Legal Rights PDF

Chapter Two Legal Rights 18  Rights Law consists of the body of principles that govern conduct and that can be enforced in courts or by administrative agencies. The law could also be described as a multitude of rights. I. Definition A right is a...

Chapter Two Legal Rights 18  Rights Law consists of the body of principles that govern conduct and that can be enforced in courts or by administrative agencies. The law could also be described as a multitude of rights. I. Definition A right is an interest or a power recognized and protected by law. Rights in Egypt flow from the constitution and the ordinances at the local level. Duties are the other side of rights, they are also found within the sources of rights. A duty is an obligation of law imposed on a person to perform or refrain from performing a certain act. II. Classification of Rights Rights can be classified into various kinds. Primarily, we can distinguish between political rights and non political rights. 1) Political Rights Are those which enable their holders to participate in governing and administering the country, like the right to vote in the election, and the right to be appointed in public offices. 19  Political rights are neither enjoyed nor exercised by all members of the society, only citizens may exercise such rights. 2) Non Political Rights or Civil Rights They do not relate to the government or public administration of the country. Non political rights are divided into two kinds: public rights and private rights. a. Public Rights Public rights are those enjoyed by all persons, merely, as a consequence of the fact of existing in the society. They are also called 'Public Freedoms' because they concern people as a whole. For example: the right to privacy, the right to work, and the right to travel. The foregoing rights are shared by all members of society, whether they are citizens or aliens, men or women. Such rights cannot be evaluated by money. But if one of them is an object of aggression, its holder is entitled to legal protection which may include an award of money compensation. b. Private Rights Private rights are enjoyed only by some definite individuals and not by the people as a whole. 20  Private rights are divided into three kinds; incorporeal rights, family rights, and pecuniary rights. i. Incorporeal Rights In corporeal right means a right over an incorporeal thing. One may acquire a right over an intangible thing. Such right may be a copy right if its object is thoughts and opinions expressed in a book, songs or a piece of music. These rights are called intellectual property. The incorporeal right may have -as an object- an invention or discovery. In such case, it is a patent right or industrial right. ii. Family Rights Family rights arise from the relation between husband and wife, parents and children. Such rights are not of a pecuniary character because they cannot be evaluated by money, for example, the right to co-inhabitation and that to alimony for wives, sons and daughters. iii. Pecuniary Rights Pecuniary rights are those which have money value, or in other words, form part of a person’s wealth. Pecuniary rights are of two kinds; personal rights and real rights. 21  - Personal Rights or Obligations A personal right or an obligation is a legal relation between two determinate persons; the creditor is entitled to claim some act or forbearance from the debtor. If A owes B one hundred pounds, then A is under an obligation to pay B this sum of money, and B has a personal right to claim the payment of this money. The right is therefore held by one determinate person, B; the creditor. The obligation is imposed upon one determinate person, A; the debtor, and not upon all persons. That's why personal right is relative. - Real Rights A real right is a power which entitles its holder the enjoyment of a determinate thing. A real right does not correspond to a duty imposed upon a determinate person or persons. It is recognized and protected against all persons, that is why it is called an absolute right. For example, ownership is a real right. It entitles its holder the power to use the thing he owns, to enjoy its fruits, and to dispose it by will. Meanwhile, no one can interfere with the owner's power. 22  III. ELEMENTS OF RIGHTS 1. Holder of the Right In law, a person is one capable of holding a right or bound by a duty. The scope of personality is larger than the class of human beings. For a certain purpose, law treats some entities as holders of rights and duties. Thus, persons are of two kinds; juristic and natural. a. Juristic Person: A juristic person is any non human being to whom law attributes personality. Juristic persons only exist in law, but not in reality. That is why juristic persons are also called fictitious, artificial, or moral persons. i. Commencement of Juristic Personality Juristic personality does not commence unless the law attributes it to a group of persons or to a certain fund. Recognition of law may either be:  Special Recognition: when law states explicitly that a certain institution or organization has a separate legal personality, (e.g. Suez Canal).  General Recognition: it may be a recognition of a general character. An example of general recognition can be found in article 52 of Egyptian Civil Code which states that corporations and associations are juristic persons. 23  ii. Extinction of Juristic Persons The juristic person ceases to exist in the following cases: 1. The expiration of the term fixed for the juristic person. 2. The fulfillment of the purpose for which the juristic person was constituted. 3. The common consent of the members of the juristic person. 4. The dissolution of the juristic person by a court order or by an administrative act for reasons provided in law. iii. Characteristics of Juristic Personality 1. A Name. 2. A Domicile: Is the place where its seat of management is situated. 3. A Capacity to Enjoy: A juristic person has a capacity to enjoy. However, it does not enjoy the rights which are inherent in the nature of an individual, such as family rights. 4. A Capacity to Exercise: It has the right to sue and to conclude contracts. 5. A Patrimony: Is the sum total of the pecuniary rights and obligations of the juristic people. This patrimony is independent of the patrimony of its members. Thus, the debts of the juristic person are secured by all its assets or property. 24  6. A Representative: It must have a representative to express, its will, which may be an individual or a group of individuals. iv. Kinds of Juristic Persons Juristic Persons are of two kinds: a. Public Juristic Persons This type includes organizations, authorities, and governmental departments, (e.g. governorates, towns, villages, railways, and universities.) Public juristic persons are attributed some powers and privileges which enable them to perform the public services commissioned to them, such as the power to levy taxes and duties, to expropriate land for public use. b. Private Juristic Persons They may be either a group of persons or a fund. * A Group of Persons: some persons may consent to co- operate to achieve a common purpose (e.g. a company) * A Fund: is the sum of money or a certain property dedicated to realize a philanthropic, religious, scientific, artistic, or sporting purpose. Such a fund may take the form of a Wakf or a Foundation. 