fuller_lon_l_legal_fictions

MOTIVES OF THE LEGAL FICTION

may themselves be unaware that they are giving the transaction a new function. At first there exists only a consciousness that the transaction is being used for a purpose slightly different from the usual one.49 But gradually the diversion becomes bolder, and a consciousness develops that the device is really being employed for a new purpose, and that a distinct species of legal transaction has arisen. 'Vhen this has happened, the employment of the form of the old transaction comes to be looked upon as a pretense; an awareness arises that the transaction is, in those parts appropriate to its original purpose but inappropriate in its changed form, a mere formality. It finally becomes, not merely a slightly diverted transaction, but a feigned transaction. But the preservation throughout of the external form of the old transaction serves to conceal or obscure the reform that is taking place internally.50

49 At first the parties may employ the transaction for the purpose of achieving some legal consequence incidental to the transaction, taking the other, and undesired, legal consequences «into the bargain," as it were. But later, as the practice becomes institutionalized, the parties begin to think of the transaction in tenns of its new purpose. They begin to expect of the courts that they should attribute to the transaction only those consequences appropriate to its new purpose; they be- gin to feel that the taking of undesired legal consequences "into the bargain'· is unnecessary. If the courts share this feeling and "protect the beneficiaries from the undesirable consequences of their fonnal acts," then we have, whether it is realized or not, the legal recognition of a new, distinct transaction; the "alphabet of the law" has been enlarged by a new letter. (Ihering, lIlt, 294.)

50 The remarks in the text should not be construed as a disapproval of this process of growth. Disapproving of this method of development would be like disapproving the ebb and flow of the tides. Ihering expresses the utility of this mode of growth in the follmving language: "The certainty and security of any kind of progress depend upon historical continuity, upon an intimate connection between the present and the past. Above all else, external form is one of the threads or points of contact through which tlllS continuity is made possible, for while the inner, actual, historical point of contact and departure disappears more and more from the consciousness of the majority and remains knO\vn only to a small group of scholars, external form, on the other hand-as something visible and repeatedly occurring-