170 Years of Texas Contract Law Chapter 9that means “he took upon himself.” Assumpsit began as an extension of a claim for Trespass on the Case.103 According to Harvard Law School Dean J
INTRODUCTION
From primitive barter where consensual exchanges were immediate to modern contract law, the enforcement of promises of future performance tracks the growth of economic complexity Early economies functioned on immediate exchanges with no need for long-term promises; as trade expanded and economic life became more intricate, agreements requiring delayed performance emerged, giving rise to contracts In medieval Europe, land was the backbone of economic activity, while a booming trade in commodities and goods spurred the development of money and credit Industrialization moved raw materials to manufacturing centers and finished products to markets, increasing capital, labor, distances, time horizons, and risks, and making reliable promises indispensable This evolution culminated in the legal framework of contract law that enforces promises of future performance.
Historians debate whether individual figures or broad societal trends most shape events, and this article weighs both forces in the development of Contract Law It shows how broad trends and committed individuals can collectively influence legal evolution, rather than one alone determining outcomes Whether the absence of one or several prominent figures would have altered Contract Law’s trajectory is uncertain, but the question itself highlights the delicate balance between person and pattern Ultimately, certain individuals left significant imprints on the history of Contract Law, and their distinct contributions are highlighted here to illuminate the complex interplay of leadership and social change in legal development.
Harvard Law School Dean Roscoe Pound described the law in this way:
Law is a practical matter Legal traditions have persisted largely because it is less wasteful to keep to old settled paths than to lay out new ones.
If urban planners rebuilt the streets of an old colonial city from scratch, prioritizing travel convenience, proper accommodation for utilities, and ample light and air for the buildings that line the streets, the resulting city map would look markedly different.
Streets often took their shape by chance, laid out to suit the fancy of the moment or simply tracing the paths chosen by the first travelers; today, attempting to straighten those lines may be more wasteful than tolerating their narrow, crooked routes In much the same way, many legal paths were established and maintained for the same reasons—by tradition rather than deliberate design When a new issue demanded a decision, a judge or jurist turned to a familiar legal analogy or an accepted philosophical conception, thus initiating a legal tradition that has guided subsequent rulings ever since.
Pound, Juristic Science and Law, 31 Harv L Rev.
Texas contract law traces its course from its origins in Spanish civil law and English common law, and this article explores how these foundations have shaped its evolution as it responded to social and legal changes over the last 170 years The scope is vast, making it impossible to cover everything in one paper or to finish the work in a few months, but this study stands as a solid starting point for understanding the historical trajectory and future direction of Texas contract law.
INTELLECTUALIZING CONTRACT LAW
Attempting to intellectualize the law can be risky, because oversimplifying it may ignore important complexities Likewise, rationalizing legal rules can project our own thinking rather than reflect how the law actually operates.
CATEGORIZATION
Intellectual progress hinges on categorization and identification, as we build mental frameworks that assign each phenomenon its proper place and resolve problems by fitting them into that structure A leading psychiatrist notes that "A categorical approach to classification works best when all members of a class are homogeneous, when there are clear boundaries between classes, and when the different classes are mutually exclusive." The development of law in England and America follows a similar path, creating and refining a framework that distinguishes between different kinds of claims and lets lawyers and judges map cases into the appropriate categories Over time, legal boundaries stretch to accommodate new cases, but such stretching can erode the original integrity of the categories; when boundaries cannot stretch enough, new categories arise.
Chapter 9 of 170 Years of Texas Contract Law illustrates how new categories supplant old categories, though they may coexist with the old framework Rarely, an entire categorical system is abandoned and replaced, and when that happens history shows vestiges of the old categories persisting in the new framework, clinging to life long after they have outlived their usefulness This pattern highlights the dynamic evolution of Texas contract law, where older concepts continue to influence modern interpretations even as fresh classifications redefine the landscape.
In the history of the Common Law of England (brought to Texas not so much by the 1840 Act of the Texas
Congress as by the training and experience of the
Contract law in England emerged through a long process of adapting a rigid legal framework to the changing pressures of society Ingenious lawyers and sympathetic judges pushed the boundaries, bending the law to redress wrongs and slowly expanding its reach The distinctions among criminal law, civil law, tort, and contract now seem obvious, but they were not always so; much of what we consider modern contract law derives from early English practice and the gradual reinterpretation of legal doctrines by practitioners and courts.
Texas Contract Law draws on a deep heritage of Common Law, echoing that we are products of our ancestors' legal DNA This study traces the roots of Texas contract principles to the Common Law of England, where centuries of rules governing offers, acceptances, consideration, and enforceability were first established Understanding these English foundations helps explain how Texas courts interpret contracts today, how remedies are shaped, and how modern statutes fit within a familiar common-law framework By connecting the English origins to contemporary practice, this overview reveals the evolution of Texas contract doctrine from its Common Law beginnings to its present-day application.
Late nineteenth-century America saw law professors recast Contract Law by adopting a quasi-scientific approach to uncover universal principles they believed would render legal outcomes certain and highly predictable As this scientific jurisprudence gained traction, it was met with immediate critique from social scientists, who challenged its assumptions and empirical foundations.
Progressives, and later Legal Realists, as elevating theory over practical considerations or worse, as masking an exploitative political and economic order.
It was not until the 1960s, that Texas Contract Law was successfully attacked and reformed to eliminate discrimination against married women Over the last
100 years, there have been many efforts to develop a new intellectual framework of Contract Law, to replace the one that developed in the late 1800's and early
1900's, but the effort has been largely ineffectual.
ANALOGICAL, INDUCTIVE, AND DEDUCTIVE REASONING
Analogical Reasoning
Case-based reasoning is an analytical process that links a new item with a familiar, already-classified item or a new problem with a familiar problem that has already been solved When the new and old items are judged sufficiently similar, the classifications or rules that governed the old case are applied to the new one, enabling efficient interpretation and decision making By reusing proven classifications, this approach speeds up problem solving and promotes consistency across similar cases.
Learning by association underpins how adults help children make sense of the world and how astronomers classify a new solar system in a distant galaxy discovered with a more powerful telescope; some writers argue that both deductive and inductive logic are, at their core, based on analogical reasoning Reasoning by analogy is often used whenever a legal dispute does not clearly fall under an existing rule of law, so that the judge must compare the new case to various older cases until s/he finds the closest fit, then use the rule from the old case to resolve the new one Professor Edward Levy argued, in his famous book, An Introduction to Legal Reasoning (1949), that all case-based reasoning is reasoning by analogy.
