit was in the nature of assumpsit. The Magistrate Judge’s Findings and Recommendation is ADOPTED, and Plaintiff’s objection is DENIED.
    [Show full text]
  • Consideration in the Anglo-American Law of Contracts
    Indiana Law Journal Volume 8 Issue 2 Article 1 11-1932 Consideration in the Anglo-American Law of Contracts Hugh Evander Willis Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Contracts Commons Recommended Citation Willis, Hugh Evander (1932) "Consideration in the Anglo-American Law of Contracts," Indiana Law Journal: Vol. 8 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol8/iss2/1 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. INDIANA LAW JOURNAL Vol. VIII NOVEMBER, 1932 No. 2 CONSIDERATION IN THE ANGLO-AMERICAN LAW OF CONTRACTS (A Historical Summary) HUGH EVANDER WILLIS* What is the theory of consideration in contract law under the Anglo-American legal system? In order properly to answer this question it will be helpful to consider, first, contract law in England prior to the sixteenth century, and, second, contract law in England and the United States since the sixteenth century. I CONTRACT LAW IN ENGLAND PRIOR TO SIXTEENTH CENTURY Prior to the sixteenth century there was no contract law in England except as it was associated with the action of covenant, with the action of debt, and with the procedure in equity (and the law merchant courts). Covenant Covenant was available before the year 1201, and it has sur- vived up to the present time, except as it has been supplanted by debt and assumpsit.
    [Show full text]