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DEBT AND CONTRACT IN THE COMMON LAW
By A. V. Levontin*
The difference between what a man already owns, or property, and what
he is only entitled to claim, or obligation, is fundamental. A debt represents
what a man is entitled to claim, but because of its proximity to a claim
in detinue and for other reasons to be hereafter discussed, it is for many
purposes treated as if it were something that a man already owns.' The
owner of a debt may not help himself by seizing what he is owed 2 and must,
like the owner of any chose in action, implement his right with the coopera-
tion of the debtor or else by resort to the courts. Nevertheless, he who owns
a debt enjoys a peculiarly "strong" right. This strength derives in part from
the "real" nature of the right; by virtue of this a creditor, such as a lender
or an unpaid vendor, is treated in some respects almost as if he were already
LL.M., S.J.D. Associate professor of law, Hebrew University of Jerusalem.
Thus, by "an extension of the principle that rights of property are not destroyed or
confiscated on the outbreak of war", an accrued claim to payment of money under a
contract is saved from forfeiture although it "is not strictly speaking a right of prop-
erty-the creditor has no property in the debtor's money before it is paid to him":
Lord Reid, in Arab Bank v. Barclays Bank [1954] A.C. 495, 530-31. Sometimes the
barrier between property and obligation is crossed and a debt is spoken of as
"property": Atkin L.J., in Swiss Bank Corporation v. Boehmische Industrial Bank
[1923] 1 K.B. 673, 684; Hill J., in Richardson v. Richardson [1927] P. 228, esp.
232-35. In Rex v. Lovitt [1912] A.C. 212, 230 the Judicial Committee of the
Privy Council referred to a deposit account (i.e. a debt not immediately payable)
as "property situate within the province" of New Brunswick; and see Feuchtwanger
v. Central Hanover Bank (1942) 288 N.Y. 342 (where a bank credit is treated
as "specific personal property" within the State of New York); McNair, Legal
Effects of War (3rd ed., 1948) 119-20. In Re United Railways of the Havana,
etc. [1960] 1 Ch. 52, 88, Jenkins L. J. says: "The contractual right to receive
payment of a debt is an item of property.. ."-without singling out debts immediate-
ly payable. On the other hand, Upjohn J. would probably lean against considering as
property a debt not yet payable: In re Claim by Helbert Wagg [1956] 1 Ch. 323,
339-40.
2 "In the placita Anglo-Normanica we read of one Ailward who broke into a house to
recover payment of a debt. But he was caught and bound as a fur manifestus, and
was finally adjudged to undergo the ordeal by water, and, being convicted, was
mutilated." Gilbert Stone, "Concerning the Action of Debt at the Time of the
Year Books", 36 L.Q.R. (1920) 61, citing the P.A.N., ed. Bigelow, p. 260.
No. 1, 1966] DEBT AND CONTRACT
the owner of what is owed, in particular a lender as if he went on owning

the money lent to the borrower. And even in cases where a debt does not
originate in a real transaction (as, for instance, a judgment-debt or income
tax owed to the government, in which cases the creditor has not previously
given that, or the equivalent of that, which he now claims) it is still "strong"
because the object in obligatione, viz. money or other fungibles, is "indestruct-
ible" and therefore a debt cannot be frustrated by impossibility.
Debt is thus a conceptual bridge between property and obligation, between
rights real and rights personal, between conveyance and contract, between
choses in possession and choses in action, and is of pivotal importance in the
law. Moreover, debt is conspicuously the one legal relation of greatest practical
weight in the affairs of daily life. Consequently much of the law relating to it
is both ancient and ubiquitous; perhaps no chapter of the "common law of
mankind" is of greater importance or wider incidence.
The pulls to which the concept of debt is exposed from adjacent spheres of
law is reflected, within the concept itself, in the ceaseless strife between the
forces of "promise" and those of "duty". This strife has, in turn, spread
beyond debt and feeds the controversy about the true nature of quasi-contract.
§ :
The idea of a comprehensive, non-formal "law of contract" is essentially

of modem growth. 3 In the early history of the common law the word
"contract" is indeed used, but means not what we now mean by it but some-
thing like "debt without a specialty". 4 By local or mercantile custom, and
before tribunals of limited jurisdiction, simple promises may have been
enforced. ' To some extent the church exerted its power to secure the keeping
of faith. 6 The common law as administered by the King's judges, however,
turned its back on mere breaches of promise. 7 Nevertheless, as is well known,
3 Cf. Sinclair v. Brougham [1914] A.C. 398, 432.
4"Loan or the like": Y.B. 41 Edw. III, Pasch. No. 5. See Plucknett, A Concise
History of the Common Law (5th ed., 1956) 645, n. 2; A.W.B. Simpson, "The
Place of Slade's Case in the History of Contract", 74 L.Q.R. [1958] 381, 391.
The word "obligation" generally means a document under seal.
5 Ames, Lectures on Legal History (1913) 92; 3 Holdsworth, H.E.L., 423-24; Gilbert
Stone, op. cit., 63-65.
6 Ames 128.
7 It expressly laid down that "by parol the party is not bound": Y.B. 29 Edw. III 25,
26, quoted by Holmes, The Common Law (1881) 263; and see Glanvill, caps. 8
("... the court of our lord the king is not wont to protect or warrant private
agreements.. .") and 18, and Bracton f. 100 (with conventional stipulations "the
King's court does not concern itself, save sometimes as a matter of grace. . . "), in
Fifoot, History and Sources of the Common Law (1949) 236, 237.
The very success and expansion of the King's justice tended to the suppression of
local beneficial exceptions, including exceptions in favour of contracts: 3 Holds-
worth 424. The growing consistency and hardening within the common law also re-
ISRAEL LAW REVIEW [Is.L.R. Vol. 1.
there were in the common law since earliest days writs and remedies that to the
modern observer look more or less contractual. The writ of covenant enabled
a person to sue in the King's courts if he suffered from the breach of a
promise (but not only of a promise) contained in a deed. s The English deed '
essentially created or evidenced a grant. From early days the deed was the
instrument employed in effecting property conveyances. Thus, while historic-
ally deed-liability precedes the doctrine of consideration and is independent
of it, this independence also admits of analytical explanation, at least in
respect of those deeds which are, according to their tenor, conveyances or
grants rather than executory covenants. Executory covenants tended to
become assimilated to the more typical grants. 10 The binding force of
covenants was thus in a sense merely a manifestation of the irrevocability of
perfected grants. The fiction 11 that "every deed imports in itself a considera-
tion" is a piece of latter-day rationalizing undertaken with a view to domestic-
ating the essentially self-sufficient and non-consensual deed in the 16th
century world of assumpsit, of "contractualizing" it. 12
The writ of account (in later law largely taken over by Equity) 1 3 enabled
sulted in changes not always desirable. Thus until Edw. III a surety could be sued in
debt, even on a parol undertaking. Thereafter, the absence of quid pro quo received
by the surety led to the banishment of guaranty from the realm of debt and sureties
could only be sued in assumpsit. (Cf. Holmes 269-70, 287.) It was with reference
to claims against sureties, among others, that Lord Holt Said: ".. . it is an error to
think that every contract which obliges one to pay money raises a debt." (Smith v.
Aiery (1705) 6 Mod. 128, 129, quoted by H.K. Liicke, "Slade's Case and the
Origin of the Common Counts", 81 L.Q.R. [1965] 422, 423.)
8 On a covenant to pay a sum certain in money or other fungibles the remedy
normally (i.e. whenever the covenant took the form of a grant as distinct from that
of a mere promise) was not covenant but debt. 2 Pollock and Maitland, H.E.L.,
217; 3 Street, The Foundations of Legal Liability (1906) 131-32; 3 Holdsworth
418. In the 17th century covenant became concurrent in such cases with debt.
The distinction between suing for breach of covenant and suing on the debt is of
great importance: it secretes in embryonic form the future difference between as-
sumpsit and debt-detinue. A suit for damage suffered from breach of covenant
(as distinct from a suit in debt for specific recovery of the grant in the covenant)
constituted the only possibility known to the early common law of obtaining
satisfaction for loss arising from breach of promise.
9 The Anglo-Saxon daed appears to be cognate with the Latin do, dedi: 3 Street 131.
10 Cf. n. 126 post.
11 Sharington v. Strotton (1566) Plowden 302.
12 On the early distinction between words of grant in a deed (which would support
an action of debt) and words of acknowledgement or promise (which could only be

sued upon by action of covenant) see Anon. Y.B. 37 Hen. VI Mich. f. 8, pl. 18
(1458), in Fifoot 249-50. And cf. In re Cook's Settlement Trusts [1965] 2 W.L.R.
179, 183-84.
13 For the reasons see Stoliar, "The Transformations of Account". 80 L.Q.R. [1964]
a person to employ the machinery of the King's justice to compel another-

commonly a bailiff or guardian or receiver" 4-to account for benefits received
on the plaintiff's behalf. When the amount due was ascertained, it became
established in the 16th and 17th centuries that debt would also lie.' 5
The writ of detinue enabled a person to recover specific chattels to the
possession of which his title was better than the defendant's. The defendant's
duty to give up or to return the chattel was by no means confined to cases in
which he had promised so to do. "Detinue cannot always be considered an
action ex contractu. Conceding that such is its character when the defendant's
possession commences under a contract of bailment, yet where the taking is
tortious, the detention must be alike wrongful... Wherever there is a tortious
taking the action is ex-delicto."1 6 Despite the want of privity or a contractual
tie, C could maintain detinue against B for goods delivered to the latter by A
for his (C's) benefit. Similarly, if money were paid in such circumstances, C
could have either debt or account against B, at his choice. C's claim would in
modern law be classified as quasi-contractual. '" While, then, detinue was not
designed to enforce promises, still in the familiar case of a bailment a writ
of detinue would incidentally function as a vehicle for the enforcement of a
promise to return.
Finally, there was the writ of debt. Referred to on accasion as a twin-action
of detinue, 18 placed side by side with the latter upon the Register, it was in
fact somewhat older than detinue. Possibly descended from the real contracts
of the law of Rome, it has at all events been part of the heritage of the
common law from earliest times. The text of a typical writ of debt asserts
203, 214-15; Snell's Principles of Equity (25th ed., 1960) 573.

14 For the "bailiffs, receivers and guardians" formula, see Stoljar, op. cit., 211.
15 3 Holdsworth 428; Stoljar, op. cit., 215-16. Yet an action of account has the
advantage that it "may well accrue before a debt becomes payable": Atkin L.J., in
Joachimson v. Swiss Bank Corporation [1921] 3 K.B. 110, 130.
16 Salter v. Pearce (1843) 4 Ala. 669, quoted in 3 Street 157.
17 3 Holdsworth 425-26, n. 8 quotes Ames: ". .. trusts for the payment of money were
enforced at common law long before Chancery gave effect to trusts of land. It need
not surprise us, therefore, that upon delivery of money by A to B to the use of C
or to be delivered to C, C might maintain an action of account against B... The
words 'to the use of' still bear witness to the trust relation." (And see Ames 119;
Winfield, The Law of Quasi-Contracts (1952) 5; Stoljar, op. cit., 210, 212. It was
the want of such an action where land was in question that has given rise to uses
and trusts in Equity.) It is conceivable that, because of the non-equitable origins of
quasi-contract and of account, beneficiaries of trust-relations in money might succeed
where beneficiaries of similar relations in land would be hampered by equitable
requirements (such as "clean hands") and fail.
Is In Maitland's words, "own sister to Detinue": Forms of Action (1936 ed.) 63.
Under the old pleading, counts in these two were joinable, as they were in trover
and case. Cf. Atkinson and Chadbourn, Civil Procedure (1948) 142 n. 6.
that the defendant owes the plaintiff and unjustly detains 19 from him a stated
sum of money. 20 No legal theory is invoked. The indebtedness is proclaimed in
the writ itself 21 as a net conclusion 22 and the sheriff is directed to order the
defendant to restore ("praecipe quod reddat") .23
It is clear, however, that liability could not arise without some causa
19 Initially, the defendant was said to "deforce" the plaintiff of the money. By the time
of Bracton the semantic change had occurred (3 Street 130). See 2 Pollock and
Maitland 173, 205. Cf. the text in Glanvill with that in the Statute of Wales of
1284: Fifoot 234, 238.
20 The object in obligatione is normally money. It may, however, be other fungibles,
ascertained generically. Fungibles which are ascertainable specifically, as also of
course non-fungibles, lie in detinue. Debt was the appropriate action for mutuum;
detinue for commodatum and depositum. See Statute of Wales, 1284, in Fifoot 239;
Maule J. in Deacon v. Gridley (1854) 15 C.B. 295, 303-04, and in Owen v.
Routh and Ogle (1854) 14 C.B. 327, 338; Langdell, Summary of the Law
of Contracts (1880) 125; Fitzherbert's Nat. Brev. (9th ed., 1794) 138A; 7
Viner's Abridgment, tit. Debt (2nd ed., 1791) 324, 363; 8 ibid., tit. Detinue, 21.
When fungibles other than money are owed, as in case of rent-corn, judgment is
entered for their value in money. (3 Street 130.) Even in detinue for specific chattels
it was not until the Common Law Procedure Act, 1854 (s. 78) that the courts were
first empowered to order restitution in specie. The possibility of ultimately obtaining
not the thing itself but its pecuniary value is common to detinue and to debt, and
does not detract from the proprietary quality of either: value is recovered, not
damages at large-whether or not damages for consequential loss are also added.
The form of debt for the recovery of chattels other than current money of the
realm was debt "in the detinet". See Ward v. Kidswin (1626) Latch 5, 77, 78.
On the distinction between debt "in the debet and detinet" and "in the detinet
only" see Fitzherbert's Nat. Brev. (9th ed. 1794) 119H, I, M, 121B, 152C; Sutton,
Personal Actions at Common Law (1929) 15-16; Fifoot 28. On the possible in-
fluence of the split between these two varieties of debt upon the separation of debt
and detinue into two forms of action, see 3 Street 127 ff.
21 In the "count", the cause of the debt would be mentioned: Gilbert Stone, op. cit.,
63.
22 Cf. Holmes 252. In this respect the writ is curiously modern: it neither sets out the
evidence, nor does it argue law. On the other hand, the writ does not state the
facts giving rise to liability.
23 The defendant is given opportunity to satisfy the claim (similarly to cases, in
modern procedure, of a specially endorsed writ) and thus avoid further proceedings.
Milsom, "Not Doing is No Trespass", [1954] C.L.J. 105, 110-11, 116-17, suggests
that in the praecipe writs, which include covenant, debt and detinue, the defendant
is told "to keep his promise, pay what he owes, or hand over what he detains."
This he can still do, albeit tardily, and therefore "only if he does not do it is he to be
brought to court." "In the quare writs, on the other hand, which include trespass in
all its forms and senses, it is assumed that the defendant's primary duty has been
irrevocably broken, that there has been a wrong which can only be compensated for
by damages."
debendi. Familiar causae 24 were: a loan of money or of other fungibles (ex

causa mutui); a sale of goods where payment was deferred (ex causa vendi-
tionis); a letting with the rent or hire yet unpaid (ex causa locato). At a
later stage debt would also arise from labour done as if it were goods
delivered.
Certain features are common to all of the above debts. Thus, the creditor has
given something to the defendant (the debtor). 25 Typically, and at first
possibly in all cases, the thing given is a tangible item of property, a res, such
as the money lent or the goods sold and delivered. Therefore the normal
transaction which gives rise to a debt is "real" in the sense 26 that it is the
delivery of a res which perfects it. Even when a tangible res does not change
hands, as in the case of labour done, there must still be something (a service)
given by the creditor: a quid pro quo. 27 In this extended meaning of the
24 Cf. catalogue in Glanvill, X, 3 (Fifoot 234).

