Fiction in United Kingdom

Definition of Fiction

In accordance with the work A Dictionary of Law, this is a description of Fiction :

An assumption that something is true irrespective of whether it is really true or not. In English legal history fictions were used by the courts during the development of forms of court actio They enabled the courts to avoid cumbersome procedures, to make remedies available when they would not be otherwise, and to extend their jurisdictio For example, the action of *trover was originally based on the defendant’s finding the claimant’s goods and taking them for himself. In time, it became unnecessary to prove the “finding”: a remedy was granted on the basis only of proving that the goods were the claimant’s and that the defendant had taken them.

Meaning of Fiction

The following is an old definition of Fiction [1]: That which is feigned, assumed, pretended. The legal assumption that something is true which is or may be false; an assumption of an innocent and beneficial character, made to advance the ends of justice. Compare Estoppel; Presumption. An allegation in legal proceedings that does not accord with the actual facts; and which may therefore be contradicted for every purpose except to defeat the beneficial end for which the fiction is allowed. Fictions of law are highly beneficial and useful; especially as “no fiction extends to work an injury:” the proper operation being to prevent mischief or remedy an inconvenience that might result from a general rule. The maxim is, in fictione juris semper subsistit cequitas – in a fiction of law equity always subsists; a legal fiction is consistent with justice. But not admitted, where life, liberty, or personal safety is in jeopardy. Illustrative examples: that the king was the orig- inal proprietor of all lands. That an original capias had been granted, when a testatum capias issued into another county. That a summons issues in an amicable action. That a person bailed is in the custody of his bail. That a feigned issue is based upon a wager made. That what ought to be done is done, and relates back to the time when it was to be done. The doctrine of abeyance. That a term of court consists of a single day. That a writ of error actually removes the record, instead of a transcript of the record. That every person knows what is passing in the courts. That the possession of one who has a right of lien is the possession of the law. That the law takes no notice of a, fraction of a day. The doctrine of equitable conversion. The doctrine of representation in an agent, and in a decedent; and some features of the early action of ejectment. Fiction makes several corporations out of what is really one, in order to give each State control over the charters it grants. 0 Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment which the defendant was not allowed to traverse; as, that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object was to give jurisdiction. . . Legal fiction may be used to signify an assumption which conceals, or aifects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged while its operation is modified. The ” fact ” is that the law has been wholly changed; the “fiction ” is that it remains what it always was. . . Fictions are particularly congenial to the infancy of society. They satisfy the desire for improvement, while they do not offend the disrelish for change. Thus they become invaluable expedients for overcoming the rigidity of law.1 Fictitious. 1. Not real; feigned: as, a fictitious – action, case, issue, name, party, payee. A fictitious case is a suit brought upon facts with respect to which no real controversy exists. Any attempt, by a mere colorable dispute, or where the appellant has become the sole party in interest, to get up a case for the opinion of the court, where there is no real and substantial controversy, is an abuse reprehended by all courts, and punishable as a contempt.2 2. Imaginary; unsubstantial: as, fictitious bail, see, in this resource, the term 3. Not made in good faith: as, a fictitious bid, see, in this resource, the term

Resources

Notes and References

1. Concept of Fiction provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)