chose in action and history and what is a chose in action and holdsworth

The definitions in the previous essay help give us some perspective when trying to understand the concept of chose in action. The only treatment of the history of the idea is a 1920 law review article by William Holdsworth (33 HLR 997) which is reproduced in his magesterial history of the common law. Holdsworth is always so terribly learned but often his learning gets in the way of straightforward explication. The purpose of this essay is to show how the concept of chose in action evolved in the common law. We will discover it is like a piece of velcro, picking up little pieces of actions that are quite unrelated as time goes on.

Thinking about Incorporeality

Lawyers are practical people. We like to think about what can be seen, touched, tasted. But law knows a whole category of things that cannot be so sensed. There is a category of things between real property and personal property that has historically been known as "incorporeal" entities. The term goes all the way back to Bracton in the 13th century. To use his Latin:

"Incorporales vero res sunt, quae tangi non possunt, qualia sunt ea, quae in jure consistunt sicut haereditas, usus fructus, advocationes ecclesiarum, obligationes, et actiones, et huius modi," De Legibus et Consuetudinibus Angliae, fol. 10b.

This may be translated: "Incorporeal things in fact are things you can't touch, of such sort are they, which exist in the contemplation of law such as hereditaments, usufructs, advowsons, obligations, actions and things of that sort." That is, an action, of which a chose in action, is a portion, are only one kind of incorporeal thing in the common law. The fact that it is listed in contrast to a "hereditament," means that it was thought of something that could not be "inherited," i.e., it died with the holder of the right of action. But an action, and thus a chose in action, is something incorporeal that can be brought. Now to the history.

Choses in Action (Personal)

Holdsworth points out that an action was conceived early in the common law as something that reposed in an individual. In the Year Books from the reigns of Henry VI (15th Cent.), the phrase chose in action is used "mainly in connection with rights arising under some one of the personal actions, such as debt, detinue, or trespass" (Holdsworth, supra at 1001). It is only in the sixteenth century that it was extended to cover rights arising under the real actions (i.e., for recovery of real property). But the distinction between rights to sue over both personal and real property must be kept analytically separate in early common law, for each was driven by a principle that then informed the later understanding of a chose in action.

The personal actions--such as suing on a debt or trespass-- were founded on the concept of obligatio from Roman law. Holdsworth explains, without documenting it, that

"it is clear that a personal action brought either on a contract or a tort is an essentially personal thing. The two parties have agreed, or the plaintiff has been wronged by the defendant. In both cases the cause of action arises from matters affecting those two persons and these only. On that account the common lawyers saw as clearly as the Roman lawyers that such rights of action were personal matters between these two persons" (Id. at 1003).

Buttressing the notion that the right to bring an action inhered in the individual wronged is the Germanic law--which also shaped English institutions. As explained by Patrick Morgan:

"Under early Germanic law, torts were first obligations that resulted from wrongs that individuals committed against one another. These were highly personal offenses and were dealt with primarily by "self-help"--victim-inflicted revenge. When these tribal customs later provided the basis for the Anglo-Saxon Codes, one of the first sources of English law, this strain was continued. For instance, liability for injuries to a person under Anglo-Saxon law was determined not by the offender's act but by the victim's (or his kin's) feelings," "Unbundling our Tort Rights," 66 MoLR 683, 687-88 (2001).

Thus, both Roman and Germanic law, the two fountainheads of the common law, stressed that the right to bring a claim, a chose in action, was a personal right. In the 18th century the debate over the alienabililty of choses in action--for contract actions--would heat up considerably, and one point in the debate centered precisely on the inherited notion of obligatio--that a right to bring a claim rested only in the person wronged.

Choses in Action Real

Holdsworth argues also that the right to bring claims, choses in action, also arose in the sphere of real actions, though this arose slightly later than that of personal actions. Owners of real property were disseised (removed from land); they needed actions to enable them to get back their land, their "right of seisin." But a tension began to develop here in the law. Often an owner out of possession had already leased his land to someone else, who was the person who was disseised from the land. Thus it was this someone else, a renter or lessee, who really wanted to get back into possession of the land. Would the law permit the owner out of possession to assign the cause of action, to assign his chose of action to such a lessee? England didn't want to permit it. Why? Two doctrines, known as maintenance and champerty. One could go on for quite some time describing these doctines, and I may do so elsewhere, but let's close this essay with Holdsworth's quotation (at 1007):

"In England in the Middle Ages the disorderly state of the country, the technicality of the common-law procedure, the expense of legal proceedings, and the ease with which jurors, sheriffs, and other ministers of justice could be corrupted or inimidated, made maintenance and kindred offenses so crying an evil that it was necessary to prohibit sterly anything which could in the smallest degree foster them."

The next essay will explain this in more detail.

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