Contractual Terms

The parties’ contractual obligations were in principle determined by their agreement. If the contract was based on a written document, then all that was required was to construe the words, applying routine cannons of construction, such as that any ambiguities should be resolved against the maker of the document. The Common-law courts would not allow written terms to be varied by a purely oral agreement of the parties, but there is good reason to think that the Chancery might have been willing to go behind the document. So far as unwritten agreements were concerned, there was not a great deal of room for legal rules to determine the content of the contract: difficult questions could invariably be concealed behind the general issue and the defendant’s wager of law or a general verdict of the jury.

   In some types of contracts, most importantly contracts of sale, there might be terms collateral to the primary obligations arising under the contract, such as undertakings as to the quality of goods sold. Such terms were commonly known as ‘warranties’. At first, actions on them might be framed as either covenant or trespass, though in the royal courts the trespassory form was problematic since it was normally impossible to allege that there had been any force or interference with a royal interest. At the end of the fourteenth century it was settled that they were properly litigable under the rubric of trespass on the case, using the language of deceit, despite arguments to the effect that the action properly sounded in covenant. Since the action was trespassory in its nature the successful plaintiff would recover damages for the loss suffered, in an amount to be assessed by the jury.

   The central feature of the action was that the plaintiff had suffered loss by the defendant’s deceit. Consequently, there would be no liability if the plaintiff could and should have recognized at the time of the sale that the warranty was in fact false. No action would die, for example, if the seller sold red cloth with a warranty that it was blue, unless, of course , the buyer could not see; nor no a warranty that a horse was sound if in fact it was blind, unless the buyer did not have the opportunity to inspect it. Equally, the warranty had to be of some fact that it could be in the power of the seller to know; no action would lie if the warranty was seed would grow, or that a horse would travel thirty leagues in a day. In practice this meant that the warranty must relate to some state of present fact and not be a prediction of the future, which could be known only by God, or a promise as to the future, which would amount to a covenant and consequently-according to the orthodox learning of the fifteenth century-have to be embodied in a deed.

  The action for breach of warranty would lie only if a warranty had genuinely been given. The strength of this rule is brought out by two anomalous situations in which liability was imposed in the absence of an explicit warranty. First was the case of the sale of food. Statute had forbidden the sale of corrupt food, and it was consequently held that such a seller would automatically be liable to the buyer. Liability here stemmed straightforwardly from the breach of the statute and it was irrelevant whether or not there had been any warranty. The two grounds of liability were treated as wholly distinct, although both were litigable by superficially similar forms of action of trespass on the case; there was no attempt to treat liability for breach of warranty as the central case and then to analogize from it by using any language of implied warranties. Secondly, it was occasionally suggested that liability would lie in the absence of a warranty if the seller actually knew that the goods sold were defective. Again, liability here was treated as wholly distinct from liability for breach of warranty, not an extension of it.

   To say that it had to be proved that a warranty had genuinely been given reveals nothing about what would count as a genuine warranty. This would have been a question of fact. It is hard to imagine that a jury would require much to convince them that the hirer of a horse to ride from London to York had received a warranty that it was sound; on the other hand, a warranty that wool or seed came from a particular source might require far stronger evidence.

   Cutting across the treatment of terms as actionable warranties, it might be agreed between the parties that some term should operate as a condition of the whole validity of the contract. Evidence of this is easiest to find I local court records, but there is no reason to believe that these were untypical of the law of the royal courts. The sale of a horse might be expressed to be subject to a condition that the bargain be void if the horse was not sound or the sale of a cow might be subject to a condition that it be in milk. Such a claim was functionally different from a claim that there was a warranty. It did not ground an action for damages, but either underpinned a defense that there should be no liability on the contract since it was subject to an unfulfilled condition or entitled those who had performed their side of a putative bargain to reclaim any money paid or property passed. It followed from this difference in function that the conditions. It might be a condition in a contract for the sale but that it should be so at the time of the delivery; if it were not, the buyer would be entitled to reject it. Nor need the condition purport to be a representation of fact: money might be handed over to a trading partner on condition that he find pledges, with the proviso that the money might be reclaimed should he fail to do so; or goods might be delivered to an intending buyer subject to condition that they should be returned if not paid for. We must be careful, therefore , not to think that terms could be defined ab initio either as conditions or as warranties; some warranties were conditions and some conditions were warranties, and whether a term was described as one or the other depended wholly on the remedy that the party was seeking.

   Assuming that the contract itself was admitted, defendants might none the less deny that their own obligations under it had yet become actionable: it might have been agreed that their obligation to perform would arise only on the occurrence of some specified event, which would take effect as a condition precedent. Sometimes this would be external to the parties, such as would be found in typical insurance contract. Probably more commonly, though, the conditioning event would be the performance of the obligations of the other party to the contract. It would frequently be the case, for example, that it would be agreed in a contract of sale that the buyer’s obligation to pay the price would be activated only by the seller’s delivery of goods, or in a contract of employment that the employer’s obligation to pay wages would be activated only by the employee’s doing the work. Normally in such a case, as one would expect, if the condition had not occurred. Thus, in a contract for the sale of goods, if the only reason that the goods had not been delivered was that the buyer had not been there to receive them, there was no defense in an action by the seller for the price; similarly, in an action for wages it would be no defense that the work had not been done if the only reason for this was that the employer had prevented it. In the thirteenth century the language of fault might have been used in asking such a question; by the fifteenth century it was formulated more rigidly, asking whether the failure of the condition was the result of the act of the plaintiff or an act of God.