FACT

fact.

1. Something that actually exists; an aspect of reality (it is a fact that all people are mortal). • Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and opinions.

2. An actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation (the jury made a finding of fact).

3. An evil deed; a crime (an accessory after the fact).

“A fact is any act or condition of things, assumed (for the moment) as happening or existing.” John H. Wigmore, A Students’ Textbook of the Law of Evidence 7 (1935).

ablative fact. See divestitive fact.

adjudicative fact ([schwa]-joo-di-kay-tiv or -k[schwa]-tiv). A controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding and that helps the court or agency determine how the law applies to those parties. • For example, adjudicative facts include those that the jury weighs. Cf. legislative fact. [Cases: Administrative Law and Procedure 442. C.J.S. Public Administrative Law and Procedure § 115.]

alienative fact (ay-lee-[schwa]-nay-tiv oray-lee-[schwa]-n[schwa]-tiv). A fact that divests a person of a right by transferring it to another.

ancient fact. A fact about a person, thing, or event that existed or occurred a very long time ago, and about which no living person has firsthand knowledge.

— Also termed fact in pais.

collateral fact. A fact not directly connected to the issue in dispute, esp. because it involves a different transaction from the one at issue. [Cases: Evidence 99. C.J.S. Evidence §§ 2–5, 197–199, 204, 206.]

collative fact. See investitive fact.

denotative fact (dee-noh-tay-tiv or di-noh-t[schwa]-tiv). A fact relevant to the use of a nonlegal term in a legal rule.

destitutive fact. See divestitive fact.

dispositive fact (dis-poz-[schwa]-tiv).

1. A fact that confers rights or causes the loss of rights. • A dispositive fact may be either an investitive or a divestitive fact.

— Also termed vestitive fact (ves-t[schwa]-tiv).

2. A fact that is decisive of a legal matter; evidence that definitively resolves a legal issue or controversy. See DISPOSITION.

divestitive fact (di-ves-t[schwa]-tiv or dI-). A fact that causes the loss of rights; an act or event modifying or extinguishing a legal relation.

— Also termed extinctive fact; destitutive fact; ablative fact.

elemental fact. See ultimate fact.

evaluative fact. A fact used to assess an action as being reasonable or negligent.

evidentiary fact (ev-i-den-sh[schwa]-ree).

1. A fact that is necessary for or leads to the determination of an ultimate fact.

— Also termed predicate fact.

2. A fact that furnishes evidence of the existence of some other fact.

— Also termed evidential fact.

3. See fact in evidence.

exonerative fact (eg-zon-[schwa]r-[schwa]-tiv or -ay-tiv). A divestitive fact that extinguishes a duty.

extinctive fact. See divestitive fact.

fact in evidence. A fact that a tribunal considers in reaching a conclusion; a fact that has been admitted into evidence in a trial or hearing. — Also written fact-in-evidence.

— Also termed evidentiary fact.

“A fact-in-evidence, or, briefly, evidence, signifies any facts considered by the tribunal as data to persuade them to reach a reasoned belief upon a probandum. This process of thought by which the tribunal reasons from fact to probandum is termed inference.” John H. Wigmore, A Students’ Textbook of the Law of Evidence 7 (1935).

fact in issue. (usu. pl.)

1. Hist. A fact that one party alleges and that the other controverts.

2. A fact to be determined by a fact-trier; PROBANDUM. — Also written fact-in-issue.

— Also termed principal fact.

“A fact-in-issue is a fact as to the correctness of which the tribunal, under the law of the case, must be persuaded; the term ‘probandum’ (thing to be proved) will here be used as the convenient single word.” John H. Wigmore, A Students’ Textbook of the Law of Evidence 7 (1935).

fact in pais. See ancient fact.

fact material to risk. Insurance. A fact that may increase the risk and that, if disclosed, might induce the insurer either to decline to insure or to require a higher premium. [Cases: Insurance 2958, 2963. C.J.S. Insurance §§ 549, 565, 580, 582, 586, 760.]

foundational fact. See predicate fact.

immaterial fact. A fact that is not relevant to a matter in issue.

impositive fact. An investitive fact that imposes duties.

inferential fact. A fact established by conclusions drawn from other evidence rather than from direct testimony or evidence; a fact derived logically from other facts. [Cases: Evidence 595. C.J.S. Evidence §§ 1300, 1341.]

investitive fact (in-ves-t[schwa]-tiv). A fact that confers rights.

