Legal Term “Deemed”: Definition, Application and Significance
Basic definition of the term “deemed”
The term “deemed” originates from English and literally means “considered as” or “assumed as given.” In a legal context, “deemed” describes a fiction that is created by law, regulation, or contractual agreement to presume a particular legal status or consequence irrespective of the actual facts. This allows facts, legal effects, or attributes to be assigned to a person or object even if they are not present in reality. “Deemed” is considered an essential tool in the legal systems of many countries, particularly in statutory interpretation, assignment of tax obligations, liability issues, and other regulatory areas.
Legal basis of the term “deemed”
Significance in national and international law
There is no direct translation for “deemed” in the German-speaking legal area, but the term is regularly used in international law, particularly in the Anglo-American legal system. National laws use the term to stipulate certain facts or legal consequences, especially when a characteristic or effect is to arise regardless of actual circumstances.
In international commercial law and in the context of double taxation agreements, “deemed” is used as a legally binding presumption, for example to assign permanent establishments, residency, and income to certain states or legal consequences.
Examples from statutes
- Numerous provisions in British and U.S. tax laws state that certain income is “deemed to arise” or “deemed to be received,” even if there has been no actual inflow.
- In contracts and international agreements, “deemed to have occurred” is often used to fictionalize the occurrence of certain events or states.
Areas of application for “deemed” in law
Civil Law
In civil law, “deemed” often ensures that legal effects are presumed even though the actual facts do not warrant them. This is conceivable, for example, in the acceptance of declarations of intent, the start of time limits, or the service of documents.
Example:
A notice is considered received after the expiry of a certain period (“deemed to be received”), regardless of whether the recipient has actually received it. This can be particularly relevant in international correspondence, court decisions, and terminations.
Tax Law
In tax law, “deemed” plays an outstanding role, especially in international tax law, for the allocation of income, tax liabilities, or residency.
Example:
- Deemed Residence: A person is considered fiscally resident in a country if certain criteria or periods are met—even if they are not actually staying there permanently.
- Deemed Income: Certain portions of income are treated as received or subject to taxation, regardless of actual inflow.
Corporate Law
Here, “deemed” is particularly used to create fictions regarding the attribution of shares, voting rights, or responsibilities.
Example:
A person is legally considered the beneficial owner of a company (“deemed beneficial owner”), even if not formally registered as such, for example, due to trust arrangements.
Contract Law
In contract law, the term “deemed” is significant in establishing contractual fictions or automatic time limits. Contracting parties may agree that certain states or actions will be considered as occurred on the happening of specific conditions (“deemed to have occurred”), which ensures clarity and legal certainty.
Function and legal policy significance
Purpose of statutory fictions
The use of “deemed” provisions serves to establish legal certainty, clarity, and comprehensibility, especially in cases where the actual circumstances are difficult to ascertain or prove. This relieves both administrative practice and parties in court and enables efficient application of the law.
Distinction from factual presumptions
While presumptions (“presumed”) are based on plausible facts or evidence, “deemed” fictions must be necessarily accepted by virtue of law, regulation, or agreement, regardless of reality. They are often not subject to rebuttal and thus differ from dispositive rules.
Limits and risks of the legal fiction “deemed”
Despite the advantages, “deemed” provisions can entail risks. The assumption of facts contrary to the actual circumstances may, in individual cases, lead to inappropriate legal consequences, for instance, if tax burdens or liabilities are established irrespective of the real situation.
Legislators and contracting parties must therefore exercise responsibility in formulating and applying “deemed” to avoid undue hardships and abuse.
Summary and legal classification
The term “deemed” is a central element in many legal systems, used to establish statutory fictions and binding legal presumptions independent of the actual facts. It ensures structured and efficient legal consequences in various areas—such as tax law, corporate law, contract law, and civil law. At the same time, careful application is required to safeguard the justified balance between legal certainty, practicality, and justice.
With the analysis provided here, this article offers a well-founded, comprehensive legal description of the term “deemed” and examines in detail its various applications and consequences in the legal system.
Frequently Asked Questions
What are the legal implications of a fact designated as “deemed” in court proceedings?
