Definition
To make default is to fail to perform a required legal act, most commonly by failing to appear or answer in a judicial proceeding after proper notice or service. The phrase functions as a verb describing the act of falling into default — that is, the moment a party's inaction triggers procedural consequences.
In the context of civil litigation, a party makes default by failing to file a timely answer to a complaint, failing to appear at a scheduled hearing, or neglecting to comply with a court order or summons. Once a party makes default, the opposing party may move for a default judgment, and the defaulting party's ability to contest the underlying claims is typically suspended unless the default is set aside.
More broadly, the phrase can describe any legally required act left undone — failing to obey a subpoena, failing to pay a debt when due, or failing to perform a contractual obligation — though its procedural litigation meaning dominates modern usage.
Common Language
Modern common usage (Wiktionary): To fail to appear or answer.
Historical common usage (Webster's 1913): Not directly defined as a compound phrase; "default" in Webster's 1913 carries the sense of failure, want, or neglect — particularly failure to appear in court.
The common usage tracks the legal meaning closely here, but the legal phrase carries a precision the ordinary sense lacks. To make default is not simply to fail at something — it is to fail at a specifically required legal act at a procedurally consequential moment, triggering defined procedural machinery. The common sense of "default" implies passivity or oversight; the legal act of making default has formal, timing-sensitive consequences that transform the posture of litigation.
Common Confusion
MAKE DEFAULT vs. DEFAULT JUDGMENT: Making default is the act or condition — the party's failure to appear or answer. A default judgment is the court's subsequent ruling entered as a consequence of that failure. A party makes default; the court then enters a default judgment. The two are sequential, not synonymous. Researchers conflate them when they treat a motion for default judgment as evidence that default has already been formally declared, which requires checking whether the clerk or court has first entered the default itself.
MAKE DEFAULT vs. BREACH: In contract contexts, a party who fails to perform may be said to have made default, but this is distinct from breach. Default often implies a procedural or formal failure within a structured obligation (a loan payment schedule, a court appearance), while breach describes a substantive failure to perform contractual duties. The overlap creates ambiguity in historical sources.
Why It Matters in Research
The phrase "make default" appears with high frequency in older pleading records, court rules, and common-law procedure manuals, but is largely absent from modern procedural codes, which prefer "entry of default" or simply "default." Researchers working in pre-twentieth-century case law, equity records, or English common-law sources will encounter "make default" as the standard formulation where modern sources would say "fail to appear" or "default was entered."
Historical court documents may use "make default" to describe both the act of a party (failing to appear) and a finding or notation by the court (the record reflecting that default occurred). These are conceptually distinct, and researchers should not assume the phrase always signals a formal procedural ruling rather than mere narrative description of a party's failure.
In divorce research, the phrase surfaces regularly in default divorce proceedings — cases where one spouse fails to respond to the petition. The Law Mind Family Law Encyclopedia's entry on Default Divorce addresses how this procedural posture affects the divorce process and what courts require before granting relief on default.
Jurisdictional variation affects what happens after a party makes default more than the meaning of making default itself. In federal practice and most state courts, making default triggers a two-step process: entry of default by the clerk, followed by motion for default judgment. Some older state court rules collapsed these steps or used different terminology, which can obscure the procedural posture when reading historical records.
When cross-referencing sources in the Law Mind corpus, note that encyclopedia entries on due process and algorithmic decision-making (constitutional and employment law contexts) touch on default-adjacent concepts — specifically, procedural notice and the consequences of non-response — but in contexts far removed from the classic litigation default scenario.
Historical Dictionary Support
Black's Law Dictionary defines "make default" as: "To fail or be wanting in some legal duty; particularly, to omit the entering of an appearance when duly summoned in an action at law or other judicial proceeding, to neglect to obey the command of a subpoena, etc." This formulation is accurate and captures the core meaning. It is notable that Black's anchors the definition in the appearance-and-summons context while acknowledging broader application to any legal duty.
The same source separately defines related language about written contracts and execution — a distinct definition that touches on the formalities of binding agreements and is not directly related to making default in the procedural sense. Researchers should not conflate these entries.
What historical dictionaries do not capture well is the procedural mechanics that follow making default — the distinction between the fact of default and the formal entry of default, and the conditions under which default may be excused or set aside. For those questions, procedural rules and case law are the necessary sources; dictionary definitions stop at the threshold.
Jurisdictional Note
Federal courts follow a two-step process under the Federal Rules of Civil Procedure: the clerk enters default upon a showing that a party has failed to plead or defend, and only then may default judgment be sought. Many state courts mirror this structure, but some older codes and a few current state systems allow or require a single combined step. Historical research in state court records requires attention to which procedural regime was in effect.
Encyclopedia Cross-Reference
Default Divorce — The Law Mind Family Law Encyclopedia (family_48)