Assumpsit
Encyclopedia
Assumpsit is a form of action
at common law
for the recovery of damages
caused by the breach or non-performance of a simple contract
, either express or implied, and whether made orally or in writing.
Assumpsit was the word always used in pleadings by the plaintiff
to set forth the defendant
's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit, brought usually on an implied promise, and (b) special assumpsit, founded on an express promise. The actual "causes of action
" that could be pleaded through assumpsit were known as the "common counts," and could be pleaded in a very terse, compact style.
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales
. Furthermore, assumpsit as a form of action became obsolete in the United Kingdom
after the passing of the Judicature Acts
of 1873 and 1875.
In the United States
, assumpsit, like the other forms of action, became obsolete in the federal courts
after the adoption of the Federal Rules of Civil Procedure
in 1938. 35 states have moved to rules similar to the FRCP (see Civil procedure in the United States
), which have replaced the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory
cause of action
or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit.
Form of action
The forms of action were the different procedures by which a legal claim could be made in the early history of the English common law. While in modern English law, as in most other legal systems, the focus is on the substance underlying an action, such as the existence of a legal right, in the...
at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
for the recovery of damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
caused by the breach or non-performance of a simple contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, either express or implied, and whether made orally or in writing.
Assumpsit was the word always used in pleadings by the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
to set forth the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit, brought usually on an implied promise, and (b) special assumpsit, founded on an express promise. The actual "causes of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
" that could be pleaded through assumpsit were known as the "common counts," and could be pleaded in a very terse, compact style.
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. Furthermore, assumpsit as a form of action became obsolete in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
after the passing of the Judicature Acts
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
of 1873 and 1875.
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, assumpsit, like the other forms of action, became obsolete in the federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
after the adoption of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
in 1938. 35 states have moved to rules similar to the FRCP (see Civil procedure in the United States
Civil procedure in the United States
Civil procedure in the United States consists of the rules of civil procedure that govern procedure in the federal courts, the 50 state court systems, and in the territorial courts. Like much of American law, civil procedure is not reserved to the federal government in the Constitution...
), which have replaced the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit.