Deus ex Machina: Legal Fictions in Private Law Liron Shmilovits Downing College Faculty of Law University of Cambridge May 2018 This dissertation is submitted for the degree of Doctor of Philosophy © Liron Shmilovits 2018 Printed by Cambridge Print Solutions 1 Ronald Rolph Court Wadloes Road, Cambridge CB5 8PX United Kingdom Bound by J S Wilson & Son (Bookbinders) Ltd Unit 17 Ronald Rolph Court Wadloes Road, Cambridge CB5 8PX United Kingdom ii ABSTRACT of the PhD dissertation entitled Deux ex Machina: Legal Fictions in Private Law by Liron Shmilovits of Downing College, University of Cambridge This PhD dissertation is about legal fictions in private law. A legal fiction, broadly, is a false assumption knowingly relied upon by the courts. The main aim of the dissertation is to formulate a test for which fictions should be accepted and which rejected. Subsidiary aims include a better understanding of the fiction as a device and of certain individual fictions, past and present. This research is undertaken, primarily, to establish a rigorous system for the treatment of fictions in English law – which is lacking. Secondarily, it is intended to settle some intractable disputes, which have plagued the scholarship. These theoretical debates have hindered progress on the practical matters which affect litigants in the real world. The dissertation is divided into four chapters. The first chapter is a historical study of common-law fictions. The conclusions drawn thereform are the foundation of the acceptance test for fictions. The second chapter deals with the theoretical problems surrounding the fiction. Chiefly, it seeks precisely to define ‘legal fiction’, a recurrent problem in the literature. A solution, in the form of a two-pronged definition, is proposed, adding an important element to the acceptance test. The third chapter analyses modern-day fictions and recommends retention or abolition for each fiction. In the fourth chapter, the findings hitherto are synthesised into a general acceptance test for fictions. This test, which is the thesis of this work, is presented as a flowchart. It is the author’s hope that this project will raise awareness as to the merits and demerits of legal fictions, de-mystify the debate and bring about reform. 9 May 2018 iii iv To Eliezer and Rivka v vi Declaration Except where specifically indicated in the text, this dissertation is the result of my own work and includes nothing which is the outcome of collaboration. It is not substantially the same as any that I have submitted, or is being concurrently submitted, for a degree or diploma or other qualification at the University of Cambridge or any other university. I further state that no substantial part of my dissertation has already been submitted, or is being concurrently submitted, for any such degree, diploma or other qualification at the University of Cambridge or any other university or similar institution. This dissertation does not exceed the word limit of 100,000, set by the Degree Committee of the Faculty of Law. It contains 91,767 words, including footnotes, but exclusive of bibliography, table of contents and other preliminary matter. Of this total, 12,358 words, being 13.5%, are in footnotes. Liron Shmilovits Cambridge 9 May 2018 vii viii Acknowledgements For the completion of this work I am profoundly indebted to my supervisor and advisor: Supervisor David John Ibbetson Regius Professor of Civil Law President of Clare Hall, Cambridge Fellow of the British Academy Advisor Graham John Virgo QC Professor of English Private Law Pro-Vice-Chancellor of the University of Cambridge (for Education) Fellow of Downing College, Cambridge Special thanks are owed to Mr Nicholas McBride, Fellow of Pembroke College, Cambridge, who of the kindness of his heart read several of my drafts and made insightful remarks. I wish to pay tribute to Professor Sir John Baker, now Honorary Fellow of St Catharine’s College, Cambridge, who was not involved in this project, but whose work greatly contributed to it. My gratitude is also due to Professor Richard Nolan, of the University of York, and Professor Paul Mitchell, of University College London, who have kindly agreed to examine this thesis. Finally, this exertion would not have been possible but for the support of my family, to whom I am forever grateful. ix x Table of Contents Table of Abbreviations xv Introduction 1 Chapter 1: Old Fictions 5 I Introduction 6 II The Procedural Framework of the Old System 8 A The Writ System 8 B Civil Juries and Formal Pleading 11 C Procedural Framework: An Epilogue 17 III Old Fictions Examined 18 A Dominus Remisit Curiam 18 B Vi et Armis 19 C Geographical Fictions 22 D Bill of Middlesex 25 E Writ of Quominus 29 F Benefit of Clergy 31 G Pleading the Belly 35 H Common Recovery 38 I Trover 41 J Ejectment 44 K Quasi-contract 50 IV Conclusion 55 Chapter 2: New Fictions Defined 59 I Introduction 60 II The Problem: A Loose Concept 62 III The Solution: Hard and Soft Fictions 65 IV Do Legal Fictions Exist? 