BUKTON V TOUNESENDE: HOW MODERN CONTRACT LAW BEGAN ON THE HUMBER

SEP YAZDANSHENAS

I INTRODUCTION

As a first-year law student learning about Australian contract law and its complexity, I couldn’t help but wonder: Where did modern contract law originate? Where did it all begin? This short article will discuss the 1348 case of Bukton v Tounesesende, 1 more famously known as the Humber Ferry Case, and how the judgment of the King’s Bench in this case, concerning the action of trespass and trespass on the case, has influenced frame modern contract law.

II THE MEDIEVAL LEGAL CONTEXT

References to the Humber Ferry Case are easily found in modern law textbooks,2 as it set the grounds on which modern contract and tort law developed.3 To understand the context of this case, we must first refer to the 13th, 14th and 15th centuries, during which there were three common law courts in England: the Common Pleas, the King’s Bench, and the Exchequer. This article will focus on the former two courts. The Court of Common Pleas heard litigation involving land and civil actions that did not interest the King, including disputes between an employee and the employer. The King’s Bench, on the other hand, only heard criminal and civil matters that came to the King’s attention and matters that challenged the decision of the lower courts.

Within these courts, early forms of personal or civil actions included covenant (an agreement or contract); debt (actions to recover a certain amount); detinue (wrongfully taken goods or property); and account (recovering money owed)4. These actions enabled a plaintiff to pursue and recover damages by bringing the defendant to court. However, the plaintiff generally needed to show a written deed as evidence that the promise was made. If there were no written deeds, the defendant could ‘wage his law’ using 11 compurgators (oath-helpers) who could swear that the defendant did not owe.5 This was a simple — but arguably flawed — process, as ‘[t]he oath-helpers were available for hire in the central royal courts.’6

A plaintiff could also use the action of ‘trespass’ if there was a transgression (transgressio) done and ‘the wrongful act’ had ‘directly cause[d] harm’.7 For example, if a person punched

* Submitted for assessment HIS1115 1 Bukton v Tounesende (1348) B&M 358. 2 David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 2001) 46. 3 Hon T F Bathurst, The History of Contract Law (Supreme Court Of New South Wales, November 2016) 15. 4 Charles Donahue Jr, ‘The Modern Laws of Both Tort and Contract : Fourteenth Century beginnings ?’ (2017) 40(1) Manitoba Law Journal 9, 20. (‘Donahue Jr') 5 Ibid. 6 Ibid. 7 Prue Vines, Law and Justice in Australia : Foundations of the Legal System (Oxford University Press, 3rd ed, 2013) 363.

another in the face (assault) that would be considered trespass against a person. Conversely, the action of trespass required a breach of the King’s peace (‘the protection guaranteed by the monarch to certain people, as those employed on royal business, travelling on the highway, etc’8), as well as force of arms (the use of force including weapons). Therefore, a person could bring an action of trespass, only if it breaches the king’s peace.9

But what if someone failed to carry out their promise or had done it poorly and caused injury or damage? In the 14th century, the common law courts introduced ‘trespass on the case’.9 This new type of trespass did not require an alleged breach of the King’s peace or force of arms.11 This is an important recognition by the royal courts as this was the first action that brought a new sense of liability and negligence, giving protection to people, their goods and property from people who failed to carry out their promise or when they have carried out their promise poorly.10

By the 15th century, pleadings for the action of trespass on the case included the expression ‘super se assumpsit et fideliter promisit’, meaning ‘took upon himself and faithfully promised’.11 In other words, assumpsit could give damages, or offer recovery for the damages done, where the defendant failed to or poorly carried out ‘his undertaking (assumpsit) or promise to the plaintiff’.12 This was an important development for three reasons. First, trespass no longer required a written deed and could also include cases where there might have been an implied promise. Secondly, the action covered nonfeasance, that is, not doing something. Thirdly, the action also included misfeasance — a wrongful act — such as a veterinary surgeon negligently killing a horse.13

III THE CASE

In 1348, John de Bukton (the plaintiff) filed a bill of complaint alleging trespass against Nicholas atte Tounesende (the defendant) in the King’s Bench when it came to York on circuit. In November 1346, the defendant had undertaken (assumpsit) to safely ferry the plaintiff’s mare across the River Humber in Yorkshire. A significant tidal estuary located on the east coast of Northern England, the Humber defines the boundary between the counties of Yorkshire and Lincolnshire. The defendant, against the plaintiff’s ‘will’,14 ‘overloaded his boat with other horses’ causing the plaintiff’s mare to ‘perish’.15

8 Oxford English Dictionary Online (online at 12 May 2021) ‘Peace’ (def 9). 9 Donahue Jr (n 3) 21. 9 AWB Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit, (Oxford University Press, 1975) 215. See also John Baker, Introduction to English Legal History (Oxford University Press, 5th ed, 2019) 199-200 (‘Simpson’) 11 Donahue Jr (n 3) 13-14. 10 Ibid. 11 Simpson (n 10) 350–1. See also John Baker, Introduction to English Legal History (Oxford University Press, 5th ed, 2019) (‘Baker’) 350–1. 12 Vines (n 5). 13 Baker (n 13) 350, 351. 14 Albert Kiralfy, ‘The Humber Ferryman and the Action on the Case’ (1953) 11(3) Cambridge Law Journal 422. 15 Boston University School of Law, ‘Legal History: The Year Books’ (Record Details Bukton v Tounesende 1348).

Richemund, the defendant’s advocate, argued that this case was a matter of covenant ‘rather than by way of trespass’.16 If the Court agreed with Richemund, there would be no case to answer given the lack of a written deed. However, the judges of the King’s Bench sided with Bukton and found that Tounesende ‘did the plaintiff a trespass’.17 This ruling was made despite there being no written deed, no allegations of breaching the King’s peace and certainly no force of arms (without vi et armis).18 As Sir John Baker notes, this was the ‘first known case’ where the King’s Bench imposed liability on someone for carrying out a promise ‘badly’.19

It was unusual for the King’s Bench to hear this matter because it did not seem to

‘interest’ the King, at that time Edward III. The question remains then: why did the itinerant King’s Bench hear this matter in York? Donahue speculates that, because the Humber was part of the ‘king’s highway’, the case was of interest to the King and was therefore properly brought before the King’s Bench.20

IV CONCLUSION

In closing, you can see how far the common law of contract has come since the Humber Ferry Case of 1348. The case set the grounds upon which the modern contract law that we practise today could develop. Today, we make verbal agreements (simple contracts), written deeds (written contracts under seal) and even implied contracts (calling a taxi), knowing the law will protect us and our property by imposing liability where there is a breach. Nevertheless, the development of contract law was a slow process, and it is still evolving.

16 Ibid. 17 Ibid. 18 Ibid. 19 Baker (n 13) 351. 20 Donahue Jr (n 1) 20.