O’Donovan’s Problems on Attribution of personality

Problem 2

Ato Michael and woizero messelech were expecting a child in Guenbot. However, before the
child was due, woizero messelech began to have difficulties and the doctor at ( yekatit 22 nd
hospital ) told her that she would need caesarian operation. Ato Michael was worried about his
wife and decided to be present at the operation which took place on miazia 24 at 03:00.
Unfortunately, Ato Michael, had a week heart and the tension of watching the operation
caused him to have a heart attack. At 03:30 the surgeon declared him dead and continued the
delivery of the child who was born at 04:00. The child died on miazia 26 at 6 am. When the
succession of Ato Michael opened, his parents and his widow contested the inheritance as
there was no will. Write a memorandum of legal advice to the judge on the question of who
should succeed Ato Michael.

ANSWER

MATERIAL FACTS:

Ato Michael died 30 minutes prior to the birth of his child, who was born at 4:00 in miazia 24
and died in miazia 26, at exactly 6:00. Both, the widow and the parents of the deceased claim
inheritance as there was no will provided.

ISSUE:

Whether the child acquired advanced legal personality that made him eligible to succeed his
father.

LEGAL ADVICE:

It can be seen in Article 1 (THE HUMAN PERSON IS THE SUBJECT OF RIGHTS FROM ITS BIRTH
TO ITS DEATH) that the child had not obtained a legal personality at the time of the passing of
Ato Michael or his father because he was yet to be born and bear any rights, making the
parents the most eligible to succeed the deceased. But this claim can easily be rejected by citing
Article 2 and Article 4(1). According to Article 2 ( A CHILD MERELY CONCEIVED SHALL BE
CONSIDERED BORN WHENEVER HIS INTREEST SO DEMANDS, PROVIDED HE IS BORN ALIVE AND
VIABLE) and in this case it’s in the interest of the child to be considered born, not only that but
the child also qualified the requirements of acquiring advanced legal personality, which are
interest , being born alive , and living for 48 hours as stated in Article 4 sub article 1 ( A CHILD
SHALL BE DEEMED TO BE VIABLE WHERE HE LIVES FOR FORTY-EIGHT HOURS AFTER HIS BIRTH,
NOTWITHSTANDING ANY PROOF TO THE CONTRARY ). So my legal advice to the judge is to
make the child the heir and let the widow inherit the property through her child by using Article
2 and Article 4(1).

Problem 3

Woizero Aster gave birth to a baby on Tahsas 24 at 02:00. Unfortunately the baby was born
without arms and leg and with only one eye. From the moment of his birth, the doctors had to
fight for his life and with the help of modern medical science the child lived until 14:00 on
Thasas 25. Then, because of a blockage in the mechanism of oxygen tent in which he was, the
child dies. The blockage was later found to be due to the fault of the hospital technician who
had failed to service the machine correctly. The child’s father had died four months before his
birth. The determination of his heirs had not been made as it was known that his wife was
expecting a child. Now the question of succession must be decided. Will the child be an heir?
Give an example of medical testimony which would be resolving this problem.

ANSWER

MATERIAL FACTS:

A disabled child was born on Thasas 24 at 2:00 and died on Thasas 25 at 14:00. This disability
had caused the child to be dependent on life support machine that later took his life due to a
fault committed by a hospital technician. The father of the child had died 4 months prior to the
birth of the child, bringing the question, can the child be heir to his father?

ISSUE:

Whether the child passed all the prerequisites of acquiring advanced legal personality;
specifically viability.
SOLUTION:

The child at the time of the passing of his father wasn’t born, but he was able to succeed his
father by using Article 2(A CHILD MERELY CONCEIVED SHALL BE CONSIDERED BORN WHENEVER
HIS INTEREST SO DEMANDS, PROVIDED HE IS BORN ALIVE AND VIABLE) but unfortunately the
child passed away without living for 48 hours, which is the minimum required time to be
considered viable as stated in Article 4 sub article 1( A CHILD SHOULD BE DEEMED VIABLE
WHERE HE LIVES FOR FORTY-EIGHT AFTER HIS BIRTH, NOTWITHSTANDING ANY PROOF TO THE
CONTRARY). Even though from the above statement we might see that the child isn’t eligible to
succeed, it can all be rebutted using Article 4 sub article 3( THE PRESUMPTION LAID DOWN IN
SUB ARTICLE 2 MAY BE REBUTTED BY PROVDING THAT THE DEATH OF THE CHILD IS DUE TO A
CAUSE OTHER THAN A DEFICIENCY IN HIS CONSTITUTION). In this case we are able to prove
that the cause of death of the child is due to external factor; fault of the hospital technician. So
it’s assumed that the child would have lived for over 48 hours if this unfortunate incident
wasn’t to happen, making the child viable. In conclusion, the child can be considered the
rightful heir of his father.

