Editing Form of action (section)

==England==
One of the reasons for the crystallisation of particular forms of action in English common law is the fact that actions in the royal courts were commenced by use of a writ purchased in Chancery.<ref name="Kerly_Page_9">{{cite book |last1=Kerly |first1=Duncan Mackenzie |title=An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery |date=1890 |publisher=Cambridge University Press |location=Cambridge |page=9 |url=https://books.google.com/books?id=xEM0AAAAIAAJ&pg=PA9}}</ref>  Initially, the clerks of the Chancery were permitted to devise new writs to deal with new situations. This freedom was drastically curtailed in 1258 by the [[Provisions of Oxford]].<ref name="Kerly_Page_9" /><ref name="Baker_Page_63">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=63 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA63 |access-date=August 26, 2023}}</ref>

By the 14th century, the common law had begun to show some of its defects. First, different forms of action would result in different procedures, meaning that one's chance of success was strongly dependent upon the form of action which was used.<ref name="Baker_Page_63" /><ref name="Koffler">{{cite book |last1=Koffler |first1=Joseph H. |last2=Reppy |first2=Alison |title=Handbook of Common Law Pleading |date=1969 |publisher=West Publishing Co. |location=St. Paul |page=474}}</ref> The forms were mandatory: if the wrong form was used, a case would be dismissed with prejudice.<ref name="Baker_Page_63" /><ref name="Koffler" /> Second, the common law had strict rules of evidence. For example, a deed was conclusive proof of a defendant's liability to pay. If a plaintiff brought a writ of debt ''sur obligation'' against the defendant, but the defendant had already paid the debt, the defendant would still be held liable to pay unless he could produce a deed of acquittance. Problems such as these prompted litigants to turn to the [[Equity (law)|Court of Chancery]], which had begun to develop judicial functions in the early 14th century.

===Abolition of the forms===

Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of [[legal fiction]]s in order to fit new types of cases within the existing forms.<ref name="Hepburn_Page_25">{{cite book |last1=Hepburn |first1=Charles McGuffey |title=The Historical Development of Code Pleading in America and England |date=1897 |publisher=W.H. Anderson & Co. |location=Cincinnati |page=25|url=https://books.google.com/books?id=ZAk-AAAAIAAJ&pg=PA25 |access-date=18 November 2023}}</ref>

For example, in a writ of debt ''sur contract'', the defendant could generally elect between having a jury trial or [[wager of law]]. The latter was a particularly undesired option for a plaintiff because the defendant could ''hire'' oath-helpers. This and other restrictions (for example, that the sum the plaintiff sued for had to be a fixed rather than an [[Liquidated damages|unliquidated]] sum) made debt ''sur contract'' undesirable for enforcing oral contracts. In the 16th century, litigants began to bring an action on the case instead: an action of assumpsit. The plaintiff would allege that, because the defendant was indebted to the plaintiff, the defendant had undertaken (''assumpsit'') to pay the money. The Court of King's Bench gradually accepted that the subsequent promise did not need to be proven: the defendant's alleged promise to pay the antecedent debt would be supplied by law. This view was vindicated in ''[[Slade's Case]]'' (1602).

The forms themselves remained unchallenged. The Court of Chancery eventually ceased to be the answer to the restrictive approach at common law. By the 16th century the intervention of the [[Lord Chancellor]] was increasingly said to depend on principles, rather than on some unbounded discretion. Chancery developed a stronger system of precedent and, in the words of [[John Baker (legal historian)|Professor Sir John Baker]], "hardened into a kind of law".<ref name="Baker_Page_119">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=119 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA119 |access-date=August 26, 2023}}</ref>

During the 19th century, [[Parliament of the United Kingdom|Parliament]] passed several laws to simplify legal procedure, and the old forms of action were gradually swept away:
* For personal forms of action, the [[Uniformity of Process Act 1832]] ([[2 & 3 Will. 4]]. c. 39) imposed a single uniform process. The older forms of writ were abolished and a new form of writ was to be used, although the writ had to state the form of action that was being used.<ref name="Baker_Page_75">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=75 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA75 |access-date=August 26, 2023}}</ref>
* The next year, most real and mixed actions were abolished, by section 36 of the [[Real Property Limitation Act 1833]] ([[3 & 4 Will. 4]]. c. 27).<ref name="Baker_Page_75" />
* There then followed the [[Common Law Procedure Act 1852]] ([[15 & 16 Vict.]] c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ.<ref name="Baker_Page_75" /> 
* With the passage of the [[Supreme Court of Judicature Act 1873]] ([[36 & 37 Vict.]] c. 66), most of the last vestiges of the forms of action were removed. The flexible bill procedure of Chancery was adopted by the common law courts. It was now only necessary to state the facts sufficient to give rise to one's [[cause of action]].{{cn|date=August 2023}}
The final vestige of the forms of action was abolished in 1980 by Chancellor [[Quintin Hogg, Baron Hailsham of St Marylebone|Hailsham]]: the language of the original writs in which the sovereign commanded the defendant to appear in court and answer, or else.  Lord Hailsham felt that "sending a command from [[Elizabeth II|the queen herself]] was too intimidating" for ordinary laypeople. The last original writ in the name of the queen was issued on 2 June 1980.<ref name="Baker_Page_75" />

=== The substantive law ===
With the abolition of the forms of action, it became necessary (and for the first time truly possible) to perceive the substantive law beneath the various actions.<ref name="Kessler_Page_11">{{cite book |last1=Kessler |first1=Amalia D. |author1-link=Amalia Kessler |title=Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 |date=2017 |publisher=Yale University Press |location=New Haven |isbn=9780300222258 |page=11 |url=https://books.google.com/books?id=b-vUDQAAQBAJ&pg=PA11 |access-date=October 24, 2023}}</ref>  In terms of the private law of obligations, the following points can be noted.
* ''Contract.'' The various writs by which agreements could be enforced became part of a modern [[English contract law|law of contract]], explicable in terms of consensually assumed obligation. But traces of the old forms of action remain. For example, it is not necessary to show that a claimant has provided consideration where she sues on a deed. This is because consideration was never a requirement in the action of debt ''sur obligation''.
* ''Tort.'' The various writs which involved complaint of a civil wrong and a demand for a remedy came together in a [[English tort law|law of tort]]. 
* ''Unjust enrichment.'' At first, common law restitutionary obligations were appended to the law of contract and said to form a law of [[quasi-contract]]. Motivated by the writing of scholars from [[University of Oxford|Oxford]] and [[Cambridge University|Cambridge]] the courts gradually accepted that such obligations were of another kind, underpinned by the concept of [[unjust enrichment]].<ref>See generally, Robert Goff and Gareth Jones, ''The Law of Restitution'' (1st ed, 1966); Peter Birks, ''An Introduction to the Law of Restitution'' (1985); Virgo, ''Principles of the Law of Restitution'' (3rd ed, 2011); Andrew Burrows, ''Law of Restitution'' (3rd ed, 2011).</ref> In ''[[Lipkin Gorman v Karpnale Ltd]]'' [1991] the House of Lords explicitly recognised the independent existence of the [[English unjust enrichment law|law of unjust enrichment]].