Talk:Legal fiction

message: I propose that this article has a major cleanup and that we expunge everything that isn't a legal fiction from it. The lede would need to be adjusted accordingly. Moglen has a good discussion of a fiction, in which he says:
A legal fiction is a proposition about the substance or procedure of the legal system, purporting to be a principle or rule material to the determination of cases, which rests in whole or in part on factual premises known to be inaccurate at the time of the fiction's invocation. Each fiction, qua fiction, may be said to have a subject matter, comprised of the premise or premises counterfactually maintained. 
The key point is that a legal fiction is all about facts that are treated as true when they are known to be inaccurate. The classic example is the Bill of Middlesex - everyone knew the defendant hadn't committed trespass in Middlesex. Another well-known example is ejectment. Again everyone involved knew that John Doe and Richard Roe did not exist, but that point was never raised. Legal fictions were a procedural device, decreasingly used in my jurisdiction, to achieve a desired end.
What legal fictions are not:
* Presumptions. Presumptions are things presumed to be true - in most cases the presumption can be rebutted (strictly speaking an irrebuttable presumption is just a doctrine of law - so our courts have held). Presumptions are not situations where something known to be false is treated as true. Usually the factual status is unknown.
* Personality. Personality is a doctrine. Persons include natural person (humans in being) and legal persons (those given personality by the law). Corporations are one such example. Whatever you might think of corporate personhood or its uses, it isn't a fiction. No-one is assuming something known to be false. Corporations *are* persons. No-one is pretending they are really human when they aren't. That is a misunderstanding of what a corporation is or why they were created. Getting rid of the atrocious material about corporate personhood could only help this article.
We would be left with things like Quominus, ejectment and Middlesex all very good examples. I thought I'd ask the question here before going ahead and editing aggressively. Francis Davey (talk) 20:00, 16 April 2013 (UTC)
thread_title:  Proposed cleanup 

message: ===Enemy character of the corporation===
I've read this section several times and found it completely opaque. And surely quotations should illuminate the issue, not cloud it. Reading "I know not from what human beings that the character should be derived if resort is not had to the predominant character of its shareholders.", I'm reminded of:
* Lawyer: “When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?”
* Other Lawyer: “Objection. That question should be taken out and shot.”
===Other issues===
I find the article confusing and the examples point at different things. Can anyone do something to fix that. I am sticking the confusing template.Hakeem.gadi (talk) 10:52, 31 August 2010 (UTC)
replies: text: No. You are right to do so. The examples in the lead are either not legal fictions at all (a corporation isn't a legal fiction) or only confusingly so. The article suffers from being stuffed with all sorts of things which aren't fictions alongside things that are. It includes presumptions (statutory and otherwise) and also simply laws that might appear to have an odd effect. A fiction is something that the court assumes to be true whether or not it is, such as a lost modern grant or the situation in the action of ejectment or the bill of Middlesex and so on. However its not clear whether there's a deep belief by some editors that the definition of "legal fiction" is wider, so I daren't edit the article for fear of getting into an annoying and wasteful edit war. The law articles are like that. Francis Davey (talk) 07:21, 3 June 2011 (UTC)
replies: text: Agreed in all respects.  I would add, however, that the article in its present form is both confusing and misleading.  I'm inclined to think it does more harm than good.  — Preceding unsigned comment added by 98.169.119.68 (talk) 01:24, 23 April 2012 (UTC)
thread_title: Confusing Article

message: I find the article confusing and the examples point at different things. Can anyone do something to fix that. I am sticking the confusing template.Hakeem.gadi (talk) 10:52, 31 August 2010 (UTC)
replies: text: No. You are right to do so. The examples in the lead are either not legal fictions at all (a corporation isn't a legal fiction) or only confusingly so. The article suffers from being stuffed with all sorts of things which aren't fictions alongside things that are. It includes presumptions (statutory and otherwise) and also simply laws that might appear to have an odd effect. A fiction is something that the court assumes to be true whether or not it is, such as a lost modern grant or the situation in the action of ejectment or the bill of Middlesex and so on. However its not clear whether there's a deep belief by some editors that the definition of "legal fiction" is wider, so I daren't edit the article for fear of getting into an annoying and wasteful edit war. The law articles are like that. Francis Davey (talk) 07:21, 3 June 2011 (UTC)
replies: text: Agreed in all respects.  I would add, however, that the article in its present form is both confusing and misleading.  I'm inclined to think it does more harm than good.  — Preceding unsigned comment added by 98.169.119.68 (talk) 01:24, 23 April 2012 (UTC)
thread_title: Other issues

message: Is the idea that selling (for example) real estate for $1.00 makes it a sale rather than a gift a legal fiction? --User:Juuitchan
:In a way, but not really.  I gather your question is about the wording in deeds that usually says  that the land was sold for a dollar.  The standard wording I usually see says "$1.00 and other good and sufficient considerations, receipt of which is hereby acknowledged."  It actually says that more than $1.00 was received, so it isn't technically untrue; there's no reason to make the actual price part of the public records.  
:This recital doesn't actually preclude someone from claiming that the deed was in fact a gift or a sham.  This can and has been done (say, when a person who owes money deeds his land for nothing to relatives) so it isn't just accepted as true by the legal system.  
:Finally, a person is perfectly free to sell real estate for $1.00, and if that's the deal she made, she will be held to it, at least after the fact.  The old common law of consideration treated sales differently from gifts, but in fact did not attempt to inquire as to the fairness of bargains.  So a sale of valuable land for $1.00 was valid on its face.  Smerdis of Tlön 03:32, 3 Aug 2004 (UTC)
replies: text: I don't believe it is a fiction in my jurisdiction, but it may be in yours. It is something that should only really be mentioned in the article if we can find a good (and I mean good) citation for it. There's no need for fictionalisation in English law because we enforce executory contracts. The consideration need not have been paid, it need merely be due. That's one of the reasons we don't (as a rule) draft in a statement that consideration hasn't been paid. If those statements have any effect (do they?) then they may be the fiction not the consideration itself. Francis Davey (talk) 09:36, 27 April 2016 (UTC)
thread_title: $1 and Consideration

message: The first two examples in this paragraph are undecipherable to me.  Could it be made clearer to the layman?  What is the pantomime they refer to?  What is the guardianship issue?  These cases are not explained or linked to here.  Legal fictions are fewer in number than they used to be. The elaborate pantomime about poor Doe left homeless by Roe has been abolished by statute or by reforms in civil procedure in every common law jurisdiction. The business about Doe and Roe being the guardians of undisclosed parties who wish to bring suit, or the names of parties unknown, remains in some jurisdictions (although not in England). --Locarno 15:44, 5 Oct 2004 (UTC)
thread_title: Opaque examples

