Abstract

THE DOCTRINE OF WAIVER OF TORT IN THE LIGHT OF ENGLISH COMMON LAW TRANSFORMATION

Summary
The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted from the domination of procedural rules over substantive ones. Each of medieval writs initiated peculiar proceedings that had been drafted specially for separate causes of action. As this proceedings differentiated between themselves, plaintiffs attempted to use those writs that restricted the scope of applicable defenses. Hence one of the most popular actions was a quasi-contractual formula named “indebitatus assumpsit for money had and received”. As compared with the tort actions this formula enabled plaintiff to avoid consequences of “actio personalis moritur cum persona” rule and shortened periods of limitation. That is the reason why plaintiffs attempted to apply the quasi-contractual remedy against tortfeasors. The waiver of tort doctrine took its name from the fiction that an injured party waived his rights based on tort and approved all acts performed by a tortfeasor. In consequence the former party was authorized to sue the latter in quasi-contract. As the forms of action had been abolished in late 19th century, lawyers began to perceive “waiver of tort” as a misnomer and started to focus rather on the fact that from one cause of action separate remedies might arise. The change of this attitude was possible due to transformations that took place in common law. The procedural rules ceased to dominate over the substantive ones.