25 Otherwise, the King's court would not concern itself with the plaint (cf. n. 7
supra) and the plaintiff, as Holmes 254 said, would be "turned over to the limited
jurisdiction of the spiritual tribunals".
26 See Pothier, Traits du Pr~t de Consomption, 5 Oeuvres (ed. 1847) 49; Justinian,
Institutes III, 14; BGB § 607. Cf. Parke B.: "The debt which constitutes the cause
of action arises instantly on the loan" (Norton v. Ellam (1837) 2 M. & W. 461,
464) ; Lord Goddard: ". . . a debt incurred when the marks were put at the disposal
of the German company." (Schering Ltd. v. Stockholms Enskilda [1946] A.C.
219, 268.) A transaction is not real merely because something has been given, if the
transaction could have been legally effected without such giving. Thus, a contract
for work and labour is not, in its nature, real: it would therefore make no dif-
ference that in a particular contract payment is made in advance. (Cf. p.
92 post.)
27 The expression (unknown, it appears, in this sense outside England) is here used in
the sense of "old consideration", as distinct from the "new consideration" that suf-
fices to support an assumpsit in the modern law. It is characterized by Langdell as
follows: "... the thing given or done in exchange for the obligation assumed, shall
be given or done to or for the obligor directly; ... it shall be received by the obligor
as the full equivalent for the obligation assumed, and be, in legal contemplation, his
sole motive for assuming the obligation; and, lastly, ... it shall be actually executed,
i.e. . . . the thing to be given or done in exchange for the obligation be actually
given or done, it not being sufficient for the obigee to become bound to do it."
(Op. cit., 59.) Elsewhere Langdell says: ". . . a consideration to create a debt must,
in legal contemplation, be commensurate with the debt, but ... anything which
the law can notice will, so far as regards its extent or value, be sufficient to
support assumpsit." (Ibid. 67.) As to giving or doing "for the obligor directly",
there comes, in the 15th century, an extension of quid pro quo to benefits con-
ferred upon third parties. See for Year Book references: Kiralfy, The Action on the
Case (1951) 184. The sale of a specific chattel appears to have constituted an
exception to the requirement of quid pro quo. See Langdell, op. cit., 145; Simpson,
op. cit., 392; Lilcke, op. cit., 542-45. Year Book references are given by Fifoot
227-29, 251.
requirement of quid pro quo it is still correct to describe the creditor's right
as a real one. However, liability in debt also arises from the (notional) deten-
tion by the defendant of a fund to which the plaintiff is better entitled, though
the latter has not given the former a quid pro quo nor has the former con-
tracted with the latter to pay over. Thus, 28 "If a man levy reasonable aid of
his tenants for the marriage of his daugter and die, the daughter not married,
the daughter shall have an action of debt against the executors of her father
for the aid levied..." The daughter did not give the executors (nor her
father) anything, nor did the executors (or her father) contract with her to
pay. The executors are essentially trustees, she a beneficiary. Just as not all
detinue was promissory, so not all debt was promissory. Debt was narrower
than modern contract (in that it failed to provide for mutual executory
promises) but it was also wider (in that it enabled suit, as in the case of
the daughter, in quasi-contractual relations). 29 As has been pointed out, 30
C could maintain debt against B for money delivered to the latter by A for his
(C's) benefit. There may nevertheless be a question as to the propriety of
debt 31 in such circumstances. If the money or the property is stolen from B,
or B otherwise loses it without his fault, he should not be liable to C, as in
any obligation which is de certo corpore.3 2 His liability therefore appears to
be dependent on the continued existence of a res. While this is not in-
consistent with liability in detinue, quaere for debt. 9 The answer is perhaps
that normally quasi-contractual liability for money had and received does
make a debt. 34 For example, an agent who receives a corrupt commission from
a third person is liable to his principal for money had and received to the use
28 Fitzherbert's Nat. Brev. (9th ed., 1794) 122G.

29 Possibly corresponding to the differentiation between detinue sur bailment and
detinue sur trover (p. 63 and n. 16 supra) was the distinction, in debt (already
alluded to, n. 20 supra), between debt "in the debet et detinet" (which lay against
a defendant on his personal undertaking) and debt solely "in the detinet" (which
lay against executors and others who could not be said to "owe" the money). The
existence of a parallel between the two varieties of debt and those of detinue ap-
pears to be accepted by Milsom, op. cit., 113 n. 38. For a different, though related,
reason debt solely "in the detinet" had to be used whenever what was in obligatione
was anything other than current money (see n. 20 supra). By means of the debet-
detinet dichotomy the common law strove, without, however, attaining clarity or
consistency, to express the difference between (1) a debtor, such as a surety or a tax
payer, of whom it can be said that he debet, but not that he detinet, and (2) a
debtor, such as an executor or administrator, who "detains" assets of the deceased but
does not personally "owe" the debts of the latter. The outlines of the dichotomy
were overlaid and blurred by other discriminations and it ceased to be useful.
30 P. 63, supra.
31 Though not of indebitatus assumpsit.
32 Taylor v. Caldwell (1863) 3 B & S. 826.
a3 Cf. Ames 119.

34 Sinclair v. Brougham [1914] A.C. 398, 414, 433.
of the latter. There is a liquidated, unconditional, monetary liability incumbent

on him to pay this money to his principal. Presumably no innocent loss of
any funds of the principal's in the agent's hands will relieve the latter from
this liability, and he may be said to owe his principal a debt in the strictest
sense.3 5 Again, where A directs his debtor B to pay to C, and B promises
C that he will pay him, C acquires a quasi-contractual36 claim against B for
money had and received to his (C's) use. No subsequent dealings between A
and B or events relevant to them can defeat C's right in this transfer.37 The
liability which rests on B toward C is unconditional and liquidated, and ap-
pears to constitute a strict debt. On the other hand, a factor or agent who sells
his principal's goods holds the purchase money as fiduciary or trustee for the
principal, who really owns it,' 8 and not as a debtor; presumably therefore he is
not responsible for the money if it is lost without his fault; not, at all events, if
he keeps it separate. 9 Whether B, who receives money for C, must keep
this money as a distinct fund depends ultimately on the intention of the
parties. If he must, he is trustee thereof, and if it is lost without his fault
the loss falls on C (and possibly, eventually, as between C and A, on A).
If he need not, he is a debtor, and is not entitled to appropriate the loss to C,
to whom he owes the money unconditionally.
A writ of debt would also 40 lie from earliest times to recover liquidated sums
of money owed otherwise than in consequence of a voluntary private transac-
tion, as for amounts due under statute, by local custom (for example, a toll)
or under judgment of a court.
Another feature of debt may also be referable to its 'realness". The sum
of money (or, more rarely, the number, quantity or weight of other fungibles)
owed must be liquidated 4 1 or ascertained. 4 2 One explanation that has been
offered for the determined reluctance of the early common law to admit debt
where the sum claimed was unliquidated is that such a lack of certainty would
not be compatible with the idea that what the creditor demands is a specific
'5 Cf. Lister & Co. v. Stubbs (1890) 45 Ch. D. 1, esp. 12, 15.
36 No consideration having moved from C to B, there is no contract between them.
(It is assumed that A's direction to B does not amount to an assignment, legal or
equitable.)
37 Cf. Shamia v. Joory [1958] 1 Q.B. 448.
38 Foley v. Hill (1848) 2 H.L.C. 28, 35; and cf. Re Hallett (1880) 13 Ch. D. 696 and
Re Diplock [1948] Ch. 465, 519, 542.
39 See, for example, Speight v. Gaunt (1883) 9 App. Cas. 1; Trustee Act, 1925, ss. 23,
30(1), 61; Bowstead's Law of Agency (11th ed., 1951) 78, 81.
40 2 Pollock and Maitland 210; 3 Street 127, 132; Ames 88, 160; 3 Holdsworth 425.
41 On the modern meaning of liquidity, cf. 1 The Annual Practice (1965) 55, 1094-95,
1098-99.
42 2 Pollock and Maitland 216; Noyes, The Institution of Property (1936) 408. A
leading authority on this requirement was Young v. Ashburnham (1587) 3 Leon.
161 (see n. 55 post). 3 Street 135 refers to Blackstone's statement that "if one
brought an action of debt for thirty pounds and only proved twenty pounds he could
43
object of which he is being "deforced" by the defendant. A man can hardly
complain that somebody is detaining from him his horse when he is unable
to identify that horse; similarly he cannot reasonably complain that the sum of
money which is being detained from him (and of which he is conceived as
owner) is approximately fifty pounds, or is such sum as is the fair reward for a
property or a service. Thus reappears the "real" quality of the claim: this
time not as an ingredient essential to the formation of the relation but in the
shape of the requirement that the creditor should be able to point to a specific
res which is, at the time of making claim, his rather than the debtor's. 44 It is,
however, evident that the two faces of realness are interrelated: the idea is
that the res now being claimed is the one previously handed over. This pre-
tence at continuity or identity must, however, be taken with a grain of salt
because obviously the money which a borrower repays is not in fact the very
coins earlier lent and, even more conspicuously, the purchase money paid for
goods never belonged to the seller and the rent never belonged to the landlord.
Nevertheless, in contemplation of law what the debtor owes is "representative"
of what he has received, 45 and it is as if he were called upon to give up the
no more recover than if in detinue he sued for a horse and proved that the defen-
dant detained his ox." In 1424 (Anon., Y.B. Mich. 3 Hen. VI f. 4, pl. 4) Martin J.
said: "If I demand only £ 20, and the Inquest says that the defendant owes me
£ 40, the Justices... cannot give me judgment for the £ 40, because I did not
demand £ 40...; and for the £ 20 they cannot give me judgment, because they
cannot sever the judgment from the verdict.., nor can they portion out from
the verdict." (Quoted by Fifoot 230.) Late in the 18th century, long after it had
been settled that assumpsit would lie for quantum meruit and quantum valebant,
the idea that the plaintiff's proof may not vary from the exact amount laid in the
declaration began to be abandoned, it being now said that the strict rule against
variance should be confined to debts of record, specialties and statutory penalties,
and was inapplicable to simple debts. (See 3 Street 135-36.) Cf. Atkinson and
Chadbourn, Civil Procedure (1948) 103 n. 18. This departure could have enabled
the recovery in debt of unliquidated amounts according to the proof, as long as the
plaintiff assigned a definite sum in the declaration. The development came, however,
late and was not destined to last long enough before the general abolition of forms of
action. (Cf. n. 112 post.)
43 1 Williston on Contracts (3rd ed., 1957) 21; Ames 88.
44 This is the significance of the "deforcing": 2 Pollock and Maitland 205. Cf. Mait-
land, The Forms of Action (1936 ed.) 38, 63; 3 Street 129 n. 2; Langdell 124.
Pollock thus described the lender's abiding ownership of the money lent, in ac-
cordance with the old ideas of debt: "Giving credit, in this way of thinking, is not
reliance on the right to call hereafter for an act, the payment of so much current
money or its equivalent, to be performed by the debtor, but merely suspension
of the immediate right to possess one's own particular money, as the owner of a
house let for a term suspends his right to occupy it." 6 Enc. Brit. (14th ed., 1929)
340.
45 The similarity between mutuum, on the one hand, and commodatum (and de-
positum), on the other hand, is sufficiently close to speak of "returning" a lender
very same thing. Where the fungible in obligatione is primarily money (which
is also the medium employed as general solvent in awarding unliquidated da-
mages) then the real nature of the recovery, the specific enforcement of the
obligation, may be lost to sight,46 because the money awarded may be con-
sidered not as a return but as a remedy or compensation for not returning.
"But we all know," said Lord Mansfield, 47 "that in actions upon contracts for
the payment of money the damages are nominal; the true relief consists in the
specific performance." And he added: "When money is given as damages, it
is where the money is not itself the specific demand, but is used as a common
measure, to ascertain the amount of the injury."
When the object in obligatione is fungibles other than money, the plaintiff
must nevertheless, as has been seen, 48 be content with money. In such cases
the word "damages" does not sufficiently bring out that even where what the
plaintiff ultimately obtains is money, and not the chattel itself, he is en-
titled to a value rather than to damages at large. The plaintiff in debt (and
even in detinue) differs from a freeholder of land in that he cannot be certain
of recovering the very res. Chattels are personal, not real, property. But they
are property; and a plaintiff who sues to vindicate his property in a chattel,
though he sues according to modem classification "in tort", is far removed 49
from the victim of a slander or a conspiracy, who likewise sues "in tort".
A third quality of debt is that the debtor's duty is unconditional.5 ° As debt
"his" twenty bushels of wheat or "his" bottle of sherry. Cf. C.C. § 1902; BGB
§ 607. See Lord Brougham in Foley v. Hill (1848) 2 H.L.C. 28, 43: "I am now
speaking of the common position of a banker, which consists of receiving money
from his customer on condition of paying it back when asked for, or when drawn
upon." (Italics added.) See second Dialogue of Doctor and Student, Ch. 38, quoted
in part in South Australian Insurance Co. v. Randell (1869) L.R. 3 P.C. 101, 112;
Sir Wm.Jones, An Essay on the Law of Bailments (3rd ed., 1823) 63-64; Story,
Commentaries on the Law of Bailments (9th ed., 1878) §§ 228, 283, 284; Paton,
Bailment in the Common Law (1952) 147; Buckland and McNair, Roman Law
and Common Law (2nd ed., 1952) and esp. Langdell 123-24.
46 Cf. Bouvier's Law Dictionary (3rd rev., 1914) 752; Sheppard's Touchstone (6th
ed., 1791) 386.

