Draft for discussion only

02.08.2022

In Fictione Legis Aequitas Existit – Legal Maxim

Literal meaning

A legal fiction is consistent with equity.

Explanation

Fictio juris (legal fiction) is defined to be a legal assumption that a thing is true which is either not
true or which is as probably false as true. And the rule on this subject is that the court will not
endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong
contrary to the real truth and substance of the thing. And these fictions of law, though at first they
may startle the student, he will find upon further consideration to be highly beneficial and useful,
especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury, its
proper operation being to remedy a mischief, or remedy an inconvenience, that might result in the
general rule of law. So true it is that in fictione juris semper subsistit evquitas.

Origin

The maxim is a Latin term which means with legal fictions, equity always exists. A legal fiction must
not be permitted against the legal rights of a third party. According to a commentator of Roman Law,
In Fictione Legis Aequitas Existit, is defined to be a legal assumption that a thing is true which either
not true, or which is as probably as false as true. The rule on this subject being, that the Court will
not endure that a mere form or fiction of law, introduced for the sake of justice, should work a
wrong contrary to the real truth or substance of the thing.

Illustration

If a man disseises me, and during the disseisin cuts down the tree or grass or the corn growing upon
the land, and afterwards I re-enter, I shall have an action of trespass against him vi et armis, for after
my regress the law as to dissessor and his servants supposes the freehold always to have continued
in me.

Case reference

1.In the case of Cage v. Acton (Cage v. Acton, 1 Lord Raym. 516, 517), it was observed that the law
does not love those rights should be destroyed, but, on the contrary, for the supporting of them
invents notions and fictions.

2.In the case of Low v. Little, (Low v. Little, 17 Johnson, R. (U.S.) 348). It was held that the maxim in
fictione juris semper subsistit evquitas is often applied by our courts for the attainment of
substantial justice, and to prevent the failure of rights.