Problem 4

Woizero Amarech gave birth to a baby boy on Hamle 25 at 02:00. The boy was born with a
very soft skull and the nurses were warned to take great care of handling him. However one
nurse carelessly allowed the child to fall. She said that this was due to the fact that he wriggled
a lot in her arms. He died on Hamle 27 at 01:00. Woizero Amarech was doubly grieved as she
had lost her husband lieutenant yilma on meskerem 29 just after their marriage. Lieutenant
yilma was accidentally killed in army training. Woizero Amarech wishes to do the following:

A, sue the hospital for negligence in causing the death of her son.

B, claim to succeed her husband through her son.

Write a memorandum of advice to Woizero Amarech.

ANSWER
MATERIAL FACTS:

Plaintiff’s child was born on Hamle 25 at 02:00 with a condition that required a special care,
the child died on Hamle 27 at 01:00 due to the carelessness of a nurse that allowed him to fall.
The plaintiff’s husband, lieutenant Yilma, died on meskerem 29 due to an accident that
happened during army training. The plaintiff woizero Amarech wants to sue the hospital for
negligence and claim inheritance through her son.

ISSUE:

Whether the child was the subject of right at the time of his death.

Whether the child is eligible to succeed his father through advanced legal personality.

LEGAL ADVICE:

It is clearly stated in Article 1(THE HUMAN PERSON IS THE SUBJECT OF RIGHTS FROM ITS BIRTH
TO ITS DEATH) that any person born alive is the subject of law from the minute s/he is born.
This shows that the child was a bearer of rights at the time of his death, thus he has the right of
being protected by law. One of the main constitutional right of a person is the right to life which
in this case was broken by the carelessness of a nurse. Therefore I advice woizero Amarech to
sue the hospital for negligence that caused the death of her child using Article 1. When we
come to the inheritance claim, her late child is the most eligible to succeed because Even if the
child wasn’t born at the time of the passing of his father, he can still succeed citing Article 2 of
the civil code, as it is in his best interest to be considered born provided that he is actually born
alive and is viable as stated in Article 4 sub article 1 and in this case the child has managed to do
both. This makes the child the rightful heir, but unfortunately since the child is no longer alive
and has no ascendants, his mother is the most eligible to succeed his inheritance so i advice her
to claim the property of her husband through her child by using Article 2 of the civil code.

Problem 5
 Woizero Abebetch gave birth to a child on hamle 7 at 05:00. She is a widow as her husband
died in a brawl the day after they were married. Since then she has been living in a convent
where her aunt is in charge. The late birth of the baby was due to lack of medical knowledge on
the part of Abebetch’s aunt, who gave her niece traditional medicines during her pregnancy.
The baby died on Hamle 8 at 23:00. The mother wishes to sue the other man in the brawl for
damages on behalf of herself and her child for the loss of a husband and father.

ANSWER

MATERIAL FACTS:

A child was born on Hamle 7 at 05:00 and died on Hamle 8 at 23:00, the child was born late
due to lack of medical knowledge by the aunt of the plaintiff. The alleged father of the child
passed away in a brawl months before the birth of the child. The widow, woizero Abebetch,
wants to sue the other man in the brawl for the damages on behalf of herself and her child.