47 Robinson v. Bland (1761) 1 Wm.B1. 256, 263. Cf. White and Carter (Councils),
Ltd. v. McGregor [1962] A.C. 413, 446.
48 N. 20 supra.
49 As Pollock and Maitland point out (2 op. cit. 207 n. 1), "in the early records of debt
and detinue the active party does not complain (queritur) he demands (petit);
in other words he is a 'demandant' rather than a 'plaintiff' and the action is
'petitory'." While the writ of debt was one of the "personal" writs, and the action
was not, strictly, one in rem, it was nevertheless "in the nature of an action in
rem". (Langdell 125.)
50 Cf. 1 The Annual Practice (1965) 1093, 1096, 1097. See, in particular, Ex p. Kemp
(1874) 9 Ch. 383; Booth v. Trail (1884) 12 Q.B.D. 8; Mapleson v. Sears (1911)
105 L.T. 639. A so-called "contingent debt" is no debt. "Until a sum certain has
will not lie until after the quid pro quo has been furnished, the creditor need
do nothing more to "earn" the money. He can no longer lose his right to the
money by reason of his own failure to act or to give. His right is vested, even
in such cases where it is vested in interest rather than in possession: debitum in
praesenti solvendum in futuro. 5 '
become due," said Mellish L.J., "and is to be paid in all events, there is... no
debt due." (Ex p. Kemp, supra, at 390.) "[S] ums which may or may not become
due in the future are not debts owing or accruing..." (Lord Coleridge C.J. in
Booth v. Trail, supra, at 10.) "[U]nless the performances for the whole week are
given, nothing was due to the artiste.., that being so, I am of opinion that upon
this particular Wednesday nothing had been earned by the artiste, and consequently
there was no debt due to him in respect of which a garnishee order could be
made," (Lush J., in Mapleson v. Sears, supra, at 642). Cf. also Atkinson and Chad-
bourn, Civil Procedure (1948) 78; Ex p. Charles (1811) 14 East 197; In reNewman
(1876) 3 Ch. D. 494. There is also no debt where the promisor has an option of
performing the main undertaking or paying a sum of money. (Cf. Flanagan v.
Camden Mutual Insurance Co. (1856) 25 N.J.L. 506.) A claim upon an insurance
policy is considered to be for unliquidated damages (see Luckie v. Bushby (1853)
13 C.B. 864 and cases cited by Pearson J. in Jabbour v. Custodian of Absentees'
Property [1954] 1 All E.R. 145, 150). It is not a claim in debt, not only because
the mere fact of loss does not liquidate the sum due but also because, in many
cases, the insurer has an option to reinstate, so that the insured's right to the money
is contingent upon non-exercise of the option; and in some kinds of insurance the
insurer has the right to pay not to the insured but somebody else toward whom the
insured has incurred liability. (See the garnishment cases of Israelson v. Dawson
[1923] 1 K.B. 301; Randall v. Lithgow (1884) 12 Q.B.D. 525, esp. 529.) It is
said that "the word 'damages' is puzzling and seems to be used in a rather unusual
sense, because the right to indemnity arises not by reason of any wrongful act or
omission on the part of the insurer (who did not promise that the loss would not
happen or that he would prevent it) but only under his promise to indemnify the
insured in the event of loss." (Pearson J., in Jabbour v. Costodian, loc. cit.). But
the cause of action is perhaps the insurer's wrongful omission to pay. (And see
n. 158 post.) The liability of a trustee to make good a breach of trust is not a debt,
not only because it is in principle unliquidated, but because it is potentially
defeasible by the court in exercise of its discretion to relieve the trustee and is thus
not unconditional: Trustee Act, 1925, s. 61. Somewhat similarly, a right to maintenance
which is liable to be altered on proof of change in the personal circumstances of the
person liable, or of the person entitled, can hardly be said to create a debt (cf.
Harrop v. Harrop [1920] 3 K.B. 386; Re Macartney [1921] 1 Ch. 522; Beatty v.
Beatty [1924] 1 K.B. 807).
51 There is an apparent class of debt which is unconditional in the sense that there is
nothing left to be done by the creditor (or by anyone else) to "earn" it, but which
is nevertheless contingent-upon an event rather than upon an act. Such is a
covenant to pay money if the payee reaches a stipulated age: Fletcher v. Fletcher
(1844) 4 Hare 67. This "debt" suffers from its dependence on the contingency of
reaching an age. In Fletcher v. Fletcher it was also vitiated by uncertainty in sum,
as long as title has not absolutely vested, according to the terms of the deed, in one
The concurrence of the above attributes results in certain distinct ad-

vantages which the owner of a debt enjoys and which owners of other con-
52
tractual rights do not always have.
During the middle ages the frontiers of debt kept gradually expanding.
After services rendered had come to constitute a sufficient quid pro quo, the
common law began to move to enable the creditor of an unascertained sum to
sue in debt. The time-honoured quandary53 as to what remedy an innkeeper
could have against his guest, or a tailor against his customer, where the rate
or the remuneration had not been settled in advance was about to be solved
within the four walls of the writ of debt itself. 54 However, before the complete
working out of a solution, the pressing need for it began to slacken as such
creditors were provided with a new facility outside the territory of debt:'-
one branch of indebitatus assumpsit was pressed to perform this office.5"
The writ of debt, even if liberally administered and construed, 7 could
payee rather than in two. These infirmities of the liability were not considered by
Wigram V.-C., who referred to it as a common-law debt (nor by Buckley J. in
In re Cook's Settlement Trusts [1965] 2 W.L.R. 179, 183-84). It is doubtful
whether such an uncrystallized liability is a debt: it is thought that on Fletcher v.
Fletcher facts a debt first arises only after it vests, i.e. after the contingencies as to
reaching an age, as to amount and as to identity of the obligee are resolved.
52 See p. 90 ff. post.
53 Cf. 3 Street 186; Ames 89; Jackson, The History of Quasi-Contract in English Law
(1936) 30, 42; Fifoot 229-30; 3 Holdsworth 446.
54 In 1471 (Y.B. 12 Edw. IV, 9, pl. 22) it was tentatively suggested that a guest at a
tavern who did not pay could be sued for trespass, "for he did not do that which
was incident to coming to a tavern." Brian C.J. preferred the view that in such
case debt could be brought, "for in the case of victuals and wine at a tavern
the price is put in certain by the clerk of the tavern." Special assumpsit, however,
would not lie, there having been no promise in fact (Thursby v. Warren (?1630)
W. Jones 208) ; and indebitatus assumpsit could not yet, at this time, lie where debt
did not: so that the question of its availability merely raised once again the
question of the availability of debt. See 3 Street 186 and n. 5.
5 What was in 1587 (n. 42 supra) impossible in debt (nor then, because of the want
of an express promise, in assumpsit) became in 1610 admissible in indebitatus as-
sumpsit: Warbrook v. Griffin (1610) 2 Brownl. 254-an innkeeper recovered from
a guest who had not agreed on the price. And see Jackson, op. cit., 42; 3 Holdsworth
446-47.
56 "A special action on the case in the nature of debt" began to be brought. The
plaintiff alleged that the defendant, already being indebted, promised to pay. As,
however, for want of sum certain, a true technical debt had never been created, the
allegation of indebtedness was impossible rather than merely fictitious. Such a
"common count" was in form indebitatus assumpsit, but differed from the "genuine"
indebitatus assumpsit in a case such as Slade's (p. 76 ff. post) in that there was not
also concurrent liability in debt. Cf. 3 Street 186-88.
57 Lilcke suspects that after the introduction of assumpsit "a narrow definition of
not be put to work as a remedy in the case of mutual executory promises.

If a man promised to build a house for another, and the other promised in
return to accept the house and pay for it, the exchange of promises could
not of itself generate a claim in debt on either side. Once the house had been
built, the builder would acquire or "earn" a claim in debt. But what
rights could be asserted against a builder who failed to live up to his promise
altogether? Or what rights, in turn, could a builder assert against a landowner
who had wrongfully prevented him from building upon his land as agreed? No
quid pro quo having been furnished, no claims could be urged in debt. And
in these circumstances an action could not be had under any other relevant
writ-neither account nor covenant would here be appropriate.
After some four centuries during which the common law had not provided a
remedy in such a case, it commenced to bestir itself, prodded not only by the
growing pressures of a society no longer as feudal and closed as before and
more inclined to the regulation of life, property and conduct through executory
transactions of all sorts, but also by a growing apprehension on the part of the
common lawyers that unless a remedy were to be found their competitor, the
Chancellor, would step in to invade their hitherto exclusive domain of the
personal writs as he had already begun, through his intervention in trusts and
mortgages, to exercise a dominant influence over land law. This combination
of the pressures of society and an apprehension of the broadening jurisdic-
tion of Equity quickened the common lawyers' wits and they began 5s to
project the case-liability of people "holding out" as members of a "common
calling", who as such "take upon themselves" (i.e. "assume") to provide a
service (such as farriers, carriers, innkeepers, surgeons), the so-called "as-
sumpsit", onto all people who upon a certain occasion in fact "assume" 59
or hold out-thereby shifting emphasis from the defendant's calling or status
to his conduct in having entered upon an enterprise;6 ° and also from the
older cases of assumpsit-liability for misfeasance and malfeasance to the new
and hitherto unactionable case of nonfeasance. 6 ' At the beginning of the 16th
quid pro quo was in many ways a more progressive course of action, since it gave
wider scope to assumpsit, the more modem remedy". (Op. cit., 431.) There may thus
have arisen a deliberate reluctance to see debt develop.
58 Dates can hardly be laid down with precision. Let us say with Langdell, 126, that
the introduction of assumpsit as a general remedy on promises came "not earlier
than the latter half of the fifteenth century".
59 The word "assumpsit" was first used in actions on the case toward the end of the
14th century; but had already been used earlier in other contexts: Kiralfy, op. cit.,
166-67.
60 Cf. 3 Street 173.
It is interesting that the action of account had likewise been considered for a time
not (only) from the angle of the defendant's conduct but in respect of his being
"a certain kind of person". See Stoljar, op. cit., 208, 211 and n. 46. Here indeed may
be discerned a movement "from status to contract".
61 According to Milsom, op. cit., the significance of assumpsit-nonfeasance for breach
century62 an action on the case may be had against a carpenter who misbuilds
a house, but will only lie against him for not building if money has been paid.
In the second half of the century63 it is already said that "a promise against a
promise will maintain an action upon the case". This latter proposition is the
modern law, however difficult it may be to find a "logical reason why mutual
promises are sufficient consideration of one another." 64 Having reached this
point, the common law took the decisive step on the road toward a generalized
law of contract.65 Thenceforth it sufficed that a promise had been made and
the defendant had relied upon it to his hurt.6 6 The common law would now
"redress in tort every breach of agreement in England. ' 67 Subsequent gene-
rations of common lawyers were more concerned with restricting the implica-
tions of assumpsit than with enlarging them; more concerned with setting out
the circumstances whereunder a promise would not be actionable, as for want
of consideration, or of capacity, or of form, 68 or for illegality or an offence
against public policy.
The origins of assumpsit in case (and therefore its ultimate derivation
from trespass)6 9 are nowadays chiefly manifested in one half of the common
definition of consideration: 7 to the extent that it suffices that the promisee
suffer a detriment, without the promisor receiving a value or even a benefit,
assumpsit diverges decisively from debt. 71 At present a plaintiff is able to
maintain an action upon the defendant's parol promise without having fur-
of executory promises lay not so much in breaking the barrier of the requirement of
"direct force" implict in trespass (and therefore lingering on in case), as in
enabling a man to express or "dress", with the aid of a fictitious deceit, as a tort an
action which, had it been brought not as a tort, would have "sounded in covenant",
and, as such, would have failed for want of the requisite form.
62 Cf. Anon. Keilway (1504) 77, 78.
63 Cf. Strangborough v. Warner (1588) 4 Leon. 3; and see Peeke v. Redman (1555)
2 Dyer 113a.
64 Plucknett 644 n. 2, quoting 1 Pollock-Holmes Letters 146, 177.
65 Cf. 3 Holdsworth 429 for the "chronological stages" of the development of assumpsit
"from a delictual remedy to the chief contractual remedy of the common law." And
see Plucknett 648. For a somewhat narrower view of "a promise against a promise",
see Liicke, op. cit., 540 ff.
66 On the hurt or detriment suffered, and on the relation between it and the requirement
of consideration, see Kiralfy, op. cit., 170-85.
67 Milsom, op. cit., 109.
68 The Statute of Frauds, 1677, would not have been enacted but for the direct en-
couragement given informal contracts by Slade's Case (n. 84 post): on the other
hand the Statute would not have been required if at that time litigants could give,
and be made to give, evidence on their own behalf.
69 Cf. Holmes 285 for "the often repeated notion that an assumpsit was not a
contract."
70 Such as in Currie v. Misa (1875) L.R. 10 Ex. 153, 162.
71 See, in particular, 3 Holdsworth 441; Kiralfy, loc. cit.
nished the defendant with a quid pro quo, provided only that the plaintiff had
suffered a "detriment" or made a promise in return. On the other hand, the
tortious origins of assumpsit are obliterated where a plaintiff is on occasion
able to recover substantial damages though he has not in fact suffered a loss or
a loss commensurate with the damages awarded.72
§
At first the evolution of assumpsit had not impinged upon the province of
debt. Where a person owned a debt a remedy had been available to him since
time immemorial and there was no need to pray in aid the new invention of
assumpsit. To the medieval lawyer it was almost an article of faith 73 that
there should not be more than one remedy for one class of case: if there
already existed a writ on the Register to meet the plaint, "case" was not re-
quired and therefore not warranted. Moreover, assumpsit was not, in the
beginning, felt to be relevant to situations of debt. In debt, as we have seen,
the defendant's duty was "not conceived of as raised by a promise" but as
"springing from the defendant's receipt of property."7 4 In assumpsit, on the
other hand, the gist of liability was the defendant's undertaking.7 5
There were, however, forces at work to whose interest it was to make it
possible to harness the new action of assumpsit to the recovery of ascertained
sums of money that could already be recovered by means of an action of
debt.7 6 There was, in the first place, the desire of the court of King's Bench
to capture jurisdiction from the Common Pleas in ordinary suits for debt.
This could be done by entertaining suits for the recovery of debts in the
72 See infra, p. 81 ff. An instance of this is Carlill v. Carbolic Smoke Ball Co. [1893]
1 Q.B. 256. A somewhat neglected facet of this famous case is Mrs. Carlill's un-
earned enrichment. There was no proof, and it was not the case, that she had
suffered a loss of anything like the £100 to which she was held entitled.
73 Perhaps, after all, inspired by the text of In consimili casu, 1285-in spite of the
tendency of modern criticism to question the existence of a tie between the Statute
of Westminster II and the development of the action on the case. Cf. Liicke, op. cit.,
427-28.
74 Holmes 264. To the extent that the common law sought to found the debtor's duty
on his effective will, the content of that will was the making of a grant, not of a
promise: Ames 77-78, 91, 150, 167; 3 Holdsworth 354-57, 436-38.
But see n. 86 post.
75 Actions of debt were "actions of property", whereas by a breach of promise "no
man hath property ...but must be repair'd in damages": Vaughan C.J., in Edgcomb
v. Dee (1670) Vaughan 89, 101.
In the 16th century a seller or lender would sometimes pay a small sum as special
consideration for a promise by the buyer or borrower to pay. In such case, he
could sue in assumpsit for breach of that promise and would be able to circumvent
detinue or debt. See Kiralfy, op. cit., 184-85.
76 Here again dates can hardly be precise. Let us say, with Liicke, op. cit., 425, that
this development came "quite early in the sixteenth century". See also ibid. 548.
new form of assumpsit, an offshoot of case, hence more remotely of trespass,

