Speciality Rule in Covenant Flashcards
Corbet’s Case: give the year and the principle
(1292): the jousting case. Lots of dicussion: evidently there is some view that there might be specialty required. Why we do not know.
Baker: either because there is a physical crash (no evidence of this in reports and certainly not in its form, which is non-delivery); or chivalric custom. Perhaps it survived longest in physical breach cases (should have survived forever on his logic, so it definitely calcified at some stage, which is an issue as his view seems to be proposing a lot of wide-reaching explanatory power).
Granegos v Husee: year and principle
(1292): no need for specialty in a land case where one of the parties was in livery. Note, this was a defence to the accusation he had breached his lease terms (ie, becasue he had seisin), thus not directly on the covenant.
Baker: special physical fact disposed of the need for specialty. Consistent but not necessarily overt support given it is in the land context, where different rules may have applied, and no mention of proof. Possibly explainable on the basis of Ibbetson’s ‘substance v forms’ argument.
What is the name of the jousting case in 1292?
Corbet’s Case
Anon (1304): principle
Plaintiff suing for forcible ejectment but brought covenant instead. Allowed to sue despite the fact that there was no specialty. Is this because of an overt act (Baker?) or because of the core of the action being based on ejectment?
Anon (1304): principle (waste)
Similar to the other 1304 case, except this time P sues D for waste which could have been brought via an action of waste. Again, same argument over whether it was because there was an overt act or because it was another ‘shell of liability’ instance.
At what stage did warrantees require deed?
Much later - the late 14th century. Why this diverged from the law on covenant is not clear and it may suggest the judiciary were not applying a uniform rule.
Contrast to the fact that the rule eventually excluded all breaches of covenants, even those with physical actions involved (find case).
What is another example of Baker’s theory of mere word being the trigger for the specialty rule?
Lucy v Plukenet (1312): The specialty rule applied to a claim based on a mere word, eg an assignment of a reversion.
Adam the Apprentice Case (1321)
Covenant against a master who threw him out before his term had ended: failed for want of specialty.
Stanton J and Herle J concurred in this result, apparently accepting Burton sjt’s argument that “covenant is the will of another, and the will of another cannot be averred except by deed”.
Cf Baker’s view - interesting how it seems initially the question was will, not just words.
Waltham Carrier Case (1321)
Baker: “Not carrying hay can only be wrong if one has promised to carry, and therefore a complaint of not carrying is based solely on the promisor’s word. For that purpose, mere vibrations in the air —what contemporaries dismissed as “voice” or “wind” —will not suffice.”
The law of contract - deed not formalism. Rule of evidence, in the royal courts, which requires written proof of words. Argues the kind of agreement with which the courts were concerned was not a meeting of minds but a meeting of words, which are external manifestations of consent. This was made by Hengham CJ when overruling Herle sjt’s submission in the 1302 dower case. Herle (now) J went farther and said the specialty rule applied not merely to internal states of mind but also to words. Minds are revealed by word, but even words are not knowable to the court (or capable of submission to a jury) without deeds.”
Cressingham v Bulmer (1301)
Dower case (NOT COVENANT), where there is a note that the deed is required because it is necessary to prove the internal will of the parties (albeit suit was actually allowed). This is a poor starting position and implies that the matter was only really being raised in covenant much later than Baker suggests. What, then, was the motivating force behind specialty before then?
Further, they are talking about will and thus it is not directly analogous to the argument about the words needing to be proven.
Dower case in 1301
Cressingham v Bulmer :
Herle sjt: “A man’s will is a thing so secret that one cannot know it without a special deed bearing witness to it”.
‘Albeit that a man’s assent and will is secret, one may understand his will through words.’ (per Hengham CJ)
Anon (1321): surgeon case
Appears a case was brought for pure nonfeasance in the royal court on the basis that surgeon had treated someone so badly that they got worse.
Ibbetson: suggests that there might have been actions for nonfeasance continuing on until the early-mid 14th century.
Baker: argues this failed (hence anonymous) and this was because ‘no action at all had been alleged’, hence it was exactly the same as he had been arguing - no deed, no action.
Warner v A Leech (1330)
Another surgeon case, this time doing his job so badly that he got worse. An action brought on covenant, despite a seeming lack of specialty.
Development of trespass and case?
After covenant extruded all nonfeasance cases (and seemingly cases in which there was direct action later), trespass had to take them on instead. This was initially just normally, but as the botkP kicked in, they had to distort facts or rely on case.
Falston v Falston (1370)
The specialty rule applied to a claim based on a mere word, eg an assignment of a warranty. The rule was compared with that in covenant.
