Page 37 - The Circle of Life

What if a legal principle has unforeseen consequences which is inherently unfair?

We can take this further with the following example. Here a not so clever lawyer
made a will in which he said that “his farms must be divided between his grand
children who are alive at his death." As you can imagine his only daughter had

one child and was with child at the time of his death which created immense

problems. In other words one child is alive and the other in his moms body and
not born yet.

So what is the problem you ask? Well, unless you are born alive you are not a
human said our laws at that time. Here one is not born and thus legally not a

human and thus cannot inherit. Though quite clear and logical the court felt it is
inherently unfair for the deceased mentioned the word grand "children”

indicating more than one. It cannot be what the law intended or so they argued.
Strict application of law will result in an injustice. The unborn child will not

inherit.

Now as background I must tell you that it happens often in real life that a baby
is born, takes one breath and then dies. Is he now a human or not? This is

important for if you are not human you have no rights under law as a human.
Thus you cannot inherit or be murdered which is why someone who murdered a

pregnant woman is only charged with one murder and not two. The unborn child
is not a human until born and takes one breath at least.

So how do we know the baby took at least one breath? We test whether the

baby was alive or stillborn by cutting his lungs in pieces and see if it drifts in
water. If he took a breath it will float for air will be stuck to it. Thus he was
human and all sorts of legal stuff must happen with him. Like a decent burial.

Otherwise, well, let us not go into details. You can imagine what else. It is very

sad.

Our courts felt the above, where only one child would inherit and the other not,

was unfair and went into great detail regarding the nasciturus Rule and
nasciturus Fiction. As such they applied the Fiction as if the child was already

born and thus he inherited also. This was strange for the Fiction did not feature
in our Common Law as such. So it is possible to introduce foreign law into our

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