CAUTIONARY

6 definitions found across Law Mind sources

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CAUTIONARYAuthored
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Definition
In Scots law, a cautionary (pronounced with the stress on the first syllable in Scottish legal usage) is a formal instrument or obligation by which one person binds themselves as surety for another. The cautionary party — called the cautioner — undertakes responsibility for the debt or obligation of the principal debtor. The obligation is analogous to what English law calls a guarantee: a secondary obligation that arises when the principal debtor fails to perform. The cautionary is distinct from co-obligancy. A cautioner's liability is collateral and dependent on the principal obligation remaining valid; if the principal obligation fails, the cautionary generally fails with it. ---
Common Language
Modern common usage (Wiktionary): Serving to caution or warn; admonitory. Also: held as security or hostage. Historical common usage (Webster's 1913): Conveying a caution or warning; given as a pledge or security; also (obs.) wary, cautious. The overlap between the common and legal meanings is real but misleading. The common meaning of "cautionary" — warning, admonitory — has no connection to the legal Scots term, which concerns a suretyship instrument. Paradoxically, Webster's secondary sense ("given as a pledge or security") does align with the legal meaning, but that sense is now archaic in common usage. A researcher encountering "cautionary" in a historical Scottish legal document should not read it as an adjective meaning "serving as a warning" — it is almost certainly a noun referring to a suretyship obligation. ---
Common Confusion
CAUTIONARY vs. CAUTIONRY: These are related but distinct. Cautionary refers to the instrument or the obligation itself. Cautionry (the abstract noun) refers to the legal institution or body of doctrine governing suretyship in Scots law — roughly equivalent to saying "guarantee" versus "the law of guarantees." Burrill flags cautionry as the broader doctrinal category and directs readers there for the governing authority (Erskine's Institutes, Book 3, Title 7; 1 Story's Equity Jurisprudence § 212). CAUTIONARY vs. GUARANTEE (English law): The functional result is similar — one party answers for another's default — but the doctrinal frameworks differ. Scots law developed cautionary obligations through a distinct civilian-influenced tradition. Researchers should not assume that English guarantee cases resolve questions about cautionary obligations without verifying that the Scots courts adopted the same rule. ---
Why It Matters in Research
This term is essentially a Scots law term of art and appears almost exclusively in sources treating Scottish private law, mixed Anglo-Scottish legal materials, and comparative suretyship scholarship. Several navigation points are important: First, the corpus of primary authority is Scottish. Erskine's Institutes and Stair's Institutions are the foundational sources; Burrill quotes Stair's definition directly ("the promise or contract of a man, not for himself, but another"). Researchers working in English-language legal dictionaries — including Black's — will find only brief cross-references to Scottish practice, not substantive doctrine. Second, the term's meaning is historically stable within Scots law but virtually absent from English legal usage after the 18th century. References in English materials to "cautionary towns" (as in Webster's Burnet citation) describe a different and older political usage — towns held as pledges or security in diplomatic transactions — which has no connection to the private law doctrine. Third, because Black's first and second editions give only single-sentence definitions, researchers who rely on those dictionaries alone will lack the doctrinal depth needed to work with original Scottish sources. Burrill provides the more useful entry and directs to Story's Equity Jurisprudence for comparative context. Fourth, the Rapalje & Lawrence entry included in the source material does not address cautionary at all — that text concerns cause of action. Researchers should treat this as a data error and not cite Rapalje & Lawrence for cautionary. ---
Historical Dictionary Support
