Definition
Arrestment jurisdictionis fundandae causa (often shortened to arrestment jurisdictionis) is a remedy in Scots law by which a creditor or litigant causes the property of a foreign debtor — property located within Scotland — to be arrested (seized or frozen) for the sole purpose of founding jurisdiction over that debtor in the Scottish courts. It is not a debt-collection mechanism in itself. Its function is procedural: to compel a court to assert personal jurisdiction over a defender who would otherwise have no connection to Scotland sufficient to ground a lawsuit.
The full Latin phrase means, roughly, "arrestment for the purpose of founding jurisdiction." Once jurisdiction is founded through this device, the substantive action may proceed. The arrestment itself does not satisfy the debt and does not transfer property to the creditor; it merely anchors the defender to the forum.
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Common Confusion
This term is easily conflated with two related but distinct Scots law concepts. Arrestment in execution (also called arrestment in satisfaction) is used to attach a debtor's property in enforcement of a judgment already obtained — it operates after the litigation has concluded. Arrestment on the dependence, by contrast, freezes assets during pending litigation to preserve them for eventual enforcement. Arrestment jurisdictionis is different from both: it operates before litigation is properly commenced and serves only to establish the court's authority to hear the case at all. The three forms share a name and a procedural mechanism but serve entirely different legal purposes; conflating them in historical sources will produce fundamental misreading of the text.
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Why It Matters in Research
This is a narrow term of classical Scots private law with no direct equivalent in English common law. Researchers approaching it from a common law background should be aware of several traps.
First, Black's Law Dictionary's entry (under FUNDANDAE CAUSA) is sparse and partially embedded within an entry that conflates the Scots procedural concept with the feudal term arrière-fief — an unrelated matter of French feudal tenure. The Black's entry is not a reliable standalone source for this concept; researchers should treat it as a pointer, not a definition.
Second, jurisdictional arrestment underwent significant doctrinal reform in Scotland. Following the Civil Jurisdiction and Judgments Act 1982, and Scotland's integration into the Brussels Convention (and later Brussels I Regulation) framework, the traditional common law-style use of this device against EU-domiciled defenders was substantially curtailed. Pre-1982 Scots sources will describe a wider scope of application than post-1982 practice permits. Researchers working with modern Scots civil procedure should note that jurisdictional arrestment survives primarily for defenders domiciled outside the Brussels/Lugano framework.
Third, the term appears in older Scots institutional writers — Stair, Erskine, Bell — and in sheriff court practice manuals. These are the authoritative corpus sources; Black's is a secondary pointer at best. Any serious research into this device should consult Bell's Commentaries or the Stair Memorial Encyclopaedia (Scots Law) directly.
Fourth, in the Law Mind corpus, materials touching Scottish civil procedure, conflict of laws, or international commercial litigation are the most likely contexts for this term. It will rarely appear in purely criminal materials. The encyclopedia entries on arrest listed above address Anglo-American criminal arrest procedure and are not directly applicable, though they provide useful definitional contrast between the civil Scots concept and the criminal Anglo-American one.
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Historical Dictionary Support
Black's Law Dictionary treats this concept under the heading FUNDANDAE CAUSA, cross-referencing the arrestment as a Scots procedure. The entry is thin and, as noted, sits awkwardly beside the unrelated feudal entry on arrière-fief, suggesting the editor grouped Latin fundand- roots without sufficient care for doctrinal separation.
No major English-language historical legal dictionary gives this term a fully developed treatment. That gap is itself informative: the concept belongs to the distinctive Scots civilian tradition, not to the common law. Historical Scots institutional sources are the proper authority. Erskine's Institute and Bell's Commentaries both address arrestment procedure with more precision than any entry traceable to Black's.
The Latin form of the term was standard in Scottish court records well into the twentieth century. Modernizing reforms have made English-language terminology more common in Scottish civil procedure, but older reported decisions and sheriff court records will use the full Latin phrase without explanation, assuming familiarity on the reader's part.
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Jurisdictional Note
This is a purely Scots law concept with no equivalent procedure in English and Welsh law or in most common law jurisdictions. Researchers working in English law, U.S. law, or other common law systems will not encounter this device in operative domestic sources. It may appear in comparative conflict-of-laws scholarship and in international commercial arbitration materials touching Scotland.
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Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia — Arrest: Probable Cause, Warrants, and Procedure provides useful definitional contrast. Note that the Anglo-American criminal law concept of arrest and the Scots civil procedure concept of arrestment are etymologically related but functionally unrelated. The encyclopedia entry illuminates what arrestment jurisdictionis is not.
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