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Form of action: Wikis


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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.


The Forms of Action in England

One of the reasons for the crystallization 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 wished to assert his rights over a plot of land, he could use a writ of right. This would assert his 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 and less dangerous method might be to use an assize of novel disseisin, or later to assert his right to the land indirectly through an action of ejectment.


Abolition of the forms

Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of legal fictions in order to fit new types of cases within the forms available. Nevertheless, for centuries the forms themselves remained unchallenged. During the 19th century, Parliament passed several laws to simplify legal procedure, and the old forms of action were gradually swept away.

For personal forms of action, the Uniformity of Process Act 1832 (2 Will. IV, c.39), 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.

The next year, most real and mixed actions were abolished, by the Real Property Limitation Act 1833 (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 within a writ. Finally, with the passage of the Judicature Act 1873, the last vestiges of the forms of action were removed.


See also


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