CHAPTER TWO: LAW OF PERSONS

This chapter deals with the subjects of law; that are organs that the laws gives them rights and
bestows duties upon them. Only persons can exercise rights and assume duties emanating from
the law and therefore getting some acquaintance with definition, acquisition and attributes of
personality are important. This chapter is destined to help you achieve this goal.

Definition of person: Currently, application of the term ‘person’ has gone beyond the sphere of
human beings and, and it also applies to entities (organizations and associations of people) that
have legal personality. The words “human being” and “person” are not interchangeable. All
human beings in modern legal systems are persons, and take part in legal relationships as
subjects of rights and duties. Thus unlike earlier legal systems, there is no distinction among
human beings with regard to legal personality. Entities other than human beings also take part in
legally defined relationships as holder of rights and bearer of obligations. The same term is used
in Ethiopia for two different referents: that is, to refer to ‘human beings’ as creatures and to refer
humans and legal entities at one place as subjects of the law.

Human beings are natural (or physical) persons. On the other hand, juridical (artificial or legal or
fictitious) persons are entities other than natural persons that are endowed with legal personality
by virtue of law. We call them artificial because they are not living persons, but are mere
creations of law. The state, territorial subdivisions of the state, ministries, public associations,
trade unions, partnerships, companies, universities, hospitals etc. are juridical persons from the
time of their establishment and registration until they are dissolved and liquidated.

A juridical person usually has a distinct legal existence separate from its members. A case in
point is the continued existence of the entities even after the partial or total change of their
founding individual members. Such legal entities, either public or private, as stated above are
endowed with juridical personality. Same as physical persons, these legal persons have rights
and duties; enter into contracts, can sue, be sued and perform various juridical acts. Legal
persons enjoy their rights through the instrumentality of representation by natural persons
because they are nonexistent to speak for their rights. However, it must be noted that there are
rights of personality that cannot be exercised by juridical persons, such as the right to vote.
Thus, “person” can be defined as human beings or legal entities that are holder or bearer of rights
and duties emanating from law, and “personality” refers to all the attributes that have legal
protection.

The term “subject of the law” is different from “object of the law”. Everything that is covered by
the law is its object, but it is not expected to bear rights and duties. A negligent driver who runs
over a dog violates the rights of property of the owner of the dog, not the right to life of the dog.
The owner of the dog is subject of rights in this example. And he will be liable in case his dog
bites anyone.

Generally, contemporary legal literature recognizes two categories of persons. They are real
persons who are living beings and fictitious persons who have only an imaginary existence.
Every human being is a real person. But only individuals of the human species, but not animals,
are persons. Persons have names which serve to distinguish them from one another. They also
have a juridical status, made up of many elements, which defines their capacity.

Commencement of physical personality: Article 1 of the 1960 Civil Code of Ethiopia

says:“The human person is subject of rights from its birth to its death.” The words “human
person” (under Article 1) refers to anyone who is member of mankind; i.e. to anyone who has
the distinct features of a human being. Physical personality begins from birth and lasts until
death. Birth is thus the beginning of physical personality. Black’s law dictionary defines birth as
“the act of being wholly brought to separate existence.” When a child has separate existence, at
any rate from that moment on, the child becomes a person in the legal sense of the word and, in
the ultimate instance, birth will be established through medical evidence. Let us see one
exception to this general rule, through which a child who is not born obtains personality as if it is
born.

Anticipated personality of a merely conceived child: There are instances where the interest of
a conceived child is put at stake and it is likely that the child will lose some right if personality is
attributed only after birth. A case in point, can for example, be the inheritance right of a child
whose father has died before he is born. Article 2 of the civil code is meant to solve such
problems. It reads:
 “A child merely conceived shall be considered born whenever his interest so demands
provided that he is born alive and viable.”

A conceived child may acquire personality while he is still in his mother’s womb provided that:
I. his interest so requires, particularly where the interest of a conceived child requires that
he be called for succession,
II. he is born alive, and,
III. he is viable (he is capable of living for at least forty-eight hours after birth (Arts. 4/1 and
4/2).

The three cumulative conditions for granting personality to a conceived child are the interest of
the child, life and viability. However, if a succession of which the debts exceed the assets
devolves upon the child, it can very well be that his personality will not be invoked in that
connection. This is because the child does not have interest in being called for the succession.

Viability is presumed where a child lives for 48 (Forty eight) hours after its birth (Article 4/1).
Moreover, a child who dies within 48 hours after its birth “due to a cause other than a deficiency
in (bodily) constitution” is presumed to be viable because s/he wouldn’t have died at that
moment had it not been for the accident that caused the child’s death.

Lessened Capacity: It is clear from the above discussion that every person without distinction
holds rights of personality. By virtue of Article 1 of the Civil Code, such entitlement to rights of
personality starts as of birth; and under exceptional circumstances rights such as successions can
include the conceived child, provided that its interest so requires and if the conceived child is
born alive and viable But there may be exceptions to the principle of holding of rights upon birth.
For example, the constitutional right to vote and to be elected (Article 38 of the FDRE
Constitution) is held by persons who have attained the age required by law. Aside from such
exceptions in the realm of constitutional liberties (which clearly require a certain level of
maturity and experience), every person holds the rights of personality.

