Key Takeaways:

  • Assumpsit is a historic common-law legal action to recover damages for non-performance of a non-sealed contract.
  • There are two main types: express assumpsit (explicit promise) and implied assumpsit (inferred from conduct).
  • Legal distinctions exist between assumpsit and other remedies like debt, covenant, and tort actions.
  • Assumpsit evolved as a remedy as English courts began recognizing oral or informal contract breaches in the 14th century.
  • It played a vital role in shaping modern contract law before being largely replaced by statutory procedures.

The assumpsit legal definition is considered an implied promise included in a contract. Assumpsit was formerly a common-law action that was used to recover damages in the event of a breach of contract. This action may be grounds for a lawsuit under the umbrella of breach of contract. By definition, an assumpsit is a promise by one party to undertake obligations for another person. The promise may be oral or written, but cannot be under seal.

Types of Assumpsit

There are two types of assumpsit depending on how the promise is put forth:

  • Express assumpsit - An assumpsit is considered express if the promise is agreed to in specific language, where a party agrees to verbally, or in writing, pay a sum of money or perform a specific act.
  • Implied assumpsit - Implied assumpsit means that the obligation was implied by the party through either their conduct or the circumstances of the dealings. In this situation, there is no formal promise for action, or a specified amount of money promised. Yet the actions are assumed due to conduct performed by the party. To meet the presumption requirements, it must first be presumed that one of the parties will be enriching themselves and that the receiver indicates their desire to receive it by accepting it without issue, such as receiving a newspaper. Finally, the obligation must be deemed useful to one party.

Assumpsit vs Other Legal Remedies

While assumpsit addresses breaches of informal contracts, it's distinct from several related legal remedies:

  • Debt: An action in debt is used to recover a fixed and definite sum of money and usually arises from a formal contract or record.
  • Covenant: Applies to agreements under seal and can enforce more formal, written promises.
  • Trespass and Trover: Rooted in tort law, these seek compensation for harm caused rather than contractual breaches. Trover, for instance, involves wrongful possession or conversion of personal property.
  • Replevin: Seeks the return of specific property wrongfully taken or held, rather than compensation.

Assumpsit serves as a flexible remedy, especially where a party seeks damages rather than restitution of goods or enforcement of a sealed agreement.

What Occurs in an Assumpsit Legal Action?

An assumpsit legal action involves the recovery of damages due to the non-performance that is under contract. This action differs from an action of debt in legal consideration due to the fact that recovering debt may be the result of a deed or a contract. It also differs from a covenant which can only be supported by contracts that are under seal.

An example of assumpsit is when someone wishes to make a recovery for money that had been lent, paid, or received in the use by the plaintiff. In some cases, the money may have been received by the defendant in a consequence of a tortious act of the plaintiff's property. In the latter situation, the plaintiff is allowed to forgo the tort and sue the defendant.

The division of the action of assumpsit can be separated into two categories including:

  • Indebitatus or common assumpsit, which is brought about due to an implied promise
  • Special assumpsit, which occurs with an express promise

An action of assumpsit also differs from actions such as trespass and trover which were founded on the principals of tort law and not subject to contract law or covenant of debt. Under these actions, recovery is often gained from specific property instead of damages.

Modern Relevance and Abolishment

Assumpsit actions have largely been abolished or merged into broader breach of contract remedies in modern civil procedure. For instance:

  • In the United States, assumpsit is now considered obsolete in most jurisdictions, having been supplanted by more comprehensive contract and tort claims.
  • Courts today rely on civil codes and procedural rules that no longer require plaintiffs to specify forms like “assumpsit” or “trespass on the case.”

However, understanding the concept of assumpsit is still relevant in legal education and in interpreting older case law, where the form and structure of such common-law actions influence precedent.

The Origination of Assumpsit

The term assumpsit is derived from the Latin word assumere which translates to "he undertook." The term refers to making a promise to another party in exchange for another act, or monetary reward. An assumpsit is able to be made verbally or formally in writing and was originally a common law term that asserted whether a contract had been made, and whether or not being allowed to claim breach of contract is possible.

Assumpsit began in the 14th-century common law and was used by the royal courts to be able to settle disputes that arose from breaching contracts. Before the 13th-century English law, the King would not have a hand in settling disputes over private agreements but only would settle disputes between other nobleman or royal rights.

As trade began to grow in the kingdom, the royal courts began to hear actions that were linked to breach of contract, debt, and assumpsit. At the time these types of actions could only be used for agreements that had been officially made in writing and where one party failed to make payment.

Later into the 14th-century, the court allowed a plaintiff to seek a lawsuit against a defendant who had attempted to cure a horse, but their actions were so negligent that the horse dies as a result. This is a case of assumpsit where a party took the responsibility of curing the horse and did not perform.

Examples of Assumpsit in Historical Cases

  • Example 1: If a tailor made a suit specifically for a client who then refused to pay, the tailor could bring an assumpsit action based on the implied promise to pay for goods and services rendered.
  • Example 2: A livery stable owner who provides a horse for hire could sue for non-payment based on implied assumpsit.
  • Example 3: In Ballard v. Walker, a classic example cited in early American case law, the court permitted a recovery under common assumpsit for money had and received.

These cases illustrate the broad flexibility of assumpsit in enforcing informal agreements and promoting equitable remedies.

Frequently Asked Questions

1. What is assumpsit in simple terms?Assumpsit is a historical legal term for a promise—written or spoken—where one party agrees to do something for another, often used to sue for breach of informal contracts.

2. Is assumpsit still used in modern law?Not directly. The term is largely obsolete and replaced by statutory causes of action, but it’s still referenced in legal history and some precedent cases.

3. How does assumpsit differ from breach of contract?Assumpsit is a form of legal action used to address breaches of informal contracts; breach of contract is a broader term covering various types of agreements and remedies.

4. Can I sue someone today using assumpsit?Generally, no. Modern legal systems have integrated assumpsit into broader civil litigation procedures, removing the need to specify this form.

5. Why is assumpsit important to learn in law?It helps understand the development of contract law, how informal agreements were historically enforced, and the evolution of legal remedies.

If you need help with the assumpsit legal definition, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.