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Summary The beginning of legal capacity
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The basic terms of the law of persons used by LLB law students, it is summarised and simple.
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CHAPTER 3: THE BEGINNING OF LEGAL PERSONALITY• We defined a ‘person’ as someone or something that can have legal rights and
duties.
• The foetus is biologically human but not a legal person until it is born alive.
• It can’t inherit.
PRELIMINARY CONSIDERATIONS – BIRTH AND ITS LEGAL SIGNIFICANCE
• According to current law, legal personality for human beings begins at birth.
• For juristic persons such as companies – the decisive event is registration.
• No legal personality before birth or registration.
THE LEGAL SYSTEM – LIVING WITH THE LAW, THE POWER TO CHANGE LEGAL RULES,
AND THE ‘RULE OF THE LAW’
• Legal persons don’t equate directly with real people
• Law is interested in real people only in so far as these biological entities comply
with requirements for legal personality – defined by a particular legal system.
• A legal system is human made product, it is a conceptual creation made by
people in a specific society. It is called a construct.
• It follows that all legal persons or juristic persons are also constructs.
• Their recognition by a legal system as actors within that system is constructed by
the law.
• South African laws for a natural person, legal personality formally begins with
biological birth.
NASCITURUS FICTION – ORIGINS IN SUCCESSION – LIMITATIONS OF ITS APLLICATION
• Life begins before birth at conception – the current law doesn’t directly
acknowledge these beliefs.
• Law was designed for different purpose than social constructs – it was to bring
certainty and predictability in particular human circumstances.
• The nasciturus fiction has its origins in law of succession and was invented to
cater for the perceived unfairness of situations. It was thought that a foetus
already conceived should be able to benefit from its parents deceased estate in
the same way as other children who had already been born. The legal system
doesn’t recognize the foetus as a legal person who can be the bearer of rights,
duties and capacities – foetus cant have any rights – cant inherit.
• In SA the nasciturus fiction operates primarily in context of succession where the
benefit arises that would have accrued to the foetus had the foetus already been
alive – the legal situation will be held abeyance until such time as the foetus is
born.
• If the child is born alive the benefit will vest in that child as if they had already
been born at the time when the benefit arose. If the foetus isn’t born alive then
the benefit can’t vest in the foetus.
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