and thus having to do with the King's peace and pertaining to the jurisdiction
of the King's Bench. There was at the same time the interest of litigants.
Debt suffered since early days from a number of procedural disadvantages.
Of these the more important were: that the defendant was in many cases
entitled to wage his law; 77 that when he was so entitled no action could
lie against his representatives, who could not be required to wage it for
him,7 8 so that the death of the debtor frequently put an end to the
creditor's right ;79 that the means of bringing the debtor before the court was
by summoning rather than by attaching;80 and that very great particularity
was required in the pleadings.81 The need of stating with the utmost precision
the sum owed and the various details of the transaction was complemented
by the peril of being nonsuited upon emergence of the most trifling "variance".
As a form of action debt was at once vulnerable and cumbersome. On the
other hand, in indebitatus assumpsit the existence of the debt could be set
out in general terms "as an inducement" (i.e. by way of mere preamble) to
the operative claim, which was for breach of a promise to pay a debt whose
77 This was not formally abolished until 3 & 4 Will. 4, c. 42 in 1833. In assumpsit, on
the other hand, being a form of case and therefore ultimately modelled on trespass,
the proceedings were notionally designed to protect the King's peace and it was
inconceivable that a defendant should be allowed to wage his law against the King.
For the same reason (see Sutton, op. cit., 82) there was no wager of law, even in
debt, in the Court of Exchequer: for proceedings there notionally revolved around
the King's revenues. By custom, wager of law was not open to a defendant in the
City of London. There was no wager in actions of debt based upon formal docu-
ments nor, it seems, for rent. In Chancery wager was not acknowledged; but there
the defendant could be put on his oath, and the procedure was "inquisitorial". See
generally Viscount Simon L.C., in United Australia v. Barclays [1941] A.C. 1, 13; 3
Holdsworth 423.
In the United States, the constitutional assurance of the right to trial by jury
precluded the defence of wager of law.
78 It is possible that executors were allowed to wage law: Y.B. 17 Edw. III, pp. 6-10,
cited by Gilbert Stone, op. cit., 72, n. 4.

79 Cf. Fifoot 231. Specialty debts and record debts were not subject to defence by
wager of law (3 Street 138; Fifoot 230). Debt on a specialty survived, at first where
the successor (normally the heir) was bound expressly, and later (by the reign of
Edw. III) even without express words. Street dismisses the existence of a tie between
the mortality of debt and the right to a wager of law as a medieval afterthought,
arguing that if the explanation for non-survival lay in wager, this explanation
should have equally embraced detinue (in which, likewise, wager of law was in
many cases available), yet this was not so. (Op. cit., 66.) Nevertheless, the story
of the gradual exclusion of the "actio personalis" rule from the action of account
lends support to the orthodox view of a connexion with wager of law. Cf.
Stoljar, op. cit., 213.
80 Cf. Sutton, op. cit., 28.
81 Ames 153-54; Gilbert Stone, op. cit., 67.
existence was assumed. With this "slender machinery"8' 2 could be recovered

"any sum of money, however large". To this may be added the desire of liti-
gants to avoid the higher expense of employing the serjeants, who enjoyed a
monopoly of the business in the Common Pleas, and to avail themselves of
the less costly barristers, who were allowed to ply their calling before the
King's Bench. These interests and forces combined in prompting the raising
of actions for debts in the King's Bench.
The history of the rivalry that ensued between the two courts during the
second half of the 16th century is well known, 3 as is also its culmination in
1602 in Slade's Case 4 in favour of the King's Bench. Thereafter a debtor
could be freely sued not only for the debt but, at the creditor's option, for
nonfeasance or breach of his (fictitious) 5 promise to settle the debt. 6 This
82 Sam. Warren, quoted by Winfield, The Law of Quasi-Contract (1952) 22. And see
Lilcke, op. cit., 444. In modem law, to the extent that a plaintiff still sues "in debt"
in the formal sense (which is no longer the case in England but is in some parts of
the United States), it is not required that the claim be as "particular" as of old.
Subject to the difference that in indebitatus assumpsit a promise and a breach must
be alleged, the forms of debt and of indebitatus assumpsit have become practically
identical.
83 For a somewhat different reading of this chapter of legal history, see A. W. B.
Simpson, "The Place of Slade's Case in the History of Contract", 74 L.Q.R. [1958]
381 and H. K. Liicke, "Slade's Case and the Origin of the Common Counts",
81 L.Q.R. [1965] 422 and 539.
84 4 Co. Rep. 92a. It had already been held in 1573 (Edwards v. Burre, Dalison, 104
no. 45) that the subsequent assumpsit need not be proved, i.e. that it could in
effect be "constructive" or presumed. The famous dictum in Slade's Case makes
appearance some fifty years earlier, in argument (Norwood v. Reed (1558) 1 Plow,
180, 182), worded thus: "every contract executory is an assumpsit in itself".
85 See, however, Simpson, op. cit., 394.
86 Ever after Slade's Case it is true to say that in English law a debtor's (or, at all
events, a borrower's) duty to pay arises both re and consensu. The unpaid creditor
is injured because he relied on the debtor's promise, but also because the
debtor has been withholding from him his property. It may, however, deserve
to be pointed out that in the case of everyday transactions such as loan and
sale even the old law of debt, for all its "realness", gave effect if not to the
recipient's promise, express or implied, then at least, to his consent to (re)pay.
A person on whom a commodity or a service had been inflicted officiously would not
be liable in debt. The idea that "the old debts were not conceived of as raised by
a promise" (p. 74, and n. 74 supra) is true, in the case of simple contract
debts, only in the sense that a promise was not sufficient. For all "the defendant's
receipt of property", no "duty" of debt would "spring" if such property was given
him as a present. Viewed in this light, the innovation of indebitatus assumpsit, and
of Slade's Case, appears to have lain not so much in enabling the creditor to sue
upon the debtor's promise (for this was also the case in most actions of debt):
it rather consisted in enabling the plaintiff to sue remedially, for the breach of
promise, for the debtor's misappropriation of the credit. The suit in assumpsit was
promise could not be traversed; it was therefore on the existence of the prior
indebtedness that the parties would in fact join issue. The victory which
confirmed the concurrent availability of assumpsit in cases in which theretofore
debt would have lain is not dissimilar8 7 to the development which made it
possible to sue in trover (also a form of case) in cases that had at first ad-
mitted of suit solely in detinue. The traditionalists and the purists were not
content. Many years after 1602, Slade's Case was still being denounced as a
88
"false gloss".
The invention of promissory (nonfeasance) assumpsit was not founded on a
denial of the availability of a remedy in debt; and for a time it used to be
supposed, 9 that assumpsit would only lie where debt lay. Indeed, the avowed
theory of indebitatus assumpsit was to provide a remedy not for the facts on
which debt already provided a remedy but for an added fact, viz. for the implied,
and broken, promise of the debtor to pay his debt. The action would not lie
on the debtor's principal promise, 90 as that promise would have been ex-
hausted or spent in creating the debt itself and could not be imposed upon
to support a second action;91 therefore the common lawyers contrived to at-
originally brought in respect of the loss from having parted with the consideration
for nothing, as it subsequently turned out. Paradoxically it can be said that as-
sumpsit, based as it originally was on loss to the plaintiff of what he had given,
was more "real" than debt, based and measured as it has always been on the
defendant's promise, though a promise requiring for its efficacy receipt by the prom-
isor of a good quid pro quo. It was in assumpsit, rather than in debt, that
"[1]liability was not derived from the promise, and where the fact that the
defendant did enter upon the enterprise sufficiently appeared on the facts of the
case, no allegation of assumpsit was, as a matter of law, necessary." (Cf. p. 72
and n. 60 supra.) In time, however, the plaintiff's lost consideration ceased to furnish
the yardstick of defendant's liability. See nn. 118, 126 and pp. 84-86, post.
87 Cf. Ames 87.
88 Vaughan C. J., in Edgcomb v. Dee (1670) Vaughan 89-where Slade's Case is re-
ferred to as "that illegal resolution.., grounded upon reasons not fit for a decla-
mation, much less for a decision of law." (Ibid, 101.)
89 Wrongly, "by note takers who did not understand the force of what was said"
at Nisi Prius: Lord Mansfield in Moses v. Macferlan (1760) 2 Burr. 1005, 1008.
The true position is "that an action of assumpsit will lie in many cases where debt
lies and in many *where it does not lie" (ibid.) Nevertheless, indebitatus assumpsit,
in its narrow sense, is coterminous with debt on a simple contract. Therefore it
does not lie upon mere mutual promises, or upon a collateral guaranty: 3 Street
185. In such cases it is necessary to declare specially on the contract. See, however,
n. 56 supra.
90 In Slade's Case the debtor had made, contemporaneously with the transaction, an
express promise to pay: yet it was not on that promise that the action was
brought.
91 Cf. Ames 152; Jackson, op. cit., 42; 1 Williston, op. cit., 627; 3 Street 184; Milsom,
op. cit., 111-12. See, however, Liicke, op. cit., esp. 554.
2
tribute to the debtor a subsequent promise as a peg on which to hang the
new action of indebitatus assumpsit.
With the introduction of indebitatus assumpsit debt began to lose to it
much of its business. 93 To sue in the new form was to avoid most of the pitfalls
of an action of debt,9 4 and litigants were quick to prefer the simpler, cheaper
and safer route. Furthermore, 95 indebitatus assumpsit moved on to expand
beyond its concurrence with debt. It came to meet the case of a promise
"implied in fact", i.e. inferred from the facts of the situation, and finally
towards the end of the 17th century became available for constructive obli-
gations or promises "implied in law", i.e. quasi-contracts (and, looked at
from another angle, constructive trusts) for payment of money. In the course
of this last extension to cases of quasi-contract, indebitatus assumpsit entered
a field of legal duties "remediable in debt although they do not originate in
contract in the modern sense (assumpsit) ".96 It here resumed its initial con-
dition of overlapping with debt and spread over the non-promissory varieties
of the latter. Thereafter it naturally began to be assumed that quasi-con-
tractual liability for money had and received was a "species of the genus
assumpsit". 97 This in time led, or misled, as notably in the great case of
Sinclair v. Brougham,"' to the idea that an action for money had and received
could not lie where in the circumstances a valid promise could not be attributed
92 The circumstance that in indebitatus assumpsit it was a precedent debt that sup-
ported the promise was destined to raise doubts and confusion about the rule that
past consideration is no consideration (Simpson, op. cit., 395; 8 Holdsworth 25)-
doubts not finally removed until the 19th century: Eastwood v. Kenyon (1840) 11
Ad. & El. 438; Roscorla v. Thomas (1842) 3 Q.B. 234. And see Milsom, op. cit.,
112. At the same time, there was a pleading advantage in dressing up a debt as a
promise supported by past consideration: such a non-simultaneous bargain was not a
proper old-style debt; and thus would be overcome the objection that a writ of
debt was already available. (Cf. Licke, op. cit., 435, 445.)
93 3 Holdsworth 444. The action of debt became, in the language of S.F.C. Milsom, a
"disused enclosure". ("Reason in the Development of the Common Law", 81 L.Q.R.

[1965] 496, 500.)
94 Thus, with Pinchon's Case (1611) 9 Co. Rep. 86b; Sanders v. Esterby (1616)
Cro. Jac. 417, it was finally established that the personal representatives of the
deceased were fully liable for his assumpsits, as for his covenants. Cf. Ames 145;
3 Holdsworth 451. Posthumous liability was not, however, made to extend to all
assumpsits indiscriminately. Such personal and non-proprietary assumpsits as prom-
ises to marry continued to be exposed to the rule "actio personalis moritur cum
persona": Finlay v. Chirney (1888) 20 Q.B.D. 495.
95 Ames 149-50; Maitland op. cit., 170; Viscount Haldane L.C., in Sinclair v.
Brougham [1914] A.C. 398, 416-17.
96 3 Street 133.
97 Sinclair v. Brougham [1914] A.C. 398, 452, 454; and cf. Ministry of Health v.
Simpson (Re Diplock) [1951] A.C. 251, 275.

98 See also Boissevain v. Weil [1950] A.C. 327, 341.
to the defendant, as for instance where a promise, had it been made, would
have been ultra vires. 99 The theory is not entirely satisfactory and leaves
unexplained cases where infants, lunatics, drunkards, and others who lack in
capacity, are sometimes held liable re though they could not have contracted
liability consensu.10 In Moses v. Macferlan'101 Lord Mansfield had carefully
stated that in quasi-contractual circumstances "the law implies a debt". He
had not said the law implied a promise.1 0 2 Recently the Judicial Committee of
the Privy Council rejected the notion that an action quasi ex contractu was
an action on contract or on imputed contract.1 0 3 Yet had it been remem-
bered1 ° 4 that the action of debt, despite its procedural shortcomings and
unpopularity, had throughout "remained in use as an alternative method of
enforcing quasi-contracts", this might well have obviated the supposed need
to find a promise where none existed.
So quasi-contract came to rest somewhat uncertainly at the meeting place
of "property" (debt), of "contract" (indebitatus assumpsit) and of (con-
structive) trust. Unlike special assumpsit (i.e. the modern simple contract),
which is not accessible to a stranger to the consideration, indebitatus as-
sumpsit, being based upon a "duty", is available to C to sue B for money
received from A to be paid over to C.'" Thus indebitatus assumpsit, in ad-
dition to its other advantages, excelled in versatility and in suppleness. Com-
pared to it, the old action of debt began to look like a fossil out of the past.
With all the popularity of indebitatus assumpsit, it is nevertheless wrong to
think of debt as having ever disappeared.10 6 A thin trickle of actions of debt
never ceased to run.
§
The abolition of forms of action in the 19th century has somehow inculcated
the notion that debt is now finally supplanted. It is curious that the reflexion
apparently rarely occurs' 0 7 that, by the same token, assumpsit and indebitatus
99 Cf. [1914] A.C. 398, 415, 417, and esp. 452.

