Definition
In French law, a preferential right entitling one co-heir or co-owner to take a specified portion of a jointly held estate or common property before any general partition takes place among the other parties. The preciput functions as a first claim — an advantage carved out ahead of equal division — so that the beneficiary receives that designated share in priority, with the remainder then divided proportionally among all parties (including, in some formulations, the preciput holder).
The preciput may arise in two distinct ways:
1. Legal preciput: Established by operation of law, attaching automatically to certain persons by virtue of their status or the nature of the property.
2. Conventional preciput: Created by agreement of the parties, typically in a marriage contract or partnership deed, designating a specific asset or sum that one party is entitled to withdraw before division.
Common Confusion
PRECIPUT and HOTCHPOT are related but distinct concepts. Hotchpot (or hotchpotch) is a rule that compels a party who has already received an advance from a common fund to bring that advance back into the common pool before claiming a share. Preciput operates in the opposite direction — it is a sanctioned preference, not a cure for prior preference. A beneficiary of a preciput takes first; a party subject to hotchpot must account for what was already taken. Researchers working in civil law succession or community property contexts should not conflate the two.
Recognized Forms
/SUBTYPES
Legal preciput: Arises by statute or customary law without agreement of the parties. Historically recognized in French customary law and in certain community property regimes.
Conventional preciput: Arises from contract, most commonly a marriage contract (contrat de mariage). The surviving spouse, or the designated party, takes the agreed object or sum before the estate is otherwise divided. This form appears most frequently in civilian treatises and historical deed records.
Why It Matters in Research
Preciput is almost entirely absent from common law authorities and will not appear in English case law or Anglo-American statutes as a term of art. Researchers will encounter it primarily in three contexts:
First, in civilian succession and family law materials — French, Louisiana, Quebec, and other mixed jurisdictions — where partition of community property or succession is governed by civil law principles. Louisiana records in particular may use preciput in marriage contracts and succession instruments dating from the French and Spanish colonial periods through the nineteenth century.
Second, in English-language treatises on comparative law and civil law systems, particularly those addressing the French Civil Code and its predecessors. Pothier's works and Dalloz's dictionary, cited by Bouvier, are the canonical civil law sources.
Third, in historical deed, probate, and notarial records from Louisiana, Quebec, or other former French territories. A researcher reading an antebellum Louisiana marriage contract may encounter a clause granting the surviving spouse a preciput in specific property before the community estate is divided. Misreading this as a simple legacy or bequest would distort the legal picture; it is a preferential extraction, not a gift from the estate.
The term does not appear in modern American treatises except in the Louisiana or comparative law context. Researchers working in common law jurisdictions who encounter the word are almost certainly handling a document of French civil law provenance or a treatise engaging civilian sources.
Historical Dictionary Support
The three dictionary sources present a consistent core with useful supplementary detail. Black's is economical: a portion of an inheritance falling to one co-heir over and above the equal share, taken out before partition. This captures the priority and pre-partition character accurately but says nothing about the conventional form.
Bouvier is the most substantive. He identifies both the legal and conventional origins, connects the term to its Latin root (præcipium jus — the principal right), and cites Pothier and Dalloz directly. Bouvier's entry is truncated in the available text ("is also underst—"), but the surviving portion indicates he was extending the definition to a second recognized meaning — likely the conventional preciput in the marriage contract context. Researchers should consult the full Bouvier entry where possible.
Rapalje & Lawrence offers no independent definition, redirecting to PRÆCIPUT CONVEN-, which is the conventional preciput form. This cross-reference is itself informative: it signals that the conventional form was considered important enough to receive a dedicated entry, and that researchers working in Rapalje should follow that cross-reference for the contractual usage.
No historical source here addresses the common law reception (or non-reception) of the term, nor do they flag the Louisiana context specifically, which is the most practically relevant site of encounter for American legal researchers.
Jurisdictional Note
Preciput is a civilian concept with no direct common law equivalent. It remains legally operative in Louisiana succession and community property law, where French civil law heritage persists in the Civil Code. Quebec law similarly retains the concept. Researchers working in other American jurisdictions will encounter preciput only in historical documents or comparative scholarship, not as operative modern law.