INTER VIVOS.
The principal contracts known to the common law and suable in the
King's Courts, a century after the Conquest, were suretyship and
debt. The heir, as the general representative of his ancestor's
rights and obligations, was liable for his debts, and was the
proper person to sue for those which were due the estate. By the
time of Edward III. this had changed. Debts had ceased to concern
the heir except secondarily. The executor took his place both for
collection and payment. It is said that even when the heir was
bound he could not be sued except in case the executor had no
assets. /1/
But there was another ancient obligation which had a different
history. I refer to the warranty which arose upon the transfer of
property. We should call it a contract, but it probably presented
itself to the mind of Glanvill's predecessors simply as a duty or
obligation attached by law to a transaction which was directed to
a different point; just as the liability of a bailee, which is
now treated as arising from his undertaking, was originally
raised by the law out of the position in which he stood toward
third persons.
After the Conquest we do not hear much of warranty, except in
connection with land, and this fact will at once [372] account
for its having had a different history from debt.
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