Definition
A discrepancy is a difference or inconsistency between two things that ought to be identical or substantially the same — most commonly between documents, between a pleading and the evidence offered to support it, or between testimony and the record. The term functions as a term of art in evidence, civil procedure, and contract law, signaling a conflict that may be legally significant depending on its nature and degree.
Two gradations matter in practice:
1. Formal discrepancy: A difference in expression, form, or wording that does not affect the underlying substance. Courts may overlook formal discrepancies as immaterial.
2. Material discrepancy: A difference substantial enough to show that the two things being compared are not essentially the same. A material discrepancy can defeat a claim, impeach a witness, or justify rejection of a document or instrument.
Common Language
Modern common usage (Wiktionary): An inconsistency between facts or sentiments; the state or quality of being discrepant.
The everyday and legal senses are close but not identical. In ordinary usage, discrepancy covers any inconsistency — an unexplained gap in a bank statement, conflicting accounts of an event. In legal usage, the term carries procedural weight: a discrepancy is not merely noticed but evaluated against a materiality threshold. Whether a discrepancy is material determines whether it triggers legal consequences. Researchers should not assume that a source using the word discrepancy is signaling legal significance — context determines whether the material-versus-formal distinction is being applied.
Common Confusion
Discrepancy and variance are often used interchangeably in older sources, including in some Black's definitions. They are related but not synonymous in technical usage. Variance, particularly in pleading, is the more formal term for a specific mismatch between allegation and proof that can be assigned as error. Discrepancy is the broader, more descriptive term — it captures the factual difference, while variance carries the procedural consequence. A discrepancy in proof may or may not rise to the level of a variance sufficient to defeat a pleading. See: VARIANCE.
Why It Matters in Research
The materiality distinction is the primary research trap. Historical sources, particularly nineteenth-century pleading treatises and case digests, treat material discrepancy as a term of art with specific procedural consequences in the common law system of technical pleading. Modern rules — particularly Federal Rule of Civil Procedure 15 on amendments and the general relaxation of pleading formality — have substantially reduced the practical consequences of discrepancies between pleading and proof. A researcher relying on pre-code cases about fatal discrepancies in declarations or counts will find doctrine that is largely obsolete in jurisdictions that have adopted notice pleading.
In evidentiary contexts, the term remains live. Discrepancies between prior statements and trial testimony are central to impeachment practice, and the word appears routinely in appellate opinions assessing credibility determinations. Here the historical doctrine carries forward with little transformation.
Document comparison — comparing executed instruments, certified copies, or commercial documents — is another active context. Discrepancies in commercial paper, letters of credit, or insurance policies can trigger legal consequences under modern statutory frameworks (UCC, insurance codes) that are entirely separate from the common law pleading lineage. Researchers should take care not to conflate these distinct streams.
Anderson's Dictionary of Law cross-references AMBIGUITY, which is a related but distinct concept. An ambiguity is an uncertainty within a single document; a discrepancy arises between two things. The distinction matters in contract construction: ambiguity triggers interpretive canons, while a discrepancy between a contract and an incorporated document (such as a specification or schedule) raises a question of priority and integration.
Historical Dictionary Support
The historical sources are consistent on the core definition: a difference between two things that ought to be identical, most typically writings. Black's (both editions) and Bouvier agree on this framing and treat variance as the nearest technical synonym.
Bouvier adds the most useful doctrinal content, explicitly defining material discrepancy by reference to pleading practice — the example given is a declaration in malicious arrest where the plaintiff's averment and the evidence offered do not match substantially. This reflects the common law pleading world in which precision of allegation was enforceable and discrepancies could be fatal to a case. That specific procedural context is now largely historical.
The Coke maxim appended to the Black's entry — Discretio est discernere per legem quid sit justum — is a misfiling or typographic artifact of the original source; it belongs to an entry on discretion and has no bearing on discrepancy. Researchers encountering this in scanned historical sources should disregard it as a page-break error in the original printing.
Anderson's entry adds nothing substantive, pointing only to cross-references without definition. This is characteristic of Anderson's treatment of procedural terms that it considered derivative of broader concepts.
Jurisdictional Note
The materiality standard for discrepancies in pleading varies by jurisdiction depending on whether the jurisdiction follows code pleading, notice pleading, or retains elements of common law pleading practice. In commercial document contexts — particularly letters of credit — the UCC and international banking standards (UCP 600) supply their own definitions of discrepancy with specific legal consequences that preempt common law analysis.