Talk:Legal fiction

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[edit] Mabo v. Queensland

This seems out of place in that in the Mabo case, the High Court invalidated the doctrine of terra nullius. That's quite different from declaring it a legal fiction, because a legal fiction is something that is stipulated to be true even if it is not.

In the Mabo case, the Australian High Court declared the notion of terra nullius, the notion that lands uninhabited by European style national states were held by no one, was a "legal fiction;" though in that case it may not be certain that this general social, cultural, and military assumption that underlaid colonialism was devised by a court of law; moreover, calling it a "fiction" seems instead to be a retrojection of contemporary mores and values on the past.

That is in there because the text of the article on Terra Nullius says:

The concept of terra nullius became a major political and legal issue in Australia when, during a controversial Aboriginal rights case known as Mabo, the Australian High Court described it as a "legal fiction".

I found this when looking through the rest of the encyclopedia looking for articles that spoke of legal fictions. It struck me as a somewhat unorthodox use of the phrase myself, but then who am I to contradict the High Court of Australia on these things? I do not live in Australia, have easy access to Australian primary legal materials, or know the Mabo case, but if a high court calls something a legal fiction, I think it merits mention. I mean to restore the text. -- IHCOYC 16:11 11 Jul 2003 (UTC)

Richardcavell 23:42, 18 August 2005 (UTC) - Hi, guys. The Mabo v QLD decision ought not to be mentioned in the context of legal fictions. A fuller explanation of it is outside the scope of the article in question, and it's not quite right to say that 'terra nullius was a legal fiction', nor that terra nullius has been rejected, or overturned, etc. Surely Mabo v QLD should be removed from the article altogether?

The problem is that unless you define legal fiction, the statement is very misleading. Legal fiction has a very technical meaning, which is very different from the layman's term of the issue. A "legal fiction" may be valid or invalid, whereas the Court in Mabo declared that the doctrine was invalid.

And I *have* looked at the primary source materials of the case

User:Roadrunner

Here is the a link to Mabo v. Queensland (1989). The term legal fiction is not there. ]


There is also Mabo v. Queensland (1992) where the term is not there used in reference to terra nullius. I'll not object to you putting it back if you can find me a transcript of the decision where the high court uses that term.

http://www.austlii.edu.au/au/cases/cth/high_ct/166clr186.html

In the Mabo case, the Australian High Court declared the notion of terra nullius, the notion that lands uninhabited by European style national states were held by no one, was a "legal fiction;" though in that case it may not be certain that this general social, cultural, and military assumption that underlaid colonialism was devised by a court of law; moreover, calling it a "fiction" seems instead to be a retrojection of contemporary mores and values on the past.

Here is a link to Mabo v. Queensland (No. 2) (1992)

http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html

I challenge you to find any Australian High Court decision where the AHC calls terra nullius a legal fiction. You can start here.

http://www.austlii.edu.au/

-- Roadrunner

The second linked case contains the text:
The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.
and furthermore calles the whole basis of the common law of real property tenures, that the King owned all the land and all titles had their source in the King's absolute ownership, was a legal fiction; this too is a somewhat unorthodox use of the phrase. Then again, as Will Rogers said, supreme courts aren't supreme because they're always right; they're always right because they're supreme. It does not seem unreasonable for the author of the article on terra nullius to have concluded that the Australian high court called that doctrine a legal fiction. -- IHCOYC 16:39 11 Jul 2003 (UTC)
My problem with the original paragraph was that the author seemed to have confused the term "legal fiction" and

the common definition of fiction. Let me try to put in an alternate text.

Roadrunner

This law review article also speaks of "terra nullius" and its "legal fiction" status as something fairly well established in Australian law:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/UNSWLJ/1997/9.html?query=%22terra%22+and+%22nulliu%22+and+%22legal%22+and+%22fiction%22
--IHCOYC 16:53 11 Jul 2003 (UTC)

[edit] $1 and Consideration

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)

When I practised as an English solicitor, I think a consideration of 5 shillings or £1, was described a 'nominal consideration' (and was probably often not paid). I do not think this is correctly described as a legal fiction. Peterkingiron 15:43, 1 July 2006 (UTC)

See also Peppercorn (legal). -- 82.36.30.34 00:20, 12 August 2007 (UTC)

[edit] Opaque examples

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)

[edit] Poor, misleading definition!

"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)
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)
'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)
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)

[edit] Doctrine of Survival

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)

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)
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)

[edit] Minor Change Needed

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)

[edit] Tone of the article

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)