Definition
Latin legal term meaning to discontinue, intermit, disuse, or interrupt. Used in old law and practice to describe the act of breaking off or suspending something that had previously been ongoing — whether a legal proceeding, a right, a possession, or an obligation. The term is the root form from which the more commonly encountered English derivatives DISCONTINUANCE and DISCONTINUATION draw their legal meaning.
In practice, discontinuare appeared most often in two contexts: (1) the interruption or abandonment of a legal action before final judgment, and (2) the breaking of a continuous possession or exercise of a right in ways that could affect its legal standing.
Common Confusion
DISCONTINUARE should not be conflated with ABATEMENT or NONSUIT, though all three can result in a proceeding being halted. Discontinuare refers specifically to the act of breaking off or interrupting — the voluntary or involuntary cessation of something continuous. Abatement involves the suspension or defeat of an action by operation of law due to some defect or supervening event. Nonsuit is a judgment against a plaintiff for failure to proceed. The distinctions matter most in historical common law research, where procedural consequences of each differed significantly.
The term is also distinct from DISCONTINUOUS SERVITUDE (see Recognized Forms/Subtypes below), which shares the Latin root but refers to a different concept entirely in civil law property.
Recognized Forms
/SUBTYPES
Burrill records a related but distinct term appearing in the same entry:
DISCONTINUOUS (or INTERRUPTED) SERVITUDE: In the civil law, a servitude that requires human action to be exercised — such as rights of passage, drawing water, or pasturage. Distinguished from continuous servitudes (such as an aqueduct), which operate without recurring human acts. The Louisiana Civil Code (art. 723) preserves this classification, reflecting the state's civilian heritage. This subtype is conceptually connected to discontinuare only through the shared notion of interrupted or non-continuous exercise; the two should not be treated as aspects of the same doctrine.
Why It Matters in Research
Researchers working in pre-modern common law materials will encounter discontinuare in pleading and practice treatises, particularly in discussions of real actions and possessory rights. Coke upon Littleton (Co. Litt. 325a), cited by Burrill, is the primary classical source and should be consulted for the full common law context of the term's use.
Two research traps deserve attention. First, discontinuare in old real property law carried consequences for the rights of reversioners and remaindermen when a tenant in tail alienated land — a technical doctrine of discontinuance in land law that is entirely distinct from procedural discontinuance in litigation. Sources may use the term in either sense without flagging the distinction. Second, researchers using Louisiana or other civil law sources will encounter the term in the servitude context (discontinuous servitude), which has no direct common law analogue and should not be read back into common law sources.
The term is largely archaic in modern practice. Its descendants — discontinuance, discontinue — survive in procedural law and property law with meanings that are more settled and jurisdiction-specific than the root Latin term suggests.
Historical Dictionary Support
Burrill's treatment is brief but structurally significant: he embeds the definition of DISCONTINUOUS SERVITUDE immediately after glossing discontinuare, which risks implying a tighter doctrinal connection between the two than exists. The civil law servitude classification is a conceptually separate matter that happens to share the root concept of interrupted exercise. Burrill does not develop the common law land law doctrine of discontinuance under this entry, directing readers instead to Co. Litt. 325a.
No other historical dictionary sources were available for this entry. Researchers needing fuller treatment of the common law doctrine should consult Coke upon Littleton directly, as well as Blackstone's Commentaries and the old English real property treatises, where discontinuance as a doctrine of land law receives substantial attention.
Jurisdictional Note
The DISCONTINUOUS SERVITUDE classification retains legal significance in Louisiana, which codified it in the Louisiana Civil Code. Common law jurisdictions do not use this classification framework, though they recognize functionally similar distinctions between continuous and non-continuous easements under different terminology.