100 This terminology is not used strictly as, on contracts for necessaries, such persons may
be liable even on their executory promises: Roberts v. Gray [1913] 1 K.B. 520. The
terminology, which expresses an important partial truth, is suggested by the judg-
ment of Fletcher Moulton L.J., in Nash v. Inman [1908] 2 K.B. 1, 8.
101 (1760) 2 Burr. 1005, 1008.
102 This is pointed out by Lord Wright in the Fibrosa Case [1943] A.C. 32, 62; and
see Stoljar, "Re-Examining Sinclair v. Brougham," 22 M.L.R. (1959) 21, 27.
103 Kiriri Cotton v. Dewani [1960] A.C. 192, 204.
104 Cf. Anson, Law of Contract (19th ed., 1945) 427. But see n. 86 supra.
105 Cf. 3 Street 205-06. See n. 17 supra.
106 Cf. Anson, op. cit., 424, and Bullen and Leake, Precedents of Pleadings (3rd. ed.,
1868) 35-36, therein cited.
107 See, however, Lord Wright, Legal Essays and Addresses (1939) 31; Stoljar, "Re-
Examining Sinclair v. Brougham", 22 M.L.R. (1959) 21, 27.
assumpsit could be equally said to have gone. If so, the existing law of con-
tract is a fatherless upstart hardly one century old. What has been rather
overlooked is that "debt" (as also "detinue", "covenant" and other actions)
secretes distinct levels of connotation. The word may, according to the con-
text, stand for one or more of the following: (1) a form of action; (2) a sub-
stantive legal relation; (3) a remedy. As one of the ancient forms of action
debt is abolished, and along with it are swept away its various procedural and
pleading implications. But debt is also, as has been mentioned, a substantive
legal relation that arises when a loan is made or when goods are sold on
credit, and in other cases. Debt is not only a form of action; it is also a cause
of action, a causa debendi. As such it never was, indeed could not meaning-
fully be, "abolished" 1any more than, by abolishing forms of action, trespass
08
could be "abolished".
Writers who suppose debt to have "disappeared" are forced to treat it
either as a ghostly recollection with "a vaguely disturbing influence behind
it"'10 9 or else, more rarely, as merely one of the contractual remedies,110 viz.
"the remedy in respect of such promises to pay a liquidated sum of money
108 "The substitution of our Practice Act for the common law system of pleading has
not changed the situation save as it has abolished certain formal distinctions and
employed a new nomenclature. The same facts will entitle one to the same
redress as before, and to no other redress." Avery v. Spicer (1916) 90 Conn. 576
(quoted in Atkinson and Chadbourn, op. cit., 110).
109 Holmes 274. Holmes also refers (ibid.) to covenants as surviving "in a somewhat
weak old age". Yet covenants in their old age show remarkable vitality. Over
eighty years have now passed since Holmes' writing, and in almost half the States
of the United States (for a table of statutory provisions on seals see 1 Williston,
op. cit., § 219A) statutes have been passed to "abolish" private seals. In some
of the States the seal was supposedly reduced to the level of presumptive evidence
of consideration-"supposedly" reduced, because the statutes in question fail to
say that the seal will be unenforceable if there is no consideration. (See 1A Corbin
on Contracts, 1963, § 254.) Yet in England, in many of the American States and
in other common-law jurisdictions a seal retains its vigour unimpaired. See, for
example, Carr v. Roberts (1833) 5 B. & Ad. 78; Re Parkin [1892] 3 Ch. 510;
Re Cavendish-Browne's S.T. [1916] W.N. 341; Fletcher v. Fletcher (1844)
4 Hare 67; Cannon v. Hartley [1949] Ch. 213. It is still true that "[t] he distinction
between the effect of a deed under seal, and that of an agreement by parol, or
by writing not under seal, may seem arbitrary, but it is established in our law."
(Per Earl of Selborne L.C., in Foakes v. Beer (1884) 9 App. Cas. 605, 613.) "This
rugged fragment of ancient law remains embedded in our elaborate modern
structure." Pollock, in 6 Enc. Brit. (14th ed., 1929) 341.
Indeed, in one respect deeds have gained in efficacy. A voluntary bond, though
provable in bankruptcy, used to be postponed to all other debts. But since the Act
of 1869 (see now s. 33(7) of the Bankruptcy Act, 1914) even a voluntary bond
must be paid pari passu with other regular debts. (See Williams on Bankruptcy (16th
ed., 1949) 176.)
110 Cf. Salmond and Williams, Law of Contracts (1945) 577, 589-90.
as the common law enforces specifically." The uneasy and reluctant acceptance
of debt is explicable on the ground that "the whole modern law of contract
has grown up through the medium of the action of assumpsit.""' Never-
theless, to the extent that debt had, because of its procedural demerits, lost its
popularity to indebitatus assumpsit, the abolition of forms of action, and
consequently of those demerits, should have had the opposite effect, should
have brought about a revival of debt" 2 or at least should have rekindled in-
terest in it. He who owns a debt enjoys a number of distinct advantages ;113
and now that those advantages are no longer offset by the old procedural dis-
advantages, there is all the less reason to overlook them. Furthermore, a re-
examination of the place of debt within the modern comprehensive law of con-
tract can be expected to throw light on a number of difficulties in the law of
contract and especially in the law of damages. It could also serve as a counter-
poise to the recent tendency to restrict the scope of debt relations unduly, to
treat the owner of a debt as if he were entitled to nothing better than an
executory promise. An instance of this can be found in the decision of the 1 4
House of Lords in Tomkinson v. First Pennsylvania Banking and Trust Co.
in which the owner of a debt, a lender, is treated as if he were only entitled to
sue for unliquidated damages, as in assumpsit, and, by assessing those damages
as of the day of breach, is awarded much less than the principal lent.115
§
Because the modern law of contract has on the whole grown around as-
sumpsit, debt relations are nowadays "contractualized," and rules of law pe-
"I Holmes, loc. cit.
112 As a matter of fact, after wager of law had fallen into desuetude in the 18th
century, litigants occasionally bethought themselves of certain advantages of debt
(as that final judgment could be entered if the defendant failed to appear), and
there came a moderate revival of it. (See 3 Street 69, 139; cf. n. 42 supra.)
Another rediscovered advantage of an action in debt was that it could, whereas
indebitatus assumpsit could not, be joined with counts in non-contractual debt, as
on specialty or on record.
113 P. 90 ff. post.
114 [1961] A.C. 1007. (In re United Railways of Havana, etc.)
115 Two of the Lords (Viscount Simonds, at 1043-44 and Lord Denning, at 1069;
Lord Morris of Borth-y-Gest, at 1086, may have held the same view) considered
that a lender's claim for foreign money could not lie in debt, because in proceedings
before an English court foreign money must be deemed chattels not currency; and
therefore the only action that can be brought is one for damages, as for breach of
contract to deliver goods. Assuming dollars to be chattels, a loan of dollars is still
a loan of fungibles for consumption, i.e. a mutuum; and it is abundantly clear that
in such case debt has always lain even where the object in obligatione was not
money: n. 20 supra. That an action of debt was never confined to loans of money
does not appear to have been considered by their Lordships.
Lord Reid (at 1051-52) and Lord Radcliffe (at 1059-60) rejected the idea that in
English proceedings dollars must of necessity be deemed "a commodity".
culiarly appropriate to assumpsit are unwittingly applied to them, as if those

rules were of universal application. This tendency deserves to be resisted." 6
In particular the twin limitations on plenary recovery for breach of contract,
viz. that he who breaks a contract is liable to make good not necessarily the
entire loss suffered by the victim but so much of it only as is "natural" or as
had been foreseen at the time of contracting, and that liability does not ex-
tend to such loss as could have been avoided had the plaintiff acted to
mitigate his loss-should not be allowed to truncate recovery in full of a legiti-
mate debt. The restrictions of Hadley v. Baxendale1 7 are essentially foreign to
the case of a plaintiff who is 'entitled to a certain res which is being withheld
from him."" Hadley v. Baxendale may apply to the consequentialloss from non-
delivery or non-repayment; but it is inconceivable that either development
within the common law (the introduction of indebitatus assumpsit) or out-
side it (the abolition of the forms of action) was designed to undermine the
right of a creditor in the principal itself.
A similar difficulty in the assessment of damages arises where a claim
for restitution of specific tangible property, whether land or chattels, is
viewed in the light of a generalized "law of tort". "Tort" looks primarily
to compensating the victim of a wrong for loss suffered. In such cases as
bodily injury or defamation loss is in effect identical with (or comprises, in
addition to such special damage as may be shown) suffering. But when the
owner of a chair claims restitution of it or pecuniary compensation in place
of such restitution, the law is concerned not with the plaintiff's suffering, if
any, but with the vindication of his proprietary right. He is entitled to
restitution or to pecuniary compensation assessed on restitutionary principles
even if he has no use for the chair and does not miss it, even if he was
looking for a way of getting rid of the chair and is secretly grateful to
116 "Where seems to be no valid reason for importing into the very ancient theory of
debts any flavour of the comparatively modern doctrine of contractual rights and
obligations; ... the distinction between an action of debt and an action for damages
for breach of contract remains a sharp one. . ." Negus, "Rate of Exchange in
Reference to Foreign Debts and Debts Expressed in Foreign Currency", 40 L.Q.R.
(1924) 149, 161.
117 (1854) 9 Ex. 341. Hadley v. Baxendale is concerned with putting limits to the
damages recoverable by a plaintiff in respect of loss occasioned by breach of con-
tract. That the plaintiff has actually suffered a loss is assumed: otherwise he would
be entitled, at most, to nominal damages. The question dealt with was: how much
of the loss is eligible for reparation?
I's Cf. Anson, op. cit., 10; Kiralfy, op. cit., 168: "The measure of damages in Debt
had never been related to actual loss or damage, as it did not sound in 'wrong'." The
inapplicability of the duty of mitigating loss to a claim in debt is now illustrated by
White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413. Cf. a Note by
K. Scott, in [1962] C.L.J. 12, in which the writer says (at 14) that "since the
claim was in debt, the question of mitigation of loss.., does not arise. That is
only relevant in a case involving a claim for damages."
No. 1, 1966) DEBT AND CONTRACT
whoever disembarrassed him of it-in brief the fact that he has experienced
no "suffering" is immaterial. And if an owner is fortunate to obtain a similar
chair by gift, or very cheaply, "the cost of replacement does not enter into the
matter of damages at all."' 119 In this proprietary context, "loss" does not mean
suffering: it means objective impoverishment. This is equally true of a land-
owner's claim for the mesne profits 2 " of land of which he has been unlaw-
fully dispossessed. And this, again, explains why the jurisdiction to award dam-
ages in the form of interest is not conditional upon, or confined to cases of,
121
loss of the interest to the plaintiff. The power to award payment of interest is
not affected if it can be shown that, had the owner received the money, it
would have lain idle in his hands. On the other hand, he who cannot
complain of the detention of money which is his, but only of a breach of
contract to let him use another's (the lender's) money, must be content with
damages on Hadley v. Baxendale lines and may consequently get merely
nominal damages.' 22 Proprietary cases resist classification in terms of an ex-
119 Lord Atkin in Banco de Portugal v. Waterlow [1932] A.C. 452, 490; cf. France v.
Gaudet (1871) L.R. 6 Q.B. 199.
120 " 'Mesne profits' are a sum recovered for the value or benefit which a person
in wrongful possession has derived from his wrongful occupation of land between
the time when he acquired wrongful possession and the time when possession was
taken from him.-Martin v. Smith, 7 N.W. 2d 481, 214 Minn. 9." 87 C.J.S. Thespass
§ 120, n. 65. The assessment does not build on any suffering caused to the
landlord. That the plaintiff would not himself have used the land or let it to
others is of no importance, as is illustrated by the so-called "wayleave" cases in
connexion with coal mining. See, in general, Whitwham v. Westminster Brymbo
Coal Co. [1896] 2 Ch. 538. Admiralty cases which award damages for temporary
loss of use of a ship even where no pecuniary detriment to the owner is shown are,
again, founded on a proprietary approach: for example, The Greta Holme [1897]
A.C. 596; The Mediana [1900] A.C. 113; The Marpessa [1907] A.C. 241.
The idea of mesne profits, though not under this name, applies in the un-
authorized user of goods: Strand Electric v. Brisford Entertainments Ltd. [1952]
2 Q.B. 246. All judgments in the Court of Appeal mention that there may be a
difference in the amount of damages between a case where goods are negligently
damaged and a case where goods are misappropriated. The analogy to mesne
profits in ejectment is expressly recognized; and the claim is said (per Denning
L.J., at 255) to resemble "an action for restitution rather than an action for
tort". The underlying conception is that it is the owner who is entitled to the
benefit produced by his property in somebody else's hands even if it can be
shown that he himself would not have derived such benefit, i.e. had not in truth
lost such benefit. (Cf. Reading v. A.G. [1951] A.C. 507. See also Granby v. Bake-
well U.D.C., cited in 2 Sm. L.C. (13th ed., 1929) 527.)
121 Law Reform (Miscellaneous Provisions) Act, 1934, s. 3; Arbitration Act, 1950,
s. 20.
122Chitty J., in Western Wagon v. West [1892] 1 Ch. 271, 277; on the other hand,
obtain more than the interest on the money (Trans Trust v. Danubian Trading Co.
[1952] 2 Q.B. 297; Westesen v. Olathe State Bank (1925) 78 Colo. 217; Man-
clusive "contract"-"tort" dichotomy; they therefore lurk uneasily as exceptions

