| 释义 |
assumpsit
as·sump·sit A0478900 (ə-sŭmp′sĭt)n.1. An agreement or promise made orally or in writing not under seal; a contract.2. A legal action seeking compensation for the nonperformance of a contract that was not officially approved or recorded.
[New Latin assūmpsit, from third person sing. perfect tense of Latin assūmere, to undertake; see assume.]assumpsit (əˈsʌmpsɪt) n (Law) law (before 1875) an action to recover damages for breach of an express or implied contract or agreement that was not under seal[C17: from Latin, literally: he has undertaken, from assūmere to assume]as•sump•sit (əˈsʌmp sɪt)
n. 1. a legal action for a breach of agreement. 2. an actionable promise. [1605–15; < Latin: he has taken up] assumpsit
Assumpsit[Latin, He undertook or he promised.] A promise by which someone assumes or undertakes an obligation to another person. The promise may be oral or in writing, but it is not under seal. It is express when the person making the promise puts it into distinct and specific language, but it may also be implied because the law sometimes imposes obligations based on the conduct of the parties or the circumstances of their dealings. Assumpsit was one of the common-law Forms of Action. It determined the right to sue and the relief available for someone who claimed that a contract had been breached. When the Common Law was developing in England, there was no legal remedy for the breach of a contract. Ranulf Glanvill, a famous legal scholar, wrote just before the year 1200 that "[i]t is not the custom of the court of the lord king to protect private agreements, nor does it concern itself with such contracts as can be considered private agreements." Ordinary lawsuits could be heard in local courts, but the king was primarily interested in royal rights and the disputes of his noblemen. As commerce began to develop, the king's courts did allow two forms of action for breach of contract—the actions of Covenant and debt. Covenant could be maintained only if the agreement had been made in writing and under seal and only if the action of debt was not available. One could sue on the debt only if the obligations in the contract had been fully performed and the breach was no more than a failure to pay a specific sum of money. Finally, in 1370, a plaintiff sought to sue a defendant who had undertaken to cure the plaintiff's horse but treated it so negligently that the horse died, and the action was allowed. In 1375, another man was permitted to sue a surgeon who had maimed him while trying to cure him. These cases showed a new willingness to permit a lawsuit for monetary damages arising directly from the failure to live up to an agreement. For the next hundred years the courts began to allow lawsuits for badly performed obligations but not for a complete failure to perform what was required by contract. Unexpectedly, this restriction was abandoned also, and a new form of action was recognized by the courts, an action in special assumpsit for breach of an express agreement. Special assumpsit gave a new legal right to parties who could not sue on a debt. Gradually, it became possible to sue in assumpsit if the defendant owed a debt and then violated a fresh promise to pay it. This action came to be known as indebitatus assumpsit, which means "being indebted, he promised." As time passed, courts were willing to assume that the fresh promise had been made and to impose obligations as if it had. This allowed lawsuits for a whole range of contract breaches, not just those recognized by an action on the debt or in special assumpsit. If the plaintiff could claim that services had been performed or goods had been delivered to the defendant, then the law would assume that the defendant had promised to pay for them. Any failure to do so gave the plaintiff the right to sue in assumpsit. This development allowed such a wide range of lawsuits based on promises to private parties that it came to be known as general assumpsit. Eventually, the right to sue was extended even to situations where the defendant had no intention to pay but it was only fair that he or she be made to do so. This form was called assumpsit on quantum meruit. Special assumpsit, general assumpsit (or indebitatus assumpsit), and quantum meruit are all ex contractu, arising out of a contract. Their development is the foundation of our modern law of contracts. Cross-references Quantum Meruit. assumpsit a voluntary promise made by words, an old form of action abolished by the Judicature Act 1925. Modern theoretical writings refer to one of its grounds, indebitatus assumpsit, an action for breach of an undertaking, either to do or pay something.ASSUMPSIT, contracts. An undertaking either express or implied, to perform aparol agreement. 1 Lilly's Reg. 132.
2. An express assumpsit is where one undertakes verbally or in writing,not under seal, or by matter of record, to perform an act, or to pa a sum ofmoney to another.
3. An implied assumpsit is where one has not made any formal promise todo an act or to pay a sum of money to another, but who is presumed from hisconduct to have assumed to do what is in point of law just and right; for,1st, it is to be presumed that no one desires to enrich himself at theexpense of another; 2d, it is a rule that he who desires the antecedent,must abide by the consequent; as, if I receive a loaf of bread or anewspaper daily sent to my house without orders, and I use it withoutobjection, I am presumed to have accepted the terms upon which the personsending it had in contemplation, that I should pay a fair price for it; 3d,it is also a rule that every one is presumed to assent to what is useful tohim. See Assent ASSUMPSIT, remedies, practice., A form of action which may be defined to bean action for the recovery of damages for the non-performance of, a parol orsimple contract; or, in other words, a contract not under seal, nor ofrecord; circumstances which distinguish this remedy from others. 7 T. R.351; 3 Johns. Cas. 60. This action differs from the action of debt; for, inlegal consideration, that is for the recovery of a debt eo nomine, and innumero, and may be upon a deed as well as upon any other contract. 1 h. Bl.554; B. N. P. 167. If differs from covenant, which, though brought for therecovery of damages, can only be supported upon a contract under seal. SeeCovenant.