25  b. Natural Persons Natural persons exist in both law and reality. i. Commencement and extinction of personality The personality of a human being commences at his birth, and ends by his death. Prior to birth as well as after death, no one is capable of acquiring rights and bearing obligations. 1. Status of a Conceived Child A conceived child is not a person because he is not yet born. The general rule is that a conceived child has no personality and thus cannot acquire rights or obligations. But the law recognizes a limited personality to children in wombs. Such conceived children may acquire rights by inheritance or by a will on condition that they would be born alive afterwards. 2. Status of a Missing Person A missing person is not known whether he is dead or alive. The law provides that such person may be declared dead by a court judgment after lapse of a certain time. Once this judgment is rendered, the person is deemed dead and his personality becomes extinct. Consequently, the wife of that person becomes a widow, and his property is divided among his heirs. 3. Proof of Birth and Death Facts of birth and death are usually proved by authentic records in which such facts are registered. But if such 26 registration is lost, then birth and death may be proved by any means of evidence. ii. Characteristics of natural Personality Each person must have a name, a domicile, a status, a patrimony, and a capacity. 1. Name The name is necessary to distinguish one person from another. That is why law obliges every person to have a name. The name of a person is protected by law. If there is an infringement upon a person's name, he will have the right to demand the cessation of the infringement, as well as compensation for any damage sustained. 2. Domicile It is important to determine where a person resides or exercises his profession. A domicile is the place where a person habitually resides. Such domicile is called the general domicile. A place where a person resides temporarily is not a domicile. Thus, a hotel where a person stays while he is on a journey is not his domicile. It happens that a person may have more than one domicile. For instance a man, who is married to two wives and divides his presence between the residences of his wives, has two domiciles. A person may have no domicile. For 27 example, a shepherd does not settle in one place. Such domicile is called the mandatory domicile. 3. Status It is the condition of being a member of a particular group (e.g. class, family, state or a religious sect). As a result of such membership, the individual will have a family, nationality, and religion. A person's status has some influence upon his legal condition. The family of a person is composed of his relatives. Nationality means belonging to or membership of a state. Such membership creates certain rights and duties upon holders of this membership who are called citizens. For instance, law attributes political rights such as the right to vote for the citizens only. Political rights are not entitled to aliens. On the other hand, some duties lie only upon citizens like the duty of military service. As for religion, the domestic relations in Egypt are subject to law which differs according to the religion of parties. For example, a husband and a wife are regulated by Islamic Shariaa if they are Muslims. 4. Patrimony The patrimony is the sum total of the pecuniary rights and the sum total of the obligations of a person, conceived as assets. Patrimony is inherent in the personality and every person has a patrimony. 28  5. Capacity It is of two kinds either to enjoy or to exercise. - Capacity to enjoy: it is the ability of acquiring rights and bearing obligations. The person acquires the capacity to enjoy from the moment of his birth irrespective of his mental condition. - Capacity to exercise: It is the ability of conducting valid and legal acts in the eyes of law. It depends on two main elements: age and mental condition; age and metal conditions: - Age (includes three main stages): * From birth but before reaching the age of seven (devoid of discretion). * From seven but before reaching twenty one (partial or incomplete capacity). * From the age of 21 to the time of death, a person is said to be major. A major person has full capacity to exercise all his rights. - Mental condition: People attaining the majority are in possession of their full mental capabilities. Such persons have full legal capacity to exercise their rights. 29  * Personal Property versus Real Property Real property is land and anything embedded in it such as oil tanks. It is also anything attached to land like buildings or trees. Personal property is movable property like books, clothes, or stocks in a corporation. It can be tangible or intangible. * Intellectual Property Rights They take many forms like the writings of an author, the invention of an inventor, or a company name. Law allows the owner of a building the exclusive right to use and enjoy the property. If someone else tries to use the property without the owner's consent, the owner may refer to court and legal procedures to prohibit that person from trying to use his own property. 5) Trademarks and Service Marks: Law grants a producer the exclusive right to register a trademark and prevent competitors from using that mark. These laws assure the producer that no imitating competitor will reap the financial, reputation or any other related rewards of his owned product. Mark is any word, name, symbol, device or a combination of all these used to identify a product or a service. If this mark identifies a product, then it is a trade mark. If it identifies a service, then it is a service mark. 6) Patents: A patent may be viewed as an agreement between an inventor and the government. Under that agreement, 32 the inventor obtains the exclusive right, for a limited time, to make use, and sell his invention in return for making the invention public by giving the government certain information about it. This monopoly encourages the creation and the disclosure of the invention by stopping another party from appropriating it once it becomes public. 7) Copyrights: Law gives certain exclusive rights to creators of original works of authorship. It prevents others from using their work, gives them an incentive to innovate and thereby benefits the society. Copy right protection does not extend to ideas, facts, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, rather, it protects the way in which they are expressed. 33