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Summary Law of Persons bcom law notes
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Law of PersonsWhat is a Person?
According to Boberg; The law defines a person as someone or something
that can have a legal right and duties. Legal Subject a being that has legal
rights. Legal Personality, Quality of being a person.
Natural Person (Human Beings)
Juristic Entities (Companies;Banks;Universities.)
What are rights; duties and legal objects?
Persons have Legal Subjectivity, this enables them to exercise their rights.
Private law deals with, real rights, personal rights, personality rights. 3 main
types of legal objects giving rise to 3 main categories.
Physical things(houses, farms, cars). Where the objects of the right is a
physical thing, “real right”
Performance(babysitting, payment of money) Where the object of the
right is performance, “Personal right”
Aspects of your personality(your reputation or privacy) Where the object
of the right is your aspects of your personality, “Personality rights”
The kind of duty or obligation to which the right gives rise depends on what
kind of right is involved.
Real rights.( P9)
Object of a right is a physical thing, Ownership of a physical thing is an
example of real rights. Real rights operate against the whole world.
Personal rights.
Object of a right is a performance, personal rights operate against a particular
person.
Personality rights.
The personality interest protected in south Africa law include;
Physical integrity( the body)
Bodily freedom( protection against unlawful arrest)
, Reputation(good name)
Dignity
Privacy
Personality rights operates against the world.
The Connection between law and rights;
The Law…Determines…The content & The limit, EVERY RIGHT.
Legal subject- Rights, duties, capacities, Legal Personality.
Legal Object-objects that have, Economic value, NO rights, duties, capacities,
CANNOT participate in legal and commercial traffic.
Categories of legal objects.
Corporeal things.
Separate, tangible
REAL RIGHTS
Performance
Human act- something is given, or done
PERSONAL RIGHTS
Personality property
Aspects of a persons personality-ex dignity
PERSONALITY RIGHTS
Immaterial property
Product of the human intellect(idea contained in product)
IMMATERIAL PROPERTY RIGHTS
Constitutional rights.
,Public law rights, Constitution is the supreme. No rule of law should violate the
Constitution.
Constitution rights are public law rights, Bill of Rights.
What is Capacity?
Another meaning ability, Capacity refers to what a person is capable of doing in
terms of law’ what are the persons legal abilities/ legal competencies.
Boberg theory towards Capacity; Passive legal capacity, active legal capacity.
Passive legal capacity
Capacity to perform juristic acts (get married, enter into contracts)
Capacity to be held accountable for wrongdoing (crimes.)
Capacity to litigate.
Passive Legal Capacity.
“Passive” to inert or act upon. Capacity to have legal rights and duties.
Boberg defines it as “the capacity merely to have rights and duties”. All persons
have passive legal capacity.
Capacity to perform juristic acts.
Juristic acts are voluntary human acts which have intended legal
consequences. The Capacity to perform juristic acts refers to a persons
capacity to actively change his or her legal position, EG, By doing things to
acquire legal rights or incur legal obligations. not all legal subjects have the
same capacity to act. Depending on factors such as a person’s age, mental
health.
Making a will
Getting married
Entering into contracts
Consenting to medical treatment
Capacity to be held Accountable for wrongdoings.
, When the person has the capacity to be held liable or found guilty of a crime, A
person can only be found guilty of a crime if he/she acted with fault (a
blameworthy state of mind) The person must have acted with either intention or
negligence.
People act with intention if they do something on purpose or deliberately.
Negligence means carelessness of a particular kind.
If the person is capable of having mental states of intention or negligence he or
she can be held accountable for their crimes and delicts. If they are not capable
of having these mental states they can never be held accountable.
A person will be accountable if;
The person has the mental ability to distinguish between right and wrong.
The person is able to act in accordance with this understanding.
Latin if a person is accountable Culpae Capax
Capacity to litigate.
The capacity to be a party to a lawsuit, either as a plaintiff( person who brings
the case) or defendant.
Latin to capacity to litigate is Locus standi in judicio
What is Status.
Your standing in the eyes of the law, how do we know if a person has the
capacity to conclude contracts, get marries? This depends on his or her status..
The law is primarily concerned with group of people defined in terms of age
and mental disability.
Forms of Liability
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