Introduction to Law of Persons

Introduction to Law of Persons

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• The registration number is 2007/HE07/002 and company registration number is 1987/004754/07.
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Defining Private Law

• South African National law divides into public, private, and procedural law.
• Private law is 'civil' and addresses relationships between private individuals.

Defining Law of Persons

• Law of persons outlines rules for being a legal subject.
• A legal subject possesses rights and obligations under national law.
• Determines who qualifies as a legal subject.
• Clarifies the different types of legal subjects and their legal positions.

Key Concepts in Law of Persons

• Legal capacity is the ability for a legal person to exercise legal rights and take legal action.
• Legal subjects are also known as legal persons and can be human or juristic entities, like a company.
• Legal subjects can own or control legal objects.
• Legal objects are inanimate, excluding registered entities with special juridical rights.

Real vs Personal Rights

• Real rights are enforceable against the whole world.
• Personal rights are enforceable against specific people.
• Ownership is the most important real right.

Reciprocal or Reciprocity

• Reciprocity requires giving something in return, such as tendering payment in a sale.
• A tenant's duty in a lease is to maintain the property's condition.
• Spouses owe each other a reciprocal duty of support when married.

Element of a Contract

• Essential elements include Legal Capacity, Prescribed Formalities, Legality, Possibility, and Consensus ad idem.
• Consensus ad idem means offer and acceptance.

Consent

• An important part of entering into a contract is your ability or capacity to act.
• Consent to a contract may be voided if you aren't mentally able to appreciate your decision, or the law says so
• Certain classes of people require the consent of another person before the contract will be valid and have limited capacity, for example:
  • Pupilus Minors require consenting Parents or Guardians
  • Insane individuals require a Curator
  • Insolvent individuals require a Trustee
  • Individuals in a Marital Regime require a Spouse ICOP

Capacity

• Natural persons over 18 have full contractual capacity.
• Juristic persons have the capacity to enter into contracts authorized by their statutes.
• A company can enter contracts its memorandum of incorporation permits.

Contractual Capacity of a Minor

• A minor is unmarried and hasn't reached majority.
• The Children's Act 38 of 2005 defines a major as a child (male or female) upon reaching 18 years.

Effect of Minority on Contractual Capacity

• Minors aged 0-7 (infans) cannot enter contracts, needing a legal guardian.
• Minors aged 7-18 (pupillus) need parental/guardian assistance and have limited contractual capacity.
• Contracts entered with assistance are valid and binding.

Effect of Assisted & Unassisted Contracts

• A duly assisted contract binds the minor, not the guardian
• The guardian incurs no personal liability.
• Assistance includes parental/guardian knowledge of the minor's intent to contract and their consent.
• Consent can be express (written/verbal) or implied.
• A minor who contracts without assistance is not bound by the law of contract.
• Unassisted contracts are known as limping contracts.
• A minor is not bound/doesn't have to perform, giving the other party exposure to the contract; its binding on the other party (adult.)

Limping Contract Options for Minor

• Minors can choose to enforce the contract (ratification.)
• Minors can choose not to enforce the agreement (repudiation.)

Repudiation

• Repudiation invalidates the contract as if it never existed.
• Effects on Minor: Must return money or goods. Return as per the law of unjustified enrichment.
• Effect on Major: Return done according to the law of contract.

Ratification

• During ratification the minor binds himself to the contract, the other party is also is bound and has no choice but to perform under the contract.
• Effect on Minor: bound to the contract
• Effect on Major: Bound to the contract

Contractual Capacity Summary

• Children under 7 have no legal capacity and are also known as infans
• Minors aged 7-18 need parental/guardian assistance
• Assisted contracts for minors aged 7-18 are valid
• Minors can ratify or not contracts, creating a "limping contract"

Marital Regimes

• Civil marriages are government by the theee types of property regimes
  • In Community of Property (ICOP)
  • Out of Community of Property (OCOP)
  • Out of Community of Property with the Accrual system

Marriage in Community of Property (ICOP)

• In ICOP, pre-marriage assets merge into a joint estate.
• Pre-marriage liabilities become joint.
• Assets acquired during the marriage are jointly owned.
• Shared liabilities acquired during the marriage.
• Upon divorce or death, the estate divides in half.

General Rule for Spouses

• Both spouses in ICOP have full contract capacity and can incur rights/obligations.
• Agreement is needed for actions prejudicial to the joint estate.

Consent

• Types of consent include formal (written, witnessed), written (no witnesses), and informal (verbal).
• Contracts lacking consent are void, unless the other party was unaware of the lack of consent.

General Rule

• All natural persons over 18 have full contractual capacity.
• Minors, married, mentally ill, intoxicated, and insolvent persons have limited contractual capacity.
• A minor is unmarried and hasn't reached majority.
• Under s24(2) of the Marriage Act, a minor becomes a major upon marriage.

Differentiating Groups

• Children under 7 have no legal capacity, known as infans
• Minors aged 7-18 need parental/guardian assistance to engage in contracts
• Contracts become valid only when there is and assisted contract in in terms of common law and the minor is required to perfom.
• Depending on whether there is an unassisted contract if there is common law, the minor may ratify or it will be a Limping contract.

Interaction with Other Branches of Law

• Intersects with Family Law
• Intersects with Law of Contract
• Intersects with Law of Delict
• Intersects with Law of Succession

Example Private Law

• To determine the use of legal practice use as a guideline to form groups
• The groups should consist of 5 persons and follow the private laws: 1 - Area of private law 2 - Facts of the matter 3 - Proposed solution 4 - The applicable court/forum to settle the matter 5 - Ensure that group members each present and follow proper document referencing

Family Law

• Family law governs marriage requirements and relationships between parents and children.
• It encompasses polygonal, same-sex families, Unmarried, Extended families as well as diverse families and single parent with children.

Interpersonal Relationships

• Focuses on interactions and connections that establish responsibilities like marriage and adoption.

Other Relationships to Legal Law

• Nomine officio describes "in official capacity"
• Nominee roles include stepping into the shoes of another, Executors in Law of Succession, and Business Rescuers in Commercial Law.
• Guardianship grants parental rights/responsibilities to a third party when the child's parents can't fulfill them.

Parental Rights and Responsibilities (PRR)

• In guardianship this means safeguarding the child’s property and interests.
• Guardianship entails Assisting or representing the child in administrative, contractual and other legal matters
• Being able to Give or refuse consent with various aspects:
  • consent to marriage
  • consent to adoption
  • consent to departure or removal, consent to a passport application
  • consent for the alienation or encumbrance of immovable property

Considerations

• Discussing legal consequences of a valid marriage
• considering the spouses capacity to act and litigate in regards to children of the marriage.

Types of Interpersonal Relationships

• Include Engagement, Parent/child, surrogacy, Types of marriages, Adoption and Divorce.