Analogical reasoning is enhanced when instructional texts include hypothetical illustrations—such as those following sections of Restatements of the Law or uniform laws—because these paradigm examples, often drawn from actual cases, serve as models against which the current case is compared to gauge similarity to the model By presenting illustrations stripped of non-essential facts, the approach foregrounds how closely the case at hand aligns with the model Yet this method invites criticism for potentially ignoring surrounding circumstances that meaningfully influence judicial decisions, thereby overemphasizing legal theory while underplaying the court’s sense of justice as applied to the facts.
Inductive Reasoning
Inductive reasoning moves from the particular to the general by examining multiple occurrences and applying creativity, intuition, statistics, or other methodical approaches to propose a unifying principle that explains these facts When this principle is discerned, it is stated as a hypothesis and then tested through empirical checks to determine its validity The British philosopher John Stuart Mill highlighted this approach, showing how diverse observations can be transformed into testable generalizations through disciplined conjecture and rigorous validation.
Induction, or inductive reasoning, is the mental operation by which we infer that what is true in a particular case will be true in all cases that resemble it in relevant respects In essence, it is the process of generalizing from observed instances to the whole class, so that what holds for certain individuals of a class is presumed to hold for the entire class, and what is true at a given time under certain conditions will hold in similar circumstances at all times.
Inductive reasoning drew its inspiration from Francis Bacon (1561-1626), the English Attorney General and Lord Chancellor who championed observation as the foundation for constructing an accurate understanding of the world In his article, Professor Stephen Feldman discusses Bacon's enduring influence on inductive methods, underscoring how Bacon's emphasis on empirical evidence and systematic observation helped shape the development of modern scientific inquiry.
From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 Vand L Rev 1387, 1401
(1997), described Baconianism in law in this way:
In nineteenth-century America, Baconian science—applied across disciplines, not only in law—was defined by observation, generalization, and classification This perspective rested on a firm faith in human sense experience, insisting that careful empirical data could be translated into general laws and tested theories through inductive reasoning By prioritizing observation and systematic organization, Baconian methods influenced legal reform, social science, and the broader pursuit of knowledge through empirical inquiry.
Over 170 years of Texas contract law, careful observation reveals truths about how contracts operate From a series of observations of relevant phenomena, jurists generalize and induce universal principles of contract behavior, and these principles are then classified and structured into a rational system that informs Chapter 9 and the wider practice of Texas contract doctrine.
Once the underlying principles are identified through inductive reasoning, they are subsequently applied in a deductive fashion to resolve cases The eight inductive approaches shape the development of the law by translating observed patterns into general rules and testing their applicability across real-world disputes, thereby influencing jurisprudential evolution.
Contracts is discussed in Section X.B.5 below.
Deductive Reasoning
based on formal logic, where one reasons from premises to a conclusion As envisioned by Aristotle and accepted since, deductive logic takes two forms: the syllogism and the deductive inference In the syllogism, a major premise is linked to a minor premise and, if the two premises are true, then the conclusion necessarily follows In the deductive inference, a connection is established between a premise and a conclusion, so that the conclusion necessarily follows from the premise The normal form of the deductive inference is: “if P is true, then Q necessarily follows”; or, more simply, “P implies Q.” With a deductive inference, establishing the truth of the premise automatically proves the conclusion Applying deductive reasoning to law, in the syllogistic approach a legal rule may be seen as the major premise, and the facts of the case the minor premise If it is determined that the facts of the case fall within the legal rule (i.e., the minor premise links to the major premise), then the legal result (i.e., the syllogistic conclusion) follows with certainty However, we more habitually think in terms of deductive inferences, and in law we see the premise as the legal rule and the conclusion as the final legal determination Example: “a person who promises to buy a horse must pay if the horse is delivered” (the inference); in this case Jones promised to pay Smith
$500 for his horse and Smith delivered his horse to
Jones (the premise is true); so Jones must pay Smith
DANGEROUS FALLACIES IN REASONING
The Danger of Faulty Analogy (Analogical Reasoning)
Reasoning) The Fallacy of Faulty Analogy occurs when one assumes that because two things being compared are similar in some known respects, that they are therefore similar in other unknown respects Faulty analogy is analogical reasoning whose inductive probability is low because the similarities relied upon to draw the connection between the items being compared are tenuous or are not relevant to the comparison In case-based reasoning, the analogy is based on comparing the facts of two cases The closer the facts, the sounders the analogy The more the facts vary, the weaker the analogy becomes But it is not just the facts of the cases that count The context of the situations is also important As the context varies, so the analogy weakens.
The Danger of Hasty Generalization (Inductive Reasoning)
A hasty generalization infers a conclusion about an entire class from knowledge of an inadequate number of members, meaning a sample is treated as representative of the whole population and its qualities are taken to reflect the general population This fallacy often arises in two forms: the Fallacy of the Small Sample, where the sample size is too small to justify the conclusion, and Sampling Bias, where the sample is not randomly chosen and the selection process distorts representativeness In the study of modern American contract law in the late 19th century, conclusions were drawn from appellate court decisions, yet these decisions represent only a small fraction of contract disputes resolved through formal mechanisms and exclude disputes settled privately or outside courts Consequently, appellate opinions may not provide a secure foundation for rules on how contracts are formed or how contract disputes are resolved in society, and statistics focusing on how parties enter into contracts and handle disputes might offer a more accurate picture The risk of a hasty generalization is real because the group of appellate decisions used as the basis for principles of modern contract law is not a random sample of all contracts and likely omits cases that were not appealed, not tried, or not litigated.
PARADIGM SHIFTS
Paradigm Shifts in Contract Law
Anglo-American Contract Law has had its own paradigm shifts The first paradigm shift actually began in the 1100s before Contract Law developed, when
English Law, with its roots in both Germanic and
Roman law and tradition ushered in an era in which Royal writs redirected court actions from local courts to the Royal courts Over time, this writ practice evolved into a newer paradigm, reshaping how cases moved through the legal system and redefining the relationship between royal authority and the local judiciary.
Contract law has shifted through several paradigms Early on, remedies were shaped by forms of action; a later turn led by William Blackstone featured explanations of the law that framed underlying principles—how rights and obligations arise and when courts enforce or relieve them The modern paradigm emerged in the late 19th and early 20th centuries as law professors and treatise writers moved away from classifying contract cases by analogies in fact patterns and toward explaining contract law in terms of inductively discerned principles such as offer and acceptance, consideration, and mutuality of obligation, which today govern American courts Yet this paradigm was promptly challenged by law professors who treated contract decisions as responses to particular cases or as reflections of judges’ socioeconomic status and biases, including views shaped by race and gender Since 1900, philosophers, writers, and occasionally appellate judges have proposed theories to redefine Contract Law, but these efforts have not produced a lasting paradigm change; the principles expounded beginning in the 1870s, with some elaboration, continue to guide courts in resolving actual disputes.
