Definition
A memorandum is a written record, note, or communication created to document a transaction, preserve information, state a legal position, or facilitate internal communication. The term carries distinct meanings depending on context:
1. PROCEDURAL/HISTORICAL: A formal Latin term meaning "be it remembered," used as the opening word of the body of a record in the English Court of King's Bench. Proceedings by bill commenced with this clause, and over time the entire introductory clause came to be called the memorandum itself.
2. CONTRACT AND TRANSACTION LAW: A written note or informal instrument recording the essential terms of a transaction or agreement. The memorandum in this sense does not require the formality of a final contract but must capture sufficient terms to satisfy legal requirements — most commonly the Statute of Frauds, which in many jurisdictions requires certain contracts to be evidenced by a written memorandum.
3. LEGAL PRACTICE (INTERNAL): A document prepared by lawyers or law clerks analyzing a legal question, summarizing case law, or advising on a course of action. Often called a legal memorandum or memo of law.
4. GOVERNMENT AND DIPLOMACY: A brief, less formal instrument used in administrative or diplomatic communication, including the presidential memorandum (an executive instrument) and the diplomatic memorandum exchanged between governments.
Common Language
Modern common usage (Wiktionary): A short note serving as a reminder; a written business communication; a brief diplomatic communication; a page in an annual publication honoring the memory of a person who died during the past year.
Historical common usage (Webster's 1913): A record of something desired to be remembered; a note to help the memory; a brief or informal note of some transaction or outline of an intended instrument.
The common usage captures the ordinary meaning reasonably well, but the legal gap lies in consequence, not form. In ordinary use, a memorandum is informal and non-binding by nature. In law, a memorandum can carry binding force — a memorandum satisfying the Statute of Frauds may make an otherwise unenforceable agreement legally operative. The informality of the document does not determine its legal weight.
Common Confusion
MEMORANDUM vs. MEMORANDUM OF UNDERSTANDING (MOU): An MOU is a specific instrument — often used in government, commercial, and international contexts — that records agreed-upon intentions between parties. It is frequently described as non-binding, but courts have found MOUs enforceable when they contain sufficiently definite terms and evidence of intent to be bound. The generic memorandum and the MOU are not interchangeable.
MEMORANDUM vs. BRIEF: In legal practice, a memorandum of law and a brief are both analytical documents addressing legal questions, but a brief is submitted to a court as an advocacy document, while a memorandum is typically an internal, objective analysis. The distinction matters for privilege, confidentiality, and research strategy.
Why It Matters in Research
The term is a trap for researchers who treat all memoranda as equivalent. Three distinct research contexts require different handling:
STATUTE OF FRAUDS RESEARCH: The memorandum as a writing sufficient to satisfy the Statute of Frauds has an extensive body of case law defining what constitutes adequacy — what terms must be present, whether electronic communications qualify, whether multiple documents may be read together. Historical sources define memorandum here without accounting for twentieth- and twenty-first-century developments in electronic writing and signature law. Researchers using historical dictionaries alone will miss this evolution entirely.
PROCEDURAL AND RECORD RESEARCH: In English common law sources and early American practice materials, memorandum in procedural contexts refers specifically to the King's Bench bill proceeding formula. Encountering memorandum in old plea rolls, records, or early American court documents likely signals this procedural usage, not a transactional instrument. Conflating the two distorts reading of historical records.
GOVERNMENT AND ADMINISTRATIVE RESEARCH: Presidential memoranda are executive instruments that differ from executive orders in procedural requirements and publication obligations but may carry similar substantive force. Researchers working in administrative law or separation of powers must treat the presidential memorandum as a distinct legal instrument with its own regulatory history, not simply an informal note.
CORPUS CONNECTIONS: The term threads through contract law, evidence (Statute of Frauds), procedure, administrative law, legal ethics (work product doctrine intersects with internal legal memoranda), and diplomatic history. A search on memorandum in the Law Mind corpus without context filtering will return material across all these areas — precision requires pairing the term with the relevant doctrinal context.
Historical Dictionary Support
Black's (1st and 2nd Ed.) and Burrill's focus almost entirely on the procedural meaning — the Latin formula opening King's Bench records — which was the meaning most legally significant in the common law tradition from which these dictionaries drew. Burrill is the most precise, quoting the full Latin clause and citing Townsend's Pleadings and Tidd's Practice for authority. Both editions of Black's treat this as the primary definition, a reliable sign of where the term's legal weight sat in the late nineteenth century.
Anderson's is brief and largely unhelpful, noting only the Latin meaning and the plural forms. Bouvier's entry, as reproduced here, addresses memory and time of memory rather than memorandum itself, suggesting an indexing issue in the source — researchers should note that Bouvier's primary entries on contract-related memoranda appear elsewhere in that dictionary.
Rapalje & Lawrence's reproduced passage addresses member, not memorandum, indicating a fragment retrieval. These gaps underscore a general limitation: the historical dictionaries were written in an era when the Statute of Frauds memorandum was already well-established doctrine, but the dictionaries treat it as subordinate to the procedural usage. Modern legal research requires reversing that weight — the Statute of Frauds meaning is now far more frequently litigated than the King's Bench formula.
None of the historical sources address the internal legal memorandum as a professional document, the memorandum of understanding as a distinct instrument, or administrative memoranda. These are twentieth-century legal usages that postdate the dictionaries entirely.
Jurisdictional Note
Statute of Frauds requirements for a sufficient memorandum vary by jurisdiction and by the category of contract at issue. American states have substantially codified and modified the original English Statute of Frauds, and the Uniform Commercial Code's writing requirements further diverge from common law memorandum doctrine for goods transactions. Researchers should not assume that a memorandum sufficient under one jurisdiction's Statute of Frauds will satisfy another's.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Statute of Frauds; Executive Orders and Presidential Memoranda; Work Product Doctrine