Fact – a deed; an act; that which exists and is real and true — which actually took place — not that which might not have occurred



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 the holding of 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>. — aka historical fact.

3. An evil deed; a crime <an accessory after the fact>. [1]

1. A deed; an act; that which exists; that which is real; that which is true, an actuality; that which took place, not that which might or might not have took place, not that which might or might not have occurred. Churchill v Meade, 92 or 626, 182 P 368. [2]

1. An actual occurrence, as distinguished from the legal consequences of the occurrence; something that took place, not something that might or might not have occurred; an act or deed; that which exists; that which is real; that which is true.  [3]

     Excerpt from Thomas Starkie’s A Practical Treatise on the Law of Evidence (2d Am. ed. 1828):

     “By facts and circumstances are meant all things and relations, whether natural or artificial, which really exist, whether their existence be perceptible by the senses, or otherwise. [4]

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “A fact is any act or condition of things, assumed (for the moment) as happening or existing. [5]

adjudicative fact (1959) A controlling or operative fact, rather than a background fact; a fact that is particularly related to the parties to a proceeding and that helps the tribunal determine how the law applies to those parties.  *  For example, adjudicative facts include those that the jury weighs.  See Fed. R. Evid. 201.  Cf. legislative fact.

alienative fact (1902) A fact that divests a person of a right by transferring it to another.

ancient fact (17c) 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. — aka fact in pais.

collateral fact (18c) A fact not directly connected to the issue in dispute, especially because it involves a different transaction from the one at issue.  *  Evidence of collateral facts is generally inadmissible.

denotative fact (1982) A fact relevant to the use of a nonlegal term in a legal rule.

dispositive fact (1946) 1. A fact that confers rights or causes the loss of rights.  *  A dispositive fact may be either an investitive or a divestitive fact. — aka vestitive fact.  2. A fact that is decisive of a legal matter; evidence that definitively resolves a legal issue or controversy.  See DISPOSITION.

divestitive fact (1973) A fact that causes the loss of rights; an act or event modifying or extinguishing a legal relation. — aka extinctive fact; destitutive fact; ablative fact.

evaluative fact (1986) A fact used to assess an action as being reasonable or negligent.

evidentiary fact (1855) 1. A fact that is necessary to the operation of an evidentiary rule or that is necessary for or leads to the determination of an ultimate fact. — aka predicate fact2. A fact that furnishes evidence of the existence of some other fact. — aka evidential fact.  3. See fact in evidence.

exonerative fact (1980) A divestitive fact that extinguishes a duty.

fabricated fact False or deceitful evidence that is unlawfully created, usually after the relevant event, in an attempt to achieve or avoid liability or conviction. — aka fabricated evidence.

  • simulated fact (1943) A fabricated fact intended to mislead; a lie.

fact in evidence (18c) 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. — aka evidentiary fact.

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “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. [6]

fact in issue (usu. pl.) (17c) 1. Hist. A fact that one party alleges and that the other controverts.  2. A fact to be determined by a fact-finder; PROBANDUM.  See factum probandum under FACTUM. — Also written fact-in-issue. — aka principal fact.

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “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.[6]

fact material to risk -(1882) 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.

immaterial fact (1810) A fact that is not relevant to a matter in issue.  Cf. material fact.

impositive fact – An investitive fact that imposes duties.

inferential fact (1858) A fact established by conclusions drawn from other evidence rather than from direct testimony or evidence; a fact derived logically from other facts.

intermediate fact (1852) A fact that helps lead to an ultimate fact or is a necessary element to a chain of reasoning leading to a conclusion. — aka basic fact. See MIXED QUESTION OF LAW AND FACT.

mixed question of law and fact (1805) An issue that is neither a pure question of fact nor a pure question of law.  *  Mixed questions of law and fact are typically resolved by juries. — Often shortened to mixed question. — aka mixed question of fact and law; mixed issue of law and fact.

     Excerpt from 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2589, at 608-11 (2d ed. 1995):

     “Many issues in a lawsuit involve elements of both law and fact.  Whether these be referred to as mixed questions of law and fact, or legal inferences from the facts, or the application of law to the facts, there is substantial authority that they are not protected by the ‘clearly erroneous’ rule and are freely reviewable.  This principle has been applied to antitrust violations, bankruptcy, contracts, copyright, taxation, and to other areas of the law. [7]

investitive fact (1939) A fact that confers rights. — aka collative fact.

judicially noticed fact (1930) A fact that is not established by admissible evidence but may be accepted by the court because the fact is generally known within the trial court’s territorial jurisdiction, or because its validity can be determined from sources whose accuracy cannot be reasonably questioned.  See Fed. R. Evid. 201(b). — aka judicial fact. See JUDICIAL NOTICE.

jurisdictional fact (usu. pl.) (1837) A fact that must exist for a court to properly exercise its jurisdiction over a case, party, or thing.  See JURISDICTIONAL-FACT DOCTRINE.

jurisdictional-fact doctrine (1932) Administrative law. The principle that if evidence is presented challenging the factual findings that triggered an agency’s action, then a court will review the facts to determine whether the agency had authority to act in the first place.  *  This doctrine is generally no longer applied.  Cf. CONSTITUTIONAL-FACT DOCTRINE.

constitutional-fact doctrine  (1937) 1. The rule that federal courts are not bound by an administrative agency’s findings of fact when the facts involved whether the agency has exceeded constitutional limitations on its power, especially regarding personal rights.  *  The courts reviewed the facts de novo to afford protection of constitutional rights.  Although it has not been overruled or wholly discredited, this rule has fallen out of favor.  2. The rule that a federal appellate court is not bound by a trial court’s findings of fact when constitutional rights are implicated, specifically in citizenship-determination and First Amendment cases.  See, e.g. Base Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949 (1984).

legal fact (18c) 1. A fact that triggers a particular legal consequence, Whether or not the actor intended that effect. — aka juridical fact2. A fact concerning the state of the law.

legislative fact (1828) A fact that explains a particular law’s rationality and that helps a court or agency determine the law’s meaning and application.  *  Legislative facts are not ordinarily specific to the parties in a proceeding.  Cf. adjudicative fact.