From an Anglo-American perspective, the doctrine of compensation for harm traces a 1,000-year arc starting in the 1100s, when English law began crafting targeted remedies to rectify wrongs The evolution of forms of action then determined which remedies were available, and these procedural categories eventually took precedence, making the choice of form more important than selecting the best remedy for the injury When these English forms of action were transplanted to American soil, they matured into distinct causes of action Today, we increasingly face difficulties fitting new harms into the existing causes-of-action framework and aligning the available remedies with present needs.
170 Years of Texas Contract Law Chapter 9
There are signs that the existing approach to compensating harm is in existential trouble.
Technology is evolving faster than ten-year legal drafting cycles can adapt, pushing against the boundaries of established doctrine The traditional legal fictions that obscure inconvenient facts are increasingly hard to justify to critics who question prevailing legal theories When property transfers and contractual relationships can give rise to duties that, when breached, produce tort damages, the neat separation of property law, contract law, and tort law no longer holds firm This convergence underscores the need for a more integrated approach to civil liability in a tech-enabled world.
When the next paradigm shift in contract law occurs, it is unlikely to be the result of the broad acceptance of a new moral philosophy applied to private parties who rely on governmental sanctions to enforce private promises Three fundamental changes can be singled out as possible causes of such a paradigm shift in contract law.
Contract Law One is a shift in focus away from the origin of the wrong to the nature of the injury suffered.
Another major trend in the economy is the shift from the provision of goods and services toward information as the primary value driver Alongside this, contract rights are emerging as a new form of property that can be bought, sold, invaded, misappropriated, damaged, or destroyed, underscoring how information-based assets redefine ownership and risk in the digital era.
The Shift From Types of Claims to Types of Remedies
Remedies reveal a systemic flaw in the current property law, contract law, and tort law paradigm: judges struggle to distinguish whether a claim sounds in property, contract, or tort, and the traditional approach of broad rules with ad hoc exceptions fails to yield consistency Courts are moving toward determining the claim by the injury to be compensated, effectively reversing the order in which the nature of the claim should dictate the remedy If we can best distinguish property claims, contract claims, and tort claims by the type of injury suffered, we may need to replace a framework based on the nature of the claim with one based on the nature of the injury and the remedies the law provides as compensation Such a new paradigm could be simpler than the old crisscross of property, contract, and tort, but it would require abandoning ancient writs, the English forms of action, and traditional causes of action to classify claims instead by the injury suffered and the remedies offered.
The Shift From Goods to Services to Information
Key forces in the information economy are reshaping the global market, shifting focus from the sale of tangible goods toward services and, increasingly, toward information itself Pioneers like Intel and IBM proved that computers would be central to the future, while Bill Gates showed that software design could be more profitable than manufacturing hardware Steve Jobs demonstrated that substantial revenue can come from selling information to device users, often surpassing earnings from building computers or delivering software alone.
Information in books, music, and film is largely protected by Federal copyright law, creating a new asset class called intellectual property Intellectual property could become tomorrow’s cornerstone of the economy, much as real property anchored feudal society and as goods and manufacturing propelled globalization In the United States, intellectual property protections establish a legal framework that recognizes creative works as property, incentivizing innovation while shaping how society accesses culture.
Rights in this area derive more from federal statutes than from state property law, suggesting that the dominant contract-law framework of the future may govern the leasing, transfer, and misappropriation of intellectual property rather than rights in physical property governed by state law The key question is whether the core contract rules that regulate IP licensing, transfer, and infringement will be administered under state law, federal law, or perhaps under a regime outside traditional contract law altogether It is possible that federal intellectual property law, enforced by federal courts, could become the primary authority in these matters For now, the exact division of authority between state contract principles and federal IP law remains unresolved.
Contract Rights Have Become Property
Modern contract law began to regulate the transfer of possession through leases and the transfer of ownership via deeds for land, and later for personal property It evolved into a framework in which a contract creates a new form of property—contract rights With the expansion of secondary markets for home mortgages, car loans, and student loans, contractual rights and obligations have themselves become personal property that can be bought and sold globally as commodities The commodification of contract rights breaks the relational and situational ties between the original contracting parties and shifts contract inquiries from a subjective assessment of the parties’ circumstances to what a reasonable third party would understand from the words and actions Consequently, protections for assignees of contract rights and obligations become essential to the marketability of those rights, and policy considerations emphasizing marketability may outweigh earlier theories designed to balance the interests of the original contracting parties.
Credit derivatives that trigger payments when the underlying contract defaults add another tier to the contractual architecture, creating a second, third, or even fourth layer of rights and obligations that depend on the default status and performance of the original agreement.
Derivatives originated as ex post guarantees provided by a third party to ensure the performance of an underlying bilateral contract, effectively functioning as a form of insurance in exchange for a fee Today, however, derivative rights and obligations are marketable, and speculators buy and sell them to profit from fluctuations in value This activity has been described as educated gambling, since participants largely bet on which outcomes will prevail For investors trading derivatives for profit, the underlying contractual relationship matters mainly because it influences the price at which derivatives can be bought and sold.
Courts will have to strain to adapt traditional “bilateral”
Contract law principles governing disputes involving assignees of the original contracting parties and those arising in derivative contracts that are breached if the underlying contract is not performed are analyzed to determine how enforcement decisions are affected when the litigants are not the original parties The discussion questions whether a court’s enforcement decision changes if privity of contract is absent, and how defenses such as lack of consideration, failure of consideration, or fraudulent inducement apply when contract rights are routinely assigned It also questions whether rulings on derivative contracts will influence the enforceability of the underlying contract, and whether a liquid secondary market in contract rights should override the traditional rules and policies governing dealings between the original contracting parties Additional issues include whether parties to a derivative contract have the right to intervene in litigation over enforceability, whether the payor on a derivative obligation can claim tort, contract, or equitable subrogation against the party breaching the underlying contract in the absence of privity, and whether damages should be determined by a jury or by a more objective measure such as the market price of assigned contract interests or the derivative guarantees of performance.
The need to answer these types of questions may put such a strain on the existing paradigm, which is already
130 years old (if not up to 1,000 years old), that it will have to be abandoned, and a new one adopted.
