Category Archives: A Brief History Of

A Brief History of…Caveats

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You’ll have to bear with me on this one and certainly forgive me because there is one long bow I draw within this exercise but now that I’ve given you my caveat lector it’s time to explore the origin of caveats.

The caveat in its most common legal usage exists as Caveat Emptor which literally translates into “buyer beware”. Caveats are most commonly used today as temporary warnings on real property and although they do not necessarily prevent the sale of any real property, good luck obtaining finance if there is a caveat in place, or finding a half-decent lawyer or realtor that feels comfortable telling you to go ahead with the purchase without holding comprehensive professional liability insurance.

Less common usages are Caveat Lector (“Reader Beware”…you’ve been warned), Caveat Venditor (“Seller Beware”) and Cavere ab aliquo, which is definitely out of use but old judgments will still turn out this gem as a verb for “making yourself secure” or to secure bail or a surety.

Cavea first appeared as Latin for “hollow” or “cave”. The obvious evolutions of this are “cavern”, “cavity”, “excavate” and even “grave” as a type of hollow opening. Later the Latins and Romans used it specifically for “eye sockets” and your “palate” and as a root for “theatre seats” (No Idea! Maybe a small opening for an individual in a crowd?!), as well as “birdcage” and “beehive”.

As a side note Cumulus, from the same root, in early Latin was a swelling, heap or opening that built on itself, such as a series of caves, which gives us today the French, became old English origin of “cumulative”. As in “Does your Honour intend to impose the sentences concurrently or cumulatively?”.

Old Norman gaiole, from French jaole, from Latin gabiola, from Late Latin caveola from Early Latin cavea…gives us….“gaol” or “jail” both originating from this word originally meaning an opening. At some stage, or maybe always, an opening included an opening you could be trapped or contained in (hence “birdcage” and “beehive” being literal translations for the Romans).

Further modern “cage” is a short leap from cavea becoming cagea in Old French.

Now this is where I make my jump. At some stage we know that a Caveat evolved to mean a warning, cavea existed as the accusative verb of caveas, which could be to accuse one of being hollow or attempting to trap.

Therefore a Caveat Emptor might also be read as “the buyer should beware of being trapped”.

This may not necessarily help you in practice, but when you come across a Caveat or are imposing one remember that it exists as a temporary warning to a party not to be trapped into something that already exists, like an outstanding liability, personal guarantee, a bankrupt estate or for the sake of neat endings: an actual cave. 

A Brief History of….Pecuniary Losses

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Time for another opportunity for myself to indulge in my amateur history and etymology.

Like all societies that have lasted their time, Roman society started as an agricultural society well before the empire, hedonism and numerous yawns for HSC students.

Every early society has understood value as an intrinsic thing well before there were minted coins with a specific value. The things these societies valued are not difficult to guess; life, family and livestock.

An abundance of livestock meant the survival of your family and community. Groups would fight for and defend their sheep and cows since at least the first domestication of sheep in around 10,000 BC and Cattle in about 8,000 BC. (Corrections are welcome)

Even the word “husband” did not originate as relating to marriage, but simply was a manager of animals. The “husband” was usually married as the head of a successful household. Hence the two became conflated.

That’s the context. Now for the exciting stuff.

Pecuniarius “pertaining to money,” from pecunia “money or wealth,” from pecus meaning “sheep”. In pre-monetary society, the most common form of barter involved sheep or other livestock. Hence in Roman society a pecuniary loss was a loss pertaining to your wealth, or sheep. The term morphed and stuck around and this is certainly where our term pecuniary originates from, but it is not the only example of this.

Further down the rabbit hole? you got it.

Caput is not just a great gangster word, it’s Latin for “head“…and you guessed it, head of cattle. Caput leads to Capitale which becomes anglicised as Catel and retains its reference to the amount of cows to this day. Obviously this became “Cattle” but interestingly the root was retained and “Capital” still exists alongside “Cattle” which evolved from it.

Keep going? all day son.

Fioh is old english and there are plenty of Celtic and other alternatives, but we don’t actually have all day so I’ll be brief. Fioh or Fehu (but that’s more Germanic Saxon) means cows. This evolved into “fee” and hence meant a collection of property. “Fee Simple” was a straight exchange of property for other (absolute ownership); fee simple came to relate specifically to pasture and now it exists in the system as relating to land. A “Fiefdom” became an area of land over which a party had exclusive licence to collect fees.

