In Act II, scene 1 of Gilbert and Sullivan`s Gondoliers, Giuseppe Palmieri (who serves as king of Barataria with his brother Marco) asks that he and his brother be recognized individually so that they can each receive individual portions of food, because they have «two independent appetites». However, it is rejected by the court (composed of other gondoliers) because the common rule». is a legal fiction, and legal fictions are solemn things. [9] An example of legal fiction can be found in adoption. Once an adoption order or order (or similar court order) is registered, one or both of the biological (or natural) parents become legal strangers to the child, no longer have a legal relationship with the child and no longer have rights towards the child. Conversely, the adoptive parents are legally considered to be the parents of the adopted child. A new birth certificate reflecting this is issued, which is a legal fiction. [7] Purpose of legal fiction – No one can be truly an ideal and reasonable in all circumstances, a person can get carried away or overwhelmed, but the law does not assume and requires a person to use average mental abilities in all situations. Legal fiction is necessary because there can be no exhaustive enumeration of the actions of a reasonable man in different circumstances. A different situation occurs with adoptions.
When adoption documents are processed, the child`s biological parents become strangers for legal purposes, while the adoptive parents become the child`s parents. This legal fiction does not erase the genetic link between the child and the biological parent. It facilitates the adoption process and gives adoptive parents rights and obligations towards the child. I think the idea of a legal fiction in terms of dealing with a will is quite interesting. I don`t know how you would make that decision if the couple died at the same time and you couldn`t know who actually died first. In England, a mere legal fiction has extended the jurisdiction of the Court of Exchequer to all sorts of debt-related cases. The Treasury was originally a court with specialized jurisdiction over taxes and other obligations to the Crown. The Court had little jurisdiction over private matters between litigants. The Treasury therefore had a much smaller workload than the King`s Bench and other courts in England. The parties to the proceedings who brought an action before the Treasury Court for a debt therefore had to invoke the fact that they owed the King money that they could not pay because their debtor had unlawfully withheld payments from them.
Sometimes the debt to the king became a legal fiction, since the original debtor had no right to refute this claim in order to oust the state treasury from the jurisdiction. By using this trick against the debtor, the litigant could take his case to court with a much lower workload. Another legal fiction is the resignation of Parliament in the United Kingdom. In 1623, a rule was promulgated stating that MPs had the confidence to represent their constituencies and were therefore not free to terminate it. At that time, Parliament was relatively weak compared to the 21st century, and service was sometimes seen as a disgruntled duty rather than a position of power and honour. However, a deputy who accepted a «charge of earnings» from the crown (including an appointment as a minister) was forced to leave the house and be re-elected, fearing that his independence would be compromised if he was at the king`s salary. Therefore, the device was invented that the deputy who wanted to resign asked the king for the position of «Steward of the Chiltern Hundreds» or «Steward of the Manor of Northstead», without rights or income, but legally a function of gain in the king`s gift. The first MP to use the Chiltern Hundred to leave Parliament was John Pitt in 1751. The requirement for ministers to re-elect was abolished, but the «Centaines-Chiltern» mechanism was retained to allow MPs to resign. A legal fiction is a fact assumed or created by the courts[1], which is then used to make a decision or apply a rule of law. The concept is used almost exclusively in common law jurisdictions, particularly in England.
An example of legal fiction outside the common law is that it is legally possible to have consumed an illegal substance without possessing it. That said, in some jurisdictions, possession or handling of cannabis is illegal, but a positive test in a drug test is not illegal, although the latter is probably impossible without the former. Law is rich in fiction. That a succession is in limbo; the shipper`s doctrine, whereby a party who has been deprived of his property and subsequently acquires defective title is restored to his former good title; that a thing which is done today is regarded by the doctrine of relationship as having been done in an earlier epoch; that, because one thing is proved, another is presumed to be true, which is the case with all conjectures; The fact that the heir, executor and administrator are represented in place of the deceased are all fictions of the law. «Our different ideas from John Doe and Richard Roe; our solemn trial after the release of Hugh Hunt; our accidental loss and the discovery of a ship (which never went to Europe) in the parish of St. Mary Le Bow, dans le canton de Cheap; our examination of the validity of a will by means of an imaginary bet of five pounds; We imagine and embrace the death of the king by providing information that can thwart an attack on the enemy colony at the antipodes; our accusation of pecking a bag or falsifying a note by force and weapons; Not to repair a bridge, against the peace of the king, his crown and his dignity are circumstances which, taken in isolation, would give an impression of an unfavourable character as regards the wisdom of our jurisprudence. A legal fiction somehow sounds like it`s a bad thing.