Labor Policy after 1348 and Theory of Contract

How did the Statute of Laborers of 1351 contribute to the development of assumpsit as a replacement for covenant and debt?

Adam Krotman, Daniel Malech and Sarika Gupta

Draft Version

The growth of assumpsit has its origins in the Black Death of 1346, and the first national labour legislation that emerged as a result. The massive toll of the Black Death on the workforce meant a dramatic increase in the bargaining power of workers and serf – relative scarcity meant that their work product had gained an increased per-unit value (31 J. Leg. Studies S582). This, predictably, resulted in an attempt to renegotiate wages and terms of service: “workers began to refuse to perform customary tasks unless more compensation and fewer servile obligations were forthcoming” (31 J. Leg. Studies S583). In addition, there was an element of regional variation in the depletion of the labor force. This gave serfs and laborers the opportunity leave their traditional lords, and seek new employment on more favorable conditions – greater pay and fewer servile restrictions and obligations. Facing labor shortages, lords whose manors had suffered a greater depletion often accepted these demands, and refused to return runaway serfs, breaking down the traditional lack of labor competition and creating a new labor market (31 J. Leg. Studies S583).

In 1349, Edward III attempted, in essence, to freeze wages at the levels that they had been in 1346 with the Ordinance of Laborers, requiring that “all healthy non-self-sufficient people under sixty years of age work at reasonable wages until the end of their agreed term.” (93 Mich. L. Rev. 1771). In 1351 these attempts were taken further and codified in the Statute of Laborers. This act set out, inter alia, maximum wages for certain laborers, with wages originally set at pre-plague levels, but adjusted upwards in keeping with the “reasonable wage” requirement of the original Ordinance of Laborers; compulsory service; requirements that laborers appear every year before the constable or bailiff to swear to uphold obligations; prescription of imprisonment or fines for non-compliance; and private lawsuits to sue laborers and employers in violation (15 J.Leg. Med. 393).

According to scholar Robert Palmer, these statutory attempts to force laborers to accept wages that did not reflect their true economic value had an adverse consequence – it removed incentives for laborers to perform superior work, as these laborers could not be positively compensated beyond statutory limits for work exceeding the value of the wage caps. Through the channel of chancery, the government attempted to cure this by imposing liability on workers for negligent performance, with assumpsit pertaining to performance of non-written agreements – which worked in conjunction with the prescriptions of the Statute of Laborers and Ordinance of Laborers to find the beginnings of both contract in the requirements of the Statute, and negligent performance of these quasi-contracts (93 Mich. L. Rev. 1772).

Courts and the English government, as a response to the unrest and general upheaval to the social order, became much more concerned with providing responses that would maintain and augment order. A workforce decreased in number, with less skilled labourers – as the young and inexperienced were relatively less decimated by the plague – compounded the incentive issues associated with the Statute of Laborers. Thus, the courts showed an increased willingness to issue new writs to deal with these sorts of problems, including application of the writ of assumpsit. Assumpsit developed as a way to “compel competent performance by the trades of their services to their employers” (Real Property, Probate and Trust Journal 562-563). Thus, this early labor legislation served as a further catalyst for the growth of the writ of assumpsit at common law, which served essentially to coerce working people to perform their work well (Davies et al, ed., 27). The various forms of writs of assumpsit (originally based on trespass) became, after the Black Death and the Statute of Laborers, based upon covenant, and “nonfeasance and misfeacance became sanctionable as the scope of the government’s legal coercion expanded” (93 Mich. L. Rev. 1772).

The earliest of these writs were known by such titles as “a writ on the Statute of Laborers” or “trespass on the Statute of Laborers”, but followed a similar theme of damages or imprisonment for a laborer or servant who withdrew from service before the end of his term, and were based upon the authority of the Statute of Laborers (59 Cal. L. Rev. 1148). The word “assumpsit” became, around the time of the Statute, standard in describing a “defendant’s promise or undertaking”, but though it had coalesce as a separate legal concept for the reasons discussed above, it was for a time often simply known as trespass or trespass on the case (59 Cal. L. Rev. 1151-2). As it began to be used more frequently to enforce “undertakings” of any kind (particularly in response to the implied undertakings of the Statute of Laborers, as a flexible means of enforcing wage caps), it acquired more flexibility as a legal form. By the 15th and 16th centuries it had begun to be used to enforce land sale contracts, and as a means to collect debts (59 Cal. L. Rev. 1152).

• 25_Harv_L_Rev_1911.pdf: 25_Harv_L_Rev_1911.pdf