THE DEVELOPMENT OF THE COMMON LAW
LAW Texas is a Common Law jurisdiction Much of
Texas’ Common Law has its source in English
Common Law In particular, Texas’ Common Law of contracts reaches far back into the English Common
Studying Texas contract law involves tracing the development of the English Common Law, because the roots of contract doctrine lie in its history The early English Common Law is, in essence, a study of legal procedure, revealing how procedural rules governed the formation, dispute resolution, and enforcement of contracts Understanding this procedural foundation helps explain how modern contract principles in Texas have been shaped by centuries of English jurisprudence.
ANGLO-SAXON BRITAIN
William Blackstone explains that, through successive invasions, Britain’s indigenous customs were interwoven with the legal practices of the Romans, the Picts, the Saxons, and the Danes, yet there was never a formal exchange whereby one system of laws replaced another.
By the early eleventh century England operated three main legal systems: the law of the ancient Britons in parts of the Midlands and toward Wales, Saxon law in the south and west, and Danish law along the Midlands and eastern coast The last Saxon king, Edward the Confessor, fused these disparate traditions into a rough but unified royal law for the whole kingdom, a framework that provided the basis for William of Normandy’s conquest at the Battle of Hastings in 1066.
AFTER THE NORMAN CONQUEST
From Hastings in 1066 to the end of the four-year conquest, England’s law and society rested on a loosely integrated feudal system built on a hierarchy of mutual obligations: between the common man and his local lord, between local lords and their overlords, and between overlords and the king After his cross-Channel invasion, William the Conqueror replaced Anglo-Saxon overlords with his Norman military retinue, yet he left the basic feudal structure largely intact The Anglo-Saxon political system had been deeply decentralized, and successive Norman kings struggled to impose centralized rule with uneven success The conquest brought in the French language, the Roman Catholic Church, and vestiges of Roman civil law, while English governance gradually absorbed these influences, and Blackstone’s later phrasing frames the English Common Law as the emerging, unifying legal tradition.
Following the rude shock of the Norman Conquest, English law emerged as an amalgam of pre‑Norman institutions and France's Canon Law with Roman Civil Law, a product of England’s peripheral status in the medieval world and its independent development from Continental Europe Just as the English language reflects a blend of Anglo‑Saxon, Roman, and French influences, English legal writing of this era fused these same concepts and terms After the conquest, England endured absentee kings, dethronements, and institutional struggles as monarchs centralized power at the expense of feudal lords, slowing the growth of a uniform, top‑down legal framework Consequently, unlike much of Europe, English law progressed largely from the bottom up, grounded in the rulings of individual judges in specific cases that over time became accepted as the proper way to govern legal practice.
HENRY II
The effort to erode the legal authority of local lords came through statutes that centralized the English legal system, notably by establishing a permanent court of professional judges, by dispatching itinerant judges across the land, and by introducing new legal procedures such as Royal writs that enabled centralized enforcement of the law.
Chapter 9 of 170 Years of Texas Contract Law explains the removal of court actions from local courts to Royal courts, illustrating Henry II’s drive to centralize and standardize the legal process across the realm, making the law more “common” in the sense of shared throughout the realm However, these reforms concerned the structure rather than the content of the laws, so individual judicial decisions continued to shape the Common Law incrementally Consequently, English Common Law evolved into a mosaic of royal decrees and Parliament enactments—many codifying existing practices—alongside court rulings recorded in hard-to-access registers, locally varying customs, and settled practices developed by people in daily life without formal legal oversight.
THE YEAR BOOKS
reports of legal decisions made by medieval English courts The Year Books were kept from around 1268 to
Dating from 1535, the Year Books are the oldest English case reports They record judicial decisions, but not comprehensively by modern standards The entries are written in a mixture of English, Latin, and French, and they are frequently sketchy, recounting in abbreviated terms the exchanges between lawyers and judges during argument and decision Their focus is primarily procedural, with the underlying substantive law discernible mainly by identifying which fact patterns were considered actionable and which were not.
THE GREAT LEGAL COMMENTARIES ON ENGLISH LAW
THE OLD ENGLISH WRIT SYSTEM
According to Blackstone, writing in the late 1700s, the Romans adopted forms of action patterned on the Greeks and established a rule that every injury be redressed only by its proper remedy This practice continued across the European continent and in England.
In medieval England, claims were tied to writs—Latin documents directing the defendant to perform a duty or to appear in court to answer for a failure These writs not only identified the nature of the claim but also determined the forum for litigation Royal writs moved disputes from local courts to Royal courts staffed by appointees of the King, with revenues accruing to the crown The writ system signaled a shift from local, court-based adjudication to national courts with broader reach The rise of national courts enabled the development of uniform laws across England, which eventually became the foundation of a centralized legal framework.
As best we can tell from our present vantage point, the old system of initiating litigation by issuing a Royal writ came into existence during the reign of the
Plantaganet monarch Henry II (1154-1189), and grew to ascendancy by the reign of Edward I (1272-1307) 43
During Edward I’s reign, legal proceedings started with the issuance by the King’s Chancery department of a
Royal writs, written in Latin and bearing the King’s seal, could be issued once a claim presented to Chancery was recognized, simply by filing a request and paying a fee The Chancery clerk would issue one of the many “writs of course,” which would then be filed in the appropriate court, vesting the court with jurisdiction over the lawsuit The writ ordered the defendant to be summoned to court to answer the plaintiff’s charge In that era, writs were highly particularized: one writ covered crops trampled by a neighbor’s cow, another by the neighbor’s swine When a claim could not fit into any established writ of course, it failed until the Second Statute of Westminster was promulgated in 1284 during the reign of Edward I, which gave the Chancery department the power to issue new types of writs “in consimili casu,” or in analogous cases Each writ issued by Chancery was evaluated by the law courts in which the claim was filed, and these law courts disallowed many of the new writs.
Chancery was cautious about creating new causes of action or remedies, but the writs in consimili casu provided a vehicle for expanding the rules of liability over time This innovation allowed new writs to appear and gradually broadened the scope of permissible causes of action As a result, the landscape of liability claims evolved, with remedies and liability rules expanding through incremental legal developments.
THE OLD COMMON LAW FORMS OF ACTION
Over time, the English legal system shifted its focus from the exact wording of the writ to the underlying form of action, with the purport of a lawsuit determined by the nature of the claim rather than the precise writ language The writ procedure persisted and left vestiges in places like Texas even today, but the central question became what the claim asserted rather than how the writ was framed Nevertheless, a claim still had to be framed to fit a recognized form of action, or it would be dismissed for failing to align with an established procedural category.
Choosing the form of action to state a claim depends on the claim's nature, because different forms of action offer different remedies, and the remedy can be shaped by the court in which the claim is filed Therefore, in seeking legal relief, the English lawyer must weigh the nature of the claim, the available remedies, and the proper court, all in light of the facts of the case.
