Deus ex Machina: Legal Fictions in Private Law

This PhD dissertation is about legal fictions in private law. A legal fiction, broadly, is a false assumption knowingly relied upon by the courts. The main aim of the dissertation is to formulate a test for which fictions should be accepted and which rejected. Subsidiary aims include a better understanding of the fiction as a device and of certain individual fictions, past and present. This research is undertaken, primarily, to establish a rigorous system for the treatment of fictions in English law – which is lacking. Secondarily, it is intended to settle some intractable disputes, which have plagued the scholarship. These theoretical debates have hindered progress on the practical matters which affect litigants in the real world. The dissertation is divided into four chapters. The first chapter is a historical study of common-law fictions. The conclusions drawn thereform are the foundation of the acceptance test for fictions. The second chapter deals with the theoretical problems surrounding the fiction. Chiefly, it seeks precisely to define ‘legal fiction’, a recurrent problem in the literature. A solution, in the form of a two-pronged definition, is proposed, adding an important element to the acceptance test. The third chapter analyses modern-day fictions and recommends retention or abolition for each fiction. In the fourth chapter, the findings hitherto are synthesised into a general acceptance test for fictions. This test, which is the thesis of this work, is presented as a flowchart. It is the author’s hope that this project will raise awareness as to the merits and demerits of legal fictions, de-mystify the debate and bring about reform.

Name dc:type.qualificationname

Doctor of Philosophy (PhD)

Level dc:type.qualificationlevel

Doctoral

Grantor dc:publisher.institution

University of Cambridge

Year dc:date.issued

2019

Author dc:creator

• Shmilovits, Liron

Advisor dc:contributor.advisor

• Ibbetson, David John

• law
• private law
• legal fictions
• fiction
• legal history
• legal theory
• legal reasoning
• equity
• tort
• contract
• defamation
• estoppel
• remoteness
• reasonable man
• reasonable person
• trusts
• common intention constructive trust
• equitable maxim
• single meaning rule
• benefit of clergy
• bill of middlesex
• writ of quominus
• vi er armis
• ejectment
• quasi contract
• trover
• common recovery
• geographical fictions
• Volenti non fit injuria

Licence

• https://apollo8-f-pro.lib.cam.ac.uk/bitstreams/be046d0e-4e4f-43b9-a43b-5e7a38d24c1e/download
• https://www.rioxx.net/licenses/all-rights-reserved/

Language dc:language

en

DOI dc:identifier.doi

https://doi.org/10.17863/CAM.33535

OAI identifier oai:identifier

oai:www.repository.cam.ac.uk:1810/286225