Collected Papers on English Legal History

It is somewhat rash to venture an opinion on late-thirteenth-century law in the presence of one who knows everything there is to know about the law of that period, but the nature of these proceedings has barred the usual course of applying to him for assistance. The question is, when and why did the central courts of common law come to insist on specialty, a sealed writing, to prove a covenant. Although we know that, to paraphrase Maitland, informal contracts were eventually smuggled into the central courts in ‘elaborate disguise’, the insistence on a deed suggests a more formalistic earlier approach to the law of contract; whether that is a correct impression is a subsidiary question to be tackled at the same time. The contradictory literature is profoundly perplexing to those of us who have found ourselves lecturing on the history of the law of contract, but it seems worth attempting the lecture one last time in the hope that Professor Brand may be provoked into settling the matter. Our starting point is on fairly clear ground. There are four basic assertions which can be made with reasonable confidence.

First, contrary to what was once sometimes thought, it was not an immemorial rule that a deed was required. There is no clear indication in the records that a deed was essential before the 1290s, and we still find covenant cases being disposed of by jury or wager of law during that decade; but there are signs in the year books of an emerging rule in the 1290s and 1300s, and an invariable rule after 1321.