ERRORES SCRIBENTIS - The Law Mind Legal Dictionary

ERRORES SCRIBENTISAuthored

The Law Mind • 987 words

Definition

Errores scribentis (Latin: "errors of the writer" or "errors of the scrivener") refers to clerical or transcriptional mistakes made in the drafting or copying of a legal instrument — errors attributable to the hand of the writer rather than to any defect in the underlying intent or agreement of the parties. The concept stands in contrast to errors of law or errors of substance: an error of the scrivener is a mechanical slip, not a failure of legal reasoning or a flaw in the meeting of minds.

The doctrine has practical significance in contract interpretation, conveyancing, and equity. Where a written instrument fails to accurately reflect the true agreement of the parties due solely to a drafting or copying error, courts of equity have traditionally been willing to reform the instrument to conform it to actual intent. The error, in other words, is in the paper — not in the transaction.

Common Confusion

ERRORES SCRIBENTIS vs. ERROR IN SUBSTANTIA / FUNDAMENTAL ERROR: Errores scribentis is often placed alongside other Latin error-categories in historical sources, which can create confusion. An error in substantia goes to the subject matter of an agreement and may vitiate consent altogether. Fundamental error, as used in appellate practice, describes an error so basic that reviewing courts will address it even without a proper assignment of error. Neither of these is the same as errores scribentis, which is narrowly concerned with the accuracy of the written record as against the true agreement — a transcription problem, not a substantive one.

ERRORES SCRIBENTIS vs. SCRIVENER'S ERROR: These terms describe the same concept. "Scrivener's error" is the modern plain-English equivalent and is more commonly encountered in contemporary legal writing and case law. Researchers should search both forms.

Why It Matters in Research

The primary research trap with this term is its near-absence from modern legal writing under the Latin form. Contemporary courts and practitioners uniformly prefer "scrivener's error" or "clerical error," meaning a search limited to the Latin phrase will return sparse results from post-nineteenth-century sources. Researchers working in historical corpora — colonial-era conveyancing disputes, early equity practice, or pre-codification contract cases — will encounter the Latin form and should recognize it immediately.

A second trap: Black's 2nd Edition places this term in proximity to other error-classifications, including fundamental error and error in the source material provided, which can blur distinctions if read quickly. The source material for this entry appears to contain a typographical fragment from an adjacent entry (the definition running into text about "fundamental error" in appellate practice), which is itself a demonstration of errores scribentis in action — a transcription artifact that does not belong to this term's definition.

Jurisdictional variation matters here primarily in the remedial context. The availability of reformation as a remedy for scrivener's error varies: some jurisdictions require clear and convincing evidence of the true intent before a court will reform a written instrument; others apply a preponderance standard. Researchers should not assume a uniform evidentiary threshold across the corpus.

The term also has relevance in the administrative and veterans law context. "Clear and unmistakable error" (CUE) doctrine in veterans benefits adjudication has some structural kinship with the scrivener's error concept — both involve correcting the written record to reflect what was or should have been decided — though CUE is a distinct and highly specialized doctrine with its own procedural rules.

Historical Dictionary Support

Black's Law Dictionary (2nd Ed.) provides only a fragmentary entry for this term, and the source material suggests the entry was compressed or cropped at the printing stage — a fitting irony. The Latin phrase is standard in civil law and equity treatises of the eighteenth and nineteenth centuries, where it appears as part of a taxonomy of errors bearing on contractual consent and the validity of instruments.

Historical sources generally agree on the core distinction: errores scribentis do not affect the validity of the underlying agreement and are correctable; they are distinguished from errors that go to intent, identity of subject matter, or legal capacity. What historical dictionaries tend not to address is the evidentiary and procedural mechanism by which correction is obtained — that gap is filled by equity practice treatises and, in the modern corpus, by doctrine on reformation of contracts.

