Definition
One who makes default; a person who fails to appear, answer, or perform a legal obligation at the required time. The term derives from the Law French legal vocabulary and is closely associated with default in its procedural sense — the failure of a party to take a required step in litigation or to fulfill a duty imposed by law or contract.
The term is primarily historical and is not in active use in modern legal practice. Where it once designated an actor who defaulted, contemporary legal writing simply refers to a "defaulting party" or uses the noun "defendant in default."
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Common Language
Modern common usage (Wiktionary): Not listed as a standard English entry. The term has no recognized modern common usage.
Historical common usage (Webster's 1913): Not separately defined. Webster's 1913 does not carry this term as a standalone entry.
The absence of any common-language footprint confirms this as pure legal-archaic vocabulary. Its meaning was always technical and court-specific, drawn from Law French procedural usage rather than from ordinary speech.
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Common Confusion
DEFAUDER should not be confused with DEFRAUDER (one who commits fraud). The visual and phonetic similarity is a genuine research trap in handwritten and early printed legal records. Fraud and default are distinct legal concepts: default is a procedural failure to act, while fraud involves an active intentional misrepresentation. A scrivener's abbreviation or damaged text in a historical manuscript could render either word as the other. When working with pre-19th-century court records, verify surrounding context before concluding which term was intended.
DEFAUDER also should not be confused with DEFAULTER, which is the more common and longer-lived English-language equivalent. Defaulter survived into modern usage (particularly in military and financial contexts), while defauder did not.
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Why It Matters in Research
This term appears almost exclusively in pre-modern English legal sources drawing on the Law French vocabulary of the common law. Researchers working in early plea rolls, year books, abridgments, or treatises written before the mid-18th century are most likely to encounter it.
Key navigational points:
1. LAW FRENCH RESIDUE: Defauder is a Law French verbal form. Kelham's Law French dictionary, cited by Burrill, is the primary authority. Researchers unfamiliar with Law French may encounter this term in untranslated or partially translated source documents and mistake it for a variant spelling of a different word.
2. CONFUSION WITH DEFRAUDER IN MANUSCRIPT SOURCES: As noted above, the visual similarity to defrauder in secretary hand or abbreviated Latin-English text is a real hazard. Context — particularly whether the surrounding text addresses procedural posture (appearance, answer, writ of default) or substantive wrongdoing (deceit, misrepresentation, damage) — resolves most ambiguities.
3. ABSENT FROM MODERN INDICES: Because defauder is archaic, it will not appear in modern legal indexes, digests, or full-text search systems using standard headings. Researchers reconstructing historical default doctrine from primary sources may need to search for variant spellings and related Law French terms.
4. RELATIONSHIP TO DEFAULT DOCTRINE: Understanding defauder requires grounding in the history of default as a procedural mechanism — how failure to appear triggered judgment, what remedies were available, and how default doctrine evolved from the common law courts into equity and eventually into modern civil procedure. The term is a data point in that larger doctrinal story.
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Historical Dictionary Support
Burrill's entry is minimal: "L. Fr. To make default. Kelham." This is characteristic of Burrill's treatment of Law French survivals — the entry preserves the term for completeness and traces it to Kelham's glossary of Law French (Robert Kelham, *A Dictionary of the Norman or Old French Language*, 1779), the standard reference for such vocabulary in 19th-century Anglo-American legal lexicography.
No other major historical law dictionaries in the standard shelf — not Bouvier, not Black's early editions, not Tomlin's — carry a separate entry for defauder. The term's absence from those sources confirms it was already receding from active legal vocabulary by the early 19th century. Burrill's inclusion reflects his broader project of preserving Law French legal terminology that other contemporaries were allowing to disappear.
Historical sources are entirely silent on any distinction between defauder and defaulter as applied to different categories of default (procedural vs. financial, civil vs. criminal). No such distinction should be inferred from the historical record.
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Jurisdictional Note
The term is English common law in origin and appears primarily in English and early American legal sources. It has no independent civil law or equity counterpart. No jurisdiction retained it as a term of art into the modern period.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: DEFAULT (procedural); FRAUD AND DEFRAUDER (for distinction); LAW FRENCH IN THE COMMON LAW TRADITION.
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