1911 Encyclopædia Britannica/Covenant (law)

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COVENANT, in law, is the English equivalent of the Lat. conventio, which, although not technical, was the most general word in Roman law for “agreement.” It was frequently used along with pactum, also a general term, but applied especially to agreements to settle a question without carrying it before the courts of law.

The word “covenant” has been used in a variety of senses in English law.

1. In its strict sense, covenant means an agreement under seal, that something has or has not already been done, or shall or shall not be done hereafter (Shep. Touchstone, 160, 162). It is most commonly used with reference to sales or leases of land, but is sometimes applied to any promise or stipulation, whether under seal or not. The person who makes, and is bound to perform, the promise or stipulation is the covenantor: the person in whose favour it is made is the covenantee.

2. Covenants have been subdivided into numerous classes, only a few of which need to be described. It is unnecessary to do more than mention affirmative and negative covenants, joint or several, alternative or disjunctive covenants, dependent or independent covenants. As to collateral covenants, covenants “running with the land,” and covenants in leases (including “usual,” “proper” and “restrictive” covenants), see Landlord and Tenant. But there are other classes as to which something must be said.

A covenant is said to be express when it is created by the express words of the parties to the deed declaratory of their intention. It is not indispensable that the word “covenant” should be used. Any word which clearly indicates the intention of the parties to covenant will suffice. An implied covenant, or covenant in law, “depends for its existence on the intendment and construction of law. There are some words which of themselves do not import an express covenant, yet, being made use of in certain contracts, have a similar operation and are called covenants in law; and they are as effectually binding on the parties as if expressed in the most unequivocal terms” (Platt on Covenants, p. 40). Thus, the word “demise,” used in a lease of deed, raises the implication of a covenant both for “quiet enjoyment” and for title to let; and it has been judicially suggested that a covenant for quiet enjoyment may be implied from any word or words of like import (Budd-Scott v. Daniell, 1902, 2 K.B. p. 359). The Conveyancing Act 1881 provides (§ 7) that in a conveyance for valuable consideration, other than a mortgage, there shall be implied, as against the person who conveys and is expressed to convey as “beneficial owner,” certain qualified covenants—i.e. covenants extending only to the acts or omissions of the vendor, persons through whom he derives title otherwise than by purchase for value, and persons claiming under them—for “right to convey,” “quiet enjoyment,” “freedom from incumbrances” and “further assurance.” Of these statutory covenants for title the only one which requires explanation is the covenant for further assurance. It imports an agreement on the part of the covenantor to do such reasonable acts, in addition to those already performed, as may be necessary for the completion of the transfer made (or intended to be made) at the requirements of the covenantee (Platt on Covenants, p. 341). All these statutory implied covenants “run with the land” (see Landlord and Tenant). Where a mortgagor conveys, and is expressed to convey, as “beneficial owner,” there are implied absolute covenants—i.e. covenants amounting to a warranty against and for the acts and omissions of the whole world—that he has a right to convey, that the mortgagee shall have quiet enjoyment of the property after default, free from incumbrances and for further assurance. Special provisions as to implied covenants by the lessor in leases are made in England by § 7 (B) of the Conveyancing Act 1881 and in Ireland by the Land Act (Ireland) 1860, § 41. The distinction between real and personal covenants is that the former do, while the latter do not, run with the land. An inherent covenant is another name for a real covenant (Shep. Touchstone, 176; Platt, 60). When a covenant relates to an act already done, it is usually termed a covenant executed; where the performance is future, the covenant is termed executory. The covenant for seisin was an assurance to the grantee that the grantor had the estate which he purported to convey. In England it is now included in the covenant for right to convey; but is still in separate use in several states in America. The covenant to stand seised to uses was an assurance by means of which, under the Statute of Uses [1536] (see Uses), a conveyance of an estate might be effected. When such a covenant is made, the legal estate in the land passes at once to the covenantee under the statute. The consideration for the covenant must be relationship by blood or marriage. It is still occasionally though very rarely employed. The covenant not to sue belongs to the law of contract and needs no explanation.

Most of the classes of covenants above mentioned are in use in the United States. In New York, Michigan, Minnesota, Oregon, Wisconsin and Wyoming the implication of covenants for title has been, with certain exceptions, prohibited by statute. In Alabama, Arkansas, Delaware, Illinois, Indiana, Mississippi, Missouri, Montana, Nevada, New Mexico, Pennsylvania and Texas the words grant, bargain and sell, in conveyances in fee, unless specially restricted, amount to qualified covenants that the grantor was seised in fee, free from incumbrances, and for quiet enjoyment (4 Kent, Commentaries, § 473; Bouvier, Law Dictionary, s.v. Covenant). In some of the states a covenant of non-claim, or of warranty, an assurance by the grantor that neither he nor his heirs, nor any other person shall claim any title in the premises conveyed, is in general use.

3. An action of covenant lay for breaking covenant. As to the history of this action see Pollock and Maitland, History of English Law, ii. 106; and Holmes, The Common Law, p. 272. There was also a writ of covenant. But this remedy had fallen into disuse before 1830 (see Platt on Covenants, p. 543), and was abolished by the Common Law Procedure Acts. Since the Judicature Acts, an action on a covenant follows the same course as, and is indistinguishable from, any ordinary action for breach of contract. The remedy is by damages, decree of specific performance or injunction to prevent the breach.

The term “covenant” is unknown to Scots law. But its place is filled to some extent by the doctrine of “warrandice.” Many of the British colonies have legislated, as to the implication of covenants for title, on the lines of the English Conveyancing Act 1881; e.g. Tasmania, Conveyancing and Law of Property Act 1884 (47 Vict. No. 10).

As to covenants in restraint of trade see Restraint.

Authorities.—In addition to the authorities cited in the text see: English Law; Goodeve, Law of Real Property (5th ed., London, 1906); C. Foa, Landlord and Tenant (3rd ed., London, 1901); Hamilton, Law of Covenants (London); Fawcett, Law of Landlord and Tenant (3rd ed., London, 1905). American Law: Rawle, Law of Covenants for Title (Boston, 1887); Encyclopaedia of American Law (3rd ed., 1890), vol. viii., tit. “Covenants.” (A. W. R.)