Before the late 18th century, the Common Law of England did not differentiate between tort and contract or among the various tort and contract claims; it was organized around the forms of action, each with its own rules Berkeley Law professor James Gordley has suggested that, in the era of the forms of action, judges decided cases not by applying abstract deductive principles but by looking for resemblances to clear cases where an action would surely lie—i.e., by analogical reasoning Treatise writers up to the 1870s tended to group cases according to similarities of fact, again using an analogical approach In the late 19th century in America, legal writers turned to inductive logic, studying a large corpus of contract cases to discern unifying principles These principles were presented as legal axioms with corollaries, and it was believed they could be applied deductively to the facts of any case to yield the correct result.
Some principles of contract law rest on historical artifacts rather than pure logic; they survive as vestiges of the writs and forms of action from which contract law evolved, or as civil-law concepts borrowed from Roman or French law by judges and commentators to fill gaps in English common law Any study of contract law benefits from identifying these echoes of history, because they still reverberate in modern doctrine and can hinder or even defeat just results Readers might groan at the thought of parsing distinctions among trespass, covenant, debt, deceit, trespass on the case, and assumpsit—yet, as Professor Maitland is famously reported to have said, “The forms of action we have buried, but they still rule us from their graves.” Understanding these forms sheds light on the origins of the Law of Contracts, including how it came to Texas with westward migration, and why historical forms continue to shape contemporary contract analysis.
170 Years of Texas Contract Law Chapter 9
DEBT
relating to real property was Debt-Detinue, which 56 appeared in Glanvill’s writing in 1188 The action 57 was for either a return of a specific chattel (Detinue) or in the alternative fungible items or a certain sum of money (Debt) At this time, a suit for Debt was seen 58 as a suit to recover possession of coins In the early 59
1200s, the Debt component to recover money broke off into a separate remedy The form of action for Debt 60 eventually became a claim for payment of a fixed sum stated in the instrument or contract sued upon, not dependent on an after-calculation to determine the amount A claim in Debt was the shortest remedy for 61 suit upon a deed or instrument under seal The form 62 of action for Debt was also available against someone who agreed to pay a specified price for goods delivered but failed to pay However, where the price was not 63 fixed in the contract, suit had to be brought as a special action on the case By the 1700s, actions on Debt 64 were seldom brought except for written contracts under seal There were two principal disadvantages to 65 claims in Debt The first is that the plaintiff could recover only the exact amount of the debt stated in the contract If the evidence established any lesser recovery, then the entire claim failed In other words, 66 if the proof varied from the claim, the case was lost 67
This was not true of a claim brought under the form
Indebitatus Assumpsit (see Section V.F below), which by its nature was a claim for an indeterminate amount 68
Another drawback of historical debt enforcement was the defendant's right to compurgation, or a "wager of law." Under this system, a defendant could defeat a claim by denying it under oath and gathering a prescribed number of supporters to swear they believed the oath's truth Over time, the practice fell into disuse and was ultimately abolished in England in 1833.
In debt actions, a fixed-sum claim is viable only when there is a quid pro quo—a reciprocal exchange or consideration backing the obligation The form of the action rests on the notion that the debtor’s liability is tied to something of value given in return; without that exchange, the claim does not meet the required legal basis.
This was a seed for the concept that later developed of contractual consideration, a concept that eventually rose to controlling significance in the 18 Century th
However, the requirement of a quid pro quo was not met by a mere exchange of promises 70
Slade’s Case marked a landmark shift in English law, where the King’s Bench first allowed a writ of Indebitatus Assumpsit to recover a debt based on the implication that an existing debt carries an implied promise to pay Since there was no right to compurgation for this new writ, Assumpsit displaced Debt as the preferred remedy for debt recovery.
Under English law, the statute of limitation for asserting a claim in Debt was 6 years Robinson v.
Under Texas law at the time, there was no separate 'Debt' claim, and all breach-of-contract actions were treated the same Consequently, the statute of limitations for 'actions of debt' did not correspond to the English-law form of debt action The Texas limitation period was two years for oral contracts and four years for written contracts (Id.).
COVENANT
In the first half of the thirteenth century Covenant emerged as a suit to collect lease payments on land, and by the early fourteenth century the rule developed that the action of Covenant could be used to recover for breach of an agreement, but only if the agreement was under seal A seal originally meant an imprint pressed into hot wax on a document, often a pendant seal attached by ribbon, and the seal was unique to the individual to authenticate the signature Blackstone explained that the writ of Covenant directed the sheriff to command the defendant to keep his covenant with the plaintiff (or show good cause why he did not), and when the promise concerned the conveyance of real property, specific performance was an available remedy Maitland regarded Covenant as one of the foundations of our law of contract, and Covenant came into existence before the requirement of contractual consideration; consideration was never a component of this form of action, so a Covenant suit could enforce a contract under seal even without consideration This law continued into the twentieth century, as reflected in Cairo, T & S.R Co v U.S.
Brandeis explained in 267 U.S 350, 351 (1925) that a release embodied in a sealed agreement is binding even without consideration As the doctrine requiring consideration took hold, the sealed document was explained by the suggestion that the seal itself demonstrates sufficient intent to be bound Other courts adopted a legal fiction that the seal creates an irrebuttable presumption of consideration See Knott v Racicot, 442 Mass 314, 327.
Since 2004, the presumption that consideration arises from a seal has been discontinued, and the legal significance of a seal has been largely nullified in most states In 1858, the Texas Legislature adopted a statute stating that no scroll (printed seal) or private seal shall be necessary to the validity of any contract, bond, or conveyance—whether relating to real or personal property—except for those made by corporations; moreover, the addition or omission of a seal in any way does not affect the force and effect of the contract With the elimination of the distinction of a seal, the Covenant form of action was essentially abolished, along with the ability to enforce a contract that was not supported by consideration, as noted in Section XVII.A Consequently, the special distinction of contracts under seal was abolished for sales of goods under the Uniform Commercial Code, specifically U.C.C Section 2-203.
Under English law, the statute of limitation for asserting a claim in Covenant on a sealed contract was
20 years Robinson v Varnell, 16 Tex 382, 1856 WL
4908, *5 (Tex 1856) (Wheeler, J.) Since the remedy available under Texas law was not dependent on the form of action, the 4-year statue of limitations applied
170 Years of Texas Contract Law Chapter 9 to all claims on written contracts, regardless of how they would have sounded under English law.
