Definition
A decreet in absence is a judgment or decree issued by a Scottish court when one or both parties fail to appear at the time of pronouncement. The court proceeds to judgment without the absent party's participation, entering a binding determination on the merits or by default.
The term belongs to Scots law and reflects the civil procedure of the Scottish court system, where "decreet" (the Scottish form of "decree") denotes a final judgment of a court of record. A decreet in absence stands in contrast to a decreet in foro contentioso, which is issued after a fully contested proceeding in which both parties appeared and argued.
Why It Matters in Research
This is a term of Scots law and will appear almost exclusively in Scottish legal materials — session papers, institutional writings, and treatises on Scottish civil procedure. Researchers working in English common law sources will not encounter it in that context; its appearance in an American or English legal dictionary such as Burrill's reflects the encyclopedic ambitions of nineteenth-century legal lexicography rather than any adoption into common law practice.
The procedural significance is navigational: in Scottish historical records, a decreet in absence may indicate a default judgment entered without genuine adversarial contest, which affects how researchers should interpret the legal weight of such a decision. A decreet in absence was subject to challenge — the absent party could seek reduction (the Scottish equivalent of vacating a judgment) on the ground that they were not properly cited or had a valid excuse for non-appearance. Researchers tracing the history of a Scottish legal dispute should therefore look beyond the decreet itself to any subsequent reduction proceedings, which may appear in separate records.
The distinction between absence at pronouncement and absence throughout the entire proceeding also matters. Scots procedure allowed for degrees of absence: a party might have appeared at earlier stages but been absent at the final pronouncement, or might have been absent from the outset. The legal consequences and available remedies could differ accordingly.
Historical Dictionary Support
Burrill's Law Dictionary (the sole source in the Law Mind corpus for this term) defines it concisely as "a decreet or sentence, at pronouncing whereof either party is absent," citing Forbes' Institutes (part 4, book 1, chapter 2, title 1, section 3). This is a faithful and accurate summary of the Scottish institutional understanding. William Forbes, writing in the early eighteenth century, was one of the foundational institutional writers of Scots law, and his Institutes of the Law of Scotland provides the authoritative period grounding for this usage.
Burrill's entry is accurate but minimal. It captures the formal definition without addressing the procedural mechanics — how a decreet in absence could be obtained, what citation requirements had to be satisfied before the court would proceed in a party's absence, or what remedies were available to the absent party afterward. Researchers needing more than the bare definition will need to consult Scots institutional writers directly: Forbes, Stair, or Erskine's Institute of the Law of Scotland provide fuller treatment of the procedural framework within which decreets in absence operated.
No other historical dictionaries in the Law Mind corpus address this term, which reflects its status as a term of purely Scottish legal application with limited circulation in English or American legal literature.
Jurisdictional Note
This term is specific to Scots law and Scottish civil procedure. It has no direct equivalent in English common law or in American practice, though analogous concepts — default judgment, judgment in absentia — exist across common law systems. Researchers should not assume procedural equivalence when drawing comparisons.