Definition
A Latin term meaning "to be" or "being." In legal usage, esse functions grammatically as a substantive despite being an infinitive verb, appearing almost exclusively as the object of a preposition in compound Latin phrases that describe modes or states of existence. Esse itself rarely appears alone in legal writing; its significance lies in the compound phrases it anchors.
The two principal compounds a researcher will encounter are:
1. IN ESSE — In being; in actual existence. Describes a person, right, or thing that currently exists as opposed to one that is merely anticipated or contingent.
2. DE BENE ESSE — Conditionally; provisionally; as of well-being. Used most often in procedure to describe acts done provisionally that will stand only if the underlying conditions are later satisfied (e.g., a deposition taken de bene esse is preserved for use if the witness becomes unavailable at trial).
A third compound, AD ESSE, meaning "to be present" or "to appear," appears in older law Latin texts and some historical procedural contexts.
Common Language
Modern common usage (Wiktionary): Essence, essential nature.
Historical common usage: Not separately defined in Webster's 1913 as a standalone English word; treated as a Latin borrowing in philosophical contexts meaning "being" or "existence" in the scholastic sense.
Editorial note: The philosophical and common usage of esse centers on essence or fundamental nature — what a thing is. The legal usage is narrower and purely existential: whether something is in being at all. A researcher encountering esse in a legal document should read it as a marker of existence or presence, not as a reference to inherent qualities or nature.
Common Confusion
Esse is sometimes misread by non-specialists as a reference to essence (the philosophical concept), importing connotations of character or quality into a passage that means only to address whether something exists at all. The distinction matters acutely in property law: a remainder or interest in esse is one that has vested in an existing person, while a remainder in posse is one contingent on a person or event not yet in being. Conflating esse with essence will produce the wrong reading. See also IN ESSE and IN POSSE.
Why It Matters in Research
Esse almost never appears in isolation in primary legal sources. Researchers will encounter it embedded in compound phrases, and the critical research task is identifying which compound is in play. Bouvier and Anderson both defer entirely to the IN ESSE entry, which is the more common research destination; Rapalje and Lawrence redirect to DE BENE ESSE. This means a search for esse alone in a historical corpus will underperform — researchers should index and search for the full compounds.
The de bene esse construction has significant procedural history. Pre-codification practice in equity and common law courts made extensive use of de bene esse depositions; after the Federal Rules of Civil Procedure consolidated deposition practice, the phrase receded but did not disappear. Historical sources written before the mid-twentieth century will use de bene esse in procedural contexts where modern sources would simply say "conditional" or "preservation deposition." Researchers working in pre-code American or English procedural materials need to recognize this phrase as a technical term of art, not decorative Latin.
In esse has particular relevance in property and future interests research. Treatises and cases on contingent remainders, executory interests, and class gifts frequently use the in esse / in posse distinction to determine whether an interest has vested. The phrase also appears in constitutional and administrative contexts when courts assess whether a controversy is ripe — whether a harm is in esse rather than speculative.
The phrase ad esse, meaning to appear in court, surfaces in older English and early American pleading records but is rarely encountered in modern practice materials. Burrill is among the few historical dictionaries to note it explicitly.
Historical Dictionary Support
The historical sources treat esse as a gateway term rather than a substantive entry. Bouvier and Anderson both point the researcher directly to IN ESSE without elaboration. Rapalje and Lawrence point to DE BENE ESSE and then immediately pivot to examination-related case citations, suggesting the entry was organized around practical research use rather than doctrinal explanation.
Burrill provides the most substantive treatment, correctly identifying esse as a Latin infinitive repurposed as a legal substantive and cataloguing the principal prepositional compounds. Burrill also notes the secondary meaning of appearing in court (quod sit coram), which the other dictionaries omit. This secondary meaning is essentially obsolete in modern sources.
No historical dictionary in the corpus treats esse as a standalone legal concept. All four sources assume the reader needs the compound phrases, not the root term. This is accurate to how the word functions in practice.
Jurisdictional Note
The in esse / in posse distinction in property and future interests is recognized across common law jurisdictions, though the Latin terminology has been largely displaced by plain-language equivalents in modern statutes and restatements. De bene esse as a procedural term persists in some state court rules and older treatises but has no uniform modern equivalent across jurisdictions.