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p534 Fictio

Article by George Long, M.A., Fellow of Trinity College
on pp534‑535 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

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 fictions of the Roman law apparently had their origin in the edictal power, and they were derived for the purpose of providing for cases where there was no legislative provision. A fiction supposed something to be which was not; but the thing supposed to be was such a thing as, being admitted to be a fact, gave to some person a right or imposed on some person a duty. Various instances of fictions are mentioned by Gaius. One instance is that of a person who had obtained the bonorum possessio ex edicto. As he was not heres, he had no direct action: he could neither claim the property of the defunct as his (legal) property, nor could he claim a debt due to the defunct as his (legal) debt. He therefore brought his suit (intendit) as heres (ficto se herede), and the formula was accordingly adapted to the fiction. In the Publiciana Actio, the fiction was that the possessor had obtained by usucapion the ownership of the thing of which he had lost the possession. A woman by coemptio, and a male by being adrogated, ceased, according to the civil law, to be debtors, if they were debtors before; for by the coemptio and adrogatio they had sustained a capitis diminutio, and there could be no direct action against them. But as this capitis diminutio might be made available for fraudulent purposes, an actio utilis was still allowed against such persons, the fiction being that they had sustained no capitis diminutio. The formula did not (as it appears from Gaius) express the fiction as a fact, but it ran thus:— If it shall appear that such and such are the facts (the facts in issue), and that the party, plaintiff or defendant, would have such and such a right, or be liable to such and such a duty, if such and such other facts (the facts supposed) were true; et reliqua (Gaius, IV.10.32, &c.; Ulp. Frag. XXVIII.12).

It was by a fiction that the notion of legal capacity was extended to artificial persons [Collegium; Fiscus]. Instances of fiction occur in the chapter intitled Juristische Personen in Savigny's p535System des heut. R. R. vol. II, and in Puchta's Institutionen, I §80, II §165).


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