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1 results

  • 3 - New Fictions Explored

  • Liron Shmilovits, University of Cambridge
  • Book:
    Legal Fictions in Private Law
    Published online:
    11 January 2022
    Print publication:
    06 January 2022, pp 111-174

  • Summary

    This chapter examines seven (alleged) modern fictions of private law: (i) the equitable maxim that equity treats as done that which ought to be done; (ii) estoppel; (iii) volenti non fit injuria; (iv) the single meaning rule in defamation; (v) the common intention constructive trust; (vi) remoteness in negligence; and (vii) reading down exclusion clauses. I establish whether each of these devices is a Hard Fiction, a Soft Fiction or no fiction (the Nature Classification). I classify each device in terms of the Effect Classification developed in Chapter One. If a device has been found to be a Hard or a Soft Fiction, I go on to consider whether it should be retained or abolished in favour of a specific alternative. These evaluations of individual fictions lead to general insights, which are used in the development of the Acceptance Test in Chapter Four.