66 A Vaihinger’s Assault 66 B Repelling Vaihinger’s Assault 69 xi C Kelsen’s Assault 70 D Repelling Kelsen’s Assault 71 E Fictions and Rules 73 F Conclusion 79 V Overview of Existing Definitions 80 A Plain and Ordinary Meaning 80 B Academic Definitions 83 VI Proposed Definition of Hard Fiction 101 A What do we know so far? 101 B The Basis of the Hard Fiction: Fact or Law 102 C The Basis of the Hard Fiction: Statement, Assumption or Issue? 103 D Definition of Hard Fiction 104 VII Proposed Definition of Soft Fiction 106 VIII Case Studies 109 A First Case Study: The Reasonable Man 110 B Second Case Study: Volenti non fit Injuria 118 IX Conclusion 130 Chapter 3: New Fictions Explored 131 I Introduction 132 II A Common Misunderstanding concerning the Evaluation of Fictions 132 III Classifications of Fictions 134 IV Equity treats as done that which ought to be done 136 A Description 136 B Is the Maxim a Hard Fiction? 141 C Effect Classification 143 D Difficulties in Application 144 E Evaluation 150 V Estoppel 157 A Description 157 xii B Applications 159 C Is Estoppel a Hard Fiction? 161 D Reality Check 163 E Effect Classification 165 F Evaluation 166 VI Volenti non fit Injuria 169 A Effect Classification 169 B Evaluation 169 VII The Single Meaning Rule 171 A Description 171 B Is the Rule a Hard Fiction? 174 C Effect Classification 180 D Evaluation 180 VIII Common Intention Constructive Trust 192 A Description 192 B Is the Common Intention Constructive Trust a Fiction? 195 C Evaluation 200 IX Remoteness in Negligence 201 A Description 201 B Is Remoteness in Negligence a Fiction? 206 C Effect Classification 206 D Evaluation 207 X Reading down Exclusion Clauses 208 XI Summary of Findings 211 XII Conclusion 213 Chapter 4: An Acceptance Test for Fictions 215 I Introduction 216 II The Nature of the Test: Degree of Discretion 217 A Tests and Discretion 217 xiii B Choosing the Width of the Discretion 221 III The Nature of the Test: General Approach 222 A The Possible Approaches 222 B The Champions of the various Approaches 223 C Choosing an Approach 227 IV Motives for Fictions 230 A Motives in Context 230 B Motives in the Literature 231 C Motives and the Acceptance Test 247 V Analysis of Previous Results 247 A Correlation between Nature and Recommendation 248 B Correlation between Age and Recommendation 252 C Correlation between Effect and Recommendation 252 D The Role of Justice in the Retention Test 254 E The Role of the Conservative Argument in the Retention Test 259 VI The Retention Test 261 VII The Creation Test 262 A Background and Statement 262 B The Application of the Creation Test 263 VIII The Acceptance Test 269 IX Conclusion 271 Conclusion 273 Bibliography 277 xiv Table of Abbreviations Books of authority Bl Comm Blackstone, Commentaries on the Law of England Co Litt Coke, Commentary upon Littleton Glanvill Glanvill, Treatise on the Laws and Customs of England Hale PC Hale, The History of the Pleas of the Crown Courts CA Court of Appeal of England and Wales Ch Chancery Division or, before 1875, Court of Chancery CP Court of Common Pleas HC High Court of England and Wales HCA High Court of Australia HL House of Lords KB King’s Bench Division, or before 1875, Court of King’s Bench PC Privy Council QB Queen’s Bench Division, or before 1875, Court of Queen’s Bench SC Supreme Court (UK unless otherwise indicated) SCOTUS Supreme Court of the United States Titles of books HCLC A History of the Common Law of Contract AWB Simpson (Clarendon Press 1987) HFCL Historical Foundations of the Common Law SFC Milsom (2nd edn, Butterworths 1981) HILO A Historical Introduction to the Law of Obligations DJ Ibbetson (OUP 1999) xv HLL A History of the Land Law AWB Simpson (2nd edn, Clarendon Press 1986) IELH Introduction to English Legal History JH Baker (4th edn, Butterworths 2002) LFTP Legal Fictions in Theory and Practice Maksymilian Del Mar and William Twining (eds) (Springer 2015) LTB The Law's Two Bodies JH Baker (OUP 2001) xvi INTRODUCTION A legal fiction, for present purposes, is a false assumption a court knowingly relies upon. The maxim that ‘Everybody knows the law’ is an example of a legal fiction.1 As a statement of fact, the maxim is evidently false. Not even lawyers or judges know all the law. And yet, courts apply it, as if it were true, with the result that ignorance of the law is no defence.2 We therefore say that the maxim is a legal fiction.