Definition
A Scots law doctrine prohibiting a party from simultaneously approving and rejecting the same deed or instrument — that is, from accepting the benefits of a document while repudiating its burdens. The principle holds that a party who takes advantage of one part of a deed must take it as a whole; they cannot cherry-pick favorable provisions and discard the rest.
The doctrine is the Scottish equivalent of the English and American equitable doctrine of election: a person who accepts a benefit conferred by an instrument is bound by the instrument's obligations and cannot later challenge the parts that operate against their interest.
Common Language
Modern common usage (Wiktionary): To accept and reject the same deed or instrument (which is not permitted).
Historical common usage (Webster's 1913): Webster's 1913 does not contain an entry for "approbate and reprobate" as a compound phrase. "Approbate" appears as an archaic or dialectal form of "approve"; "reprobate" carries strong moral connotations of condemnation or depravity in ordinary English.
The gap between common and legal meaning is significant. In ordinary English, "reprobate" is almost exclusively a moral term — a reprobate is a scoundrel or morally abandoned person. In this legal compound, reprobate means simply to reject or disavow a legal instrument, carrying no moral freight. A researcher encountering the phrase for the first time may misread it as colorful language rather than a precise technical doctrine.
Common Confusion
Approbate and reprobate is frequently equated with the doctrine of election in English and American sources, and the two are functionally equivalent in outcome. However, they are not identical in framing: election is a broader equitable concept operating across multiple legal systems, while approbate and reprobate is the specifically Scottish formulation with its own doctrinal history. Researchers should not assume that English case law on election maps perfectly onto Scots decisions invoking this phrase, or vice versa. The terms are near-synonyms for research purposes but carry distinct jurisdictional pedigrees.
Why It Matters in Research
This term is predominantly a marker of Scots law or Scottish-influenced sources. When it appears in an English or American legal text, it is almost always borrowed as a shorthand for the doctrine of election — treat its presence as a flag that the author is drawing on Scottish authorities or writing in a comparative register.
Historical sources are consistent but thin. All five dictionary sources define the phrase in essentially the same terms, tracing it to Bell's Dictionary and Kames' Equity. Researchers working backward from those citations should note that the primary authority runs through Scottish institutional writers (Bell, Kames, Ross) rather than through English equity reporters. American cases citing this phrase directly are rare; the concept travels under the name "election" in U.S. courts.
The phrase can appear in trust, succession, and conveyancing contexts, wherever a party stands to benefit from one clause of an instrument while contesting another. In those research threads, the operative concept to pursue in English and American sources is election, with approbate and reprobate serving as a historical pointer back to the Scots doctrinal roots.
Be cautious about the word "reprobate" in older indices and digests. It may be shelved under moral or character-related headings by indexers unfamiliar with the technical phrase, causing the doctrine to be miscategorized or missed in keyword searches of historical databases.
Historical Dictionary Support
All five sources are in close agreement. Black's (both editions) and Burrill trace the phrase to Bell's Dictionary and 1 Kames' Equity 317, and both quote the same maxim: "Equity suffers no person to approbate and reprobate the same deed." Bouvier adds the important comparative note — explicitly identifying the doctrine as the Scottish equivalent of English election — and supplies additional Scottish appellate references (Wilson & Shaw, Ross's Leading Cases). Rapalje & Lawrence is the most explicit in directing researchers onward, cross-referencing "election" as the operative English and American term.
None of the historical dictionaries elaborate on the doctrine's procedural mechanics or its interaction with modern conveyancing practice. They treat it as a definitional cross-reference rather than a substantive doctrinal entry. Researchers needing depth must go directly to the Scottish institutional sources, particularly Bell's Commentaries and Kames' Principles of Equity.
Jurisdictional Note
The doctrine originates in Scots law and remains most at home in Scottish legal materials. In English equity, the functional equivalent is the doctrine of election, which is well developed in English chancery case law. American courts rarely invoke the phrase by name, preferring election; when the phrase does appear in American opinions or treatises, it is generally ornamental or comparative rather than operative.