TRESPASS
F.W Maitland described “Trespass” as the fertile mother of actions, a notion echoed by many scholars who observe that as humanity advances from savagery to civilization, rulers—and later governments—seek to sublimate the natural desire for revenge into state-imposed penalties such as corporal punishment, imprisonment, or even execution This evolution then shifts from fines paid to the ruler for wrongs to a system that requires compensating victims of wrongdoing, marking a move from private retaliation to victim-centered remedies in the legal framework.
Scholars are not uniform about how a money damages claim for trespass originated, but we know that by the early fourteenth century the tort of trespass had become a recognized cause of action for damages arising from the unlawful use of force.
(i.e., committed vi et armis or contra pacem) 81
Historically, enterprising lawyers used trespass vi et armis to challenge flawed performance of contractual undertakings Courts frequently rejected such efforts when the duty arose from an agreement, but there were cases where trespass vi et armis was pleaded and allowed, even though the surrounding facts suggested the real claim was negligent performance of a contractual duty rather than an intentional wrong The Humber Ferry case of 1348 is notable: the court allowed a trespass claim against a ferryman who overloaded his ferry, causing the plaintiff’s horse to drown, illustrating that a negligent contract‑performance claim could proceed under trespass.
Historically, trespass referred to intentional wrongs and direct harm, but its scope gradually narrowed and failed to cover unintentional harms or harm caused without force This gap was closed by the emergence of a new form of action called “trespass on the case,” which extended liability beyond the classic trespass See Section V.E below.
DECEIT
Deceit, a historical claim in contract law, targeted deceitful contract-making, especially against sellers who gave false warranties about goods The first recorded action occurred in 1382 against a seller who sold a blind horse By the 1500s, proving that the seller intentionally lied was no longer required; it was enough that the buyer was deceived A breach-of-warranty claim was not treated as enforcing a contractual promise, since the goods had been delivered and the contract performed Instead, deceit for breach of warranty operated as a remedy for having been misled.
A claim of warranty was an important exception to the general rule in sales transactions of caveat emptor 90
Under caveat emptor and in the absence of a warranty, the sale of defective goods was not actionable By the 1400s, a warranty claim could not be pursued if the falsity of the representation was evident to the senses, and the law did not treat a warranty as a promise or covenant about the future; a warranty related to a statement of fact about a present condition To distinguish deceit based on warranty from a breach of promise remedied in Covenant—and to avoid Covenant’s requirement of a deed or written agreement—these two paths were kept separate Early English courts also imposed liability on purveyors of food or drink that sickened people without proof of a verbal warranty, an early example of strict liability.
TRESPASS ON THE CAS
Under the Statute of Westminster, promulgated in 1284–95 during the reign of Edward I, the writ of trespass expanded beyond harm caused by unlawful force to cover bodily injury and property damage caused by negligence When no illegal force was involved, plaintiffs could sue for Trespass on the Case—an injury resembling trespass but not rectifiable as an actual trespass Early decisions rejected claims for negligent performance of a contractual obligation because the duty arose from the agreement itself, and an assumed duty could not support Trespass on the Case; over time, however, the law evolved to allow such negligence-based claims.
Historically, English law distinguished Trespass, Case, Covenant, and the later development of Assumpsit In 1369, William of Waldon sued J Marechal in Trespass or Case for negligent treatment of a sick horse, and the Court of Common Pleas held that a remedy existed in Trespass on the Case because the wrong was not contra pacem and Covenant required a deed In 1409, the same court rejected a carpenter’s suit for promising to build a house by a date but failing to construct any house, ruling the claim sounded in Covenant and no written contract was proven, revealing the inadequacy of Trespass on the Case to address a failure to perform a contractually imposed duty that did not result in physical injury or property damage; such claims later found their home in Assumpsit This highlights a key distinction: early Trespass cases involved misfeasance of a job performed—Trespass covered misfeasance but not nonfeasance, i.e., a job left undone.
Trespass on the Case grew from traditional Trespass, which was limited to direct injury to a person or to personal property in the plaintiff’s possession By the late eighteenth century, a suit for violations or breaches of an express contract was brought as an action on the Case with no reference to Trespass From this action on the Case emerged the immediate forerunner of a contract claim: assumpsit.
170 Years of Texas Contract Law Chapter 9
ASSUMPSIT
that means “he took upon himself.” Assumpsit began as an extension of a claim for Trespass on the Case 103
According to Harvard Law School Dean James Barr
Ames, who wrote The History of Assumpsit, notes that the distant forerunners of Assumpsit were claims arising from misfeasance in everyday services—such as a ferryman who overloaded his boat and caused the plaintiff’s horse to drown, a veterinary surgeon who killed a horse through negligence, or a doctor who undertook to cure someone but did so unskillfully, a blacksmith who lamed a horse while shoeing it, or a barber who shaved a patron and injured the face The early Trespass claims were for damages for injury to person or personal property resulting from misfeasance, and they functioned as tort-like claims grounded in a duty of care voluntarily assumed by the defendant in a commercial transaction Importantly, this class of claims did not require proof of consideration, a feature that distinguishes contract claims today.
The category of claims that could be asserted through
Assumpsit expanded slowly over many decades, and what is said about it depends on the historical period in question As legal practice evolved, Assumpsit subdivided into subcategories to reflect different forms of obligation Express Assumpsit involves a specific promise, whether oral or written, that creates liability Implied Assumpsit arises when a promise is attributed to a party by the surrounding circumstances and conduct, even without an explicit agreement General Assumpsit, also known as Common Assumpsit, covers broader, non-specific promises or obligations and the disputes arising from them.
Assumpsit was a promise to pay a debt Special
Assumpsit was a claim for expectation damages resulting from a promise to pay a debt.
Indebitatus Assumpsit became the preferred method for debt collection because it removed the right to compurgation or wager of law that existed under Debt, and the amount to be recovered did not have to be specified in the contract sued upon, allowing partial recovery when the claim’s value could not be determined in advance It also did not require a contract under seal, and in fact did not require the contract to be in writing, unlike Covenant These features gave Indebitatus Assumpsit greater flexibility and practicality as a remedy for creditors.
In Blackstone’s time, a plaintiff suing on a promissory note could bring an Express Assumpsit to recover the value of the note If a builder promised to build and roof a house by a certain time and failed to do so, the injured party could sue in an action on the Case to recover damages for the delay.
The claim recognized in Texas law, of “money had and received,” sounded in Assumpsit Briggs v Rodriguez,
• J.B Ames, The History of Assumpsit, 2 Harv L.
