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FICTION OF LAW
(bouvier) | FICTION OF LAW. The assumption that a certain thing is true, and which gives
to a person or thing, a quality which is not natural to it, and establishes,
consequently, a certain disposition, which, without the fiction, would be
repugnant to reason and to truth. It is an order of things which does not
exist, but which the law prescribe; or authorizes it differs from
presumption, because it establishes as true, something which is false;
whereas presumption supplies the proof of something true. Dalloz, Dict. h.t.
See 1 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note
2; Ferguson, Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency,
139, 140; Report of the Revisers of the Civil Code of Pennsylvania, March 1,
1832, p. 8.
2. The law never feigns what is impossible fictum est id quod factum
non est sed fieri potuit. Fiction is like art; it imitates nature, but never
disfigures it it aids truth, but it ought never to destroy it. It may well
suppose that what was possible, but which is not, exists; but it will never
feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv.
page 427, 47e Plaidoyer.
3. Fictions were invented by the Roman praetors, who, not possessing
the power to abrogate the law, were nevertheless willing to derogate from
it, under the pretence of doing equity. Fiction is the resource of weakness,
which, in order to obtain its object, assumes as a fact, what is known to be
contrary to truth: when the legislator desires to accomplish his object, he
need not feign, he commands. Fictions of law owe their origin to the
legislative usurpations of the bench. 4 Benth. Ev. 300.
4. It is said that every fiction must be framed according to the rules
of law, and that every legal fiction must have equity for its object. 10 Co.
42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are
not allowed to be carried further than the reasons which introduced them
necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. Sec. 20.
5. The law abounds in fictions. That an estate is in abeyance; the
doctrine of remitter, by which a party who has been disseised of his
freehold, and afterwards acquires a defective title, is remitted to his
former good title; that one thing done today, is considered as done, at a
preceding time by the doctrine of relation; that, because one thing is
proved, another shall be presumed to be true, which is the case in all
presumptions; that the heir, executor, and administrator stand by
representation, in the place of the deceased are all fictions of law. "Our
various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on
Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh
Hunt; our casually losing and finding a ship (which never was in Europe) in
the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity
of a will by an imaginary, wager of five pounds; our imagining and
compassing the king's death, by giving information which may defeat an
attack upon an enewy's settlement in the antipodes our charge of picking a
pocket, or forging a bill with force and arms; of neglecting to repair a
bridge, against the peace of our lord the king, his crown and dignity are
circumstances, which, looked at by themselves, would convey an impression of
no very favorable nature, with respect to the wisdom of our jurisprudence."
Vide 13 Vin. Ab. 209; Merl. Rep. h.t.; Dane's Ab. Index, h.t.; and Rey,
des Inst. de I'Angl. tome 2, p. 219, where he severely cesures these
fictions as absurd and useless.
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