Assumpsit and Debt in the Early Sixteenth Century: The Origins of the Indebitatus Count

Abstract

One of the more intriguing mysteries raised by the action of assump sit in the sixteenth century is that of the Indebitatus count. We know that the most common form of declaration in assumpsit by the middle of the sixteenth century took this form: whereas the defendant had bought a cow from the plaintiff, the defendant promised to pay to the plaintiff £10. The sequence of tenses, from the pluperfect to the perfect, sometimes reinforced by perantea or postea indicates that the promise which constituted the cause of action had been made subsequently to the creation of the initial liability. In effect the cause of action was a promise to perform an existing duty. The same result could be achieved by using the strict Indebitatus count: the defendant, being indebted to the plaintiff in £10, promised to pay £10. The purpose of the present paper is to examine why this form of count developed, and how it was justified in terms of the newly-formulated ideas of consideration.