This document contains summaries of the Law of Persons and family textbook by A Barratt, second edition. It contains the summaries of the Law of persons part of the textbook including extensive summaries of the prescribed and non-prescribed cases used as authority for the relevant remedy.
Private Law 171
Study Unit 1: Definition of concepts and Terminology
[Law of persons pg. 3-7, 11-19, 59-65]
Definition of the law of persons:
• The part of the objective law
• That regulates:
- the coming into existence
- private law status
- coming to end of
• natural person as a legal subject
Subdivision of Objective Law:
• What is objective law?
» Objective Law: consists of the norms and rules that prescribe the conduct of
a person.
» National Law
• Objective law is subdivided into three main divisions:
» Public law (always involves the state as an organ of authority)
» Private law (can involve state if state is not in a position of authority)
» Mercantile law
,Legal Subjects
• Definition – Anyone or anything that can be the bearer of rights, duties and
capacities
• Natural persons:
> In SA law, all natural persons are legal subjects.
> In Roman and Roman-Dutch law, there were exceptions such as slaves and
monstra (people with mental disabilities)
> In between birth and death, every natural person is a legal subject
• Juristic persons – not “natural persons” but also classified as a legal subject.
> A group or association of natural persons that can carry legal subjectivity
> Legal subject in terms of the law
> Existence independent of members (e.g. a partnership is not a juristic person
because if one natural person leaves, the partnership ceases to exist)
> Established in South Africa in 3 ways:
1. Societies incorporated in terms of a general enabling act
2. Societies created and recognized in separate legislation
3. Complies with the common law requirements
Subjective Rights
• Network of legal relationships amongst legal subjects
• Network of legal relationships which exist between legal objects and legal subjects
Legal Objects
• Four categories:
a) Things
b) Performance
c) Immaterial/ intellectual property
d) Personality property
• Every legal object has the capacity to belong to a legal subject – but is not always.
Correlation between subjective rights and legal object to which it relates
Legal Object Subjective Right Ownership
Things Real Right Ownership
Performance Personal Right (right to Right to claim payment
performance)
Immaterial good Immaterial property right Copyright
Personality property Personality right Right to a good reputation
Connection between the objective law and subjective rights:
• The objective law determines content and limits of every subjective right
Status (The law of persons in SA 59-65)
• Description: comes from word “stare”: Standing in terms of the law and individual’s
role and function in legal intercourse.
• Definition: sum total of a legal subject’s juridical capacities.
,• Juridical Capacities:
1. Legal capacity – the competency to have rights, duties and capacities. The
capacities to hold office, and the rights that come with holding office.
2. Capacity to act – capacity to participate in legal intercourse; to perform valid
juristic acts
Juristic act – human act to which the law attaches at least some of the
consequences desired by the party performing the act.
3. Capacity to litigate – “locus standi iudicio”, capacity to be a party in a court
action (to act as plaintiff or defendant; applicant or respondent – only for civil
claims)
4. Accountability – ability to distinguish between right and wrong, and act in
accordance with this distinction.
• Factors – affect nature, extent of person’s capacities:
a) Age
b) Insanity
c) Prodigality
d) Birth/adoption
e) Insolvency
• IMPORTANT: Every legal subject has legal subjectivity and can participate in legal
intercourse and status (a way in which, extent of participation)
,
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