Form of action
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The Forms of Action were the different procedures by which a legal claim could be made in the early history of the English common law. While in modern English law, as in most other legal systems, the focus is on the substance underlying an action, such as the existence of a legal right, in the early Middle Ages, the focus was on the procedure that was used, the substantive law underlying that procedure coming second.
In other words it is the form of action that was important and not the cause of action as now.
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[edit] The Forms of Action in 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 at least, were normally begun by the use of a writ. While at an early stage the clerks of the Chancery were permitted to devise new writs to deal with new situations, this freedom was drastically curtailed by the Provisions of Oxford.
Different forms of action would result in different procedures, so that one's chance of success could depend critically on the form of action which was used. The forms were also mandatory: if the wrong form were used, a case could fail.
For example, if a potential litigant wishes to assert their rights over a plot of land, they could use a writ of right. This would assert their absolute right to the land in question -- in itself a very desirable outcome -- but the use of a writ of right could well result in a trial by battle, which might be undesirable. A much quicker method might be to use an assize of novel disseisin or later to assert the right to land indirectly by the use of an action of ejectment.
[edit] Abolition of the forms
For personal forms of action, the Uniformity of Process Act (2 Will. IV, c.39 (1832)), 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.
Most real and mixed actions were abolished in 1833, by the Real Property Limitation Act (3 and 4 Will. IV, c. 27, sec 36).
There then followed the Common Law Procedure Act 1852 (15 and 16 Vic., c. 76), which dropped the requirement that any particular form of action should be mentioned on a writ. It was not until the Judicature Act of 1873 that the forms of action were abolished completely.
[edit] References
- Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
