But in the Norman period warranty is very little heard of, except
with regard to land, and then it was decided by the duel. It so
wholly disappeared, except where it was embodied in a deed, that
it can have had no influence upon the law of consideration. I
shall therefore assume, without more detail, that it does not
bear upon the case.
Then as to the pledge or surety. He no longer paid with his body,
unless in very exceptional cases, but his liability was
translated into money, and enforced in an action of debt. This
time-honored contract, like the other debts of Glanvill's time,
could be established by witness without a writing, /2/ and in
this case there was not such a consideration, such a benefit to
the promisor, as the law required when the doctrine was first
enunciated. But this also is unimportant, because his liability
on the oath of witness came to an end, as well as that of the
warrantor, before the foundations were laid for the rule which I
am seeking to explain. A writing soon came to be required, as
will be seen in a moment.
The result so far is, that the only action of contract in
Glanvill's time was debt, that the only debts recovered [261]
without writing were those which have been described, and that
the only one of these for which there was not quid pro quo ceased
to be recoverable in that way by the reign of Edward III.
But great changes were beginning in the reign of Henry II. More
various and complex contracts soon came to be enforced. It may be
asked, Why was not the scope of the witness oath enlarged, or, if
any better proof were forthcoming, why was not the secta done
away with, and other oral testimony admitted? In any event, what
can the law of Henry II.'s time have to do with consideration,
which not heard of until centuries later?
Public-domain text, read in full here on John Shaqi.
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