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47 L. Q. Rev. 345 (1931)
Damages in Contract at Common Law

handle is hein.journals/lqr47 and id is 359 raw text is: DAMAGES IN CONTRACT AT COMMON LAW. T HE common law was slow in -giving damages as a remedy; it delayed a very long time indeed before it began to develop rules controlling their assessment. The private suits before the royal Courts in the earliest days, other than demands for vengeance; were proprietary in their nature, brought to regain for the plaintiff something of which he had been deprived. In the action of debt-detinue, which by the reign of Henry II was being on rare occasions brought in the king's rather than in a local Court,' compensation for detention was given in addition to the principal thing or sum claimed. By the close of the twelfth century the successful suitor in the assize of novel disseisin was recovering, with his land, a pecuniary recompense for the loss he had incurred through being dispossessed.' Soon there were many situations in which damages might be recovered, and with the rise of trespass in the thirteenth century there came into existence an action the growth of which was to make the granting of pecuniary compensation one of the chief character- istics of the common law. How were these damages to be assessed? Two principal alternatives present themselves: compensation as fixed by a rigid schedule, or estimation according to the discretion of a tribunal. The first alternative, a favourite device in Anglo-Saxon times,' might easily have been established by legislation or by custom of the Court. The tradition of royal justice was' of a different * The writer wishes to express his sense of obligation to Sir William Holds- worth, K.C., D.C.L., among whose many scts of kindness is included the reading of this article in manuscript. He is also indebted to Professor A. L. Goodhart, at whose suggestion he became interested in the field of damages. Maitland, Forms of Action 89, 882. P. and M. ii, 524. Bracton, Do Legibus, f. 187, gives an elaborate discussion --of the principles upon which these damages were to be assessed. Probably this was of little influence, since, as is indicated below, there was lacking 'the machinery necessary to enforce such theories and give them capacity of growth. ' For a typical scheme of compensation for wrongs, see the Decrees of Aethelberht, of the early seventh century, in Attenborough, Laws of the Earliest English Kings, 5-17. A discussion of certain ancient systems, including the Hittite, Babylonian, and early Roman codes, is given in Jolowicz, Assessment of Penalties in Primitive Law, Cambridge Legal Essays, 203-222. ' That this might readily have ta en ace is shown by the fact that the London Civic Court early established the rule that damages for detention of a debt were to be computed at 20 per cent. per annum, unless confession were made at the first summons. Liber Albus, in Munim. Gildh. (R. 0. 1859), i, at 471. See P. & M. ii, 215 n.

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