legal fiction

Definition of legal fiction

Further reading

A legal fiction is a fact or situation assumed or created by courts[1] which is then used in order to benefit from a legal rule which was not necessarily designed to be used in that way. For example, the rules of the Houses of Parliament specify that an MP cannot resign from office, but since the law also states that a Member of Parliament that is appointed to a paid office of the Crown must either step down or stand for re-election, a resignation can be accomplished by appointment to such an office. The second rule is used to circumvent the first rule.

Legal fictions were used by courts prior to the existence of handling offences. In a situation where A sells stolen property to B, B can then be accused of handling stolen property. Legal fiction has been used to declare that as A did not have the power to sell the property to B, B was considered to have also stolen the property, and was therefore guilty of theft himself.

Legal fictions are mostly encountered under common law systems.

The term "legal fiction" is not usually used in a pejorative way in spite of the negative connotation of the phrase, and has been likened to scaffolding around a building under construction.[2]

Limitations on the use of legal fictions

Legal fiction has never been regarded as a source of law. Basically it was an ad hoc remedy forged to meet a harsh or an unforeseen situation. But conventions and practices over the centuries have imparted a degree of stability to the institution. It is now possible to express its ambit and sweep through some formulated propositions.

• A legal fiction should not be employed to defeat law or result in illegality: it has been always stressed that a legal fiction should not be employed where it would result in the violation of any legal rule or moral injunction. In Sinclair v. Brougham 1914 AC 378 the House of Lords refused to extend the juridical basis of a quasi-contract to a case of an ultra vires borrowing by a limited company, since it would sanction the evasion of the rules of public policy forbidding an ultra vires borrowing by a company. In general, if it appears that a legal fiction is being used to circumvent an existing rule, the courts are entitled to disregard that fiction and look at the real facts. The doctrine of "piercing the corporate veil" is applied under those circumstances.
• Legal fiction should operate for the purpose for which it was created and should not be extended beyond its legitimate field.
• Legal fiction should not be extended so as to lead unjust results. For example, the fiction that the wife's personality is merged in that of the husband should not be extended to deny to the wife of a disqualified man the right to an inheritance when it opens. The wife of a murderer can succeed to the estate of the murdered man in her own right and will not be affected by the husband's disqualification. [See Indian case Ganga v. Chandrabhagabai, 32 Bom.275.]
• There cannot be a fiction upon a fiction. For example, in Hindu law, where a married person is given in adoption, and such person has a son at the time of adoption, the son does not pass into his father's adoptive family along with his father. He does not lose his gotra and right of inheritance in the family of his birth. The second example would be that the adopted son would by a fiction be a real son of the adoptive father and his wife associated with the adoption. But to say that he will be the real son of all the wives of the adoptive father is a fiction upon fiction.

References and notes

1. Black's Law Dictionary, 804 (5th ed. 1979)
2. Fuller, 'Legal Fictions', 25 Illinois Law Review (1930, 1931) , 363, 513, 877 (published in 3 parts).