Definition
Forstalment is an archaic common law term denoting the obstruction or stopping of a way — the physical blocking or impeding of a road, path, or passage such that lawful transit is prevented or hindered. The term encompasses both the act of obstruction and the condition of impediment that results from it.
The Latin form, forstallamentum, carried the core sense of standing before or across a way to block passage. In its primary legal meaning, forstalment referred to interference with the right of transit along a public or private way, functioning as a wrong cognizable at common law.
Note: Forstalment is distinct from, though historically related to, the market offense of forestalling (intercepting goods before they reach market). Both derive from related Latin and Norman-French roots sharing the sense of blocking or intercepting, but they operate in different legal contexts. See COMMON CONFUSION below.
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Common Confusion
Forstalment is frequently conflated with FORESTALLING THE MARKET, a separate common law offense involving the purchase or interception of goods before they reach a public market, with intent to resell at a higher price. The confusion is understandable: both terms share etymological roots in the idea of "standing before" something to intercept it, and historical sources sometimes use variant spellings interchangeably. The critical distinction is that forstalment concerns obstruction of passage along a way — a wrong against the right of transit — while forestalling the market concerns economic interference with the flow of trade. A researcher finding either term in an early source should examine context carefully before concluding which offense is meant.
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Why It Matters in Research
Forstalment is a low-frequency term in legal sources and appears almost exclusively in early common law materials. Researchers are most likely to encounter it in:
Coke's commentary on Littleton (Co. Litt. 161b) and in Fleta, the 13th-century legal treatise (lib. 1, c. 47, § 19) — the two sources Burrill cites directly. These are the anchoring texts, and any research into this term should begin there.
The term belongs to the cluster of early common law wrongs relating to interference with highways, ways, and rights of passage. In historical sources, it may appear alongside nuisance doctrine (particularly public nuisance in the form of highway obstruction), purpresture (encroachment on public land or ways), and related offenses. Understanding forstalment requires fluency with the older law of ways and easements, which operated under different conceptual frameworks than modern easement law.
Spelling is a significant research trap. Variant spellings include forstallamentum (Latin), forstallment, forestallment, and forstalment — with and without the medial 'l'. Medieval and early modern scribal practice was not standardized, and indexing in older compilations may not capture all variants. Searching any single spelling exclusively risks missing relevant material.
The term has no meaningful presence in modern case law or statutes. It survives as a historical marker, useful for understanding the common law treatment of highway obstruction and the scope of wrongs cognizable before modern codification of road and nuisance law.
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Historical Dictionary Support
Burrill is the primary historical dictionary source for this term, and his entry is characteristically terse: he defines forstalment as "an obstruction or stopping of a way" (obstructio viæ, impedimentum transitûs) and anchors the definition to Coke on Littleton and Fleta. This is consistent with the term's narrow, technical character — it does not appear to have generated extensive doctrinal commentary in the major historical dictionaries, and its absence from later compilations reflects both its archaic status and its absorption into broader nuisance and highway law.
Burrill's citation to Fleta is particularly useful because Fleta (composed circa 1290) represents one of the earliest systematic treatments of these highway-related wrongs in English legal literature. The pairing of Co. Litt. and Fleta as authoritative sources signals that forstalment was already an established term of art by the time Coke wrote, with roots reaching back to the Plantagenet period.
No significant divergence or evolution is visible across available historical dictionary sources — the record here is simply thin, consistent with the term's narrow and archaic scope.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Highways and Public Ways (Historical); Nuisance (Public); Forestalling, Regrating, and Engrossing.
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