Definition
Dilatio (plural: dilationes) is a Latin term from Roman and medieval law referring to a judicially granted period of time allowed to a party — plaintiff or defendant — within which to perform some required procedural act. In its broader sense, the term means delay, postponement, or the putting off of a judicial proceeding.
Two related but distinct senses apply:
1. In old English law: Dilatio referred generally to delay in legal proceedings. The term appears in the maxim Dilationes in lege sunt odiosa — delays in law are odious — reflecting the common law's longstanding hostility to procedural obstruction.
2. In the civil and canon law: Dilatio carried a more technical procedural meaning: a fixed or judicially prescribed period granted to a party to appear, to answer, to produce evidence, or to perform some other judicial act. It was a formal accommodation built into the procedure of the ecclesiastical and Romano-canonical courts, not merely an incidental postponement.
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Common Confusion
Dilatio should not be conflated with the modern procedural concepts of continuance or extension of time, though it is the conceptual ancestor of both. In modern common law practice, a continuance postpones an entire proceeding; an extension of time grants a party additional time to file or act. Dilatio in the canonical and civil law tradition was a more structured instrument — often categorized by type and governed by specific rules — closer in character to a formal procedural right than to a discretionary judicial accommodation.
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Recognized Forms
/SUBTYPES
In the Romano-canonical tradition, dilationes were formally categorized. Scholarly and canonical sources recognized distinctions including:
- Dilatio ad deliberandum: time granted to deliberate or consider a matter before responding.
- Dilatio ad comparendum: time granted to appear before the court.
- Dilatio ad producendum: time granted to produce witnesses or documents.
These subcategories reflect the procedural precision of the canonical system, in which each stage of litigation had defined time periods that could be extended by formal grant rather than open-ended judicial discretion.
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Why It Matters in Research
Researchers encountering dilatio in primary sources should be alert to context. The term appears in at least two distinct legal traditions — English common law and Romano-canonical procedure — and its meaning shifts accordingly.
In English legal records, dilatio most often appears in formulaic expressions (sine dilatione, without delay) or in maxims. These uses are rhetorical and normative, not technical. They signal the law's aspiration toward efficiency rather than describing a procedural mechanism.
In ecclesiastical court records, canon law commentaries, and civil law treatises, dilatio is a term of art with procedural content. Researchers working in church court archives, probate records from ecclesiastical jurisdictions, or pre-modern civilian sources will encounter dilationes as actual procedural grants that affected the timeline of litigation.
The Registers of Original Writs (Registrum Originale), cited by Burrill, use sine dilatione in the context of royal writs commanding prompt action — a usage that tracks the English common law hostility to delay rather than the canonical procedural category.
Cross-period research requires care: a seventeenth-century English ecclesiastical court record and a sixteenth-century Roman Rota opinion may both use dilatio, but one is applying canonical procedural doctrine while the other may be invoking it loosely.
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Historical Dictionary Support
Burrill's Law Dictionary provides the essential entry, identifying both the English law sense (delay generally, illustrated by the maxim and the Registrum Originale) and the civil and canon law sense (a judicially granted period for performing a procedural act). This dual treatment is accurate and useful, though brief.
Burrill correctly attributes the term to differre (to put off or defer), which tracks the procedural function across both traditions. The maxim Dilationes in lege sunt odiosa is attributed to Branch's Principia — a standard collection of legal maxims — and reflects a well-established common law principle that courts have cited across centuries in support of rules disfavoring procedural delay.
What Burrill does not fully capture is the formal taxonomic structure that civilian and canonical jurists built around dilationes. In the canonical tradition, the categories of dilatio were not merely descriptive labels but carried specific procedural consequences. Researchers relying solely on Burrill for civil or canon law work should supplement with canonical procedure sources.
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Jurisdictional Note
Dilatio as a live procedural term belongs to the Romano-canonical tradition and the pre-modern ecclesiastical courts of England and continental Europe. It does not appear as an operative term in modern common law or civil law jurisdictions, where its functions have been absorbed into procedural codes governing continuances, extensions, and adjournments. Researchers in Scottish legal history should note that Scots law, with its heavier civilian influence, may deploy the term with greater technical precision than English common law sources.
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