ISSUE:

Whether the late husband is the father of the child

Whether the child has a legal personality

LEGAL ADVICE:

Woizero Abebetch can sue the other man for the damages done to her on behalf of herself
using article 1 which states everyone is the subject of law starting from birth. She has the right
to be protected by the law, meaning anyone who causes her harm must be questioned under
the law, provided that the harm is proven. when we come to suing the man on behalf of her
child, the defendant might cite Article 3 sub Article 1 ( A CHILD SHALL BE DEEMED TO HAVE
BEEN CONCEIVED ON THE THREE HUNDREDTH DAY WHICH PRECEDES HIS BIRTH) and also sub
Article 2 of the same article to oppose the reason woizero Abebetch gave as to why she had a
late birth, because it is stated that no proof can be admitted against this presumption. But i
advice woizero Abebetch to cite Article 3 sub Article 3, which states that this provision doesn’t
affect the date of conception where it need be established who is the father of the child, to
prove the late husband is the father. But this doesn’t mean she can sue the man on behalf of
her child because the child has not completed the requirements to get advanced legal
personality. As stated in the material facts the child passed away in less than 48 hours of being
born thus the condition of viability is questioned. Therefore the child is not viable according to
Article 4 sub Article 2, thus has no legal personality, so the widow can sue the man for the loss
of a husband but not a father.

Problem 6

Woizero Menen married Ato joseph on Tahsas 10, 1953. The latter died six months later,
when his wife was expecting a baby. A healthy baby was delivered eleven months after the
marriage, some months after the baby’s birth, his mother introduced an action to settle the
problems of her husband’s inheritance. The mother soon realized that, apart from a title of
nobility which could be transferred to her son, her husband had only left heavy debts. Thus she
decided to claim that title for her child but not to accept the patrimonial elements of the
inheritance. The creditors disagree with this attitude and claim that if she refuses to accept the
patrimonial elements of the succession she must also renounce the title of nobility. They also
claim that such renunciation to the rights of the child would deny his personality before birth.

ANSWER

MATERIAL FACTS:

Woizero Menen married Ato joseph on Tahsas 10, 1953. The husband died six months later
while the pair were expecting a baby. The baby was born after 11 months, the widow wants her
child to inherit the title of his father but minus the heavy debts. The creditors disagree and
wants her to either inherit it all or nothing at all.

ISSUE:

Whether the child can enjoy his rights without fulfilling his obligation.

Argument for the Plaintiff

 According to Article 2, a merely conceived child is considered born if it’s in his best interest,
provided that he is gets born alive and stays for over 48 hours. In this case, the child has
completed the requirements of viability and is the rightful heir of his father. Therefore the child
must inherit the title of nobility but not the debt because the law grants advanced legal
personality only when it’s in the interest of the child, this personality is granted only to give
rights but not to give obligations. So it is not the responsibility of the child to pay the debt but it
is his right to acquire the title of nobility because it is in his best interest.

Argument for the defendant

According to Article 1, a person is the bearer of rights from the moment he is born, and rights
have a reciprocal that is obligation. This means if the child wants to enjoy his rights, he also has
to deal with the obligation. Therefore either the child should enjoy his rights and pay his
obligation or not at all.

Problem 8

Child Abebe was born with a serious brain defect. The hospital immediately performed a very
expensive operation to save the child’s life, but finally it was decided that the child’s total life
expectancy was probably not more than 40 hours. However, 20 hours after Abebe’s birth, while
he was being transported to another hospital by ambulance, the ambulance was involved in a
traffic accident in which the child was instantly killed. The child’s parents now refuse to pay for
the medical expenses incurred in the brain operation claiming that Abebe was never a ‘person’
under the civil code and therefore, they have no obligation to support him. Write a
memorandum of advice to the hospital explaining whether it is possible to recover the cost of
the operation.

ANSWER
MATERIAL FACTS:

Child Abebe was born with a serious brain defect that caused a very expensive operation to
be preformed, after the operation it was concluded that the life expectancy of the child was no
more than 40 hours, but unfortunately the child died 20 hours later due to a traffic accident.
The hospital wants an advice on whether or not they can recover the cost of the operation that
the child’s parents refused, claiming the child wasn’t a ‘ person’ to begin with.

ISSUE:

Whether the condition of viability plays a part in this case.

LEGAL ADVICE:

I say it is possible to recover the cost of operation from the parents. According to Article 1,
physical persons are subject of right from birth to death. The child was born and alive during
the accident, thus he was the subject of law and had legal personality. The defendants might
cite Article 4 sub Article 1 to claim the child has not lived for 48 hours and is therefore not
viable, but this claim can easily be silenced by the fact that this article is only applicable on
issues regarding matters that happen during the conception period of pregnancy. So it doesn’t
matter that the child died after 20 hours, or only had a life expectancy of 40 hours, or that he
died due to a cause other than a deficiency in his constitution. Because the fact that he was
born alive is enough to grant him a legal personality in accordance with Article 1.