10 Unit 1 The Law of Persons and the Legal Subject

Unit 1

The Law of Persons and the Legal

Subject
Introduction
The law of persons forms part of private and procedural law. It is a
potentially wide field which stretches out across all of private law. The
status of a person and their capacity in the law are after all what most areas
of private law are pre-occupied with.1 For example, in the law of delict the
focus is on the person’s responsibility for civil wrongs, while the law of
contract deals with the legal position of a person in relation to contracts.

1. The Law of Persons

Cronje & Heaton2 define the law of persons as that part of private law
which determines:
- which entities qualify as legal subjects;
- when the legal personality of those legal subjects begins and ends;
- what legal status involves, and
- the effect of several factors, i.e. minority, have on the legal status
of a person.

2. The Legal Subject

This is any entity upon which the law has bestowed the capacity to have
rights, duties and capacities. Such conferment is then referred to as legal
personality while the capacity to have such rights, duties and capacities is
referred to as legal capacity.3 Only a person is capable of being conferred
with rights, duties and responsibilities, things are incapable of having
rights, duties and responsibilities. 4 Legal capacity can therefore be
regarded as the most fundamental characteristic which distinguishes a
person from a thing. There exists in our law, two kinds of legal subjects.

1
Boberg P.Q.R. (1977). The Law of Persons And The Family. Juta & Company Ltd:
Johannesberg
2
Cronje D.S.P, & Heaton, J. (2003). The South African Law of Persons 2nd ed.
LexisNexis Butterworths: Durban, p.1.
3
Cronje D.S.P, & Heaton, J. (2003). p.2.
4
Things are usually the objects of the rights and duties of a person.
 LAW OF PERSONS

1. The Juristic Person

It is of imporatance that you uderstand that not every person in law is a
human being. Legal personality can be conferred on any entity the law
deems fit and these entities differ from community to community and legal
system to legal system. It is therefore possible to find legal subjects in one
country which are not recognized as legal entities in another country. 5
Juristic persons comprise of those entities which are allowed by law to have
rights and duties separate from the individuals who direct their affairs, as
long as they have fulfilled certain requirements requited by law. The rights
of a juristic person are similar to those of a natural person. It enjoys a legal
existence independent from that of the persons who created it; when a
natural person acts on behalf of the juristic person, it is the juristic person
who acquires the attendant rights, duties and capacities.6 The debts of the
entity are its own; and its assets are its own. The estates of the juristic
person are separate from those of its creators such that if the entity lacks
sufficient assets to meet its obligations, it is wound up or liquidated and
the matter ends there. Its identity is not altered by the end of the
membership and enjoys perpetual succession.7
The following are recognized under our law as having legal personality:
i. Companies
ii. Close Corporations
iii. Partnerships- limited

2. The Natural Person

The capacity to have rights duties and obligations is common to all persons.
Every human being is therefore acknowledged as a legal subject.8 They can
have rights, duties and responsibility, the content of which is determined
by certain factors. These factors will be discussed in greater detail in the
rest of this module

5 Cronje D.S.P, & Heaton, J. (2003). p.4.

6 Cronje D.S.P, & Heaton, J. (2003). p.5.
7 Boberg P.Q.R. (1977).p.5. it continues in existence until wound up by order of the court.
8 Cronje D.S.P, & Heaton, J. (2003). p.4.

11
12 Unit 1 The Law of Persons and the Legal Subject

Unit summary
In this unit you learned
 The concept of Law of Persons;
 the types of legal subjects;
Summary
 the concept of legal subject;
 the difference between natural persons and juristic persons;

References
 Boberg P.Q.R. (1977). The Law of Persons And The Family. Juta &
Company Ltd: Johannesberg
 Cronje D.S.P, & Heaton, J. (2003). The South African Law of
Persons 2nd ed. LexisNexis Butterworths: Durban,