Action of Covenant

One of the old common-law FORMS OF ACTION by which the plaintiff claimed damages for breach of a COVENANT, that is, a contract under seal.

When the common-law system was first developing in England after the Norman Conquest of 1066, the king's courts were little concerned with the personal disputes of private parties. When the royal courts began assuming more authority the procedure for asserting a legal claim became more technical. A dispute would not be heard unless the plaintiff could make out a claim in an established form, or form of action. The courts initially refused to hear cases involving private agreements because parties could not testify in their own cases, and there often was no other way to prove the existence of a contract or its terms. Gradually, judges came to the conclusion that a contract could be proved by introducing a written agreement bearing a seal—an impression in wax or in the paper itself—and by offering evidence that the agreement had been properly delivered to the party who held it. Such a sealed writing was known as a covenant, and it was legally sufficient to give the plaintiff grounds to sue on the rights embodied in it.

The action of covenant gained recognition in the thirteenth century and remained important for centuries, as long as agreements were enforceable only if they were under seal. It was not until the end of the fourteenth century that the law began to recognize as legally enforceable a contract that was supported by consideration but not under seal.

In very early times an action of covenant could be used by a tenant who had been wrongfully ousted from his or her premises before the term of the lease had expired. If it were the landlord who ejected the tenant, the tenant could seek damages as well as recovery of tenancy, but the only remedy against anyone else was money damages. As time went by, the action was not allowed for agreements involving real property.

Originally, the action of covenant was intended to force the defendant to perform his or her part of the bargain. Where that performance could not be forced and the defendant remained adamant, the plaintiff was entitled to damages in proportion to losses. The COMMON LAW first collected amercements, or fines, from the defendant and later ordered the defendant to pay money damages to the plaintiff as well.

Today, the common-law forms of action have been supplanted in U.S. law by modern rules of CIVIL PROCEDURE, and the action of covenant no longer exists. Even so, some states have preserved certain legal consequences for contracts under seal.