message: "legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true."
This is a misleading definition of a legal fiction - it confuses legal fiction with implied, imputed or presumed facts.
For example:
In UK law, if someone is not heard from for seven years, a court may presume that they are dead. This is NOT a legal fiction, but a presumed fact - it is "not necessarily true" but is treated as being true unless the contrary is proven.
A legal fiction is not something that is taken to be true until proven otherwise. It is immune to proof (eg in the Exchequer example, a defendant could not adduce evidence that the plaintiff did not, in fact, owe any money to the King). The actual truth of a legal fiction is utterly irrelevant and often fanciful.
Presumed/implied/imputed facts are commonsense assumptions that expediate matters of EVIDENCE.
Legal fictions are methods of altering matters of LAW or PROCEDURE.
Someone (a registered user) needs to re-write this definition!
:I completely agree. The article confuses legal presumptions and legal fictions and treats them as if they are the same. Would anyone object to me re-writing the article? Francis Davey 16:42, 8 June 2006 (UTC)
replies: text: It would be a very good idea if you did.  I would suggest splitting presumptions and fictions into different articles (with cross-references).  However I think there are other mistakes.  For example an assize of novel disseisin was (I think) a 'real action', which became unpopular due to its technicalities.  In contrast, an ejectment was a 'personal action' used to resolve a genuine dispute, but conducted in the name of a fictious tenant (often - but not always - John Doe).  On the other hand again, there were fictitious disputes - Fines and Recoveries (abolished 1833) - where the parties purported to be having a dispute with the sole object of acheiving a genuine change in a land title - either releasing a wife's right to dower in his husband's property or barring an entail.  I might have done this myself, but I meet them in practice in the course of local history research, rather than knowing about them from citable reference works.  I may add that some of what I have read about ejectments (as apparently being taught to history and archives students) does not accord with my experience of what documents exist in archives.  Peterkingiron 15:59, 1 July 2006 (UTC)
replies: text: 'novel disseisin' is best classified as one of the possessory assizes. The real actions were things like the writ of right which determined title in a final manner, novel disseisin, mort d'ancestor and so on were more relative and procedurally much easier than the real actions. In turn the possessory assizes were overtaken by writs of entry. The action of ejectment (of the Doe d. kind) was originally used as a way of protecting leaseholds (which were, anciently, not an estate in land at all), but were then borrowed for real property (sorry I can't help using the term) because of their convenience. Can you exemplify some of the conflicts or confusions about ejectment? Francis Davey 17:26, 2 July 2006 (UTC)
replies: text: the section on ejectment suggests that the legal fiction (John Doe, Richard Roe and the leases) was to work around the wager of battle, but then at the end states that the legal fiction could be challenged by a wager of battle - isn't there a conflict here? Wasn't this legal fiction just to apply the leaseholds law to real property (as mentioned in the paragraph above?)  —Preceding unsigned comment added by 68.44.73.217 (talk) 20:14, 7 October 2007 (UTC)
thread_title:  Poor, misleading definition! 

message: Is this real? It doesn't cite a source and I can find nothing mentioning it online or in other sources. I suggest that it be deleted unless someone can confirm it. Holomorphic 01:00, 18 June 2006 (UTC)
replies: text: Its certainly the case in England and Wales where there is a statutory presumption of survivorship under section 184 of the Law of Property Act 1925. This is why survivorship clauses are routinely inserted into wills. Of course it is not (like many of the examples in the article) a legal fiction, but that is another difficulty. Francis Davey 09:19, 18 June 2006 (UTC)
replies: text: It's certainly real legal doctrine, but I don't see how it's legal fiction.  It's a rebutable presumption, like presumption of innocence for criminal defendants.  — Randall Bart (talk) 01:22, 16 August 2007 (UTC)
replies: text:  I think it is a legal fiction as it is a presumption that something is fact absent evidence of such.  Just cuz it may be true doesn't mean its not fiction.  The fiction is the determined order of death when such cannot be determined.  And i rephrased the "of course" statement, as I didn't think it was proper.  It doesn't seem obvious in context to the sentence preceding it, but rather unmentioned.  And in any case this should probably be removed entirely as  irrelevant, no?  The doctrine concerns the suppostion when death cannot be determined.  It would be obvious that this is inaplicable in the face of evidence as to the actual order of death, as the later obviates the need for the former.  Perhaps someone agrees and will remove?--24.29.234.88 (talk) 07:25, 25 October 2008 (UTC)
replies: text:  But that is not what is meant by the phrase "legal fiction". A presumption and a fiction are different things. A presumption allows the short-cutting of an evidential inquiry that might be difficult or impossible to carry out. A fiction is something that is known not to be true, but nevertheless continued with. For example: the action of ejectment proceeded on the fiction that John Doe and Richard Roe existed. This is not a presumption that they did because we know they did not. So, you are right that it is irrelevant. Francis Davey (talk) 10:11, 24 November 2009 (UTC)
thread_title:  Doctrine of Survival 

message: The word trust in this article links to the disambiguation page for 'trust'. Please change the link to the reference most appropriate in this context. Longhairandabeard 06:40, 24 July 2006 (UTC)
thread_title: Minor Change Needed

