Definition
A Law French phrase used in old English conveyancing, meaning "to have and to hold." It designates the habendum clause of a deed — the operative language that defined the estate being conveyed to the grantee and the terms under which it was held. The clause containing these words was itself called "the aver et tener" (sometimes rendered "le avir et tenir" in period sources). The phrase is the Law French equivalent of the Latin habendum et tenendum.
Why It Matters in Research
This term is essentially a dead letter in modern practice — no researcher will encounter it in contemporary documents. Its relevance is entirely historical, appearing in Year Book sources and early conveyancing records predating the standardization of English as the language of legal instruments. Researchers working in medieval and early modern English land records, or tracing the doctrinal history of the habendum clause, need to recognize aver et tener as a language-era variant of a concept that persists in modern deeds under its English name.
The principal trap is terminological fragmentation: the same legal function appears in sources as aver et tener (Law French), habendum et tenendum (Latin), and "to have and to hold" (English), depending entirely on the date and register of the document. A researcher indexing or searching historical instruments must account for all three forms. Corpus searches limited to the English phrase will miss the Latin and French variants entirely, and vice versa.
The shift from Law French to Latin to English in conveyancing language roughly tracks the major legislative interventions affecting court and legal record language in England — particularly the Statute of Pleading (1362) and later reforms — though conveyancing forms lagged behind procedural language in adopting the vernacular. Researchers should not assume a clean chronological break.
The habendum clause itself — of which aver et tener is simply the period name — carries continuing doctrinal importance in property law: it can qualify, limit, or define the estate granted in the premises clause, and conflicts between the two clauses generated substantial common law doctrine that is still occasionally litigated. Understanding aver et tener as the historical name for this clause connects archaic terminology to live legal questions.
Historical Dictionary Support
The three source dictionaries are in complete agreement on the core translation: all render aver et tener as "to have and to hold," and Black's and Bouvier's treat it as little more than a glossary entry. Burrill's is the most substantive, supplying the important detail that the clause itself was named after the phrase — a distinction the other dictionaries omit — and providing a citation to the Year Books (Yearb. M. 8 Edw. III. 16) that grounds the term in a datable source. Burrill's also notes the alternate spelling "le avir et tenir," which is useful for researchers working with variant manuscript transcriptions.
None of the historical dictionaries situate aver et tener within the broader history of conveyancing language or explain its relationship to the Latin habendum et tenendum beyond bare equivalence. Researchers should not rely on these entries alone for substantive understanding of how the habendum clause functioned or evolved — they are signposts, not analysis.