An undertaking either express or implied, to perform a parol agreement.

Key Takeaways

  • Assumpsit is a common law action to recover damages for breach of a parol or simple contract, express or implied.
  • Express assumpsit arises from a verbal or written promise not under seal; implied assumpsit is inferred from conduct or circumstances.
  • The remedy differs from debt and covenant, focusing on damages rather than specific recovery.
  • Non assumpsit is the standard plea denying a defendant’s promise or agreement, and it allows introduction of broad defenses.
  • Variations include non assumpsit infra sex annos (a statute of limitations defense within six years) and non assumpsit with special defenses.
  • Assumpsit historically played a central role in contract law but has largely been replaced by modern contract actions.

An express assumpsit is where one undertakes verbally or in writing, not under seal, or by matter of record, to perform an act, or to pa a sum of money to another.

Implied Assumpsit

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 to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him. See Assent

Historical Development of Assumpsit

The action of assumpsit emerged in medieval English common law as a flexible remedy to enforce informal agreements. Unlike actions of debt or covenant, which required formalities such as sealed instruments, assumpsit allowed plaintiffs to recover damages for broken promises in everyday transactions. Over time, it became the foundation for modern contract law, covering claims for money had and received, work and labor performed, and even breach of marriage promises. By the 19th century, assumpsit actions were widely used in both England and the United States, though most jurisdictions have since merged them into general contract actions.

Recovery of Damages

Remedies, Practice. A form of action which may be defined to be an action for the recovery of damages for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract. If differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal.

It will be proper to consider this subject with reference, 1, to the contract upon which this action may be sustained; 2, the declaration 3, the plea; 4, the judgment.

Distinction from Other Common Law Remedies

It is important to distinguish assumpsit from other remedies:

  • Debt: concerned with the recovery of a fixed sum, regardless of damages.
  • Covenant: required a contract under seal and was narrower in scope.
  • Trespass on the case: a broader action for wrongs, from which assumpsit evolved.

Assumpsit stood out because it addressed damages caused by broken promises without the rigidity of sealed contracts, making it more adaptable to commercial and personal dealings.

When Assumpsit Can Be Used

Recover Damages From a Contract

Assumpsit lies to recover damages for the breach of all parol or simple contracts, whether written or not written express or implied; for the payment of money, or for the performance or omission of any other act. For example, to recover, money lent, paid, or had and received, to the use of the plaintiff; and in some cases, where money has been received by the defendant, in consequence of some tortious act to the plaintiff's property, the plaintiff may waive the tort, and sue the defendant in assumpsit. It is the proper remedy for work and labor done, and services rendered but such work, labor, or services, must be rendered at the request, express or implied, of the defendant for goods sold and delivered; for a breach of promise of marriage.

Recover Money for Land Sold

Assumpsit lies to recover the purchase money for land sold; and it lies, specially, upon wagers; upon foreign judgments; But it will not lie on a judgment obtained in a sister state. Assumpsit is the proper remedy upon an account stated. It will lie for a corporation. In England it does not lie against a corporation, unless by express authority of some legislative act but in this country it lies against a corporation aggregate, on an express or implied promise, in the same manner as against an individual.

Common Forms of Assumpsit Actions

Several categories of assumpsit actions developed in practice:

  • General (indebitatus) assumpsit: used to recover simple debts such as money lent or goods sold.
  • Special assumpsit: based on a specifically alleged promise or agreement.
  • Quantum meruit: recovery for the reasonable value of services rendered.
  • Quantum valebant: recovery for the reasonable value of goods delivered.
  • Assumpsit for money had and received: allowed plaintiffs to recover unjust enrichment in quasi-contract situations.

These variations highlight the doctrine’s flexibility in addressing both contractual and equitable concerns.

How to Declare Assumpsit

The declaration must invariably disclose the consideration of the contract, the contract itself, and the breach of it; but in a declaration on a negotiable instrument under the statute of Anne, it is not requisite to, allege any consideration; and on a note expressed to have been given for value received, it is not necessary to aver a special consideration. The gist of this action is the promise, and it must be averred. Damages should be laid in a sufficient amount to cover the real amount of the claim.

Modern Relevance of Assumpsit

While assumpsit actions have been abolished or merged into unified civil procedures in most jurisdictions, their principles remain embedded in contract law. Modern claims for breach of contract, unjust enrichment, or restitution reflect doctrines originally shaped by assumpsit. Understanding these historical forms provides insight into the roots of current remedies and defenses in contract litigation.

Plea of Non-Assumpsit

The usual plea is non-assumpsit under which the defendant may give in evidence most matters of defence. When there are several defendants they cannot plead the general issue severally; nor the same plea in bar, severally. The plea of not guilty, in an action of assumpsit, is cured by verdict.

Variations of the Plea of Non Assumpsit

The basic plea of non assumpsit denies that the defendant ever made the alleged promise. However, several variations historically existed:

  • Non assumpsit infra sex annos: raised the defense that the action was barred by the statute of limitations because the promise was not made within six years.
  • Non assumpsit with special matter: allowed defendants to introduce additional facts, such as fraud or lack of consideration, to defeat the plaintiff’s claim.
  • Non assumpsit to part of the declaration: denied only specific allegations rather than the entire claim.

These defenses gave defendants wide latitude to contest contractual liability and helped balance the broad scope of assumpsit actions.

Frequently Asked Questions

1. What does non assumpsit mean in law?

Non assumpsit is a plea in contract actions denying that the defendant made any promise or agreement alleged by the plaintiff.

2. What is non assumpsit infra sex annos?

It is a specific plea arguing that the claim is barred by the statute of limitations, as no promise was made within six years.

3. How does assumpsit differ from debt or covenant?

Debt sought recovery of a fixed sum and covenant required a sealed contract, while assumpsit allowed damages for breaches of simple or implied agreements.

4. Is assumpsit still used today?

No. Most modern legal systems have replaced assumpsit with general contract and restitution claims, though its principles still influence current law.

5. What types of claims could be brought under assumpsit?

Claims included money lent, goods sold, services rendered, money had and received, and damages for breach of promises, including marriage contracts.

If you need help with any legal matters, you can post your legal need on UpCounsel's marketplace. UpCounsel only accepts 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.