to would-be general rules on damages. Yet proprietary cases fall into ap-
propriate perspective once it is recalled that side by side with contract in
the relatively modern sense of assumpsit there has always been (and had
indeed preceded it) contract in the sense of debt; just as side by side with
trover there has been (and had preceded it) detinue. Debt, detinue and
ouster "sound in property" and in this respect differ from claims ("in con-
tract" or "in tort") not founded upon deprivation or misappropriation of prop-
erty. The assessment of damages in property-"contracts" (debt) and in
property-"torts" (detinue, ouster) sets such "contracts" and "torts" in a
category apart. In both, the property element outweighs the modern affiliation
of the legal relation to the domain of contract or, as the case may be, of
123
tort.
In the meantime debt, though largely submerged, has been subtly working
a far-reaching transmutation in the very idea of assumptual liability. The
tortious origins of assumpsit, had they prevailed, would have bent assumpsit
in the direction of protecting a person against injury from reliance on a
broken promise. Having relied on a promise, the victim should be no worse
off, his loss should be "made good": just as a man who is run down by
a negligent driver should be compensated so that he is restored to his earlier
condition. On purely tortious principles a person who complains of a breach
of promise to pay him £ 1,000 for commodities or services should be held
entitled not necessarily to £ 1,000 but to his proved loss. However, in the
course of the 17th century the rule in assumpsit came to be quite different :124
viz. that the starting point for inquiring into the plaintiff's loss is not his
condition as it had been before he came to rely on the promise but rather his
hypothetical future condition assuming the contract fulfilled. 125 Had the
chester & Oldham Bank v. Cook (1883) 49 L.T. 674; Astor Properties v. Tun-
bridge Wells [1936] 1 All E.R. 531). The borrower cannot presumably argue that
he is entitled to the sum promised as a loan as damages: cf. Re Hooley [1899] 2
Q.B. 579, 583. And see n. 143 post.
123 The difference between torts where the damages are uncertain and torts where
damages are designed to compensate for lost "value" has been known to the common
law since early days, and is reflected in the rules on assignability of claims in tort.
See T. Cyprian Williams, "Is a Right of Action in Tort a Chose in Action?".
10 L.Q.R. (1894) 143, 148, 157.
124 Cf. Ames 144-45; 3 Holdsworth 452. This trend away from delict and toward the
modern idea of "contract" appears to have been associated in the first half of the
17th century with the desire to save assumpsit from the operation of the rule
"actio personalis moritur cum persona". Cf. also 3 Holdsworth 578.
125 Hadley v. Baxendale itself does not bring this out very clearly. Two years later,
language is still used which is at least consistent with the idea that all the plaintiff is
entitled to is not to be the worse off for having entered into the contract: "The law
lays down this, that if the contract is broken, the party is to be put in the same
position, as far as money is concerned ... " (Pollock C. B., in Hamlin v. Gt. Northern
contract been fulfilled the plaintiff would have received £ 1,000; it follows
that his loss must now be measured from a position of £ 1,000 received,
and the plaintiff is virtually held entitled to what he would have gained
rather than to what he lost. 126 That a person who had been promised
£ 1,000 should be treated by the law as if he already owned the £ 1,000 is
a victory of sorts for the cause of promissory efficacy.127' But it may be asked
whether it is not an overreaching victory, one that confounds promise with
conveyance and (more importantly) one that on occasion leads to the capricious
enrichment of a promisee flowing from nothing worthier than an extravagant or
imprudent promise made by the promisor, as in the famous Carlill v. Carbolic
Smoke Ball Co. 12 s This tendency to look at a contract "retrospectively", from
past the point in time destined for performance, appears to be referable to
two sources. In the first place, once assumpsit was admitted to create "a con-
Rly. Co. (1856) 26 L.J. Ex. 20, 22.) "In the same position" is an ambivalent phrase:
it may well refer to a position that had already once existed, i.e. the factual
pre-contractual position, not the hypothetical post-contractual position. Subsequent
statements tend, however, to be clearer. Thus Fletcher Moulton L. J., in Chaplin v.
Hicks [1911] 2 K.B. 786, 794: "[I]t is the aim of the law to ensure that a person
whose contract has been broken shall be placed as near as possible in the same
position as if it had not." Here it is clear that "the same position" refers to the
hypothetical post-contractual position. Nevertheless, the cutting down of damages to
"such as might naturally be supposed to be in the contemplation of the parties at
the time the contract was entered into" (ibid., 794-95) results in many cases in a
person not being put in the same position as if the contract had been performed.
Herein is perpetuated in the modem law a cardinal difference between damages
and debt.
126 "Damages for breach of contract cannot as a general rule be measured by the
consideration for the contract but are to be determined by the value of the thing
contracted for": 25 C.J.S. Damages § 74. See esp. Kiralfy, op. cit., 168. Where
a sum of money is payable by covenant, then even when the action was for damages
for breach of covenant, not in debt (cf. nn. 8, 12 supra), the plaintiff was entitled
to the stipulated sum. Cf., for example, Carr v. Roberts (1833) 5 B. & Ad. 78;
Lethbridge v. Mytton (1831) 2 B. & Ad. 772. It was later natural to apply the
same idea to cases of simple contract. Cf. Ashdown v. Ingamells (1880) 5 Ex. D.
280, 286. The development of the law would appear to have moved as follows:
recovery of stipulated amount (1) by action of debt (whether simple or contained
in a covenant) ; (2) by action for damages for breach of (executory) covenant to pay
a sum certain; (3) by action for damages for breach of simple contract (neither
debt nor covenant) to pay a sum certain.
127 For the idea that a promisor is bound to carry out his promise rather than to make
good the loss arising from breach, and for the controversy on this between Pollock
and Holmes, see: W. W. Buckland, "The Nature of Contractual Obligation," 8
Camb. L.J. (1942-44) 247. This idea runs as a leitmotif through the majority
speeches in White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413 in the
House of Lords.
128 [1893] 1 Q.B. 256.
tract", its sponsors must have felt that it should not be less efficacious than a
deed, by means of which the promisee was (and is) entitled to the value of
the promise regardless of his loss, if any. Secondly, there came the oblique
influence of the rule that the law does not concern itself with the adequacy
of the consideration for a promise.12 9 This rule was allowed to protrude
beyond the area of the formation of contracts, where it properly belonged, 3 '
and into the idea that the counter-promises of the parties are somehow
"equal"; and therefore that a promise of £ 1,000 for some modest service
worth £ 50 is really the equivalent in law of that service; hence to decree
enforcement of such promise is not excessive or unreasonable nor can it result
in a parasitical enrichment of the promisee.
Once it became settled that a person contractually entitled to £ 1,000
and who is not given the money is deemed to suffer a loss of £ 1,000, such
person could be confident of recovering this very sum, rather than only damages
for his loss, even though he sued (and, in the circumstances, had to sue)
merely in assumpsit. It became possible to sue "as if in debt", i.e. for specific
recovery of the promised payment, where debt proper would not lie, 131 and
where therefore, under the older law, a plaintiff could not specifically recover
the promised payment. Thus in the Carbolic Smoke Ball case 1 32 Mrs. Carlill,
as it was held, had furnished consideration and had become contractually
entitled to sue the Carbolic Smoke Ball company for the £ 100 promised.
The consideration in question was not in the nature of a quid pro quo to the
company that would entitle Mrs. Carlill to sue in debt. Nevertheless, under the
modern law, she acquired an unconditional title to a liquidated sum of money.
After she had furnished (or, rather, incurred) her "detriment", i.e. after she
had used the smoke ball, she became in effect entitled to a debt from the
company. 33 Such a debt may be designated, for convenience, a "modern
12 A rule which does not appear to stand well with the tortious origins of assumpsit.
If, as Milsom put it (op. cit., 109), "what the plaintiff has been tricked out of when
the transaction is expressed as a tort will be the consideration when it is viewed as
a contract", then the law should have been eminently concerned with the size of the
consideration furnished by the plaintiff. This consideration would have measured his
admissible loss and would have defined the quantum of damages. And see the same
writer at 81 L.Q.R. [1965] 514.
130 In the matter of formation, the rule largely functioned to neutralize the very require-
ment of a consideration. It in fact almost reduced consideration to the level of
cause, or an assurance of seriousness in contracting ("consideration" was occasionally
used in this sense in law, as it still is in common speech; cf. p. 62 and n. 11
supra). This is not far removed from the modern requirement that the parties
intend to create "legal" (as distinct from gentlemanly or familial) relations. See,
for example, Rose and Frank Co. v. Crompton [1925] A.C. 445; Spellman v.
Spellman [1961] 1 W.L.R. 921.
131 E.g. Schlesinger v. Mostyn [1932] 1 K.B. 349.
132 [1893] 1 Q.B. 256.
133 The £ 100 constituted a "debt" in accordance with the modern definition which
debt", to distinguish it historically from debt recoverable by means of the old

action of debt; but it is not juridically distinguishable from an old-style
debt. In practice, a debt such as Mrs. Carlill's claim of £ 100 from the
Carbolic Smoke Ball company, may be less attractive and less easily market-
able than, say, a vendor's debt of £ 100 on an instalment from his purchaser
for goods delivered and sold: a dishonest debtor might be more tempted to
shirk liability because the plaintiff would find it more difficult to prove
the facts which constitute his cause of action. Even an honest debtor may not
have knowledge of the facts which generate his liability-whereas this is
much less likely in the case of a debtor who has received a quid pro
34
quo. Difficulties of proof may, however, surround any kind of liability.,
Sometimes, a suit "as if in debt" is juridically distinguishable from one in
debt. For example: a landowner promises to convey land and the purchaser
promises in consideration to pay £ 5,000 on a day earlier than the day set for
conveyance. The promise of payment, being absolute in terms and maturing
prior to the landowner's duty to perform, may be sued upon immediately
after it is broken. The landowner may thus sue for £ 5,000 and will be
entitled to recover this very sum in full"' even though he had not as yet
furnished the agreed quid pro quo. And yet, while the landowner is treated as
if he owned a debt, he does not really occupy this position; not so much
because he has not furnished a quid pro quo (this, of itself, would not prevent
no longer regards a seal or a quid pro quo as essential. Cf. the definition from the
llth ed. of Mayne on Damages quoted in Jabbour v. Custodian of Absentees' Pro-
perty [1954] 1 W.L.R. 139, 144: "Where under a contract.., a person is entitled
to a sum certain... the sum constitutes a debt and can be recovered as
such..."
134 It is assumed that Mrs. Carlill's claim, whether regarded as one for specific im-
plementation of the company's promise or as one for liquidated damages for breach
thereof, is assignable: cf. County Hotel v. London & N.W. Rly. Co. [1918] 2 K.B.
251, esp. 260-61. Another weakness of Mrs. Carlill's debt is that she (unlike an un-
paid vendor, for example) has nothing on which a lien or privilege can be en-
joyed: but this is true of a great many undoubted debts.
135 Similarly in the case of goods. The seller cannot normally maintain an action for
the price where the property in the goods has not passed. His remedy is an action
against the buyer for non-acceptance: Shell-Mex v. Elton (1928) 34 Com. Cas. 39.
The action must be in assumpsit as a debt has not arisen: Weiss v. Sheet Metal
Fabricators (1955) 110 A. 2d 671; 206 Md. 195. The vendor cannot be said to
"lose" the price, that price having been promised him against the goods, not
absolutely. But: "Where, under a contract of sale, the price is payable on a day
certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay
such price, the seller may maintain an action for the price, although the property in
the goods has not passed, and the goods have not been appropriated to the con-
tract." (Sale of Goods Act, 1893, s. 49(2).) See also Note in 5 Col. L. Rev. (1905)
168. The "action for the price" is not, in this case, an action of debt: Langdell
126 n. 1. See also n. 142 post.
him from acquiring a debt, albeit a "modern" one, he having already fur-
nished a consideration in the giving of his counter-promise) but because,
while he is entitled to the money, he is not entitled to it absolutely. Sir John
Salmond says 13 6 that in a case such as this the purchase-money becomes "on
the day so fixed for its payment, a debt immediately recoverable by the vendor
irrespective of the question whether a conveyance has been executed and
notwithstanding the fact that the purchaser may have repudiated his contract.
Notwithstanding such repudiation the vendor is not bound to sue for damages
or specific performance, but may recover the agreed purchase-money." Here it
may be seen how development within assumpsit has made it possible to
obtain the type of remedy recoverable by an action of debt in a situation
which is not as yet one of debt and which possibly may fail to ensue in a debt
in the future. This new departure, an extension of the idea of debt, may be
designated a "quasi-debt". The cases cited by Salmond 13 7 to show that there
is a debt appear to turn not on the question whether debt lies but on the
question whether the liability, whatever its nature, is stipulated to mature
before the vendor executes his part of the contract. They turn on the old
question of construction whether, and which, mutual promises are interde-
pendent (in the sense that performance of one is a condition precedent
or concurrent to performance of the other) or independent (in the sense that
a promisee is entitled to insist on performance without showing his own
prior performance, or concurrent readiness and willingness to perform). If,
conformably to the intention of the parties, the vendor is entitled to sue
for the agreed purchase-money before performance of his own obligation,
it does not follow that the action is one of debt. True, in the old cases an
action in these circumstances generally lay in debt, but the reason was simply
that such contracts used to be made under seal; and an action for a sum
certain payable by deed has always lain in debt, 3 ' no quid pro quo being
necessary. 39 When, however, there is no deed, is it true that the landowner's
action, or a similar one, is indistinguishable from a claim of debt in the
strict sense? It is thought that there is a difference: the duty to pay, which
Salmond discusses, is not unconditional. It is true that the payment has not
been subjected to a condition precedent or concurrent. It is, however, subject
to a condition subsequent or defeasance. ". .. [T]he vendor is entitled to
136 Ruddenklau v. Charlesworth [1925] N.Z.L.R. 161, 164, quoted at length in Salmond
and Williams, op. cit., 591-92.
37 Ibid.
138 Cf., for example, the well-known (and similar) case of Pordage v. Cole (1669) 85
E.R. 449, in 1 Wms'. Saunds. (1871 ed.) 548.
139 Indeed, the existence of the creditor's corresponding promise may weaken his
position, because it may invite the construction that the promise which he owns,
though binding, has been given "against" or "in consideration of" his own
undertaking, in the sense that it was only intended to take effect conditionally on
his own performance.
enforce payment before the time has arrived for conveying the land", said
the High Court of Australia, 140 "yet his title to retain the money has been
considered not to be absolute but conditional upon the subsequent completion
of the contract."
This is why the dictum of Atkin L. J., "[a] simple promise upon an
executed consideration creates a debt",1 4' commends itself. The dictum does
not indeed amount to a definition because it does not state "the whole thing
and the sole thing": it makes no mention of an obligation under seal; on
the other hand it does not exclude promises which are not unconditional nor
promises which are unliquidated. However, it includes the claim of Mrs.
Carlill and excludes the claim of the anticipating landowner. Herein lies its
merit: Atkin L. J.'s phrase "executed consideration" draws attention to the
difference between an "accrued" claim, in the sense that nothing remains to
be done by the creditor to "earn" the money (Mrs. Carlill's claim qualifies
hereunder), and a claim where the money may be "due" but has not been
earned yet and the right to retain it is therefore liable to be upset and
cannot be regarded as secure (as in the landowner's claim) .142
Can it be said that every binding promise, which is unconditional, to give
a fixed sum of money "creates a debt", i.e. entitles the promisee to specific
recovery of the money promised? Apparently not. The common law insists
that a promise, however unconditional and binding, to advance a sum
certain by way of loan does not create a debt.' 43 This exception can be ten-
140 Per Dixon J., in McDonald v. Dennys Lascelles Ltd. (1933) 48 C.L.R. 457, 477.
quoted by Salmond and Williams, op. cit., 569 n.(b).
141 Joachimson v. Swiss Bank Corporation [1921] 3 K.B. 110, 128.
142 On "earning" the debt cf., in general, Schering Ltd. v. Stockholms Enskilda
[1946] A.C. 219, and see the definition quoted in n. 133 supra. In White and
Carter (Councils) Ltd. v. McGregor [1962] A.C. 413, 437 Lord Keith of
Avonholm assumes that "where parties have contracted for payment on a day
certain, irrespective of delivery or the passing of property [t]his is a clear-case
of a contractual debt unconditioned by any question of performance by the other
party." This statement cannot be read without reservation: (1) if the promise
to pay is made "irrespective of delivery or the passing of property", then the
promise appears not to be supported by consideration and will therefore be binding
only if under seal; (2) if, as is very much more likely, "irrespective of" means only
that delivery or the passing of property is not a condition precedent (or concurrent),
then the promise is still conditional-and prior to delivery or to the passing of
property no debt is "earned": there is only an assumpsit for a quasi-debt.
That "advance payment clauses were unenforceable in Debt", cf. Lilcke, op. cit., 539.
143 Western Wagon v. West [1892] 1 Ch. 271, esp. 277; South African Territories v.
Wallington [1897] 1 Q.B. 692, esp. 695; [1898] A.C. 309, esp. 314, 315. Nor will
equity specifically enforce a contract for the loan of money, as it considers that the
borrower can obtain the money elsewhere. It may, of course, happen that the
borrower does not succeed in obtaining the money elsewhere. In principle, he may
sue for substantial damages (cf. n. 122 supra). Yet he may fail if the reason for
tatively explained on the ground that the lender's promise is not "real", is not
a promise of repayment. Yet this fails to explain why a vested liability to pay
income tax is a debt proper within the narrowest pale of debt; and yet
here too the liability does not arise from a real transaction. A more satisfactory
explanation appears to be that a lender's claim to be repaid, as also the claim
of the government to income tax (only the first of which is "real"), are both
rights to have the money in obligatione out and out, to "own" it. 14 4 On the
other hand, the claim of the intending borrower is not to the corpus of the
money but only to the "use" of it. Payment in discharge of a loan, as also
payment in discharge of tax liability, both put an end to existing claims and
do not engender fresh liabilities, whereas payment made in pursuance of a
promise to advance money by way of loan creates a new right and a new
liability. As soon as the contract is performed the parties are at once again
bound to each other, although now by a different obligation. When a person
is not entitled to have money as his own but is only entitled to the temporary
use of it then as long as he can reasonably obtain similar use, not from the
intended lender but elsewhere, he is under a duty to mitigate his loss by
attempting to obtain such use elsewhere. The duty of mitigation has, on
the other hand, no application to the case of a creditor who is entitled to get
his own money back. Apart, however, from this one exception of money
promised by way of loan, it would seem indeed that in the modern law
(being in this respect a legatee of both debt and assumpsit) a binding, un-
conditional, promise to pay a sum certain creates a debt-at least a "modern
debt".
What are the legal advantages of owning a debt? Why is it of practical im-
14
portance to a plaintiff to be able to sue "in debt" ? 5
One outstanding feature of debt-liability is that the creditor is entitled
"to the debt itself", to the tanta res, even where he cannot, or can no longer,
his not obtaining the money elsewhere was his own impecuniosity. (Cf. Bahamas
Sisal Plantation v. Griffin (1897) 14 T.L.R. 139.) This strange doctrine means in
effect: (1) that the intended lender may break the contract with impunity (paying
only nominal damages) simply because the contract is risky; (2) that the borrower
is disappointed in his contractual expectation to have the use of money when he
most needs it. One could have thought that in these circumstances, where common-
law damages manifestly fail to provide an adequate remedy, equity should have
intervened. Of course, if a contract to advance money as a loan created a common-
law debt, the plaintiff would have faced no difficulty. (A contract to take up and
pay for debentures in a company is, by statutory exception, specifically enforceable:
Companies Act, 1948, s. 92, replacing s. 105 of the Act of 1908.)
144 This is also true of a claim for declared dividend, which accordingly creates a debt.
Re Severn, etc. Rly. [1896] 1 Ch. 559; 26 C.J.S. 10.
145 It goes without saying that in a modern, post-formulary, setting "in debt" means
simply "for a debt".

