Contracts and Equivalences

Abstract

When Justice Holmes reminds us that the earliest forms of contract in common law are covenant and debt, we want to be aware that, of these, debt is the elemental form.1 The covenant, related to the promise under seal after the Norman invasion, is a distinct kind of promise. It represents, as sign, evidence and fact, which are themselves the outcome of a preparatory legal procedure. Debt, that is, the history of the action of debt in law, is more ancient and nearly universal throughout legal systems. It is tied to the doctrine of consideration, and, as is well known, consideration was rarely if ever required for contracts under seal. Consideration, in layman’s terms, is equivalent to the proof of the existence of a contract. Proof takes a number of forms, but each of these forms may be regarded as a variation in the act of attesting to an agreement of quid pro quo.2