Key Takeaways

  • Definition: Averments are formal factual statements in legal pleadings that assert truth rather than argument or inference.
  • Types: They include general averments (broad offers to prove facts) and particular averments (specific factual assertions).
  • Immaterial or unnecessary averments: Courts may disregard them, but once alleged, some must still be proved.
  • Practical use: Averments can shift evidentiary burdens in litigation, especially in criminal and civil proceedings.
  • Forms and expressions: While traditional Latin phrases were used, modern rules permit simpler language as long as the factual assertion is clear.
  • Modern rules: Jurisdictions like Pennsylvania’s Rules of Civil Procedure and Australia’s Criminal Code expressly regulate how averments are applied.

The Definition of Averment

From the Latin verificare, or the French averrer, and signifies a positive statement of facts in opposition to argument or inference.

Historical and Modern Use of Averments

Historically, averments were phrased in highly formal language, often using Latin expressions such as et hoc paratus est verificare to indicate readiness to prove the claim. Today, courts recognize that overly technical phrasing is unnecessary, and any wording that clearly conveys a factual assertion will generally suffice. Modern legal dictionaries define an averment simply as a “factual claim or assertion, particularly a confident statement in a legal document”.

Across jurisdictions, averments retain practical significance. For example, in Pennsylvania, Rule 2204 of the Rules of Civil Procedure regulates how averments must appear in pleadings, distinguishing between facts deemed admitted when not denied and those requiring specific proof. This reflects the enduring role of averments as tools for shaping issues of fact in litigation.

General Averments

Averments are two-fold, namely, general and particular. A general averment is that which is at the conclusion of an offer to make good or prove whole pleas containing new affirmative matter. This sort of averment only applies to pleas, replications, or subsequent pleadings for counts and a vowries which are in the nature of counts, need not be averred, the form of such averment being et hoc paratus. est verificare.

Averments in Criminal Proceedings

Averments play a distinctive role in criminal law. Some statutes allow prosecutors to rely on averments to meet their initial evidentiary burden. Under provisions of the Commonwealth Criminal Code in Australia, for example, an allegation of fact—or of mixed fact and law—may be included as an averment, which then discharges the prosecutor’s evidential burden unless and until challenged.

This means averments can streamline prosecutions by shifting the responsibility to the defense to disprove or contest specific facts. However, courts balance this efficiency with safeguards to protect due process, ensuring that defendants can still rebut or disprove averments through evidence.

Particular Averments

Particular averments are assertions of the truth of particular facts, as the life of tenant or of tenant in tail is averred: and, in these et hoc, etc., are not used. Again, in a particular averment the party merely protests and avows the truth of the fact or facts averred, but in general averments he makes an offer to prove and make good by evidence what he asserts.

Immaterial or Impertinent Averments

Averments were formerly divided into immaterial and impertinent; but these terms are now treated as synonymous. A better division may be made of immaterial or impertinent averments, which are those which need not be stated, and, if stated, need not be proved.

Unnecessary Averments

Unnecessary averments, which consist of matters which need not be alleged, but if alleged, must be proved. For example, in an action of assumpsit, upon a warranty on the sale of goods, allegation of deceit on the part of the seller is impertinent, and need not be proved. But if in an action by a lessor against his tenant, for negligently keeping his fire, a demise for seven years be alleged, and the proof be a lease at will only, it will be a fatal variance; for though an allegation of tenancy generally would have been sufficient, yet having unnecessarily qualified it, by stating the precise term, it must be proved as laid.

Averments must contain not only matter, but form. General averments are always in the same form. The most common form of making particular averments is in express and direct words. For example, and the party avers or in fact saith, or although, or because, or with this that, or being, etc. But they need not be in these words, for any words which necessarily imply the matter intended to be averred are sufficient.

Practical Implications of Averments

The presence or absence of averments can determine the direction of a case. A well-pleaded averment may secure an advantage by shifting burdens of proof or narrowing the issues that must be litigated. Conversely, careless inclusion of unnecessary averments can expose a party to additional obligations, since courts may require proof of any factual allegation made—even if it was not legally required.

In practice, attorneys draft averments carefully to:

  • Avoid pleading facts that could create unnecessary hurdles.
  • Ensure clarity so that courts and opposing parties understand what is being asserted.
  • Leverage statutory provisions that allow averments to stand as sufficient evidence unless contested.

This balance highlights the importance of precision and strategy in drafting pleadings.

Frequently Asked Questions

1. What is the difference between general and particular averments?

General averments broadly offer to prove facts in a pleading, while particular averments assert specific facts without such an offer of proof.

2. Are averments still used in modern law?

Yes. Although less formal than in the past, averments remain vital in pleadings and are regulated by rules of civil procedure and criminal codes.

3. Can an unnecessary averment affect a case?

Yes. If an unnecessary fact is alleged, courts may require proof of it, even though it did not need to be pleaded initially.

4. Do averments shift the burden of proof?

In some cases, especially under statutory provisions, averments can discharge a prosecutor’s or plaintiff’s initial burden, requiring the opposing party to contest or rebut them.

5. What language is required for an averment?

Traditional Latin phrases are not required. Modern practice accepts any clear language that states a fact with certainty.

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