Covenant

Abstract

The writ of covenant lay to enforce agreements, but it came to be restricted by formality. This chapter is principally devoted to the evolution of the rule requiring a deed - a written document under seal - to evidence a covenant. There was no clear rule before 1321, and it was at first possible to wage law in covenant actions, or to refer them to a jury. From 1292, however, there are signs of a nascent principle, of uncertain scope, that a plaintiff might fail unless he had written evidence of the covenant in the form of a sealed deed. The reports are all of exceptions to this principle – which is not directly explained – until in 1321 it was clearly stated as a general rule of evidence. It was a rule which applied only in the royal courts and did not, therefore, import any narrow understanding of what a covenant was. And the deed did not preclude a plea of performance, since it was evidence only of the covenant, not of its breach.