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Summary Private Law 171 Semester 1 - Detailed Exam notes/summarries
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PRIVATE LAW 171: Study unit 1Definition: Law of Persons
• Part of objective law
• Regulates:
→ Coming into existence
→ Private law status
→ Coming to an end of
• Natural person as a legal subject
state
public
L.S.
Objective law
private L.S. L.S.
regulates: L.O.
PVR
Coming in Coming to
to existence
Status end
human beings
Natural person: L.S.
juristic persons
What is objective law?
• SA’s national law
How’s objective law subdivided?
• Private law
• Public law
• Mercantile law
Who/what qualifies as a legal subject?
• Definition: anyone or anything that can be bearer of rights, duties, capacities
• Natural persons
• Juristic persons
,Legal subject (definition):
• Anyone or anything that can be the bearer of
→ Rights
→ Duties
→ Capacities
Natural persons:
• South African law
• Roman law & Roman-Dutch law:
1) Slaves [ Seen as L.O. (property) and not L.S. – abolished late 1800s ]
2) Monstra [ Roman law: babies with severe deformities ]
Juristic persons:
• Group or association e.g. company, university, church, bank, political
party, union
• Legal subject in terms of the law
• Existence independent of members
• South Africa:
→ Societies incorporated in terms of a general enabling act
→ Societies created and recognized in separate legislation
→ Common law requirements
,Subjective rights:
• Rights that exist between legal subjects and a legal subject with a legal
object
• Network or legal relationships amongst legal subjects
• Network of legal relationships which exist between legal objects & legal
subjects
• Between a subject and a subject and an object
Subject Subject
Object
Example:
Thing
Command: cat
A B
Personality
Intellectual Property
Property
= copyright
R100
Real: ✓
L.O
thing
Legal objects:
• Four categories:
a) Things [ sunglasses; book ]
b) Performance [ to do/not to do/give something – as in he case of an
interdict or restraing order ]
c) Immaterial/Intellectual property [ cannot plagiarise from a book ]
d) Personality property [ Right to dignity, etc ]
,Correlation between subjective rights & the legal object to which it relates:
Legal Object Subjective Right Example
Things Real right Ownership
Personal Right
Performance Right to claim payment
(Right to performance)
Immaterial property Immaterial property right Copyright
Personality property Personality right Right to a good reputation
Difference between real and personal right?
Real: Exercised against anyone
Personal: Enforced only against a specific legal subject
Connection between the objective law and subjective rights?
• The objective law determines scope, content & limits of every subjective
right
• If you want to know what your right of ownership entails, you look for
the answer in the objective law
,Status:
• Description:
o Status – “stare”
Standing in terms of the law and individual’s role, function in legal
intercourse
• Definition:
Sum total of a legal subject’s juridical capacities
Status:
a) Legal capacity
b) Capacity to act
c) Capacity to litigate
d) Accountability
• Factors – affecting nature, extent of person’s capacities
• Age
• Insanity
• Prodigality
a) Legal Capacity
• The competency to have rights & duties
b) Capacity to act
• Capacity to participate in legal intercourse
• To perform valid juristic acts
Selling a car, drawing up a will
• A juristic act is a human act which the law attaches at least some
consequences desired by the party performing the act
Ages 18 and over do it alone
Ages 7 and over has limited capacity to act
c) Capacity to litigate
• Latin: locus standi in iudicio
• Capacity to be a party to a court action
To act as plaintiff or defendant; applicant or respondent – in civil claims
d) Accountability
• Debatable juridical capacity
• Ability to distinguish between right & wrong
• Distinction between criminal accountability and delictual
accountability
• And to act in accordance with such distinction
, [ Important ]
Every legal subject has legal subjectivity and can participate in legal
intercourse BUT the status determines the way in which and the extent of
participation.
• Justice:
→ Purpose of law
→ Based on fairness – everyone treated the same
→ Substansive equality is aimed to give equal outcome
• Constitution of the Republic of SA, 1996:
o S2: Supremacy clause
Deals with the Supremacy clause whereby all conduct deemed
inconsistent with the Constitution is considered invalid
o S9: Equality clause
(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
o S28: Children’s rights
Contains Children’s rights clause: a child’s best interests are of
paramount importance in every matter concerning the child
o S36: Limitation Clause
Contains the Limitation clause: every right in the Bill of Rights may
be limited; no right is ABSOLUTE.
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