complain of a breach of promise by the debtor. 1 "6 Such is the case when a
plaintiff has improperly rejected a good tender. He can no longer complain
of the defendant's breach of promise, the defendant having done everything
in his power to fulfil the promise; but nevertheless the creditor continues
to own the debt itself. 147 A defendant who pleads tender must be able to
show that he has at all times been ready to pay and must, together with his
plea of tender, pay the money into court. The plaintiff's action should then
be dismissed with costs, because it is unfounded. He is, however, entitled to
withdraw the money lying in court.1 48 Survival of a debt past good tender
146 Cf. argument of counsel in Graumann v. Treitel [1940] 2 All E.R. 188, 190 and
Atkinson J.'s restatement thereof at 192. See also Joachimson v. Swiss Bank Corpo-
ration [1921] 3 K.B. 110; Rekstin v. Severo, etc. [1933] 1 K.B. 47 and 58.
It is noteworthy that at an earlier period of legal history the idea that the debt
itself remains even though no longer actionable as such was invoked to warrant
proceedings after the death of the testator: Pinchon's Case (1611) 9 Co. Rep. 86b.
(See n. 94 supra.) This idea is at least as applicable to detinue. According to Littleton
if one has a cause of action in detinue against another and releases to him all
personal actions, he may nevertheless retake his goods, because no right in the
goods is released. See T. Cyprian Williams, op. cit., 153.
147 Lord Maugham L. C., in New Brunswick v. British and French Trust Corporation
[1939] A.C. 1, 23; Holt C. J., in Giles v. Hartis (1698) 1 Ld. Raym. 254; 20Viner's
Abridgment, tit. Tender (2nd ed., 1793) at 193. For some older authorities see
Harris, The Law of Tender (1908) 171 n. (t).
148 A debtor who owes a debt (and also, it appears, any liquidated liability) also
enjoys an advantage in that he can, while a person subject to an unliquidated liability
in damages cannot, make an effective tender: Lindley L. J., in Davys v. Richardson
(1888) 21 Q.B.D. 202, 205; Lord Denman C. J., in Dearle v. Barret (1834) 2
A. & E. 82, 83-84; 20 Viner, loc. cit., 198. Tender being as much performance as
lies in the debtor's hands (Dixon v. Clark (1848) 5 C.B. 365; Read's Trustee v.
Smith [1951] Ch. 439; Farquharsonv. PearlAssurance Co. [1937] 3 All E.R. 124),
a tendering debtor is relieved of liability to further interest and is entitled to have
any future suit against him dismissed with costs: New Brunswick v. British and
French Trust Corporation,supra; Cockburn C. J., in James v. Vane (1860) 29 L.J.
(Q.B.) 169; Roxburgh J., in Read's Trustee v. Smith, supra. He is also relieved of
the debtor's common-law duty of seeking out his creditor to pay him. Also after a
valid tender the creditor is bound to restore securities: by detaining a pledge
after tender "he is a wrongdoer" (Donald v. Suckling (1866) L.R. 1 Q.B. 585, 610,
618). See also Grifliths v. School Board of Ystradyfodwg (1890) 24 Q.B.D. 307.
A person subject to an unliquidated liability cannot effectively tender (but see
n. 184 post). He can try to negotiate an accord: but over this he does not have
sole control. He can, if and when an action is brought (an event outside his con-
trol), make payment into court "in satisfaction" (R.S.C., 0. 22 r. 1), which payment
is "an offer to dispose of the claim on terms" (Devlin L. J., in French v. Kingswood
Hill Ltd. [1960] 3 All E.R. at 252). (Such payment of "amends" may prove wise
in saving or reducing costs: cf. Supreme Court Costs Rules, 1959, R. 5.) There
does not, however, appear to exist any way in which a person who is not capable of
is taken so much for granted that it may serve to accentuate the distinctive-
ness of this phenomenon if we compare it with a contract that does not in-
volve a debt. Suppose I agree with a house painter to come on a certain
day to repaint the walls of my house. On the appointed day he comes,
ready and willing to perform. I then reject his services on some invalid pre-
text. My behaviour amounts to breach of contract. It is, moreover, clear that
I cannot after a few days effectively change my mind and call on the painter
to do the work. In pleading terms, when the house painter sues me for
breach he need not allege or prove his readiness and willingness to perform
at all times but only the tender of his services on the appointed day. I, in
turn, cannot claim that notwithstanding my rejection he continues to owe me
the contractual duty. This is so because the contract is not "real" and the
house painter does not detain in his hands any "thing" that belongs to me.
(This is still so if I had paid for the work in advance. I might perhaps, even
though I am in breach, recover the money, subject to deduction for the
painter's damages, by an action for money had and received; but I would
not be obtaining the contractual benefit-that is gone, whereas in debt it
survives.) If in such circumstances I cannot complain of a broken promise on
his part, nothing is left of which I can complain. This explains the rule that a
person who makes a valid tender, even of a monetary obligation, but of one
that rests on him "collaterally" (say as a guarantor), and not in respect of
any thing belonging to the creditor that he detains, may be fully exonerated
after his tender is rejected. In his case tender is not merely inchoate or at-
tempted performance but is the equivalent of performance. 149 Of collateral lia-
bility it is true that "Reprobata pecunia liberat solventem". Here again the re-
sult cannot stem exclusively from the realness or non-realness of the dealing
between the parties; it also reflects the realness of the ensuing legal right.
Therefore a claim for income tax, though it does not grow out of any
"real" dealing between the government and the tax payer, is equally immune
to the defence of rejected tender. The government is unconditionally entitled
to the corpus of the money and can be conceived as owner of it before it is
1 50
paid.
tendering (but only of paying into court after action brought) can rid himself of
the unliquidated liability or cause an early liquidating thereof. In particular, it
does not appear that such a person could obtain a declaratory judgment fixing the
amount of his liability. Cf. In re Clay [1919] 1 Ch. 66; 1 The Annual Practice
(1965) 281-85. As long as the period of limitation has not run out, his position is
uncertain.
14 Cf. 20 Viner's Abridgment, loc. cit., and tit. Tout temps prist, 30; Harris, op. cit.,
191, 193.
150 It is probably true that any difference between the effect of rejected tender upon
direct liability and its effect upon collateral liability must ultimately depend on the
terms of the engagement. Middleton v. Brewer (1790) Peake 20 appears to support,
as far as it goes, the idea that a tendering guarantor is not necessarily relieved of
his substantive liability any more than a tendering principal debtor is. 38 C.J.S.
The distinction between the debt itself and the promissory liability for it
may also be of crucial importance where the creditor is unable to perform a
condition precedent (not, of course, furnishing the quid pro quo) to the ac-
crual of the debtor's duty. Thus, money on current account is payable to the
customer only after effective demand. A customer who has not, or could not
have, made such a demand fails to acquire a promissory cause of action
against his banker. Nevertheless, the banker throughout stays indebted to
him."'
Another salient characteristic of a claim in debt is that the creditor, being
entitled to the thing itself, has a right to its changing value from time to time.
It is no answer to a lender of 100 bottles of champagne of a certain vintage
that such champagne has appreciated and that therefore 80 bottles would be
a just and sufficient compensation to him.15 2 "Compensation" has nothing to
do with the case: the parties have agreed to look to champagne, not through
champagne to the value it may have in terms of other objects.1 53 Thus also a
lender of $ 100 should, 4 if for any reason judgment is entered in terms
of money other than dollars, be entitled to the current value of those dollars.
Cost of replacement, duty of mitigating loss, foreseeability-all alike are ir-
relevant to a claim in debt for the principal itself. 55
Another great advantage of owning a debt is that the creditor has a
right which is not as vulnerable as other contractual rights. He who owns
a debt (including a "modern debt")' 5 6 has a right which, being ex hypothesi
Guaranty § 77 is, however, unqualified: "a tender by the guarantor of payment of a

debt which he is legally bound to pay, if refused by the guarantee, relieves the
guarantor from further liability."
151 Arab Bank v. Barclays Bank [1954] A.C. 495. And cf. Ledeboter v. Hibbert [1947]
1 K.B. 964; Re Helbert Wagg [1956] Ch. 323. "[T]he cause of action, the debt,
is unaffected; the right of action is postponed till after the war": Lord Goddard, in
Schering Ltd. v. Stockholms Enskilda [1946] A.C. 219, 269.
152 Cf. Domat, 1 Les Loix Civiles, etc., (1767 ed.) 76; C.C. § 1897. (For the authority
of Domat in the eyes of the common law: (1866) L.R. 1 Q.B. 585, 603.)
On the other hand, in case of depreciation the creditor may be entitled, in case
the debtor broke his promise to return on or before a certain day, to appropriate
damages for his loss, in addition to the res itself.
153 C/. Pothier, Traiti du Prit de Consomption, 5 Oeuvres (ed. 1847) 46; 8 Viner's
Abridgment, tit. Detinue (2nd ed., 1791) 40. (For the authority of Pothier cf. (1863)
3 B. & S. 826, 837; [1914] A.C. 398, 435.)
154Pace Tomkinson v. First Pennsylvania Banking and Trust Co. [1961] A.C. 1007;
see n. 115 supra.
155 P. 81 ff. supra.
156 But excluding a quasi-debt. Mrs. Carlill's claim of £ 100 from the Carbolic Smoke
Ball Company was, once it vested, indestructible. Not so the landowner's claim for
present payment against future conveyance: his promise to convey may yet be broken
or frustrated and then his right to keep the money may be modified or defeated. See
pp. 88-89 and n. 140 supra.
liquidated, is not exposed to the danger of possible under-valuation by a

