Definition
Breaking of arrestment is a concept in Scots law referring to the wrongful act committed by an arrestee — the third party who holds funds or property belonging to a debtor — when that party ignores a valid arrestment and pays over money or delivers goods to the debtor anyway, in defiance of the legal hold placed on those assets. The arrester (the creditor who obtained the arrestment) is entitled to sue the breaker for damages as a consequence of this disobedience.
To understand the term fully, it must be read against the backdrop of arrestment itself. In Scots law, arrestment is a diligence — a formal legal enforcement mechanism — by which a creditor freezes assets belonging to a debtor that are held by a third party. The classic example is a bank account: a creditor arrestments funds held by the debtor's bank. The bank becomes the arrestee and is bound to hold those funds until the arrestment is recalled or the debt satisfied. If the bank pays the debtor anyway, it breaks the arrestment and incurs personal liability to the creditor.
The act of breaking is not a criminal offense in the conventional sense. It is a civil wrong giving rise to a damages claim. The breaker steps into the position of the debtor in relation to the arrested sum or goods, having effectively destroyed the security the arrester held.
Common Confusion
Breaking of arrestment should not be confused with loosing or recalling an arrestment, which are lawful procedures by which an arrestment is formally discharged — typically on grounds of payment, caution (security), or court order. Breaking is unilateral and unauthorized; loosing is supervised and legally sanctioned. The two produce opposite legal results: loosing extinguishes the arrestment properly, while breaking creates personal liability in the arrestee.
The term also has no meaningful connection to the common law concept of breaking and entering, despite a superficial similarity in language. The "breaking" here refers to breaking a legal obligation or prohibition, not a physical breach of a place or structure.
Why It Matters in Research
This term is jurisdictionally narrow — it belongs exclusively to Scots private law and will not appear in English, Irish, or American legal sources in any operative sense. Researchers using historical Scots legal materials need to understand that arrestment is the foundational mechanism and that breaking of arrestment is a consequential doctrine layered on top of it. Black's Law Dictionary includes the term, but its treatment is minimal and American editions often carry Scots law terms as historical artifacts rather than living doctrine.
The practical research trap: a researcher unfamiliar with Scots diligence law may misread breaking of arrestment as analogous to contempt of court (which Black's language gestures toward — "contempt of law") or to obstruction of a creditor's rights in common law jurisdictions. These are not equivalent frameworks. In Scots law, the liability is direct and civil; the arrestee is not held in contempt of a court order in the Anglo-American sense but is personally liable for the loss caused by the breach.
For researchers working in historical Scots law, the term will appear most frequently in older treatise literature — Erskine, Bell, and Stair — rather than in case reporters, because the doctrine is well-settled enough that it rarely generates contested litigation on the basic principle. When researching damages for breaking, look to the measure of loss: the arrester recovers the amount they would have recovered from the arrested fund, not necessarily the full debt.
The Law Mind corpus may contain related Scots law materials under diligence, arrestment, and creditor remedies. Researchers should treat this term as a subordinate entry requiring mastery of arrestment before the breaking doctrine becomes fully legible.
Historical Dictionary Support
Black's Law Dictionary provides the only source entry available here, and it is characteristically compressed. The definition accurately captures the essential elements: the identity of the wrongdoer (the arrestee), the wrongful act (paying or delivering to the debtor in disregard of the arrestment), and the consequence (liability in damages to the arrester). Black's frames the act as a "contempt of law," which is historically apt in the civilian tradition — Scots law's concept of disobedience to a judicial or quasi-judicial act carries a flavor of contempt — but the word "contempt" may mislead common law researchers into expecting criminal or procedural contempt machinery.
What Black's does not address: the measure of damages, whether good faith ignorance of the arrestment affects liability, or the procedural steps for enforcing a claim against a breaker. Historical Scots institutional writers provide more texture. Bell's Commentaries and Erskine's Institute treat breaking of arrestment within their broader discussions of diligence and creditor remedies, establishing that the arrestee's liability is strict once the arrestment is properly served and intimated — ignorance after proper intimation is no defense.
Historical sources uniformly agree on the core principle. There is no meaningful divergence on the definition. The area where older sources require updating is procedural: Scots diligence law has been substantially reformed by modern legislation, including the Debtors (Scotland) Act 1987 and the Bankruptcy and Diligence etc. (Scotland) Act 2007, which restructured and modernized arrestment procedure. Researchers relying solely on pre-reform historical dictionaries may encounter procedural descriptions that no longer reflect current Scots law.
Jurisdictional Note
Breaking of arrestment is a doctrine of Scots law with no direct equivalent in English law or American common law jurisdictions. English law achieves related results through garnishment and third-party debt orders, but the liability framework for a garnishee who pays in defiance of an order differs in procedural structure. Researchers should not assume that cases or treatises from English or American sources illuminate this doctrine.