Averment: Everything You Need to Know
From the Latin verificare, or the French averrer, and signifies a positive statement of facts in opposition to argument or inference.2 min read
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.
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.
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.
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