Definition
Latin. "In being made." A term describing legal proceedings, records, or other legal acts that are still in process — incomplete, unfinished, or not yet reduced to final form. Proceedings are said to be in fieri from their initiation until judgment is entered and the record is formally made up. The term is functionally equivalent to "inchoate" or "pending" in most modern usage, but carries a specific procedural sense rooted in the mechanics of record-making: the record itself was considered in fieri so long as the cause remained open and subject to amendment or correction.
The concept has two closely related applications:
1. Procedural: A cause or proceeding is in fieri while active and before final judgment. During this period, courts historically exercised broader power to correct, amend, or revisit orders and pleadings, because nothing was yet fixed as a matter of record.
2. Proprietary and equitable: Rights or interests that are in the process of being acquired or constituted — not yet fully vested or perfected — may be described as in fieri. This usage appears in older treatment of easements, profits, and common rights, where a grant or prescription is incomplete.
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Common Confusion
In fieri is easily conflated with in esse (in being; actually existing) and with inchoate. The distinction matters in historical sources. In esse describes something already complete and existing; in fieri describes something still becoming. Inchoate is the modern functional equivalent for most purposes, but in fieri is narrower and more technical, rooted specifically in the procedural moment before finality of record. Researchers encountering in fieri in older pleading materials should not automatically substitute inchoate without considering the record-making context.
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Why It Matters in Research
The phrase appears most frequently in materials dealing with common law pleading, the nature of the record, and the timing of judicial amendment power. Its practical importance lies in a rule that persisted across centuries: while proceedings are in fieri, the court retains power to amend, alter, or correct its own orders and records. Once the record is complete — once proceedings pass from in fieri to in fact — that power narrows or disappears. Researchers working on questions of nunc pro tunc orders, judicial amendment of judgments, or the historical rule against collateral attack on judgments will encounter this term as a framing concept.
In equity sources and property materials, particularly those touching easements, profits à prendre, and common rights, in fieri describes the period during which a right is being acquired by prescription or grant but has not yet ripened. Rapalje & Lawrence's cross-references to COMMON and EASEMENT flag this usage explicitly. Researchers should follow those connections when working in pre-twentieth-century property materials.
The term is largely absent from modern American legal writing. When it appears in contemporary sources, it is typically in historical analysis, comparative law discussions, or scholarly treatment of judgment finality. Its disappearance from everyday usage creates a research trap: modern full-text searches for "pending," "inchoate," or "incomplete" will not surface historical passages using in fieri, and vice versa.
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Historical Dictionary Support
The four source dictionaries agree on the core meaning without variation: proceedings are in fieri until judgment is entered and the record made up. Burrill provides the most granular historical context, citing Blackstone's Commentaries (3 Bl. Com. 406) for the proposition that proceedings remain in fieri until judgment and record are complete, and Gilbert on Common Pleas for the older oral pleading practice — ore tenus — during which the record was necessarily in fieri because nothing had yet been reduced to writing. This historical detail explains why the term carries the precise procedural weight it does: in the era of oral pleading before the court, the record was genuinely incomplete until pleading concluded and the clerk's written record was finalized.
Burrill also notes the term's extension to chancery proceedings, though this usage appears to have been less systematically developed. Black's (both editions) confirms the inchoate/incomplete gloss and the procedural timing rule but offers no independent elaboration. Rapalje & Lawrence is the sparest of the four, contributing mainly the cross-reference architecture that points researchers toward the property applications.
None of the historical dictionaries address the modern question of how in fieri maps onto statutory or rules-based frameworks for amendment of judgments (such as those governing post-judgment motions under modern procedural codes). That translation is left entirely to the researcher.
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Jurisdictional Note
The in fieri concept is rooted in English common law procedure and has no jurisdiction-specific modern American incarnation. Its doctrinal content — the court's power to amend before finality — survives in various forms across all jurisdictions, but the Latin phrase itself is a historical artifact. Researchers working in civil law or mixed jurisdictions should be aware that in fieri appears in Roman law-derived sources as well, where its meaning is functionally similar but the procedural context differs.
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