     Excerpt from Paul F. Rothstein’s The Federal Rules of Evidence (3d ed. 2003):

     “[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. [8]

material fact (1848) A fact that is significant or essential to the issue or matter at hand; especially, a fact that makes a difference in the result to be reached in a given case.  *  What constitutes a material fact is a matter of substantive law.  Cf. immaterial fact.

minor fact (1813) A subordinate fact or circumstance. — aka subsidiary fact.

negative fact – The absence or nonexistence of a quality, state, or condition.  Cf. positive fact.

     Excerpt from Charles Frederic Chamberlayne’s The Modern Law of Evidence (1911):

     “The important consideration in connection with negative facts is the greatly increased difficult of establishing by evidence the truth of a negative proposition, i.e., of proving the nonexistence of a fact.  A positive fact — an existence is capable of being verified. If physical, it may be verified, its existence ascertained, by perception, the employment of the sense faculties of the observer.  If the fact be a psychological one, it may be recognized by a direct act of consciousness.  As Bentham puts it, ‘in most cases, we cannot perceive nonexistence or absence.  We can only infer it from something existing and present which we do perceive.’  This is, of course, not universally true.  Certain negative facts, mere absences or nonexistences of their positive correlative terms seem capable of direct perception.  Thus, cold is merely the nonexistence of heat, yet we may be fairly said to perceive it.  In a certain sense, we may be said to perceive darkness, though simply the nonexistence or withdrawal of light.  It is not an improper use of language to say that we are conscious of the absence or nonexistence of sound, i.e., of silence.  In all such cases — as of the cessation of a customary or pleasurable state — we may be said to be conscious of a lack, to an extent which, coming to the consciousness through the sense, differs but slightly, if at all, from perception. [9]

operative fact (1857) 1. A fact that affects an existing legal relation, especially a legal claim.  *  In the context of the hearsay rule, this term distinguishes out-of-court statements that are operative facts, and thus not hearsay (e.g., a party’s saying “I agree to reimburse you” in a case for breach of oral contract), from out-of-court statements that relate only to operative facts (e.g., “Joel told me Mike said he would reimburse me”), and thus are hearsay.  2. A fact that constitutes the transaction or event on which a claim or defense is based.  *  Some jurisdictions hold that claim preclusion bars litigation of a claim based on the same “core of operative facts” as a previously litigated action.  See Frier v. City of Vandalia, 770 F.2d 699 (7th Cir. 1985) (applying Illinois law).

physical fact (1857) A fact having a physical existence, such as a fingerprint left at a crime scene.

positive fact – The presence or existence of a quality, state, or condition.  Cf. negative fact.

predicate fact (1899) 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 be a conspiracy for the coconspirator exception to the hearsay rule to apply. — aka foundational fact; evidentiary fact.

presumed fact (1822) A fact whose existence can be justifiably inferred from facts established by evidence.

primary fact (18c) A fact that can be established by direct testimony and from which inferences are made leading to ultimate facts, especially those based on the tort theory of public disclosure of private facts.  See ultimate fact.

private fact (16c) A fact that has not been made public; especially, a fact that relates to the intimate or private aspects of a person’s life.  *  Whether a fact is private often arises in invasion-of-privacy claims.  Cf. public fact.

probative fact (1858) 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. factum probans.

psychological fact (1863) A fact that is related to mental state, such as motive or knowledge.

public fact (1955) 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.

relative fact (1862) A fact incidental to another fact; a minor fact.  See minor fact.

translative fact (1880) 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 (1883) A fact that is simultaneously investitive and divestitive.

     Excerpt from W.A. Hunter’s A Systematic and Historical Exposition of Roman Law (4th ed. 1903):

     “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.[10]

ultimate fact (18c) 1. A fact essential to the claim or the defense. — aka elemental fact; principal fact2. A fact that is found by making an inference or deduction from findings of other facts; specifically, a factual conclusion derived from intermediate facts.

undisputed fact (18c) An uncontested or admitted fact. [1]

For the critically important distinction between question of fact and a question of law, see and compare question of fact; question of law.  See also accessory after the fact; accessory before the fact; evidentiary facts; matter of fact; probative facts; ultimate facts. [3]


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: 1 Thomas Starkie, A Practical Treatise on the Law of Evidence 15 (2d Am. ed. 1828).

[5]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 7 (1935).

[6]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 7 (1935).

[7]: 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2589, at 608-11 (2d ed. 1995).

[8]: Paul F. Rothstein, The Federal Rules of Evidence 35-36 (3d ed. 2003).

[9]: 1 Charles Frederic Chamberlayne, The Modern Law of Evidence 86 (1911).

[10]: W.A. Hunter, A Systematic and Historical Exposition of Roman Law 141 (4th ed. 1903).


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