court. There is no risk of a determination being made that some smaller sum
might be sufficient compensation to the plaintiff. To borrow 57 a telling
phrase, when enforcing debts our concern is with "the sum", not with "the
loss". Want of a serious dispute on how much diminishes the likelihood of
litigation and enhances the attractiveness and therefore the marketability of the
claim.' 58 A creditor who owns a debt has a vested claim. As long as the
claim has not vested, there may be an executory contract between the parties
but there is no debt. The right, again, is "indestructible" 159'
in the sense,
already alluded to,1 60 that it relates to non-perishable fungibles, determined
generically rather than specifically, and is not therefore liable to be affected
by such mishaps as can befall a contract de certo corpore. 1' On the other
hand, when non-fungibles are in obligatione, "if the performance of the prom-
ise of the borrower or bailee to return the thing lent or bailed becomes im-
possible because it has perished, this impossibility (if not arising from the
fault of the borrower or bailee from some risk which he has taken upon
himself) excuses the borrower or bailee from the performance of his promise
to redeliver the chattel."' 162 This attribute of indestructibility thus reflects the
qualities of liquidity, of absoluteness (i.e. not being dependent, or no longer
being dependent, upon fulfilment of a condition), and of fungibility of
subject matter-all of which a debt evinces.
157 From Lord Buckmaster, in Celia v. Volturno [1921] A.C. 544, 548.
158 Cf. p. 87 and n. 134 supra. An unliquidated claim may invite litigation against
a defendant who is perfectly honest and who does not dispute the existence of
liability. The liability of an insurer after loss, and of a purchaser for the reasonable
price of goods delivered, both of which are primary liabilities ,for payment of
money (in a sense, "unliquidated debts" rather than damages), are not sufficiently
crystallized, before the taking of further steps, to be debts. Cf. n. 50 supra.
159 Cf. A. Nussbaum, Money in the Law (2nd ed., 1950) 144.
160 P. 61, supra.
161 Cf. Williston, op. cit., § 1972; Central Hanover Bank v. Siemens (1936) 15 Fed.
Supp. 927, esp. 929. When unappropriated fungibles are owed, impossibility by
destruction of object cannot normally occur, for genera non pereunt. When the
fungible in question is money, such impossibility cannot occur at all, one kind of
money being "representative" of another. See F. A. Mann, The Legal Aspect of
Money (2nd ed., 1953) esp. 42-44, 61-63. In Buckland's words, the common law
"like the Roman, takes the optimistic view that it is never impossible to pay
money." (Op. cit., 248.) It is apparently because a contract of insurance in-
volves, on both sides, duties of paying money that this contract is essentially im-
mune to discharge by impossibility of performance: McNair, op. cit., 429. This is
reflected in the exception of insurance from the operation of the Law Reform
Frustrated Contracts) Act, 1943: s. 2(5) (b); and see 2 Chitty on Contracts
(21st ed., 1955) § 634.
262Blackburn J., in Taylor v. Caldwell (1863) 3B & S. 826: see Coggs v. Bernard
(1703) 2 Ld. Raym. 909; 1 Sm. L.C. (13th ed., 1929) 175.
A debt is thus the chose in action par excellence. 16 3 It is essentially im-

personal16 4 (i.e. if all a man has to do is to pay, it makes no difference to
him who the payee is) ,15 and is therefore assignable, heritable and transmis-
sible by operation of law.
The "realness" of debt also confers upon the creditor other advantages that
may not be visibly interrelated but all of which reflect, to some extent, the real
or quasi-proprietary quality of his claim. Thus, it is not every contractual right
that can revive by admission or fresh promise made after limitation; but a
debt can.' 66 It thus exhibits higher resistance to the ravages of time, possibly
again because the debtor is treated as if he continued to detain something
1 67
that has all along belonged and continues to belong to his creditor.
Again, debt cannot be so easily lost by an accord and satisfaction disad-
vantageous to the creditor. The law on this subject, harking back to Pinnel's
Case, 6" purports to be based on the principle that when a smaller sum is
given in pretended discharge of a larger liquidated liability then the inadequacy
of the substituted performance is apparent' 69 and, for this reason, cannot
be allowed. (On the other hand, when "a horse, hawk, or robe, etc." is
accepted, there is no judicial notice that a robe or a hawk is worth less
than the liability in question, and therefore the law can afford to shut its
163 Cf. F. H. Lawson, Introduction to the Law of Property (1958) 19, 22-23. See on the
whole question: Torkington v. Magee [1902] 2 K.B. 427. Definitions of "chose in
action" are legion, but all are agreed that the benefit of a contract for the payment
of money is included. See H. W. Elphinstone, "What is a Chose in Action?" 9 L.Q.R.
(1893) 311-12, 314-15; Charles Sweet, "Choses in Action", 10 L.Q.R. (1894)
303, 315, 317; J. C. Hall, "Gift of Part of a Debt", [1959] C.L.J. 99, 101.
164 Salmond and Williams, op. cit., 451, 468, 476-77.
165 As a rule, at common law the debtor must seek out his creditor to pay him. The
new creditor's identity can therefore make some difference in so far as a change
in the place of payment may be involved. This, however, the law of assignment
appears to disregard.
16G Cf. 8 Holdsworth 39; 1 Sm. L. C. (13th ed., 1929) 637. The Limitation Act, 1939,
s. 23(4) limits the rule as to revival by admission or fresh promise to "any debt or
other liquidated pecuniary claim".
l67 The explanation suggested by Holt C.J. and by Sir F. Pollock (see 8 Holdsworth 39,
nn. 9, 10), viz. that limitation of actions is merely a rule of procedure made in
favour of debtors and which debtors can waive, thus "reviving" their liability, is
not convincing: for why should revival be limited, as it is, to debts and liquidated
claims? Should not every form of liability be capable of revival? See, however,
Langdell 91-92.
lo6 (1602) 5 Co. Rep. 117a.
169 Which it is not when the amount due is uncertain (or perhaps also disputed, cf.
Tanner v. Merrill (1895) 108 Mich. 58); hence in such cases there can be a
binding accord and satisfaction by receiving less than the sum claimed. (See, for
example, Wilkinson v. Byers (1834) 1 Ad. & El. 106; Cooper v. Parker (1855) 15
C.B. 822.)
eye to the discrepancy in value.) It is evident, however, that if the rule in

Pinnel's Case is at all rationally justifiable,' 170 it can be less satisfactorily ex-
plained on this technicality than on the more solid ground that in the case
to which the rule in Pinnel's Case applies the debtor has the creditor's prop-
erty, 171 and can therefore hardly clear himself by giving up something other
or something less than the property which he continues to withhold from
the creditor.
The typical relation of debt, the one that arises between man and man
in consequence of a voluntary transaction (as distinct from judgment-debts
or taxes), represents what is in truth an uncompleted exchange. As long as
the debt is not satisfied there lingers an unredressed disequilibrium or im-
72
balance. This is reflected in a number of legal rules that either apply only
to debts, or else apply to debts in a manner more marked than to other
classes of liability. In this context "debts" sometimes embraces not only
debts proper but also other liquidated claims and, more infrequently, all claims,
even unliquidated, which arise from contract. Thus not every creditor is
protected by the law of bankruptcy. A contractual claimant is preferred to
other claimants, 1 73 and a contractual claimant whose claim is liquidated is
even more highly favoured.174 In the winding up of a company a high degree
of solicitude is shown people who have actually advanced cash, 175 i.e. whose
claim is upon a genuine loan or an uncompleted exchange.
The ancient rules (at common law, in equity, in admiralty and by some
statutes) which provide for a lien in favour of an unpaid vendor of land or
goods, of a salvor at sea, of an unpaid carrier, of an unpaid artisan or me-
chanic, in effect make these people secured creditors. An unpaid seller who
170 Which is roundly doubted in Lord Blackburn's protesting (though not dissenting)
speech in Foakes v. Beer (1884) 9 App. Cas. 605, 614-23. In the modern law
the rule in Pinnel's Case is in any event only presumptive: if the creditor accepts his
debtor's substituted promise (still more, his substituted performance) in full satisfac-
tion, the original cause of action appears to be discharged-in the case of liquidated
as of unliquidated damages: Morris v. Baron [1918] A.C. 1; British Russian
Gazette, etc. v. Associated Newspapers [1933] 2 K.B. 616.
171 In Pinnel's Case itself the action was strictly in debt, not in assumpsit; and to debt
the rule may be understandably applicable. Cf. Cheshire and Fifoot, The Law of
Contract (6th ed., 1964) 79.
172 Cf. Maine, Ancient Law, Chap. 9 (esp. 334 in Pollock's ed., 1906); Noyes,
The Institution of Property (1936), e.g. 328, 404, and passim.

173 "Demands in the nature of unliquidated damages arising otherwise than by reason of
a contract, promise or breach of trust, shall not be provable in bankruptcy": Bank-

ruptcy Act, 1914, s. 30(1).
S174Atcreditors' meetings a creditor may not vote "in respect of any unliquidated or
contingent debt, or any debt the value of which is not ascertained": Bankruptcy
Act, 1914, Sched. I, para. 9.
175 E.g. Companies Act, 1948, s. 322(1).
parts with possession retains a "string" on the thing surrendered. 7 6 What is

the end-result of this privilege of security except to ensure, as far as the
law's arm avails, that the uncompleted exchange be fully completed? It is
probably true that only a liability in the nature of debt, not of assumpsit,
77
generates a common-law or an equitable lien.1
Again, an unpaid clerk, servant or labourer is generally treated by statute
(in bankruptcyy s in winding up179 and in the administration of estates1 80 )
as a preferred creditor (though not secured) in respect of a prescribed length
of service and up to a prescribed sum of money. No doubt this preferential
treatment is designed to implement certain ends of social justice rather than to
vindicate distinctions between debt and other classes of liability. 8 ' Never-
theless such statutory provisions operate by attending to the completion of
uncompleted exchanges, in effect to the discharge of just debts.
Among other advantages which pertain to the ownership of a debt or
other liquidated claim we shall conclude by mentioning two. Claims to debts
and liquidated amounts are eligible to enforcement by summary procedure
not available for the assertion of other demands. 8 2 Finally, debts and liqui-
dated claims can be more perfectly secured than other rights. It is sometimes
said18 3 that any liability or engagement can be secured by mortgage or pledge.
This, however, is doubtful in principle, because if the liability is not liquidated
the debtor is unable to tender, thereby releasing the security;184 and the cred-
itor may choose to cling to the security and clog redemption indefinitely or
in perpetuity rather than to sue on the liability.185
10 Noyes, op. cit., 332.

177 Distress for the recovery of rent is another instance of privileged treatment of a
claim in debt. Distress damage feasant for the recovery of damage done by
trespassing cattle is, on the other hand, a specialized privilege in respect of a claim
which is not a debt: as are also some of the maritime liens.
178 Bankruptcy Act, 1914, s. 33.
179Companies Act, 1948, s. 319.
180 Administration of Estates Act, 1925, First Schedule, Part I.
181 Some favoured claims are far removed from exchange-for example: alimony
(which is not a provable debt), rates and taxes.
182R.S.C. (Rev. 1962), 0. 14 r. 1; cf. Schlesinger v. Mostyn [1932] 1 K.B. 349.
183 Cf. Lindley M. R., in Santley v. Wilde [1890] 2 Ch., 474: "...security for the
payment of a debt or the discharge of some other obligation". (The "other obli-
gation" in question was, however, also one for payment of money.)
184 Cf., for liens, Albemarle Supply Co. v. Hind & Co. [1928] 1 K.B. 307, esp. 318-19.
But see, as to tender of (unliquidated) "amends" to release a distress damage

feasant: Gulliver v. Cosens (1845) 1 C.B. 788; Sorrell v. Paget [1950] 1 K.B.
252.
1s5 The definition of pledge by Holt C. J., in Coggs v. Bernard (1703) 2 Ld. Raym.
909, 913, and the various descriptions in Donald v. Suckling (1866) L.R. 1 Q.B.,
585, all assume that the right secured is a monetary debt. Similarly, in the Factors
Act, 1889 (s.1 (5) ) pledge is spoken of as securing "an ...advance or ...any
§
A revived interest in the law of debt appears to be warranted. The right
of debt, at last freed of its ancient procedural impediments, can now be
better comprehended as to substance than at any previous stage in its long
career. This comprehension can provide a deeper insight into the debt-elements
that have passed into, and been successively absorbed by, assumpsit, in-
debitatus assumpsit, and finally by the modern comprehensive "law of con-
tract". It should in particular bring about a better appreciation of the
heterogeneity of the law of damages. In cases involving misappropriation or
deprivation of property (and this includes actions for debt) damages should
be assessed on restitutionary or proprietary principles.8 6
The differences between the remedy of "damages" and the remedy of "debt",
as also between the substantive relations to which these remedies are ap-
propriate, are not unimportant. By attending to them justice may be better
served.
pecuniary liability." This observation applies with greater force to mortgages. The
definition in 27 Halsbury's Laws of England (Simonds) 155 speaks of it as security
"for a debt". The Trustee Act, 1925 (s. 68(7) ) speaks of "a security for money".
The true position perhaps is that the claim secured can be either one to the
payment of a liquidated sum of money or one to the performance of an obligation
(delivering a defined object or doing a defined act). Such undertakings, being
tenderable, do not entail the risk of "mortmain". On the other hind, an unliquidated
liability (as for breach of contract, breach of trust, tort, insurance) is less fit to be
secured by mortgage or pledge. It must, however, be admitted that the law is
somewhat obscure.
180 Pp. 82-84 supra.

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Bluebook 21st ed.

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the owner of what is owed, in particular a lender as if he went on owning

The idea of a comprehensive, non-formal "law of contract" is essentially

an action of debt) and words of acknowledgement or promise (which could only be

a person to employ the machinery of the King's justice to compel another-

203, 214-15; Snell's Principles of Equity (25th ed., 1960) 573.

debendi. Familiar causae 24 were: a loan of money or of other fungibles (ex

24 Cf. catalogue in Glanvill, X, 3 (Fifoot 234).

28 Fitzherbert's Nat. Brev. (9th ed., 1794) 122G.

a3 Cf. Ames 119.

of the latter. There is a liquidated, unconditional, monetary liability incumbent

ed., 1791) 386.

The concurrence of the above attributes results in certain distinct ad-

not be put to work as a remedy in the case of mutual executory promises.

new form of assumpsit, an offshoot of case, hence more remotely of trespass,

cited by Gilbert Stone, op. cit., 72, n. 4.

existence was assumed. With this "slender machinery"8' 2 could be recovered

"disused enclosure". ("Reason in the Development of the Common Law", 81 L.Q.R.

Simpson (Re Diplock) [1951] A.C. 251, 275.

99 Cf. [1914] A.C. 398, 415, 417, and esp. 452.

culiarly appropriate to assumpsit are unwittingly applied to them, as if those

clusive "contract"-"tort" dichotomy; they therefore lurk uneasily as exceptions

debt", to distinguish it historically from debt recoverable by means of the old

simply "for a debt".

Guaranty § 77 is, however, unqualified: "a tender by the guarantor of payment of a

liquidated, is not exposed to the danger of possible under-valuation by a

A debt is thus the chose in action par excellence. 16 3 It is essentially im-

eye to the discrepancy in value.) It is evident, however, that if the rule in

The Institution of Property (1936), e.g. 328, 404, and passim.

a contract, promise or breach of trust, shall not be provable in bankruptcy": Bank-

parts with possession retains a "string" on the thing surrendered. 7 6 What is

10 Noyes, op. cit., 332.

But see, as to tender of (unliquidated) "amends" to release a distress damage

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