Legal fiction
From The Art and Popular Culture Encyclopedia
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A legal fiction is an assumption, not necessarily true, made by a court in order to apply a legal rule.
In fiction
In the novel Joan and Peter (1918) by H. G. Wells, Peter's parents die in a sailing accident. As it is not known which parent dies first, a legal fiction is applied maintaining that the husband, being a man and therefore stronger, lived longer. This decision results in the father's will determining Peter's legal guardian. However, later in the novel a witness to the accident declares seeing the mother floundering some time after the father has disappeared, and so the legal fiction is overturned and the mother's will is followed, providing Peter with a new legal guardian. Wells was in fact in error as to the English law, which presumes that the older person died first; the core plot would remain unchanged if Peter's father was younger than his mother.
In Gilbert and Sullivan's The Gondoliers, Giuseppe Palmieri (who jointly serves as King of Barataria with his brother Marco) requests that he and his brother be recognized individually. He is, however, turned down by the Council because the joint rule is a legal fiction.
See also
