Definition
Forestalling, in its legal sense, refers to two historically distinct offenses:
1. Obstruction of a highway or public way, including the interception of a person or goods in transit on a road. This usage derives from early common law and appears in procedural and criminal contexts relating to interference with freedom of passage.
2. Forestalling the market: the practice of buying up merchandise or provisions while still in transit to market, for the purpose of reselling at an artificially inflated price; or dissuading sellers from bringing goods to market; or persuading them to raise their prices once there. This was a recognized offense against public trade under English common law and was codified in statute as early as 5 & 6 Edward VI, c. 14 (1552).
The second meaning is the dominant legal usage. Both senses share an underlying concept: intercepting or disrupting a process before it reaches its natural destination, whether that destination is a market or a lawful journey.
Common Language
Modern common usage (Wiktionary): "Forestalling" in ordinary English is the present participle of "forestall," meaning to prevent or hinder something from happening by taking advance action — as in forestalling an argument or forestalling a crisis.
Historical common usage (Webster's 1913): To forestall meant to anticipate and act in advance to thwart or preempt; also, specifically, to buy goods before they reach market so as to sell at higher prices.
The ordinary modern meaning — simply preventing something by acting early — is broader and morally neutral. The legal meaning was historically charged: forestalling the market was a criminal offense, not merely a shrewd commercial tactic. Researchers encountering the term in older legal sources should not import the neutral modern connotation; the legal usage carried genuine culpability.
Common Confusion
Forestalling is one of three closely related and frequently conflated market offenses in historical English law, the others being regrating and engrossing. Forestalling was the interception of goods before they reached market. Regrating was buying at market and reselling at a higher price at or near the same market. Engrossing was buying up large quantities of goods in advance to corner supply and control price. The three were often charged together and treated as a group in treatises, but they are technically distinct and a researcher should not assume the terms are interchangeable in historical sources.
Why It Matters in Research
Forestalling is a term of almost exclusively historical significance in the Law Mind corpus. It appears primarily in materials dealing with English market regulation, common law offenses against trade, and early statutory criminal law. Researchers should be aware of several navigation points:
First, the offense was effectively abolished in England by statute in the nineteenth century (7 & 8 Victoria, c. 24, 1844), which means that references to forestalling in sources after that date are almost always retrospective, doctrinal, or comparative rather than operative.
Second, historical sources frequently treat forestalling, regrating, and engrossing as a trio. When indexing or searching, finding one term will often lead to the others nearby. A researcher interested in the history of market manipulation or price-fixing doctrine should pull all three.
Third, the highway-obstruction meaning (Black's, Burrill's) appears in very different contexts from the market offense meaning. These two definitions can occupy entirely separate doctrinal areas within the same corpus. The obstruction sense is more likely to appear in procedural, property, or criminal pleading contexts; the market sense in trade, commercial, or police-power discussions.
Fourth, American legal sources rarely use this term operatively. Where it appears in American materials, it is typically either a quotation from English authority or an ancestor concept being traced in a discussion of antitrust, price-fixing, or monopoly doctrine. Researchers working on the history of competition law may find forestalling useful as a doctrinal bridge.
Historical Dictionary Support
The three source dictionaries are consistent in their core coverage but differ in emphasis and completeness.
Burrill's is the most thorough, providing both the highway-obstruction definition and a full account of the market offense, including the intent element: the buying must be done "with the intention of selling it again at a higher price." This intent requirement is legally significant and distinguishes the offense from innocent pre-market purchasing.
Anderson's focuses entirely on the market offense and is particularly useful for its citation to the 1552 statute. Anderson's also flags the partial repeal ("otherwise, since 7 and..."), suggesting the offense had already begun to erode by the time of compilation — a reminder that the sources themselves were written at different points in the offense's life cycle.
Black's is the least detailed of the three, offering only the highway-obstruction meaning in its compressed entry. This is somewhat misleading given the historical prominence of the market offense. Researchers relying solely on Black's would have an incomplete picture and might miss the commercial law dimension entirely.
None of the three historical dictionaries fully traces the doctrinal connection between forestalling and modern competition or antitrust concepts. That connection, where relevant, must be developed from primary sources and secondary treatises rather than the dictionary shelf.
Jurisdictional Note
Forestalling as an operative offense is an English common law concept and was never systematically transplanted into American law as a standalone crime. American jurisdictions that inherited English common law absorbed it only indirectly. Its modern relevance in any jurisdiction is primarily historical and analogical.