• George F Deiser, The Origin of Assumpsit, 25
THE DEMISE OF THE FORMS OF ACTION
New York's Field Code of 1848 marked the start of a new system of forms of action, and in England the English Judicature Code of 1873 unified law and equity courts into a single system by abandoning the old forms of action Under these reforms, litigants were required only to state their claims in their pleadings and prove them in court, removing the old emphasis on fitting a case into a recognized form of action Yet the traditional forms of action did not disappear; they persisted as recognized causes of action within the new unified framework.
THE TEXAS EXPERIENCE
THE ROOTS OF TEXAS LAW: SPANISH, MEXICAN, LOUISIANAN, AND COMMON LAW
Before Texas gained independence from Mexico, the applicable law was the Siete Partidas and the Novísima Recopilación, with Febrero Novísimo recognized as the most authoritative treatise on this legal regime Even after Texas declared independence, the Spanish legal tradition continued to shape the region’s jurisprudence.
170 Years of Texas Contract Law Chapter 9
Mexican laws continued to determine the effect of conveyances of land titles and contracts made prior to independence, and for a short period they also governed the statute of limitations on contractual enforcement Louisiana law was adopted to govern probate proceedings.
Under this view, the meaning and effect of the Spanish law are questions of law for the court to determine, not factual issues for a jury to decide This separation ensures consistent statutory interpretation and prevents juries from taking on the interpretive role The practical necessity of this approach was later explained by Chief Justice Taney, who argued that courts must resolve how the law operates before it can be applied to the facts of a case.
If the Spanish law then prevailing in Louisiana before the cession to the United States were treated as foreign law and not subject to judicial notice, land titles in Louisiana would become unstable and insecure; their validity would depend on divergent witness opinions and on the inconsistent verdicts of juries deciding questions of law beyond their training and studies.
The same considerations applied to Texas courts litigating Spanish and Mexican land titles The Texas
Although the Supreme Court could not take judicial notice of evidence from other cases relating to a land title—even the same title—it could consider the evidence of Spanish law presented in the trial court and could also judicially notice the Spanish laws in force at the time of the events in question.
A similar approach was taken by the Supreme Court of the Republic of Texas to Louisiana law, which was relevant because of Louisiana’s similar reliance on
Spanish law The Texas Justices had access to
Louisiana case law, and in some cases the Justices looked to the Louisiana case law for guidance on the content and interpretation of treaties, Spanish law,
The Texas Supreme Court occasionally determined the specifics of Louisiana law on its own, relying on Louisiana statutes without the need for expert testimony or other Louisiana-law evidence developed in the trial court.
SIETE PARTIDAS
compilation of the laws of the Kingdom of Castile and
León, part of what is now the Kingdom of Spain 117
Originally called Libro de las Leyes (Book of Laws), the work came to be known by the number of its subdivisions (seven parts) The work was written in
Spanish, not Latin Traditional history tells us that the work was constructed from mid-1250s to the mid-
Dating from the 1260s, the Siete Partidas was produced by a four-jurist commission under King Alphonso X, marking a shift from earlier efforts that mainly promulgated standardized local laws in the Kingdom of Castile and León Rather than a patchwork of local edicts, the Siete Partidas functioned as a superior legal code, akin to a preemptive federal framework Its authority endured for generations, and in Texas it remained the applicable law until 1836, when Texas adopted English common law for criminal law and for juries and evidence, and extended English common law to civil proceedings in 1840 Nevertheless, after 1840 the Siete Partidas continued to govern contracts, land titles, and mineral rights granted during the periods of Spanish and Mexican rule.
Justice Mills applied Spanish law to resolve a suit to set aside the sale of a diseased slave in a redhibitory action, which under Spanish law seeks to nullify a sale due to defects that render the item unusable The Court cited two Louisiana Supreme Court cases, controlled by a Louisiana statute, as authority for the rule that a redhibitory action will not lie if the vendor proclaims the defect or if the defect is so apparent that the vendee would be compelled to observe it; Justice Mills also cited the Moreau line of authorities in support.
Lislet/Carleton translation of the Siete Partidas 119 for the rule that, where the vendor was not aware of the defect, the buyers’ remedy was a reduction in sales price In the case at bar, Justice Mills pointed out that under Spanish law the judge determines damages, but under the jury system in Texas the jury decides, and
“[t]his court will never interfere with the verdict of a jury unless manifestly contrary to law and evidence.”
Id at 360 In Selkirk v Betts & Co., Dallam 471, 1842
WL 3637 (1842) (Hutchinson, C.J.), the law of Spain was applied to promissory notes executed in 1839 (before the English Common Law was adopted for civil matters in Texas) In Garrett v Gaines, 6 Tex 435,
1851 WL 4014, *8 (Tex 1851) (Hemphill, C.J.), the Court applied Spanish law to a contract entered into in
1836 See Miller v Letzerich, 121 Tex 248, 254, 49 S.W.2d 404, 408 (1932) (Cureton, C J.) (the validity of contracts and land grants predating the adoption of the Common Law of England governs such contracts and land grants).
• Marilyn Stone, Las Siete Partidas in America:
Problems of Cultural Transmission in the Translation of Legal Signs, pp 281-290, in
Marshall Morris, Translation and the Law (JohnBenjamins Pub Co 1999).
THE NOVISIMA RECOPILACION
Recopilación de las Leyes de los Reynos de las Indias was a four-volume compilation that adapted Spain’s laws for its overseas realms, including Mexico, and was promulgated in 1681 under King Charles II; in contrast, the Novísima Recopilación de las Leyes de España appeared in twelve books between 1805 and 1807, representing a comprehensive modernization of Spain’s legal code.
THE FEBRERO NOVISIMO
Novísimo was a treatise on Mexican law published inValencia, Spain by Jose Febrero in 1829 Texas
170 Years of Texas Contract Law Chapter 9
Supreme Court Chief Justice John Hemphill appears to have started with a copy of the Siete Partidas, but he did not have access to Febrero Novisimo until the 1842 term of court, and the Novisima Recopilacion until afterward.
THE 1827 CONSTITUTION OF COAHUILA AND TEXAS
The Constitution of Coahuila and Texas, adopted on March 11, 1827, left uncertain how much of its authority extended as law in Texas, but it is evident that the despots who held political power from Mexico City did not respect its terms.
This constitution had little impact on Texas law.
INTRODUCING THE COMMON LAW TO TEXAS
TEXAS The Common Law of England became the law of Texas in criminal matters from the outset, under
The Declaration with Plan and Powers of the
The Provisional Government of Texas (1836) was adopted by the convention that began on March 1, 1836, establishing the transitional framework for Texas’s independence Under the provisional system of laws, no civil judicial system was provided, leaving the early republic without a formal civil judiciary The 1836 Constitution of the Republic of Texas, Article IV, Section 13, was adopted in the same constitutional effort, shaping the governance structure of Texas during its transition to statehood.
