Summary
Summary Law of Persons Chapter 1 - 3
- Course
- PSR 110 (PSR110)
- Institution
- University Of Pretoria (UP)
In depth summary of Law of persons textbook Chapter 1 to 3. Includes relevant case law and legislation.
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Content preview
Law of PersonsChapter 1: Definition of Concepts
1.1 Introduction
Private law forms part of the substantive law (actual positive law) because the
meaning and content of the rules of law are studied.
Private Law (involves the weighing up and demarcating of individual’s interests)
Several components:
o Law of Persons.
o Family Law.
o Law of Patrimony (inheritance from father or other ancestor).
o Law of personality.
o Law of things.
1.2 Law of persons
The law of persons can be defined as that part of the objective law
regulating the coming into being, private legal status and coming to an end
of a natural person or legal subject.
Why Law of Persons is studied as a subsection of private law?
The objective law (positive law) can be described as a norm complex.
Private law forms part of substantive law (part of objective law) because the meaning
and content of the rules of law are studied.
It becomes imperative to regulate and demarcate the relations between individuals
when their subjective rights concern certain objects.
o Each claim which a legal subject has to a legal object requires other individuals to
acknowledge the existence of that claim.
The Law
(system of rules which
regulates relations
between legal subjects)
Objective (national)
Internation Law
al Law
-norm complex
Adjectiv Substanti
e law ve Law
Private Law
Public
involves weighing and
Law demarcating the interests of
individuals
Law of Persons
1
that part of objective law which governs the coming
into being, private legal status and coming to an
end of legal subjects.
,Distinction between Subjective and Objective Law:
Objective Law – positive law Subjective Law – law in the subjective
sense
A norm complex- the whole body of legal Regulation of relations between legal
rules that applies as a system in South subjects.
Africa.
The actual rules of the legal system Broadly described as the specific rights
and duties which apply between persons.
Allocates judicial capacities to all legal
subjects.
Subjective rights and legal objects
It becomes imperative to regulate and demarcate the relations between individuals
when their subjective rights concern certain objects:
o Each claim which a legal subject has to a particular legal object (subject-object
relationship)
o Creates a duty for third parties (as legal subjects) to recognise and acknowledge
the existence of that claim.
Correlation between subjective rights and the legal objects
Legal object: any ‘thing’ which has economic value but upon which the law has not
conferred the capacity to have rights, duties and capacities.
Subjective rights: claim which a legal subject has to a legal object.
Private law: determines legal subjects having subjective rights with respect to legal
objects.
The particular type of subjective right to which an individual is entitled, will depend
on the legal subject concerned.
Subjective rights linked to objects
The subjective right a person has to a thing or legal object a REAL RIGHT.
The subjective right to claim a performance PERSONAL RIGHT.
Person’s rights to his or her patents, trademarks et cetera immaterial property right
Subjective right to personality property PERSONALITY RIGHT.
Legal object Subjective right Example
Corporeal things REAL RIGHT the subjective Property right.
– tangible objects with value and right a person has to a thing Book right of ownership.
capable of human domination – car, land, house.
Acts and Performances PERSONAL RIGHT: The right to claim payment.
– conduct by which something is given, done or subjective right to claim a
not done. performance.
Immaterial Property (a.k.a IMMATERIAL PROERTY Copyright
intellectual property)- intangible RIGHT persons subjective The content of a book
2
,creations or products of the right to his patents,
human intellect. trademarks and work.
Aspect of Personality – the non PERSONALITY RIGHT rights The right to a good reputation.
physical characteristics which to personality property.
define part of a person.
Intangible products of the human Personal immaterial Persons earning capacity.
mind endeavour which are closely property right
connected with personality
Details of subjective rights
Each of the subjective rights listed bestows certain entitlements on the bearer(legal
subject).
Summary
It is essentially the task of private law to demarcate and balance the subjective rights of
individuals in such a way so as to ensure a peacefully regulated society.
The counterpart of each right involves an obligation
Each relationship between a legal subject and a legal object involves a relationship
between that person and other person’s subject –third party relationship.
1.1.2 Legal Subjects
A legal subject can be defined as the bearer of judicial capacities, subjective
rights and legal duties
Person and legal subject as synonymous
In South African Law every person is a legal subject.
o Two categories of legal subjects:
Natural persons or any human beings
Juristic persons
Groups/ associations of natural persons
Exist independently from its members and have rights, duties
and capacities.
Distinguish between natural persons and juristic persons
History in South Africa
o Common law cessation of legal subjectivity never occurred in South Africa.
o No legal system striving for justice can deny that all persons are legal
subjects.
Natural persons - any human being
o Comes into existence when born.
o In South African Private Law every human being is a legal subject.
o No legal system striving for justice can deny that all persons are legal
subjects.
3
, Juristic persons – groups/ associations of natural persons which exist
independently of members.
o Coming into existence comply with formalities set out in rules and
regulations.
o Have an independent right of existence.
Bearer of
Subjective rights.
Legal obligations.
Judicial capacities.
Universities, companies, banks, political parties.
o A social entity that wants to function as a legal subject must comply with
certain formalities as provided for in our common law and statutory
provisions.
Instance 1: There are certain associations which can only Eskom & SABC
Permission of be established with the permission of the state.
state State’s interests are so significant organisations
capacity to act must be regulated by the state.
ESKOM s1 Electricity Act of 1987.
SABC s 8A(8)(a) of the Broadcasting Act 4 of
1999.
Instance 2: State controls the second category of Standard Bank
Statutory associations: ABSA Bank
prescribed BUT the permission of the executive authority
requirements is not required for the establishment of
individual associations.
Association must register in terms of relevant
statute:
- Businesses Companies Act / Close
Corporations Act.
- Banks - Banks Act
- Mutual Banks - Mutual Banks Act
- Co-operatives - Co-operatives Act.
Instance 3 No state intervention BUT meet the common Arwyp Hospital
Common law law requirements for the establishment of a
requirements. juristic person.
Associations must have:
1. Perpetual succession.
2. Bearer of own rights and duties
3. Strive towards predetermined goal.
4
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