Black's (both editions) and Burrill agree on the core meaning: a cautionary is an instrument by which a person becomes surety for another, the Scots law equivalent of the English guarantee. Burrill adds the most useful doctrinal gloss, citing Stair's definition and distinguishing the cautionary as a promise made not for oneself but for another. Burrill also signals (without completing the thought) that the term may originally have applied to a quality or character of obligation rather than the instrument itself — suggesting a possible earlier, broader usage that the dictionaries do not fully develop. None of the historical dictionaries adequately treat the substantive rules governing cautionary obligations: the requirement that the principal obligation be valid, the cautioner's right of relief against the principal debtor, or the special rules developed by Scots equity governing discharge of cautioners. Researchers who need doctrine rather than definition must go to the primary institutional sources. ---
Jurisdictional Note
Cautionary is a term of Scots law and has no direct equivalent as a legal term of art in English, Irish, or American law. In jurisdictions following English common law, the analogous doctrine is the guarantee, governed by common law and (in most English-law jurisdictions) the Statute of Frauds requirement that guarantees be in writing. Do not assume Scots cautionary doctrine maps cleanly onto English guarantee doctrine. ---
Related Terms
Cautionry | Cautioner | Guarantee | Surety | Suretyship | Principal debtor | Co-obligant | Indemnity | Fidejussion (civil law analog)
CAUTIONARYmain
Black's Law Dictionary • 1891
In Scotch law. instrument in which a person binds himself as surety for another.
CAUTIONARYmain
Rapalje & Lawrence • 1888
(181) mean either the cause of action in the proper sense of the word, (called, for distinction, the "whole cause of action,") or the act on the part of the defendant which completes the cause of action, e. g. the breach of a contract 2. Cause of action sometimes means a person having a right of action. Thus, where a legacy is left to a married woman, and she and her husband bring an action to recover it, she is called in the old books the "meritorious cause of action." Rose v. Bowler, 1 H. Bl. 108. CAUSE OF ACTION, (defined). 83 Ν. Υ. 160; L. R. 8 C. P. 107. (what is). 3 Binn. (Pa.) 280, 284. (synonymous with "right of action"). 26 How. (N. Y.) Pr. 501, 507. (distinguished from "chose in action"). 10 How. (N. Y.) Pr. 1. 290. (in a code of procedure). 1 Civ. Pro. (in a statute). 2 Green (N. J.) 260. (in act defining jurisdiction). 4 Robt. (Ν. Υ.) 671, 672. (in procedure act). L. R. 6 Ex. 46; L. R. 7 Q. B. 573. & Ald. 213. (on a Scotch judgment). 4 Bing. 686. (under statute of limitations). 5 Barn. (when arises, under contract). 3 Johns. (when considered to have accrued). 1 Chit. Gen. Pr. 765. (Ν. Υ.) 137. (within jurisdiction of justice of the peace). 17 Serg. & R. (Pa.) 371. CAUSE OR MATTER, (in a statute). 36 Wis. 558. CAUSE TO BE DONE, (in a statute). 1 Green(N. J.) 99. CAUSED GOODS TO BE SEIZED, (in state of demand in justice's court). South. (N. J.) 107. CAUSES, (civil and criminal). 1 Abb. (U. S.) 28, 33. CAUSES AND SUITS, (in a statute). 1 Hen. & M. (Va.) 515. CAUSES CÉLÈBRES. - Celebrated cases. A work containing reports of the decisions of interest and importance in French courts in the 17th and 18th centuries. The first series, in 22 vols., is by Gayot de Pitival; the second, called the Nouvelles Causes Célèbres, in 15, by Des Essarts. The term (in the singular) is applied to any cause of great interest and importance. CAUSES TO PAY, (in a covenant). 1 Str. 231.
CAUTIONARYmain
Burrill's Law Dictionary • 1867
In Scotch law. The obligation by which a party becomes surety for another, answering to the English guarantee. It is defined by Stair, "the promise or contract of a man, not for himself, but another." Brande. Brande. See Ersk. Inst. b. 3, tit. 7, 22. See Cautionry. Com. 478-488, and notes. 1 Story's Eq. Jur. § 212. It seems to have been originally applicable not to the quality, but the
CAUTIONARYa.
Websters Unabridged Dictionary (1913) • 1913
Conveying a caution, or warning to avoid danger; as, cautionary signals. Given as a pledge or as security. He hated Barnevelt, for his getting the cautionary towns out of his hands. Bp. Burnet. Wary; cautious. [Obs.] Bacon.
cautionaryadj
Wiktionary (English) • 2026
Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.
Serving to caution or warn; admonitory | Serving to ward off; preventive | Held as security or hostage

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