However, there are restrictions in the exercise of these rights by minors, insane persons,
judicially interdicted persons and legally interdicted persons, even if they hold all civil rights
from the moment of birth. We should thus make a distinction between holding rights and
exercising them. A person who holds rights and exercises them is said to have the capacity to
enter into legal relations, while a person who holds rights, but exercises them through
representation is referred to as a person with lessened capacity.

Capacity to exercise rights and duties: general principles;

According to Article 192 everyone has the capacity to exercise the rights he holds unless he is
within the group of persons whom the law declares incapable of performing juridical acts on
their own, i.e. - without being represented by a guardian or a tutor. A person’s capacity to
exercise juridical acts is presumed. In our day-to-day transaction we don’t usually consider the
condition of capacity in every interpersonal relationship and upon each juridical act unless it is
apparent as in the case of most minors. Capacity is thus presumed unless the person is proved
incapable.

The incapacitated person is not deprived of holding these rights; but instead, he is merely
required to exercise them through representation by another. In short, the capacity to exercise
rights is lessened under certain circumstances; and the entitlement to these rights is not
completely deprived.

Reasons for restriction of capacity: The law duly lessens rights of certain groups of persons on
the basis of their status of minority, notorious insanity, apparent infirmity, judicial interdiction
and legal interdiction for the following reasons:
a. To protect incapacitated persons from others who may take advantage of their inexperience,
inferior judgment, etc.; and to protect these persons of lessened capacity from their own
erroneous decisions and acts that could be detrimental to their interests.
b. In the case of legal interdiction, the incapacity has the purpose of protecting society from
offenders.

Sources (grounds) of incapacity: Incapacity to exercise rights may come from different sources
like minority, judicial interdiction and legal interdiction; which are general grounds of incapacity
and it may also come from special grounds of incapacity.
1) Minority: A minor is a person of either sex, who is below eighteen years of age (Art. 215
Federal Revised Family Code), and minority starts from the beginning of physical personality. A
minor cannot perform juridical acts (i.e.-acts that entail legal consequences) “except in cases
provided by law” (216/3- RFC). The words “except in cases provided by law” indicate that there
are certain juridical acts that minors are allowed to perform. The lessened capacity of the minor
shall cease upon his attainment of majority (i.e. –eighteen years) or it may end when the minor
is emancipated. Emancipation of a minor results from marriage before the attainment of 18 years
of age or from an explicit emancipation of the minor.

2) Judicial interdiction: The best means of securing adequate and sustained legal protection for
insane and infirm persons is through judicial interdiction i.e. the withdrawal of the capacity to
perform juridical acts in order to protect the interest of the interdicted person and his
presumptive heirs. This can be done by the order of court that declares the interdicted person
incapable of exercising rights and duties due to his mental condition.

3) Legal Interdiction: Unlike the other varieties of general incapacity, the rationale behind legal
interdiction is not to protect the incapacitated individual, but instead, to protect society from the
legally interdicted person. According to Article 380 of the civil code, “a person interdicted by
law is one from whom the law withdraws the administration of his property as a consequence of
a criminal sentence." Pursuant to the same provision legal interdiction is determined by penal
laws. Article 123 (c) of the 2004 Criminal Code, among other things, deprives an unworthy
offender of “his rights to exercise a profession, art, trade or to carry on any industry or
commerce.”

4) Special incapacity results from the nationality or from the activity in which the person
engages. Foreigners are classified under “special incapacity” because they are capable of
performing all juridical acts other than few (specifically identified) juridical acts that they are not
capable of exercising. Special functions may also entail special incapacity. For example,
according to Article 289 of the Revised Family Code, a tutor can’t conclude contract with the
minor, nor can he accept the assignment of any right or claim against the minor, unless he is
authorized by court.
Attributes of Legal Personality

Ω Legal persons have their own name by which they are distinguished from other persons.
Ω A legal person can own and administer its own property. Property belonging to a legal
person is different from that of individuals who own that legal person. Property belonging to
members chartering up the company is completely different from property belonging to the
legal person (the company). A legal person administers its own property. It is obvious that a
legal person acts through human agents because it is imaginary and has no physical
existence.
Ω A legal person may sue or be used in its own name. To sue is to bring a legal action against
another person. There is a distinction between the liability of a company (legal person) and
the liability of individual persons forming it.
Ω The same can be said about contractual relations that may be entered in to by a legal person.
We have already seen that a legal person is an entity that can be a party to a legal
relationship; therefore, a legal person can enter into contracts with another company or with a
physical person (Human being). The rights acquired and liabilities incurred as the result of
the contract, remains the rights or liabilities of the company. It is the company that is either
the creditor or the debtor of a third party.