oversaw.21 The old forms of trial were not based on modern ideas of jurisprudence, and have been treated in the article on Law, Its Nature, Origin and Development.22

Justice in the King's Court was administered by means of the royal writ, directing the sheriff to summon the defendant to appear before the court. In modern times, the idea prevails that, if a man has a legal right, he must have a legal remedy to enforce that right. In early days, however, a man's rights in the king's courts were limited by these writs which he could get from chancery, whence the writs were issued. These were few in number, and their history and nature will be briefly discussed.

12. Same subject Forms of action.-Actions ex contractu have been as follows:

Debt. The action of debt was brought on an ascertained or liquidated claim. At early common law it was a specific sum of money or a fixed amount of chattels due from the debtor to the creditor. To-day the term is applied only where money is due. The thing from the receipt of which a debt arose came to be termed quid pro quo, which was always some benefit rendered by the creditor to the debtor.

Covenant. The writ of covenant was the commonlaw action on a sealed instrument or specialty, and was used to enforce a covenant or promise. The rule requiring a seal to every covenant prevented the writ of covenant from becoming a general remedy for the enforcement of contracts.

215 Harvard Law Review 46.

22 See also Bigelow, History of Procedure, p. 308.

Account. The writ of account was used to compel a factor or bailiff to account for moneys received by him on behalf of his employers. This action has been more or less modified by statute and encroached upon by the chancery courts who took jurisdiction of intricate accounts.23

Trespass on the case. On account of the limited number of king's writs, there were many wrongs for which no remedies existed. Consequently, a statute was passed which provided that where there was a wrong, which was not within the scope of the writs in common use, the chancery clerks might issue a writ adapted to the circumstances of the particular case. This led to the introduction of writs of trespass on the case, which gave a remedy where damage had resulted from the defendant's conduct, even if there was no forcible contact, the requisite of the writ of trespass proper. But it was necessary to allege and prove an undertaking on the part of the defendant before he could be held for negligence. From this requirement of alleging an undertaking, or assumpsit, the writs were known as writs of trespass on the case in assumpsit. In the course of time it came to be held that the defendant's negligence and not his undertaking was the gist of the action, so the assumpsit was finally omitted.

Special assumpsit. In actions for deceit for the breach of a parol promise, in the fifteenth century, the courts finally permitted the plaintiff to recover damages where he had parted with money or property on the strength of the defendant's promise. The

23 Ames, 8 Harvard Law Review 253.

doctrine was later extended so that the action might be brought whenever the plaintiff had incurred any detriment by acting on the defendant's promise. The action for breach of a parol promise then came to be regarded as an action ex contractu, and developed into the action of special assumpsit.24 To-day, the action of special assumpsit may be brought on any express contract.

Indebitatus assumpsit. The action of indebitatus assumpsit is brought on contracts implied in fact and on obligations imposed by law. It originated about the sixteenth century in cases where there was a debt due from defendant to the plaintiff and a promise by the defendant to pay the debt. Now, although it is usually alleged, the promise is unnecessary to maintain the action.

24 2 Harvard Law Review 10.

PART II

THE FORMATION OF

CONTRACTS

CHAPTER II.

OFFER AND ACCEPTANCE.

13. Agreement.-As indicated in a prior section,25 the essential elements of a contract are the offer and acceptance (constituting the agreement), the consideration or the seal, the parties and the subject matter. The presence of all of these elements creates a valid contract. If one is absent, there is no contract.

The term "agreement," in its most general sense, means the concurring of two minds in the same opinion or purpose. At least two parties are required to constitute an agreement. But the agreement which enters into the formation of a contract must be something more than a mere concurrence of the minds of A and B to some opinion, such as: "Clark Street runs east and west." In short, there must be a promise. A and B must also assent to a promise or to promises. When A says to B, "I will promise to work for you for three months if you will promise to pay me $15 a week for three months," and B assents, there is an agreement which may become

25 See § 3.

an element of a contract. In short, the promise must be enforcible at law; otherwise the agreement is not an element of a contract. A joking promise, whereby A agrees to roll a peanut down the street if B promises to buy him a dinner, would not be an element of a contract, because such an agreement is not enforcible at law.20

14. Nature of the agreement.-In general, this agreement or assent of the parties must be a mutual willingness to enter upon and be bound by an understood bargain. There is no contract unless the parties so assent to the same thing and in the same sense. But this does not necessitate a union of the secret thoughts and intentions of the parties. Similarly, the motives which induce the parties to enter into a contract are as a rule not material. All that is necessary is the outward assent of both sides of the contract to the same thing and in the same general sense.27

This assent or agreement originates from an offer and an acceptance. A says to B, "I will sell you my horse for $50." B replies, "I accept." By this offer and acceptance there is an agreement.

15. What is an offer.-An offer that may be accepted and create a contract must possess certain characteristics:

First, an offer must be communicated to the offeree (the person to whom the offer is made) and from the offerer (the one who makes the offer). Necessarily, it is not possible for one to assent to something of

26 Keller v. Holdeman, 11 Mich. 248, LEADING ILLUSTRATIVE CASES.

27 Williams v. Carwardine, 4 B. & A. 621 (Eng.), LEADING ILLUSTRATIVE CASES.