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Law of Persons Notes

Law of Persons Notes



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Published by Summer
Law of Persons, 2nd Year B-Juris, UNAM, Windhoek, Namibia
Law of Persons, 2nd Year B-Juris, UNAM, Windhoek, Namibia

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Published by: Summer on Sep 10, 2009
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Law of Persons
The law of persons is that part of private law which1.determines which entities are legal subjects,2.when legal personality begins and ends,3.what legal status involves (different classes of legal subjects)4.and what effect various factors have on a person’s legal status (legal status of each class).In respect of rights, we are concerned with a dual relationship:i.
relationship – a right and corresponding obligationsii.
relationship – bearer of the right and the object of his right.
Legal subjects and legal objects
In the field of law, there is a difference between ‘legal subjects’ (
 persona iuris
) and ‘legalobjects’. Legal subjects are people recognized by law as having rights, duties and capacities bestowed upon them. The law then grants legal personality on such subjects. Whereas legalobjects are entities that have economic value and which the law has not bestowed thecapacity to have rights, duties and capacities. Legal objects can therefore not partake in legaland commercial transactions.
Categorizing Legal Subject
Legal subject can be divided into two categories:1.Natural persons (
 persona naturalia
)2.Juristic persons (
 juristic persona
).Legal subject is a general term used to refer to all entities that are recognized by law,including both juristic and natural persons. A
natural person
is a human being discerniblethrough the intelligence and subject to physical laws, regardless of a person’s age, mentalcapacity, or gender; they are recognized as legal subjects. A 
 juristic person
,sometimesknown as a legal person, is a legal entity through which the law allows a group of natural persons to operate in ways resembling a single composite individual for certain purposes. A juristic person enjoys a separate existence independent from that of its members or thenatural persons that created it.
Categorizing Legal Objects
There are perhaps five to six categories of legal objects.1.Corporal thingsThese are separate, tangible items which are susceptible to human control and which areof value to people. Eg: Motor vehicle
2.PerformanceThese are human acts by which something is given, done or not done. The right to performance is a personal right or a claim. Eg: A has obligation to deliver, B hasobligation to pay.3.Personality propertyA person’s right to his good name (reputation), honor, personal integrity are examples of  personality rights.4.Immaterial property (intellectual property)An artist’s right to his painting (copyright). An author’s right to his books (copy right)An inventor’s right to his invention (patent right). These are products of the humanintellect.
The Beginning and End of Legal Personality
Legal personality is conferred on legal subjects only. A natural person’s legal personalitycommences at birth. Prior to birth the fetus is not a legal subject. It simply forms part of themother’s viscera. There are certain requirements to acquire legal personality:i.Birth must take place; it is a necessity to have a separation between the mother andthe child. However, there is no requirement that states the umbilical cord should becut.ii.The child must be alive after separation. The child is obliged to breathe in order toshow signs of being alive. Hydrostatic test.iii.The third requirement is open to debate as to whether it is necessary. Certain authors proclaim that the child should also be ‘viablebefore they can acquire legal personality. This means that the child must of reached a certain developmental stage(an existence separate from its mother) before they can attain legal personality.iv.Furthermore, a registration of birth should proceed.
Registration of Birth
The Director General of Home Affairs must be notified of the birth of every child who was born alive. The notification must be given within 30 days of the child’s birth.
The Interest of the Unborn Child
The law protects the potential interests of the
by employing the fiction that thefetus is regarded as having been born at the time of conception whenever it is to her advantage. The Latin phrase “
nasciturus pro iam nato habetur, quotiens de commodo eiusagitur 
” refers to law that allows a fetus to inherit if it is to benefit her.
Nasciturus Rule and Nasciturus Fiction
The phrase nasciturus rule and nasciturus fiction are sometimes both used as synonyms,however they have different meanings. The nasciturus rule is used to refer to circumstanceswhich would occur and be to the benefit of the fetus if she had been born. This means that thefetus is regarded as a legal subject from the date of her conception. Therefore legal personality sometimes commences at birth or at conception. The nasciturus fiction refers to afetus that is regarded as having been born at the time of conception if the issue at hand is toher advantage. The rights of the child who will be born is given protection. South Africafollows the nasciturus fiction, henceforth it can be said that in Namibia we follow the sameapplication. This fiction has certain requirements:i.An advantage/benefit that accrues to the fetus if he/she was aliveii.The child must have been conceivediii.Subsequent birth (the child must have been born alive)*Nasciturus Rule: where there is a benefit for the child: at the time of conception, the child becomes a legal subject.*Nasciturus Fiction: Whatever benefit will have to be on hold until the child is born alive.
CASE: Ex Parte Boedel SteenkampIn this case, a will provided that the residue of the testator’s estate was to devolve in equalshares to his daughter 
and her children of her first generation at the time of his death. Mhad two children,
, and was pregnant with a third child (
), who was born 7 monthsafter the death of the testator. The Court regarded
as alive at the date of the testator’s deathand was entitled to share the inheritance. In this case, in can be clearly seen that thenasciturus fiction was applied here for the benefit of the child born.
CASE: Ex Parte Administrators Estate AsmallIn this specific case, the testator made a will in 1936 which he bequest a monthly fee of £8for his 3 sons:
E, Y
, and £3 for each of his 4 daughters:
Ay, Am, K 
. The 7children were all alive at the time. In 1942 when he executed a codicil, K had died but 3more children were born:
Ha, S
. The testator simply said that £8 were to be paid to thesons per month, and £4 to his daughter. Another daughter 
was born. In 1944 the testator died, and another son
was born after his death. The question the court was faced with waswhether or not
were entitled to inherit. In this case the Court applied the nasciturusfiction and held that they were entitled to inherit, as it was to their benefit and was theintention of the testator.
CASE: Pinchin v Santam Insurance Co. LtdIn this case the Plaintiffs sued Santam as agent of what was the predecessor of the present

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