Before the Common Law Procedure Act of 1852, the English legal system was highly formalistic and rigid, particularly in the way it handled contract disputes. One of the peculiarities of this system was the necessity to plead a fictitious assumpsit in certain cases.
Assumpsit was a common law form of action used to recover damages for the non-performance of a simple contract, whether oral or written. It was based on the defendant's promise or undertaking (assumpsit) to perform a certain act.
Rigid Pleading System: The common law system required specific forms of action to be used for different types of legal claims. Each form had its own procedural rules and requirements. If a plaintiff chose the wrong form, their case could be dismissed regardless of its merits.
Limited Forms of Action: Before the reforms, there were limited forms of action available, and each was suited to specific types of claims. Assumpsit was one of the few forms that allowed for the recovery of damages for breach of contract, but it required the plaintiff to allege that the defendant had made a promise (assumpsit) to perform.
Fictitious Allegations: In many cases, the actual facts of the case did not fit neatly into the available forms of action. To circumvent this, lawyers would plead a fictitious assumpsit, essentially alleging a promise that was never actually made, to fit the case into the assumpsit form. This was a legal fiction used to satisfy procedural requirements and allow the case to proceed.
Facilitating Justice: The use of fictitious assumpsit was a way to work around the limitations of the legal system and ensure that plaintiffs could have their cases heard. It was a pragmatic solution to the problem of an inflexible legal framework.
The Common Law Procedure Act 1852 was part of a series of reforms aimed at simplifying and modernizing the legal process. It allowed for more flexibility in pleadings and reduced the need for legal fictions like the fictitious assumpsit. The Act enabled courts to focus more on the substantive issues of a case rather than procedural technicalities, thus improving access to justice.
In summary, the necessity to plead a fictitious assumpsit arose from the rigid and formalistic nature of the common law system, which required specific forms of action for different types of claims. The Common Law Procedure Act 1852 helped to alleviate these issues by introducing more flexible procedures.