2. It will be proper to consider this subject with reference, 1, to thecontract upon which this action may be sustained; 2, the declaration 3, theplea; 4, the judgment.
3.-1. Assumpsit lies to recover damages for the breach of all parolor simple contracts, whether written or not written express or implied; forthe payment of money, or for the performance or omission of any other act.For example, to recover, money lent, paid, or had and received, to the useof the plaintiff; and in some cases, where money has been received by thedefendant, in consequence of some tortious act to the plaintiff's property,the plaintiff may waive the tort, and sue the defendant in assumpsit. 5Pick. 285; 1 J. J. Marsh. 543 3 Watts, R. 277; 4 Binn. 374; 3 Dana, R. 552;1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461; 4 Pick. 452. It is the properremedy for work and. labor done, and services rendered 1 Gill, 95; 8 S. & M.397 2 Gilman, 1 3 Yeates, 250 9 Ala. 788 but such work, labor, or services,must be rendered at the request, express or implied, of the defendant; 2Rep. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11 Mass. 37; 14 Mass. 176; 5Monr. 513 1 Murph. 181; for goods sold and delivered; 6 J. J. Marsh. 441; 12Pick. 120; 3 N. H. Rep. 384; 1 Mis. 430; for a breach of promise ofmarriage. 3 Mass. 73 2 Overton, 233 2 P. S. R. 80. Assumpsit lies to recoverthe purchase money for land sold; 14 Johns. R. 210; 14 Johns. R. 162; 20Johns. R. 838 3 M'Cord, R. 421; and it lies, specially, upon wagers; 2 Chit.Pl. 114; feigned issues; 2 Chit. Pl. 116; upon foreign judgments; 8 Mass.273; Dougl. 1; 3 East, 221; 11 East, 124; 3 T. R. 493; 5 Johns. R. 132. Butit will not lie on a judgment obtained in a sister state. 1 Bibb, 361 19Johns. 162; 3 Fairf. 94; 2 Rawle, 431. Assumpsit is the proper remedy uponan account stated. Bac. Ab. Assumpsit, A. It will lie for a corporation, 2Lev. 252; 1 Camp. 466. In England it does not lie against a corporation,unless by express authority of some legislative act; 1 Chit. Pl. 98; but inthis country it lies against a corporation aggregate, on an express orimplied promise, in the same manner as against an individual. 7 Cranch, 2979 Pet. 541; 3 S. & R. 117 4 S. & R. 16 12 Johns. 231; 14 Johns. 118; 2 Bay,109 1 Chipm. 371, 456; 1 Aik. 180 10 Mass, 397. But see 3 Marsh. 1; 3 Dall.496.
4.-2. The declaration must invariably disclose the consideration ofthe contract, the contract itself, and the breach of it; Bac. Ab. h.t. F 5Mass. 98; but in a declaration on a negotiable instrument under the statuteof Anne, it is not requisite to, allege any consideration; 2 Leigh, R. 198;and on a note expressed to have been given for value received, it is notnecessary to aver a special consideration. 7 Johns. 321. See Mass. 97. Thegist of this action is the promise, and it must be averred. 2 Wash. 187 2 N.H. Rep. 289 Hardin, 225. Damages should be laid in a sufficient amount tocover the real amount of the claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339;4 Munf. 95; 5 Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4Johns. 280; 11 S. & R. 27; 5 S. & R. 519 6 Conn. 176; 9 Conn. 508; 1 N. & M.342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.
5.-3. The usual plea is non-assumpsit, (q.v.) under which thedefendant may give in evidence most matters of defence. Com. Dig. Pleader, 2G 1. When there are several defendants they cannot plead the general issueseverally; 6 Mass. 444; nor the same plea in bar, severally. 13 Mass. 152.The plea of not guilty, in an action of assumpsit, is cured by verdict. 8 S.& R. 541; 4 Call. 451. See 1 Marsh, 602; 17 Mass. 623. 2 Greenl. 362; Minor,254 Bouv. Inst. Index, h.t.
6.-4. Judgment. Vide Judgment in Assumpsit. Vide Bac. Ab. h.t.; Com.Dig. Action upon the Case upon Assumpsit; Dane's Ab. Index, h.t.; Viner'sAb. h.t.; 1 Chit. Pi. h.t.; Petersd. h.t.; Lawes Pl. in Assumpsit thevarious Digests, h.t. Actions; Covenant; Debt; Indebitatus assumpsit; PadumConstitutiae pecuniae. |