Definition
Litispendence is an archaic legal term meaning the period during which a lawsuit is pending — that is, the interval between the commencement of an action and its final resolution. The term functions as a noun describing the state or duration of active litigation, and carries with it certain legal consequences, most notably the rule that property or rights in dispute cannot be transferred free of the litigation's outcome while the suit remains pending.
The term is most commonly encountered in older legal writing as a near-synonym for the doctrine and concept expressed by the Latin phrase lis pendens. While litispendence refers to the temporal condition of pending litigation, the associated doctrine holds that a third party who acquires an interest in disputed property during that period takes it subject to whatever judgment ultimately issues.
In Scottish law, litispendence carried an additional procedural significance: an action whose direct object was to obtain possession of or acquire property in a specific subject could operate similarly to an inhibition, creating an encumbrance against alienation during the pendency of the suit.
Common Confusion
Litispendence and lis pendens are closely related but not strictly interchangeable. Litispendence names the condition — the fact that a lawsuit is pending — while lis pendens, in modern American practice, refers specifically to the recorded notice filed in real property records to alert third parties that title to the property is in litigation. Researchers encountering litispendence in older texts should not automatically assume the author is referring to the notice-filing procedure; the term may simply describe the temporal state of pending litigation and its attendant common-law consequences, with no reference to statutory notice requirements.
Why It Matters in Research
Litispendence is effectively a dead term in modern American legal writing. Researchers are unlikely to find it in contemporary statutes, rules, or judicial opinions. Its value is almost entirely archival: the term appears in treatises, equity practice manuals, and court records from the eighteenth and nineteenth centuries, particularly in jurisdictions with strong civil-law or Scottish legal influence.
The key research trap is terminological drift. A nineteenth-century author using litispendence may mean any of several things: (1) the bare temporal fact of pending litigation, (2) the common-law doctrine preventing prejudice to litigants from mid-suit transfers, or (3) something close to the modern lis pendens notice in effect if not in name. The surrounding context — especially whether the author is discussing Scottish practice, civilian doctrine, or Anglo-American equity — is essential to reading the term correctly.
Researchers tracing the history of the lis pendens doctrine in American real property law will need to move between litispendence in older sources and lis pendens in later ones. The conceptual continuity is strong, but the procedural implementation diverges sharply once statutory lis pendens recording requirements enter the picture in the mid-to-late nineteenth century. Sources predating those statutes treat the consequence of pending litigation as arising automatically by operation of law; later sources treat notice filing as a prerequisite to binding third parties. Litispendence-era sources belong to the first category.
The Scottish law meaning — producing effects analogous to inhibition — is an additional layer relevant only in sources engaging with Scots law or civil-law systems. Bell's usage cited in Black's reflects this specialized tradition and should not be imported into readings of English or American materials without care.
Historical Dictionary Support
Both Black's (2nd ed.) and Rapalje & Lawrence treat litispendence as obsolete, each defining it simply as "the time during which a lawsuit is going on" and directing readers to lis pendens. This minimal treatment is itself informative: by the time these dictionaries were compiled, the term had already receded from active use, surviving mainly in older authorities being cited for the underlying doctrine.
Black's adds the Scottish dimension — referencing Bell and describing an action whose object is to obtain possession of a specific subject, with effects analogous to inhibition — without fully explaining the doctrinal connection to the temporal definition. The two usages sit side by side in Black's without reconciliation, which reflects the term's mixed civilian and common-law heritage rather than any error on Black's part.
Neither dictionary engages with the American statutory evolution of lis pendens notice requirements, which is the practical context in which researchers are most likely to need the underlying concept. For that development, historical dictionaries are inadequate guides; treatises on real property and equity practice from the latter half of the nineteenth century are more useful.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Lis Pendens; Inhibition (Scots Law); Notice Doctrine in Real Property