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3 - New Fictions Explored

Published online by Cambridge University Press:  11 January 2022

Liron Shmilovits
Affiliation:
University of Cambridge
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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.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • New Fictions Explored
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.004
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  • New Fictions Explored
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.004
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • New Fictions Explored
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.004
Available formats
×