Sanskit, Gothic, Germanic and basically any society throughout Europe and the Middle East can trace the definitions of money, property or value directly to livestock. I’m sure it’s even more prevalent than these areas, but unfortunately my usefuless expired long ago. (once again, corrections welcome)

Will this information ever come in handy?…Probably not. But understanding the value and meaning of something usually involves understanding its context and importance. Money is the new livestock and losing it still means the same thing to most people that it did 10000 years ago, a loss of ability to provide for their family and community. Money is a very emotional subject and understanding the base human drive behind this is fundamental to understanding the emotions involved behind most litigation.

A Brief History of…Subpoenas

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Subpoenas are commonplace in litigation in most courts around the world, particularly in common law and continental law systems.

They perform a vital function and the value of subpoenas is best realised by those who do not have access to them. Try summoning a powerful person before the courts in a country without the rule of law and you will quickly see that, despite our system’s flaws, money or political clout is not as powerful in Australia as it is in most parts of the world, thanks largely to the subpoena. The writ of subpoena is used generally as “Subpoena Duces Tecum” for the production of documents or a “Subpoena ad Testificandum” for the production of the individual to provide evidence or testify.

But where did it all start? Well, lend me your ears (eyes), like all the best parts of the law (and frankly everything) subpoenas have their origins in ancient Rome and Hellenic or Latin culture generally. The Romans placed great weight on the rule of law. Since the founding of the city, Rome was heavily divided between the rich and poor, the poor workers became vital to the success of the city and agitated for law to apply equally to all citizens under threat of taking their in-demand labour to another city which would essentially facilitate the failure of Rome in it’s upstart days. SPQR (The Senate and the People of Rome) recognised the need for placating the masses and edited the laws of Rome to apply equally to all citizens rich and poor, emphasis on citizens.* A citizen with a grievance could approach the local Magistrate (another survived Roman term) who would then issue a subpoena for the required person to appear before the Magistrate or Senate for the case to be heard.

In an early incarnation of mandatory minimum sentencing there were only two offences that automatically attracted the death penalty, treason and failing to answer a subpoena. Subpoenas as a tool of justice were considered so important that failing to answer it was a most egregious violation of civic duty. A person accused of murder may or may not be guilty, but if a person refused to answer a subpoena then they were seen as denying Jupiter’s justice itself. Hence the etymology of subpoena, “sub” meaning under and “poena” meaning penalty…a subpoena was an order of the court, under penalty…of death.

Like most principles of Roman law, the subpoena, along with habeas corpus, affidavits and pro bono (I’m sure there will be entries about those at some point) survived the collapse of the empire and were incorporated into most legal systems in Europe, largely through the Church, being the successor to the Roman Empire. The beautiful simplicity and practicality as a tool of the justice system ensured the subpoena’s survivability.

A great tale that demonstrates the ongoing importance of the subpoena involves William the Cow Thief from 1221 England. William was accused (by his wife…poor sod), of having stolen, killed and eaten a cow belonging to another man. During this period of England’s history, livestock and crops were the literal lifeblood of 95% of English society. William claimed that his Lord had gifted the cow in return for services. The Court issued a subpoena for the Lord to appear. He refused and was subsequently gaoled whilst William was set free because the Courts could not remove a man’s liberty who possibly had a defence that was unable to be tested before his peers. Interestingly, the Lord would have been unable to be tried for the theft of the cow, as it was technically his, but failing to answer a subpoena was a crime applicable to all men…who weren’t kings. It is hard to say whether the same fervour would have been used in later years a little further in time from the Magna Carta, but I digress.

Even if Registrar’s do not hold the power to have someone put to death for failing to answer them, subpoenas (only seppos say subpoenae) continue to hold a vital importance in today’s system by facilitating the production of evidence needed to prove a particular case and essentially facilitate justice.


For a much more comprehensive history of Rome, please see the phenomenal podcast of Mike Duncan http://thehistoryofrome.typepad.com/
and for a much much better history of subpoenas, read a book, particularly “Subpoena Law and Practice in Australia” by Gerard Carter. http://catalogue.nla.gov.au/Record/2847417.

*unfortunately as with most legal systems, the lofty ideals were often corrupted by money, but nonetheless a nice idea.