Section 13 instructs Congress to, as early as practicable, enact by statute the common law of England with modifications as our circumstances may require, and to establish the common law as the rule of decision in all criminal cases.
On December 20, 1836, Sam Houston, as President of the Republic of Texas, signed an act adopting the
The Common Law of England, as then practiced and understood—especially in its application to juries and to evidence—was not adopted into Texas civil law by the Texas Congress until January 20, 1840; the statute enacted on that date announced the adoption of English law into Texas civil jurisprudence.
Be it enacted by the Senate and House of
Representatives of the Republic of Texas, in
Congress assembled, That the Common Law of
England, so far as it is not inconsistent with the
The Constitution and the acts of Congress currently in force shall, together with such acts, be the rule of decision in this Republic, and shall continue in full force until altered or repealed by the proper legislative authority.
Pas Dig Art 804 Section 2 of the 1840 Act repealed all laws existing in Texas prior to September 1, 1836, excepting provisional laws adopted by the Provisional
Under the Revolutionary Government, laws governing land grants and mineral rights were shaped by the Act It expressly carried forward the Spanish concept of community property as Texas’s marital property regime, granting both spouses ownership of community property while giving the husband management rights over that property during marriage See Section.
On February 5, 1840, a statute clarified that adopting the common law did not mean adopting its system of pleading; instead, the proceedings in all civil suits would continue to be conducted by petition and answer, as they had been previously.
The Texas Legislature directed courts to adopt the English common law in civil proceedings, but implementation occurred incrementally as individual cases arose rather than by literal transplantation At that time England was a monarchy with Parliament as the primary legislative authority, a two-house system comprising the elected House of Commons and the hereditary House of Lords, the latter serving as the ultimate judicial authority but lacking a clear power to override royal decrees or statutes enacted by Parliament By contrast, Texas was a republic with a written constitution modeled on the United States Constitution, where power is checked and balanced among the executive, legislative, and judicial branches and where federal–state division of authority curtails governmental power Accordingly, American court decisions carried a constitutional dimension—explicit in the U.S Constitution and state constitutions—that English judgments generally did not possess or treated only implicitly.
Another point of uncertainty is that the Common Law of England evolved over six centuries through the judicial application of royal decrees and acts of Parliament, so the Texas Congress could not have envisioned a full-scale adoption of English statutory law This long historical arc helps explain why a direct transplant of English statutes into Texas would face substantial challenges.
(Coke, J.), the Court held that the Common Law of England in force in Texas did not include England’s Statute of Frauds adopted during the reign of Charles
II, which had been adopted “in nearly all the states of the Union except Texas.” In Paul v Ball, 31 Tex 10
The court noted that, although the state has adopted the common law by express legislative action, it has not, as many other states have, adopted all English general statutes up to a given period that are not repugnant to the state constitution Consequently, our rules of construction and interpretation must rest on three pillars: the common law, our own statutes, and the general policy reflected in our government’s framework This interpretation framework was later reaffirmed by the Supreme Court in Southern Pac.
J.) , when it said: “No English statutes were adopted”.
In appellate proceedings, the Common Law of England and other American states is treated as a legal determination by the court rather than a factual issue for the jury, and early Texas Supreme Court opinions determined the Common Law by examining appellate decisions of the United States Supreme Court.
170 Years of Texas Contract Law Chapter 9 appellate decisions from courts of American states, and
American treatises or commentaries on the law, which in turn were based on appellate decisions from the
Supreme Courts of the United States and various
American states, and appellate decisions from English courts The Texas Supreme Court also periodically relied on English treatises or commentaries on the
Common Law of England Occasionally the Texas
Supreme Court would cite to an English case
Historically, there was a dichotomy in how the statutory and case law of other states was treated: trial courts could “learn” the laws of sister states—whether statutory or decisional—only through evidence presented in court, as illustrated by Hill v George, 5 Tex 87.
Supreme Court however, could “learn” the case law of other states by reading appellate opinions and learned treatises See United States v Mitchell, 2 Dall 348
Blackstone’s Commentaries to determine English law).
As for the statutory law of other American states, judicial notice was not generally used by Texas trial or appellate courts In Hill v McDermot Dallam 419,
In the Hutchinson decision (1841), the Supreme Court refused to take judicial notice of the common law in force in Georgia, explaining that while we are presumed to know the common-law doctrines relevant to Texas jurisprudence, this presumption does not extend to any doctrine or rule of municipal law of a foreign state It further stated that we are to notice officially the jus gentium, but not the internal or municipal laws of other countries, and that these must be proved—written laws by authenticated copies, and unwritten ones by the oral testimony of those skilled in them (Crosby v Huston, 1 Tex 203, 1846 WL 3613)
In the 1846 Bradshaw v Mayfield decision, Chief Justice Hemphill held that when the validity, terms, obligations, or interpretation of a contract depend on the laws of a foreign country, those laws must be proven before they can guide judicial action.
(1856) (Hemphill, C.J.), the Supreme Court refused to take judicial notice of the common law of Tennessee when it had not been proved up in the trial court
The earliest learned legal treatises cited by American courts were American treatises that drew heavily from
English court decisions and treatises on English law.
This served to incorporate English Common Law doctrines into American Common Law Still, the courts of American states who had, prior to the creation of
Texas, adopted the Common Law of England had arrived at the conclusion that the Common Law adopted in their jurisdiction was actually the Common
English law as applied in America took shape prominently in Texas, where Supreme Court decisions more often cited common-law principles articulated in prior rulings by the U.S Supreme Court and the appellate courts of various American states than in English court decisions This aligns with the practical reality that Texas’s early justices—both in the Republic of Texas and later in the State of Texas—were trained as lawyers in American jurisdictions; for example, Abner S Lipscomb served fifteen years on the Alabama Supreme Court before moving to Texas As a result, the common law adopted in Texas can be described as the constitutional common law of America, derived from English common law This view was confirmed in Grigsby v Reib.
We conclude that the common law of England, as adopted by the Congress of the republic, is the common law declared by the courts of the several states of the United States This conclusion is supported by the fact that the lawyer members of that Congress who framed and enacted the statute were reared and educated in the United States, and would naturally have in mind the common law with which they were familiar If we adopt that as our guide and source of authority, the decisions of the courts of those states determine which rule of the English common law should be applied to this case.
In Grigsby v Reib the Supreme Court rejected the
English Common law of informal marriage In
Clarendon Land, Investment & Agency Co v. McClelland, 86 Tex 179, 23 S.W 576, 577 (Tex.