S. Schane, LIGN 105, Law & Language

Written Assignment – Legal Fictions

This exercise asks you to identify legal fictions. You will be given a rule of law and a situation. The rule of law looks like it does not apply to the situation but you would like it to. You are to propose a legal fiction that would enable a judge, for example, to construe the rule of law so it could apply to the questionable situation. (The following example has been done for you.)

0. Rule of law: One owes a duty of care to persons invited onto one's premises.

Situation: One should be liable to children who wander onto one's premises because of the presence there of an attractive nuisance.

Legal Fiction: An attractive nuisance invites children onto the premises.

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1. Rule of law: The old common-law action of “trover” applies to cases where the defendant has found property and has converted it to his own use.

Situation: An action of trover should be applicable to cases where the property was stolen by the defendant.

Legal Fiction:

2. Rule of law: In order for there to be a "meeting of the minds," the parties to a contract must agree on its terms.

Situation: It is desirable for courts to supply minor terms of a contract where the parties have neglected to include them.

Legal Fiction:

3. Rule of law: An heir must be the natural offspring of his/her parents.

Situation: An adopted child should qualify as an heir.

Legal Fiction:

4. Rule of Law: In order to keep a gift, the receiver of the gift must have notified the donor of his acceptance of it.

Situation: One who receives an inheritance gift and was unaware that s/he was in the will should be able to keep it. (Problem: The ‘donor’ is the deceased.)

Legal Fiction: