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]
