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Writs & the Origins of the Modern Contract

Where did the modern contract system come from? Professor Randy Barnett explains that the conceptual separation of contracts, torts, and property was invented in the 19th century. Before that, legal action for these types of situations was conducted through the writ system. Lawyers specialized in knowing the types of writs that were necessary for a cause of action. https://youtube.com/watch?v=z6cQOodwAPU


The modern distinctions that we have between property, torts, and contracts were pretty much invented in the 19th century. Why did they need to be invented? They needed to be invented because a previous system was basically abolished. And the previous system was known as the writ system that is to have a cause of action in England. And even into the early United States, into early America. To have a cause of action, you needed to assert a writ. You need to go into a court and ask that a particular kind of writ be issued. And so to be a lawyer meant to understand and to know all the writs that were available. Now, some of these writs correspond to what we call a contract, some of these writs correspond to what we call torts. So the writs that most closely correspond to what we call contracts, where the writs of debt, detinue, and covenant. Each one of them had criteria or requirements. So that to be a lawyer meant to understand how to get rid of debt enforced in contract, to obtain a rid of debt, you had to make certain claims. It was like filling out a form. You had to claim these sorts of things that basically so-and-so owed you money. If you could show that so-and-so owed you money. Then you could bring a writ of debt against them because there was a debt there. And so that's how contract law was governed. That's how all of law was governed by these writs. But in the 19th century, the writs were abolished because people thought they were sort of constricting. Now, the writs themselves evolved over time, but they evolve very slowly and reluctantly because of the doctrine of stare decisis courts were very reluctant to make any changes or modification in these writs. So enlightened thinking thought we can do better than that. We should just assert causes of action that ultimately needed to be classified. And it's the system of classification that we now learn in contract law, tort law, and property law classes. What replaced the writs were what you might call concepts, the concept of a contract, the concept of a tort, the concept of property. And when that replacement happened, at that point, you needed a theory to explain these concepts. And that's why theory became really important to contract law, tort law, and property law. When the writs went away and the courts were relying instead on concepts like the concept of a contract or the concept of a tort.

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