— Also termed collative fact (k[schwa]-lay-tiv).

judicial fact. A fact that the court accepts as proved without hearing evidence. See JUDICIAL NOTICE. [Cases: Criminal Law 304; Evidence

1. C.J.S. Criminal Law § 657; Evidence §§ 8–11, 106.]

jurisdictional fact. (usu. pl.) A fact that must exist for a court to properly exercise its jurisdiction over a case, party, or thing. See JURISDICTIONAL-FACT DOCTRINE.

legal fact. A fact that triggers a particular legal consequence.

legislative fact. A fact that explains a particular law’s rationality and that helps a court or agency determine the law’s content and application. • Legislative facts are not ordinarily specific to the parties in a proceeding. Cf. adjudicative fact.

“[L]egislative fact includes matters needed to construe statutes or regulations, and factual assumptions a court makes when called upon to ‘legislate.’ Examples of the latter might include the fact that spouses will communicate less if they are not granted a privilege covering their confidences, or that marital harmony will be strained if spouses can be compelled to testify against each other — facts which might be useful in helping a court decide whether to create or continue a common-law marital privilege …. Obviously, legislative facts of this nature do not and cannot meet the indisputability criterion of the Rule [Fed. R. Evid. 201], nor are they required to.” Paul F. Rothstein, The Federal Rules of Evidence 35–36 (3d ed. 2003).

material fact. A fact that is significant or essential to the issue or matter at hand. [Cases: Evidence 143; Federal Civil Procedure 2470.1; Judgment 181(2). C.J.S. Evidence §§ 197, 201–204.]

minor fact. A subordinate fact or circumstance.

operative fact.

1. A fact that affects an existing legal relation, esp. a legal claim. • When applying the hearsay rule, this term distinguishes between out-of-court statements that are operative facts (e.g., a party’s saying “I agree to reimburse you” in a case for breach of oral contract), and hearsay, out-of-court statements that only relate to operative facts (e.g., “Joel told me Mike said he would reimburse me”).

2. A fact that constitutes the transaction or event on which a claim or defense is based.

physical fact. A fact having a physical existence, such as a fingerprint left at a crime scene.

predicate fact (pred-[schwa]-kit).

1. A fact from which a presumption or inference arises.

2. A fact necessary to the operation of an evidentiary rule. • For example, there must actually be a conspiracy for the co-conspirator exception to the hearsay rule to apply.

— Also termed foundational fact; evidentiary fact. [Cases: Evidence 53. C.J.S. Evidence §§ 2, 130–132, 134, 1341.]

primary fact. A fact that can be established by direct testimony and from which inferences are made leading to ultimate facts. See ultimate fact.

principal fact. See fact in issue, ultimate fact.

private fact. A fact that has not been made public. • Whether a fact is private often arises in invasion-of-privacy claims. Cf. public fact.

probative fact (proh-b[schwa]-tiv). A fact in evidence used to prove an ultimate fact, such as skid marks used to show speed as a predicate to a finding of negligence.

psychological fact. A fact that is related to mental state, such as motive or knowledge.

public fact. For the purpose of an invasion-of-privacy claim, a fact that is in a public record or in the public domain. Cf. private fact. [Cases: Torts 8.5(7). C.J.S. Right of Privacy and Publicity §§ 6, 12–14, 16, 22–24, 26–27, 29, 31, 39, 42.]

relative fact. A fact incidental to another fact; a minor fact.

simulated fact. A fabricated fact intended to mislead; a lie.

translative fact (trans- or tranz-lay-tiv). A fact by means of which a right is transferred from one person to another; a fact that fulfills the double function of terminating one person’s right to an object and of originating another’s right to it.

transvestitive fact. A fact that is simultaneously investitive and divestitive.

“When a person transfers the rights he has to another, the transfer divests him of the potestas, and invests that other with it. This is quite distinct from the creation or extinction of the potestas. A new descriptive term is wanted, and after the analogy of the other words, ‘transvestitive’ has been coined for the purpose.” W.A. Hunter, A Systematic and Historical Exposition of Roman Law 141 (4th ed. 1902).

ultimate fact. A fact essential to the claim or the defense.

— Also termed elemental fact; principal fact.

undisputed fact. An uncontested or admitted fact.

vestitive fact. See dispositive fact (1).