Scottish National Dictionary (1700–)
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First published 1968 (SND Vol. VII).
This entry has not been updated since then but may contain minor corrections and revisions.
PROBATIVE, adj. Sc. Law usage, gen. in combs. probative document, -writ, -writing, etc., a document which carries its own evidence of validity and authenticity. Cf. privileged deed or writ, s.v. Privilege.Sc. 1709 W. Steuart Collections i. x. § 2:
Acts and deeds under clerks hands are probative writs, and the warrants thereof are presumed; yet so, as if they be recently quarrelled, the warrants must be produced.Sc. 1711 Acts of Sederunt (23 Nov.) 223:
In case any Extract of the said Executions shall be desired, the Party requiring the same, shall pay for the said Extracts, the same Dues for Extracts that are paid for Probative Writs.Sc. 1838 W. Bell Dict. Law Scot. 367–8:
Instruments of resignation, of requisition, of consignation, of intimation of assignations, of protests on bills of exchange, and the like, are deemed fully probative . . . Where the deed is merely recorded as a probative writ, the principal deed being returned to the party at whose desire it was recorded, the general rule is, that the extract of such a deed is not admissible as evidence.Sc. 1928 Encycl. Laws Scot. VI. 418:
Probative deeds occupy a very special position not only in the law of evidence but also in the substantive law of rights and obligation.Sc. 1964 A. & N. Walker Law Evidence 182:
The word “probative” is frequently used in judicial pronouncements and in textbooks to describe a writing which has been properly executed in accordance with the statutory solemnities. . . . also to describe an untested holograph writing . . . The better practice is to use the word in its original and restricted sense, as applying only to the kind of writing which affords proof of its own authenticity.
