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FI´CTIO

FI´CTIO Fictions in Roman law are like fictions in English law, of which it has been said that they are “those things that have no real essence in their own body, but are so acknowledged and accepted in law for some especial purpose.” The main purpose of fictions is to serve as a means of making new law without involving the difficulty of formulating new rules. They effect this by supposing some fact or condition to exist which is absent, the thing supposed being of such a nature as, being admitted to exist, enables rights or duties to arise or to be put an end to; that is, they extend law by connecting cases outside it with cases covered by it. Legal fictions have often been treated as an object of ridicule (cf. e. g. Cic. in Verr. 2.12, 31 on the fiction of civitas explained below, “Judicia hujusmodi; qui cives Romani erant, si Siculi essent: quum Siculos eorum, legibus dari oporteret; qui Siculi, si cives Romani essent” ), but historical experience shows that, until legal science is far advanced, they are an indispensable means of effecting legal change.

Fictions were especially congenial to the Roman habit of mind, and we find rules depending on them in all branches of law,--in the jus sacrum, where they were used by the pontifices for the purposes of modifying ritualistic and other observances, as well as in jus profanum. Fictions especially influenced private law by the use which the praetor made of them in procedure. The word fictio itself is a technical term of procedure, signifying a statement, inserted by the praetor in the formula or written instructions which he drew up for transmission to the judex who was to decide the case, of a feigned fact to be taken for the purposes of the decision as if it were real. By means of such fictiones, the praetor extended actions to cases to which they were not applicable, according to Jus Civile. Gaius gives us various instances of the extension of law by means of such fictiones (Gaius, 4.34-38). One instance is that of a person who had obtained bonorum possessio or title to an inheritance ex edicto praetoris. The bonorum possessor having no civil title as heres had no civil action; he could neither claim to be entitled in law to the property owned by the deceased, nor could he sue for a debt due to the deceased as being legally due to himself. The praetor, however, enabled the bonorum possessor to bring actions by framing formulae fictitiae, in which it was feigned that the bonorum possessor was heres (ficto se herede). Similarly in the Actio Publiciana the fiction was that the plaintiff had acquired by usucapion the ownership of the thing of which he sought the recovery, in which case he would have been entitled to recover the thing by vindicatio. The formula would run as follows: “Let C. D. be judex. Supposing that the slave who was sold and delivered to Aulus Agerius had continued during a year in his possession, if in that case he would have belonged to Aulus Agerius by the law of the Quirites, then condemn the defendant,” &c. A person by being arrogated or a woman by entering into a co-emptio ceased, according to civil law, to be debtors, if they were debtors before. But in order to prevent such capitis deminutio having the effect of defrauding creditors, an actio fictitia was given against these debtors, the fictio being that they had suffered no capitis deminutio. Again, some actions, e. g. the actio furti, could not be brought by or against peregrini, according to the Jus Civile, but the praetor extended these actions to this class of persons by means of a fictio in the formula which obliged the judex to assume that the peregrinus who was suing or being sued was a Roman citizen.

The change from the legis actio to the formulary procedure seems to have been partly carried out by means of fictiones (Gaius, 4.32, 33). The fictio legis Corneliae is an instance of a fictio created by statute. It was necessary that a testator should be civis Romanus at the moment of his death, in order that his will might take effect. If a civis was captured by the enemy and died in captivity, his will was invalid according to this rule, since his civitas was lost by his captivity; but in order to maintain a will in such a case, the Lex Cornelia established a fictio, which supposed the testator to have died in the last moment of his freedom. Fictions gradually disappeared in the later period of Roman law; several which still survived were summarily disposed of by Justinian (e. g. Cod. 5, 12, 30; 6, 4, 4; 8, 54, 8;--Ihering, Geist d. röm. Rechts). A fiction is sometimes used, not for the purpose of extending or altering the law, but in order to make a legal conception more intelligible. Fictions of this kind are called by some modern writers “dogmatic,” the fictions by which legal changes have been carried out being distinguished by the name of “historical.” The fiction that a corporation is a person is an instance of a dogmatic fiction. (Demelius, Die Rechtsfiction, reviewed by Arndts in Krit. viertelj. Schrift. 1.93, &c.; Ihering, Geist des röm. Rechts, 2.284-292; Maine's Ancient Law, ch. ii.)

[E.A.W]

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