Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 9

[W]here there are divers acts concurrent to make a conveyance of an estate, the original act shall be preferred,
and to this the other acts shall have relation; though doubtless the rule is so
modified, that this relation by fiction is
not to have place, where its introduction will prejudice the rights of third
persons, who are neither parties or
privies to the conveyance.29
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This legal fiction helped decide when the
sale was consummated.
In the decision entitled In re 1650 Cases of Seized Liquor (1998), the Vermont Supreme Court ruled valid a forfeiture of cases of liquor from the Saint Regis Mohawk
Tribe, which lacked a liquor control permit.
Proceedings against cases of booze are
rare in Vermont. It is a proceeding based on
“the legal fiction that the ‘thing is primarily
considered the offender.’”30
In State v. Wetherbee (2004), the Supreme Court refused to employ the legal
fiction called the “adoptive forfeiture” doctrine that recognized the federal government’s power to adopt a state seizure of
property subject to federal forfeiture as its
own, when it was unnecessary to do so, given the evidence.31
Justice Marilyn Skoglund discussed the
weakening of the patient privilege in State
v. Rehkop (2006).

Ruminations: Fictions of Law

during coverture as her own, and another
in 1884 recognizing that right to personal property acquired before marriage.20 A
1880 change recognized the independent
rights of married women to enter contracts,
and sue and be sued, without the husband’s
consent.21 But coverture is a word that still
appears in court decisions, and is still used
as a legal fiction.
“Deemed consent” is a “legal fiction that
explains the lack of a ski area’s duty to remove or warn skiers of tree stumps on a
trail.”22 Treating the statements of co-conspirators as admissions of a party-opponent
rests on “the legal fiction that conspirators
are agents of the others and their statements may be attributable to all.23 That an
attorney can be both an advocate and an
officer of the court is a legal fiction.24 Quasicontracts that arise from an implied promise that creates a duty to act or refrain from
acting, independent of intention or any
document, as drawn from the facts, are fictions. The duty is a fit substitute for intention. The duty defines the contract.25
A dissent by Justice John Holden in 1962
faulted the majority for inventing a legal fiction to reach its chosen result. The Court
had read “into the oral contract between
the parties, important factors that are not
in the record ...