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A quick contribution, sparked by Steve's reply to Charles:

Fictions may harmless if everyone indeed understands them as such; and knows that they stand as shorthand for some set of more complex concerns. But the capacity for deception which they carry is apt to catch the unwary and it is precisely this, surely, which renders their use undesirable. Systems (particularly systems of legal thought) should be as foolproof as possible.(Spot the vested interest in this statement). This means that, in unstable areas, legal reasoning should confront complexity face to face, not, state ideas in analogical shorthand.

If the time has come for systems of law as 'well-developed' as our own to do away with fictitious presumptions as a means of determining whether to award subrogation (per Lord Hoffmann in BFC v Parc), the same must also be true of resulting trusts. (Charles)

Fictions are not so easily avoided. After all, any commercial contract case is likely to involve at least three fictions just for starters : that companies are people, that these "people" have intentions, and that what is written in the contract documents can be taken as good evidence of those "intentions". (If both parties are companies, then of course each fiction must be applied twice, taking us up to 6 fictions per case.)

If resulting trust doctrine can get by with just one fiction per case, I think it is doing pretty well. Any proposal to re-state the law without the fiction can be taken on its own merits.

Of course, it is a sad thing if the law regularly has to pretend that something is so when it isn't, as where (to use a famous example) an Oxford college has to pretend that the Dean's dog is really a cat, to evade the rule against dogs in college. But it is different where we are talking not about ascertainable facts (such as whether a particular beast is a dog or a cat), but rather about the applicability of the law's own concepts (such as "whether there is a contract") or about practically unascertainable facts (such as what someone's intention was). There, it is not so obvious that fictions are objectionable. Surely the point at which we need to register objection is only when someone has forgotten that the fiction *is* a fiction.