Saturday, May 30, 2009

Is It A Promise Or A Threat?

This post is primarily for my own informational purposes, however, any comments that might serve to enlighten me are always welcome.

--Yes, I'm beating a dead horse. It's what I do. You can watch if you want.--

There's a big difference between defining what a promise is versus defining what happens if a promise is broken.

A promise is a promise.

What happens when a promise is broken is NOT a promise.

So, is "assumpsit" a promise, or does "assumpsit" mean a promise has been broken?

I think the term is used to argue that first of all, there was a promise to do or pay something. That promise is pretty much a simple contract between two parties. Basically, assumpsit is establishing the existence of this assumed contract. Then, I guess farther down in the case, it is argued that the simple contract was breached. But I don't think the term assumpsit, in and of itself, has much to do with stating that the contract was not upheld. I think the breaching part is separate from the assumpsit part. But you can't accuse someone of breaching a contract without first establishing the existence of the contract. So that's where assumpsit plays its part.

It's just confusing when you read that assumpsit is an action. An action, to the uninitiated like me, sounds like something you charge somebody with. Like murder. I mean, why bring an action against someone for making a promise? Well, no, that is of course not the way it works. The action is brought for breaking the promise. And yet, an assumpsit itself is not the breaking of the promise, but the laying out of what was understood to be promised in the first place.

Strange that breach is not part of the name of the action. I guess that the breach part is a no-brainer, doesn't need to be part of the name of the action, even though that's why the guy went to a lawyer in the first place. Unless I've got it completely wrong, and that's certainly possible/likely. Or maybe it's a historical thing, and they don't use assumpsit anymore. I mean, in today's world, who HASN'T heard of breach of contract? The Smother Brothers certainly have.

Which reference you rely upon can make a big difference! (duh!)

Compare the definition below (from

ASSUMPSIT ("he has undertaken," from Lat. assumere), a word applied to an action for the recovery of damages by reason of 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. Assumpsit as a form of action became obsolete after the passing of the Judicature Acts 1873 and 1875. (See further CONTRACT; PLEADING and TORT.)

with the definition given previously in the comments from the preceding post (from

"Assumpsit is an express or implied agreement to perform an oral contract. An express assumpsit is where one undertakes verbally or in writing, not under seal, or on record, to perform an act, or to pay a sum of money to another.

An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed an obligation to do the just and fair thing. Common or indebitatus assumpsit is brought for the most part on an implied promise. Special assumpsit is founded on an express promise or undertaking."

1 comment:

CM said...

Maybe you should go to law school.