AVERMENT

Definition

An averment is a positive, affirmative statement of fact in a pleading, as opposed to a conclusion, argument, or inference drawn from facts. The pleader asserts the fact directly — not by implication, not by argument — and stands ready to prove it. In modern usage, the term appears most often in the context of pleading requirements: a complaint, indictment, or other formal legal document must contain sufficient averments of the facts necessary to state a claim or charge. An averment that is merely conclusory, argumentative, or inferential fails this standard. In older common law pleading, the term carried a second, more technical meaning: the formal concluding clause of a plea or replication containing new affirmative matter, in which the pleading party declared readiness to verify (prove) the matter alleged. This was a ritualized phrase — typically rendered as "and this the said [party] avers" or "ready to verify" — signaling that new facts had been introduced and would be supported by evidence. This older procedural function is now obsolete in jurisdictions that have adopted code or notice pleading. ---

Common Language

Modern common usage (Wiktionary): "The act of averring, or that which is averred; positive assertion. Verification; establishment by evidence. A positive statement of facts; an allegation; an offer to justify or prove what is alleged." Historical common usage (Webster's 1913): "The act of averring, or that which is averred; affirmation; positive assertion... A positive statement of facts; an allegation; an offer to justify or prove what is alleged." The common and legal meanings are close but not identical. In ordinary usage, averment suggests sincerity or confidence in a claim — emphasis on the assertion itself. In legal usage, the emphasis shifts to formal sufficiency: whether a pleading's factual statements meet the threshold required to support a legal action. The common meaning captures the act of saying something positively; the legal meaning captures whether what was said was said correctly, materially, and provably enough to survive challenge. ---

Common Confusion

Averment is frequently treated as interchangeable with allegation, and in modern pleading practice the distinction is often inconsequential. Anderson's Dictionary of Law notes that averments are "spoken of... with substantially the same meaning as are 'allegations.'" The practical difference, where it survives, is one of posture: an allegation may be provisional, framed as a claim subject to proof; an averment is framed positively, as a fact the pleader asserts and stands behind. In scrutinizing historical pleadings — particularly under common law forms — the distinction can matter, because courts evaluated whether facts were properly averred versus merely implied. Do not confuse averment with the older technical use of verification (Latin: verificatio), which Burrill's cross-references directly. In the old pleading sense, an averment contained an offer to verify — but the averment and the verification were distinct steps in the pleading process. ---

Recognized Forms

/SUBTYPES General averment: A broad assertion applicable to the entire pleading rather than a specific fact. Largely obsolete in modern practice. Particular (specific) averment: An assertion of a specific material fact. The form relevant to modern pleading analysis. Bouvier notes that only particular averments are found in modern pleading. Affirmative averment: Asserts that something is true. Negative averment: Asserts that something is not true. Historically significant because negative averments still required proof — unlike a simple traverse or denial, a negative averment introduced a new factual assertion that needed substantiation. Material averment: An averment of a fact essential to the legal theory pleaded. Courts assessing sufficiency focus on whether material averments are present. Immaterial / unnecessary averment: A fact pleaded that is not required by the legal theory. Under common law pleading, unnecessary averments could create problems if they were contradicted or failed in proof. ---

Why It Matters in Research

The single most important navigational point: averment means something different depending on the era and pleading system of the source you are reading. In pre-code common law pleading sources — Chitty, Blackstone, and the historical dictionaries in this corpus — averment carries both meanings simultaneously: the substantive meaning (a positive factual statement) and the formal procedural meaning (the concluding offer-to-verify clause). A researcher reading an 1830 case about a defective averment may be dealing with either the content of the factual assertion or the form of the verification clause. Context is essential. After code pleading reforms (mid-19th century in most U.S. jurisdictions, beginning with the New York Field Code of 1848), the technical offer-to-verify function dissolved. What survived was the substantive requirement that facts be pleaded positively and specifically. Under modern federal notice pleading (post-Twombly/Iqbal), sufficiency of averments has again become a front-line litigation issue — but the vocabulary in modern federal opinions often uses "allegation" rather than "averment," even when functionally equivalent. Researchers in the Law Mind corpus should watch for: — Historical sources distinguishing general from particular averments: this distinction matters in common law pleading analysis but has little modern significance. — The negative averment problem: courts and treatises gave special attention to negative averments because they imposed an affirmative proof burden on the pleading party. This appears in historical sources and occasionally surfaces in fraud and criminal pleading contexts even today. — Jurisdictions using code pleading versus notice pleading versus the surviving common law pleading forms (rare): the word averment may appear in all three systems but with subtly different expectations attached. — The overlap with "allegation" in modern sources: when a modern court says an averment is conclusory and therefore insufficient, it is applying the same analysis it would apply to an allegation. The terminological choice often signals the vintage or stylistic preference of the drafter rather than a substantive distinction. ---

Historical Dictionary Support

The six historical sources in this corpus agree on the core definition: a positive statement of facts, as opposed to argument or inference. All six use nearly identical language, tracing to Chitty's Pleadings (1 Chit. Pl. 320) as the common authority. This convergence is useful — it confirms that by the mid-19th century, the substantive meaning was settled. Divergence appears at the edges. Burrill's is the most thorough in flagging the dual usage (modern substantive vs. old procedural), explicitly cross-referencing verificatio and quoting the formal introduction language ("And the said ___ avers, and in fact says"). Black's (both editions) covers both meanings but more briefly. Bouvier adds the most substantive pleading doctrine, including the material/particular distinction and the principle that every substantive material fact must be specifically averred — a rule with real teeth in common law pleading analysis. Anderson's is distinctive in linking averment directly to the full taxonomy of allegation-types (affirmative/negative, general/particular, material/immaterial, unnecessary/impertinent), making it the most useful entry for a researcher mapping the internal vocabulary of pleading doctrine. What the historical sources collectively miss: they do not address the fate of averment requirements under code pleading or notice pleading, because those reforms were contemporaneous with or post-dated most of these dictionaries. A researcher cannot rely on these sources alone to understand how averment doctrine translates into modern sufficiency analysis. ---

Jurisdictional Note

In U.S. federal courts, the functional content of averment doctrine now operates through Rule 8 of the Federal Rules of Civil Procedure and the plausibility standard. In states retaining code pleading (California being the prominent example), specific factual averments remain more formally required than under federal notice pleading. In criminal pleadings, the averment requirement survives with particular force — indictments must positively aver every element of the offense charged. ---

Encyclopedia Cross-Reference

Law Mind Encyclopedia — Pleading Law Mind Encyclopedia — Common Law Pleading Forms Law Mind Encyclopedia — Indictment and Criminal Charging Instruments ---

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