message: I think this article is far too legalistic in its language.  I appreciate that it is a technical topic, but the lay-person (myself as an example) will have tremendous trouble understanding most of the examples listed. Pud1m 09:10, 14 August 2007 (UTC)
thread_title: Tone of the article

message: Legal fictions were at least as prevalent in the Roman Law as in the Common Law, yet this article fails to mention them in that context.  I know, , but I figured I would mention it here.  The article can stand reworking on a number of counts. Robert A.West (Talk) 05:13, 21 August 2008 (UTC)
thread_title:  Roman Law 

message: All racehorses are born on January 1. (I think this is worldwide as all are registered at Tattersall's in Newmarket). This can give an advantage to those born earlier in the year, in races where age is limited. Is this a legal fiction? I would kinda say it is, and if so it would be nice to add it. SimonTrew (talk) 02:38, 23 March 2009 (UTC)
thread_title:  Racehorces 

message: In the UK elected members of councils, assemblies and Parliament are legally self-employed post-holders, but a legal fiction is maintained that they are employees of the bodies they are members of for purposes such as payroll, taxes and benefits, but fully excluded from any considerations such as employee protection, workplace health & safety, etc. — Preceding unsigned comment added by 92.234.250.60 (talk) 11:30, 21 September 2015 (UTC)
thread_title:  Elected members 

message: : A legal fiction is a fact or situation assumed or created by courts which is then used in order to benefit from a legal rule ....
I deleted "or situation" in the belief that a situation is a fact, and changed "benefit from" to "apply" because the courts are supposed to be disinterested and thus ought not to "benefit" (derive an advantage) from such manipulations.  ('Apply' is also a bit more specific.)  CliffC reverted, saying, both terms seem needed - a 'fact' is not a 'situation'; 'benefit' has a straightforward English meaning.  
I agree that a fact is not a situation, which is why I didn't delete the word "fact"; I'd welcome an example of a situation that is not a fact.  
I also agree that 'benefit' has a straightforward English meaning, and I hope I have now made clear why I think a word with that straightforward English meaning is inappropriate here. —Tamfang (talk) 05:36, 24 November 2009 (UTC)
replies: text: I'm with you on this. Francis Davey (talk) 13:50, 18 March 2013 (UTC)
thread_title:  fact or situation 

message: In my perception, a corporation as a "legal person" is not a fiction, but a different trick often applied in law: a person is a legal concept that is defined (slightly) differently for legal purposes. Well, actually it is an approach also found in other disciplines: technical terms often have a specific meaning slightly different from their plain meaning in common parlance.
The perfect example of a legal fiction IMHO is the rule that in case of annulment of a contract it (sometimes) is supposed never to have existed. This is a deviation from reality - but it is convenient to explain the consequences. Rbakels (talk) 04:59, 21 May 2012 (UTC)
replies: text: The word person comes from a Latin word for an actor's mask, whence by metonymy and metaphor the role that one plays (the function that one exercises) in the world – rather than one's human essence.  I would guess that application of the word to "artificial persons" (corporations of various kinds) is quite old, and not originally seen as a fiction.  —Tamfang (talk) 05:39, 21 May 2012 (UTC)
replies: text: Its not a fiction. But many of the things in this article are not fictions. A fiction involves a pretence that reality is other than it is. Corporations are persons, there's no pretence there. Francis Davey (talk) 13:49, 18 March 2013 (UTC)

text: Ok but "contempt of court" is not disagreeing with a judgement, rather it is not doing what the judgement says. You can disagree with the judgement and the judge can't do anything about. In fact, you can appeal the judgement and you can publish an article about how bad the judge is and the judge can't do anything about it. But once the judgement becomes final, you have to do what it says if it orders you to do something. A judgement for debt can't be enforced by contempt, nor can a judge hold you in contempt unless the order told you to do something or to refrain from doing something and you didn't do that thing or refrained from doing it. Contempt is actually not a judge-made law, it is chancery-made rule of equity and it's how the chancery enforced its judgements before the law and equity systems were fused. Law + Equity = Justice. So if find yourself charged with contempt, it's not for disagreeing with a building, it's for disrespecting the building (to use your word) and what it stands for: justice. 104.234.245.129 (talk) 03:28, 1 September 2018 (UTC)
thread_title:  "Person" 