Jurisdictional Note

The doctrine is rooted in equity jurisdiction and applies broadly across common law systems, though the terminology shifts. Louisiana, as a civil law jurisdiction, addresses analogous concepts through its Civil Code provisions on error vitiating consent (La. Civ. Code arts. 1948–1952), where the distinction between error in the writing and error in the substance of the agreement is treated directly. Researchers working in Louisiana sources should consult the Civil Code rather than relying on common law equity principles.

Encyclopedia Cross-Reference

Harmless Error and Structural Error (The Law Mind Criminal Law Encyclopedia) — for context on how courts classify and treat different categories of error on review.
Standards of Review on Appeal (The Law Mind Criminal Law Encyclopedia) — relevant when errores scribentis arises in the context of appellate correction of trial court records.
Effective Dates, Date of Claim, Date of Entitlement, and Clear and Unmistakable Error (CUE) (The Law Mind Military, Veterans & Admiralty Law Encyclopedia) — for the specialized administrative law doctrine with structural parallels to scrivener's error correction.

ERRORES SCRIBENTISmain

Black's Law Dictionary (2nd Ed.) • 1910

a mistaken belief in the existence of that which has none. Civ. Code La. art. 1821. See Nor- -ton v. Marden, 15 Me. 45, 32 Am. Dec. 132; 360, 19 Mowatt v. Wright, 1 Wend. (N. Y.) 3 ; Am. Dec. 508.—Fundamental error. In appellate practice. Error which goes to the merits of the plaintiff's cause of action, and which will be considered on review, whether assigned as error or not, where the justice of the case seems to require it. Hollywood v. Wellhausen, 28 Tex. Civ. App. 541. 68 S. W. 329.—Harmless error. In appellate practice. An error committed in the progress of the trial below, but which was not prejudicial to. the rights of the party assigning it, and for which, therefore, the court will not reverse the judgment, as, where the error was neutralized or corrected by subsequent proceedings in the case, or where, notwithstanding the error, the particular issue was found in that party’s favor, of where, even if the error had not been committed, he could not have been legally entitled to prevail.—Invited error. In appellate practice. ‘The principle of “invited error” is that if, during the progress of a cause, a party requests or moves the court to make a ruling which is actually erroneous, and the court does so, that party cannot take advantage of the error on appeal or review. Gresham v. Harcourt, 93 Tex. 149, 53 S. W. 1019.—Reversible error. In appellate practice. Such an error as warrants the appellate court in reversing the judgment before it. New Mexican R. Co. v. Hendricks, 6 N. M. 611, 30 Pac. 901.—Technical error. In appellate practice. A merely abstract or theoretical error, which is practically not injurious to the party assigning it. Epps v. State, Ind. 539, 1. N. BE. 491.—Errors excepted. A phrase appended to an account stated, In or der to excuse slight mistakes or oversights. Error, writ of. See WRIT OF ERROR. Error fucatus nuda veritate in multis est probabilior; et sspenumero rationibus vincit veritatem error. Error artfully disguised [or colored] is, in many instances, more probable than naked truth; and frequently error overwhelms truth by [its show of] reasons. 2 Coke, 73. Error juris nocet. Error of law injures, A mistake of the law has an injurious effect; that is, the party committing it must suffer the consequences. Mackeld. Rom. Law, § 178; 1 Story, Eq. Jur. § 189, note. Error nominis nunquam nocet, si de identitate rei constat. A mistake in the nanie of a thing is never prejudicial, if it be clear as to the identity of the thing itself, {where the thing intended is certainly known.] 1 Duer, Ins. 171. This maxim is applicable only where the means of correcting the mistake are apparent on the face of the instrument to be construed. Id. Error qui non resistitur approbatur. An error which is not resisted or opposed is approved. Doct. & Stud. c. 40. Errores ad sua principia referre, est refellere. To refer errors to their sources is to refute them. 3 Inst. 15. To bring errors to their beginning is to see their last. Errores scribentis nocere non debent. The mistakes of the writer ought not to harm. Jenk. Cent. 324.

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