Legal Definitions - de bene esse

The legal term de bene esse refers to an action or proceeding taken conditionally for the present, in anticipation of a future need or potential unavailability. It means something is done now, with the understanding that its full effect or admissibility might depend on later events or circumstances.

Here are some examples to illustrate this concept:

• Imagine a lawsuit where a key witness is a very elderly individual with a rapidly declining health condition. The lawyers might ask the court to allow them to take this witness's deposition (recorded testimony outside of court) de bene esse. This means the testimony is recorded now, preserving their statements while they are still able to provide them. If the witness is unable to appear in court for the actual trial due to their health, their recorded testimony can then be used. However, if the witness's health improves or stabilizes, and they are able to testify in person at trial, the de bene esse deposition might not be necessary, or the court might prefer live testimony. The action (taking the deposition) is done conditionally, for a future need (the trial), anticipating a potential future unavailability (the witness's health).

• Consider a situation where a historic building is involved in a property dispute, and a specific section of the building contains crucial evidence about its original construction. However, that section also needs to be demolished soon for safety reasons. A court might order that a detailed photographic survey, architectural drawings, and expert analysis of that section be conducted de bene esse before the demolition. This ensures that the evidence is preserved and available for the trial, even though the physical structure will no longer exist. The preservation of evidence is done conditionally, anticipating its future need in court, and acknowledging that the original source will soon be unavailable.

• In a complex commercial dispute, a judge might issue a preliminary ruling on a specific legal interpretation de bene esse early in the case. This means the judge provides an initial opinion on how a particular contract clause should be understood, allowing the parties to proceed with their discovery (information gathering) and settlement discussions based on that understanding. However, this ruling is conditional; the judge reserves the right to revisit and potentially change this interpretation later in the proceedings once all arguments have been fully presented and more evidence has emerged. The ruling is made for the present, to facilitate progress, but its finality is contingent on future developments in the case.