In the legal context, a fact designated as “deemed” means that a particular circumstance, fact, or legal consequence is legally treated as if it exists, independently of whether it actually does. This is mandated by law or contract and is binding for courts, authorities, and parties. In litigation, this means that the relevant fact does not require further evidence, since it is legally ascribed the necessary effect. For example, a missed deadline may be “deemed served” even if actual service cannot be proven. The assumption of such fictions serves legal certainty and administrative simplification but may severely prejudice the rights of a party, as challenges to the actual circumstances are excluded unless appeal or correction mechanisms are explicitly provided. Therefore, when dealing with “deemed” provisions, close attention must always be paid to legal prerequisites and exceptions.
What are the legal foundations for the application of “deemed” provisions in German law?
Under German law, “deemed” provisions are not regulated as such under that term, but are set out in many legal norms as fictions or as rebuttable or irrebuttable presumptions. Examples can be found in the German Civil Code (BGB), the Code of Civil Procedure (ZPO), and special statutes such as the Income Tax Act (EStG). For example, according to § 929 sentence 2 BGB, the transfer of ownership is deemed to have occurred in certain cases of transfer by constructive possession, even if no actual delivery has taken place. In procedural law, provisions such as the delivery fiction pursuant to §§ 180 et seq. ZPO are typical examples. The legal basis can also arise at the European or international level via legal acts or interstate treaties. The relevant provisions specify exactly the conditions under which a fiction arises and how evidence to the contrary is to be dealt with.
In which areas of law is the “deemed” principle frequently applied?
The “deemed” principle is mainly applied in the following areas of law: tax law, in which certain facts, such as tax residence or permanent establishment, are regarded as given; corporate law, for example regarding the assumption of liability by managing directors or share transfers; contract law, when parties agree that certain notices or acts shall be treated as served or declared; and procedural law, for example regarding service or deadline calculation. In employment law, the formation of employment contracts may also be presumed under certain circumstances. The aim of these provisions is generally to simplify matters, though there is always the risk that affected persons may not be able to adequately defend themselves against such a fiction.
What is the significance of rebuttable and irrebuttable fictions in connection with “deemed”?
In legal context, a distinction is made between rebuttable and irrebuttable fictions. A rebuttable fiction (deemed provision) allows those involved to disprove the presumed facts by presenting contrary evidence. An example is § 476 BGB, according to which a defect that appears within six months of risk transfer is presumed to have existed at the time of transfer—here, contrary evidence is permitted. Irrebuttable fictions, on the other hand, do not allow any evidence to the contrary; the fact is irrebuttably deemed to exist, even where reality differs. This often serves legal certainty but can have serious disadvantages for those concerned, especially where no exceptions are provided. The precise legal effect ultimately depends on the wording of the respective provision.
How can a party defend against legal disadvantages resulting from a “deemed” provision?
The possibilities to defend against legal disadvantages from a “deemed” provision depend on whether the provision is designed as a rebuttable or irrebuttable fiction. For rebuttable fictions, evidence to the contrary is generally permissible. The affected party must then substantiate and, where necessary, prove that the presumed fact does not actually exist. For irrebuttable fictions, options for challenge or correction are generally excluded. Here, it is only possible to invoke procedural or formal errors or to check whether the provision is exceptionally inapplicable, for example due to a narrowly interpreted exception clause or a serious violation of higher-ranking law (such as fundamental rights or the principle of proportionality). In any case, a detailed analysis of the relevant legal provisions and case law is necessary.
What role do “deemed” provisions play in international law?
In international law, “deemed” provisions are of particular importance for regulating the cross-border movement of rights and obligations. They are frequently found in multilateral treaties, European regulations and directives, and international tax law. For example, according to the rules of a double taxation agreement, a person may be regarded as resident in a contracting state (“deemed resident”) even though physically and legally residing in another state. Such rules provide clear allocation of responsibilities and legal consequences across national borders but often preclude individual objections, so that affected parties have less protection before national courts and authorities. Dealing with such provisions requires an in-depth understanding not only of domestic law but also of international contexts and harmonization requirements.
Are there legal differences between “deemed” and “als ob” provisions?
In German law, there is in practice no substantive difference between “deemed” and “als ob” provisions, as both terms refer to the same legal technique of fiction. The expression “als ob” is taken from official German language, while “deemed” is more often used in English-language contracts or the international context. Both techniques aim to treat a state of affairs as given, regardless of the actual course of events. Any differences may arise only from the precise wording or regulatory context, so careful interpretation is always required.