message: In § Development of the concept (an odd section title), the second paragraph gives the 'reasonable man' as an example of a legal fiction. The third says that "[legal fictions] are different from hypothetical examples, such as the 'reasonable person' which serve as tools for the court to express its reasoning". That's inconsistent at first glance, and could do with clarification. Are these two different applications of the 'reasonable man/person', one of which is a legal fiction and the other of which isn't? › Mortee talk 12:45, 18 June 2020 (UTC)
thread_title:  Reasonable man 

message: Under "Development of the Concept," the article states that corporate personality is not a legal fiction. Yet this article has a section on Corporate Personality, which then goes on to state that the corporation-as-person is a legal fiction. This needs to be remedied. 
I am going to remove the section on corporate personality. If this proves too radical then by all means revert the edit. I don't have strong convictions about this being or not being a legal fiction, and am doing this based off of the consensus I see in the Talk Section. I do however, have strong convictions that we remedy this somehow. BornOn8thOfJuly (talk) 12:58, 19 June 2020 (UTC)
thread_title:  Contradiction in Article 

message: The definition of "legal fiction", as currently provided in this article seems to be fairly British-specific: whereas "legal fiction" is a more general concept than this. It is a disservice to the Wikipedia community to pretend this term is so limited.
Some other commenters have attempted to provide a fairly formal definition, but I'll take my hand at a less formal approach:
I'll offer an example that may not seem so obvious:  In order to qualify to vote in an election, you must be at least age 18 as of the date of the election.  (We'll treat it as though an election is actually held on a specific date, rather than over the course of several days (but that wasn't the legal fiction I intended to introduce).
The legal fiction is that you achieve a particular age on your birthday.  But years do not quite correspond to the calendar.  Your actual age is the number of completed revolutions around the sun that Earth has made since you were born.  Thus, your age would actually occur at a specific time of day, which changes roughly 6 hours with each year, and we adjust for this variation with leap years, so you could presumably be up to 24 hours off on your actual age.
What's the difference?  Not much, until you get to law... and there are plenty of cases that are far more impactful than whether or not somebody gets to vote in a particular election.
My point is not to identify that some legal fictions might seem somewhat obscure, but that there isn't a pre-defined set of legal fictions that a court may recognize.  Legal fictions are more general and may apply to any situation which is the subject of legal analysis.
There is perhaps some challenge to finding a source with a suitable definition.  The meaning could perhaps be implied simply by the juxtaposition of the words.  Whether we can find an appropriate source or not, the existing article is unreasonably limited, and I would contend that in its current form, it is a disservice to the Wikipedia community. 
While there are plenty of essays on the subject of legal fictions, those which acknowledge some broader view seem to be quite limited.  One exception is “The Truth And Nothing But The Truth?”: The Argumentative Use Of Fictions In Legal Reasoning, which allows for the case of a legislator creating a legal fiction. Fabrickator (talk) 01:20, 7 July 2022 (UTC)
thread_title:  overly-narrow definition 

message: :The following is a closed discussion of a requested move. Please do not modify it. Subsequent comments should be made in a new section on the talk page. Editors desiring to contest the closing decision should consider a move review after discussing it on the closer's talk page. No further edits should be made to this discussion.
The result of the move request was: not moved. Closed per WP:RMEC. (closed by non-admin page mover) Reading Beans (talk) 05:52, 17 November 2023 (UTC)
replies: text: Legal fiction →  – Not the obvious WP:PRIMARYTOPIC. It is also a potential WP:PRIMARYREDIRECT for Legal drama and Legal thriller, the former of which gets equivalent pageviews to the law term. It requires the creation of a DAB page.  ᴢxᴄᴠʙɴᴍ (ᴛ) 17:25, 15 November 2023 (UTC)
thread_title:  Requested move 15 November 2023