Law Of Person PDF

LAW OF PERSON Preliminary Knowledge Why should we acknowledge the beginning of the personality? Persons = Subject of Law The Beginning and Ending of the personality Section 15. “Personality begins with the full completion of birth as a living child and ends with death” What...

LAW OF PERSON Preliminary Knowledge Why should we acknowledge the beginning of the personality? Persons = Subject of Law The Beginning and Ending of the personality Section 15. “Personality begins with the full completion of birth as a living child and ends with death” What is the full completion of birth? What is the definition of “Living”? Ending of the Personality The personality should be terminated with death. The death, by law, can be classified into two classes i.e. Death Disappearance Disappearance 1. Disappearance in normal case. Someone who has left his domicile or residence and it has been uncertain for five years, by section 61 paragraph 1, he is deemed to be disappearance. 2. Disappearance in special case. Someone who disappears for two years in the following situations, he is deemed to be disappearance along with section 61 paragraph 2. Revocation of disappearance The authorities, by law, interested person or the Public Prosecutor, have been entitled to ask for the revocation of disappearance, if they could prove along with the following situations: 1. the person who has disappeared is living or 2. has died at a time different from that specified in Section 62, five years or two years consecutively up to the case. The legal consequences 1. Respecting the family status Exercising the parental power Being husband or wife 2. Respecting the inheritance Capacity of Person 1) Minor 2) Incompetent 3) Person of unsound mind 4) Quasi-incompetent Minor Section 19. “A person, on the completion of twenty years of age ceases to be a minor and become sui juris.” sui juris 1. When he/she reaches to twenty years old of age (follow by section 19) or 2. Upon the marriage, provided that the man and woman have completed their seventeenth years of age. In addition, man and woman have to get the permission from their parents for their marriage. (follow by section 20 and 1448) Capacity of Minor Section 21. For the doing of a juristic act, a minor must obtain the consent of his legal representative. All acts done by him without such consent are voidable. Void & Voidable  Void Section 172. A void act cannot be ratified, and its nullity may be alleged at any time by any interested person. The return of a property arising from a void act shall be governed by the provisions on Undue Enrichment of the Code.  Voidable (Section 175) A voidable act may be avoided by : (1) The legal representative or the minor after becoming sui juris, but the avoidance can be made by the minor before his becoming sui juris if a consent thereto has been given by his legal representative, or (2) The person adjudged incompetent or quasi-incompetent after he has recovered his capacity, or by the guardian or curator, as the case may be, but the avoidance can be made by the quasi-incompetent before recovery of his capacity if a consent thereto has been given by his curator, or (3) The person who has made the declaration of intention owing to mistake, fraud or duress, or (4) The person of unsound mind who did the voidable juristic act under Section 30 after he has recovered his capacity. If the person who did the voidable juristic act dies before making the avoidance, it may be avoided by his heir. Legal Representative of Minor 1. Persons exercising parental power which are his parents or 2. Guardian, in case that the minor has no parent. The exception of capacity of minor Section 22. A minor can do all acts by which he merely acquires a right or is freed from a duty. Section 23. A minor can do all acts which are strictly personal. Section 24. A minor can do all acts which are suitable to his condition in life, and actually required for his reasonable need. Section 25. A minor, after completing fifteen years of age, can make a will. The incompetent Person The incompetent is a person of unsound mind who has been adjudged by the Court to be incompetent. (Section 28) Conversely, if the unsound mind person has not been adjudged by the Court to be incompetent, he is just a person of unsound mind. (Section 30) Section 28. A person of unsound mind may be adjudged incompetent by the Court on the application of any spouse, ascendants, descendants, guardian or curator, a person taking care of the person or of the public prosecutor. The person adjudged incompetent under paragraph one must be placed under guardianship. The appointment of guardian, power and duties of guardian and termination of guardianship shall be in accordance with provisions of Book V of this Code. The order of the Court under this Section shall be published in Government Gazette. Persons who entitled to file the application to the court 1. A spouse (a husband or wife of a person who may be adjudged incompetent), or 2. Ascendants (a father, mother, grandfather, or grandmother of a person who may be adjudged incompetent), or 3. Descendants (a child, or nephew of a person who may be adjudged incompetent), or 4. Guardians or curators, or a person taking care of the person (persons are legally appointed and responsible for looking after a person who may be adjudged incompetent), or 5. The Public Prosecutor  Capacity of Incompetent Section 29. An act done by a person adjudged incompetent is voidable.  Ceasing of Incompetent Section 31. If the cause of the incompetency ceases to exist, the Court shall, on the application of the person himself or of any of the persons mentioned in Section 28, revoke the adjudication. The order of the Court revoking the adjudication under this Section shall be published in the Government Gazette. Person of Unsound Mind The unsound mind person is the person who has the mental illness and incapable of managing himself of his affairs. The term, therefore, includes insane person, idiot, imbeciles, etc. Capacity of the unsound mind Section 30. An act done by a person of unsound mind but not adjudged incompetent is voidable only when the act was done at a time when he was actually of unsound mind, and the other party had knowledge of such unsoundness. Quasi-incompetent The quasi incompetent is a person who is incapable of managing his own affairs because of (Section 32) 1. physical infirmity (persons are infirm and unable to earn their living such as a severely disabled polio patient), or 2. mental infirmity (persons are unconscious including uncontrollable such as an insane person), or 3. habitual prodigality (persons are always extravagant leading to of managing their own affairs, for instance, Mr.A is always extravagant with gambling, thereby contributing him to having no money enough for his own business.), or 4. habitual intoxication (persons are alcoholic)  Section 32 A person who has physical or mental infirmity, habitual prodicality or habitual intoxication or other similar causes that make him incapable of managing his own affairs, or whose management is likely to cause detriment to his own property or family, may be adjudged as quasi-incompetent by the Court upon an application by any of the persons specified in Section 28. The person adjudged quasi-incompetent under paragraph one must be placed under curatorship. The appointment of curator shall be in accordance with the provisions of Book V of the Code. The order of the Court under this Section shall be published in the Government Gazette. Capacity of Quasi-incompetent According to the law, it can be concluded that, regularly, an act done by the quasi-incompetent is enforceable even lacking of the consent of his curator. Only for the acts prescribed within section 34, the quasi-incompetence has to gain the consent from his curator before doing them, otherwise it will be voidable  Section 34. A quasi-incompetent person must obtain the consent of his curator for doing the following acts: (1) Investing his property. (2) Accepting the return of the invested property, principal or other capital. (3) Contracting a loan or lending money, borrowing or leasing value movable. (4) Giving security by any means whatever that effects him to make a forced payment. Continue  Section 34. Continue (5) Hiring or letting property longer than six months if the property is movable, or three years if the property is immovable. (6) Making a gift, except the gift made suitable for situation in his life, for philanthropy, social or moral obligations. (7) Accepting a gift encumbered with a charge or refusing a gift. (8) Doing any act whose object is the acquiring of, or parting with, a right in an immovable or a valuable movable. Continue Section 34. Continue (9) Constructing, modifying building or other structures, or making extensive repairs. (10)Entering an action in Court or doing any legal proceedings except the application made under Section 35 and the application for removal of his curator. (11)Making a compromise or submiting a dispute to arbitration. Any act contrary to the provisions of this Section is voidable.  Ceasing of quasi-incompetent Section 36. If the cause for the Court adjustment of the quasi-incompetence ceases to exist, the provisions of Section 31 shall apply, mutatis mutandis. mutatis mutandis = with necessary change in points of detail