Covenant – to claim damages as a result of breach of contract, deed, or other covenant, to fine someone

Definition of Covenant:

vb. (14c.) To promise or undertake in a covenant; to agree formally.”

n. (14c.) 1. A formal agreement or promise, usually in a contract or deed, to do or not do a particular act; a compact or stipulation.”1

Definition of WRIT OF COVENANT:

(16c.) Hist. A writ for one claiming damages as a result of a breach of a promise under real or other covenant. — Also termed breve de conventione. See CONVENTIONE.

     “The writ of covenant (breve de conventione) is not mentioned by Glanvill; but it appears within a short time after the publication of his book & already in the early years of Henry III. It can be had ‘as a course’ at all events when the tenement that is in question is of small value. Before Henry’s death it has become a popular writ… The great majority of actions of covenant are brought merely in order that they may be compromised. We doubt whether any principle was involved in the choice; but may infer that the procedure instituted by this writ was cheap & expeditious for those who wished to et their final concord.

  • 2 Frederick Pollock & Fredderic W. Maitland, The History of English Law Before the Time of Edward I 216-17 (2d ed. 1899)2

Definition of CONVENTIONE:

“[Latin] Hist. A writ for the breach of a written covenant. This writ was often used when parties wished to convey land by fine. — Also termed writ of covenant. See FINE (1).”3

Definition of FINE:

“n. (13c.) 1. An amicable final agreement or compromise of a fictitious or actual suit to determine the true possessor of land. The fine was formerly used a s form of conveyance to disentail (page 28) an estate. — Also termed final concord; finalis concordia. See FOOT OF THE FINE.”

    “A peculiar & persistent use of the writ [of covenant] was in levying a fine.  A fine — finalis concordia — was the compromise of a suit, settled upon terms approved by the court. The dispute, while it might be a reality, was more often fictitious, & was chiefly used as a means of conveying land… Soon after [Glanvill’s] book was written, an innovation was made in the procedure which endured until 1833. The terms of the compromise, agreed by the parties & approved by the judges, were entered upon a threefold indenture, one fo the parts being given to each of the litigants & the third — the ‘foot’ or bottom of the document — being kept among the records of the court. The parties thus obtained incontestable evidence & abundant security, & either could sue the other if the agreement were not implemented.

  • C.H.S. Fifoot, History & Sources of the Common Law: Tort & Contract 256 (1949)

      “Unlike the recovery, which was a real action, the fine was a compromised fictitious personal action, originally designed as a method of ensuring security in conveyancing & only later being employed for the purpose of barring estates tail. In outline, it operated in the following manner. The intending purchaser brought an action, begun by writ of covenant, against the intending vendor. The parties then applied to the court to compromise the action; by the terms of the compromise (finis) the intending vendor admitted that the land belonged to the intending purchaser because he had given it to him, & the terms of the compromise were recorded in the court records. The fine owed its popularity as a means of conveyancing to two factors, neither of which was present in the standard method of conveyance by means of feoffment. First, the enrolling in the court records provided evidence of the transaction which was both permanent & free form the danger of forgery. Secondly, the effect of the fine was to set running a short period of limitations at the expiration of which all claims to the land were barred. It was this second aspect, which made the device attractive as a means of ‘barring’ fees tail.

  • Peter Butt, Land law 102-03 (2d ed. 1988)4

Definition of FOOT OF THE FINE:

“(16c.) Hist. At common law, the fifth & last part of a fine of conveyance. This part included the entire matter, reciting the names of the parties & the date, place, & before whom it was acknowledged or levied. — Also termed chirograph.”5

Definition of LEVY:

“vb. (14c.) 1. To impose or assess (a fine or a tax) by legal authority <levy a tax on gasoline>. 2. To enlist for service in the military <the troops were quickly levied>. 3. To declare or wage (a war) <the rival clans levied war against each other>. 4. To take or seize property in execution of a judgment <the judgment creditor may levy on the debtor’s assets>.”6

Definition of REAL:

“adj. (15c.) 1. Of, relating to, or involving things (such as lands & buildings) that are fixed or immovable <real property> <a real action>. 2. Civil law. Of, relating to, or attached to a thing (whether movable or immovable) rather than a person <a real right>. 3. Actual; genuine; true <real authority>. 4. (Of money, income, etc.) measured in terms of purchasing power rather than nominal value; adjusted for inflation <real wages>”7

Definition of PERSONAL:

“adj. (14c.) 1. Of or affecting a person <personal injury>. 2. Of or constituting personal property <personal belongings>. See IN PERSONAM (next page).”8

Definition of IN PERSONAM:

“adj. [Latin ‘against a person] 1. Involving or determining the personal rights & obligations of the parties. 2. Civil procedure. (Of a legal action) brought against a person rather than property. — Also termed personal. See action in personam under ACTION (4). Cf. IN REM. — in personam, adv.”

“An action is said to be in personam when its object is to determine the rights & interests of the parties themselves in the subject matter of the action, however the action may arise, & the effect of a judgment in such an action is merely to bind the parties to it. A normal action brought by one person against another for breach of contract is common example of an action in personam.”

  • R.H. Graveson, Conflict of Laws 98 (7th ed. 1974)9

Definition of ACTION IN PERSONAM:

“(1800) 1. An action brought against a person rather than property. An in personam judgment is binding on the judgment-debtor & can be enforced against all the property of the judgment-debtor. 2. An action in which the named defendant is a natural or legal person. — Also termed personal action; (in Roman & civil law) actio in personam; actio personalis.”10

Definition of IN REM:

“adj. [Latin ‘against a thing’] (18c.) Involving or determining the status of a thing, & therefore the rights of persons generally with respect to that thing. — Also termed (archaically) impersonal. See action in rem under ACTION (4). — in rem, adv.”11

Definition of ACTION IN REM:

“(18c.) 1. ”An action determining the title to property & the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property; a real action. Also termed (in Roman law) actio in rem; actio realis; real action. P.l. actiones in rem. 4. An action in which the named defendant is real or personal property.”12

1Black’s Law Dictionary Deluxe Tenth Edition page 1847

2“ “ page 488

3“ “ page 406

4“ “ page 749-750

5Black’s Law Dictionary Deluxe Tenth Edition page 760

6“ “ page 1046

7“ “ page 1455

8“ “ page 1325

9“ “ page 749-750

10“ “ page 36

11“ “ page 913

12“ “ page 36

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