Law of Persons - week 1.pdf

Law of Persons LWPLA-B22 Week 1 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is regist...

Law of Persons LWPLA-B22 Week 1 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008 PRESCRIBED MATERIAL Textbook - NB MyLMS Cases More? ASSESSMENTS FORMATIVE SUMMATIVE Quiz - week 3 Examination week 8 Test - week 6 Deferred - week 7  one class representative CLASS REP one deputy representative What will be covered in this week? Define and explain foundational concepts used in private law. Identify and apply the concept of nasciturus fiction to a set of facts with reference to case law. Explain legal personality and the legal requirements for the beginning of legal personality. Explain the importance of registration and naming of legal persons and the changing of legal names. Discuss how juristic personality is formed. Explain how legal personality is terminated through death and apply the legal principles to a set of facts. With reference to case law, discuss the termination of pregnancy in relation to legal personality. Definition: the law of persons That part of PRIVATE LAW, That determines which entities are LEGAL SUBJECTS, When legal personality BEGINS and ENDS, What LEGAL STATUS involves, and What EFFECT various FACTORS have on legal status.  Law of persons as part of Private law Law of persons falls under private law. Private law deals with the status of persons and with their relationship with each other and with legal objects. In this context, the law of persons deals with the characteristics and status of legal subjects (juristic and natural persons). INTRODUCTION TO LAW OF PERSON Also, legal subject  Kinds / categories of legal subjects: The natural person: The juristic person: Human beings – ALL! Certain associations of natural persons 1. Associations incorporated ito a general enabling act, e.g. company 2. Associations created and recognised – separate legislation, e.g. SABC 3. Association complying with common law requirements: continued existence + rights and duties + not for gain  The connection between law and rights: The content THE LAW… DETERMINES… & EVERY RIGHT. The limit Legal subject? Legal object? Any entity that has… Any object that has… Rights Economic value Duties NO rights, duties, Capacities capacities Recognised as such CANNOT participate in by the law of SA. legal and commercial traffic. LEGAL PERSONALITY Kinds / categories of legal objects: Performance Corporeal things Human act – Separate, tangible something is given, Real rights done or not done Personal rights Personality property Immaterial property Aspects of a person’s Product of the human personality – e.g: dignity intellect (idea Personality rights contained in product) Immaterial property rights. GROUP ACTIVITY 1  “Transformative constitutionalism allows for animals to have legal rights, therefore, animals are GROUP animals legal subjects?” ACTIVITY 2 How far do you agree/disagree with this statement? Can human beings be considered as legal objects?  Legal capacity passive legal capacity’ ‘active legal capacity’. Active legal capacity 1. Capacity to perform juristic acts. 2. Capacity to be held accountable for wrongdoing (delicts and crimes) 3. Capacity to litigate What is status?  FORMS OF LIABILITY It can happen that a person`s rights are infringed, and they need to approach the court for legal redress. Before a person goes to court, they will need to determine the ground which they will rely on to institute a civil claim against the other. The recognized grounds of liability include the following:  Constitutional Rights Public law rights. Constitution is supreme. No rule of law should violate the Constitution. Useful remedies, defences and doctrines  Rei vindicatio Condictio Exceptio non adimpleti contractus Aquilian action Action for pain and suffering Doctrine of estoppel We will cover these concepts during the course of semester, but let’s get a feel for them… i. Rei vindicatio: Property-based remedy Allows the owner of a thing to recover it from anyone who is in possession of it ii. Condictio: Used to recover money when one person enriched at the expense of another ii. Exceptio non adimpleti contractus Defence available where parties owe reciprocal obligations If A sues for performance but has failed to perform, B can raise this defence to withhold his performance iv. Aquilian action: delictual remedy Used to claim damages for patrimonial loss v. Action for pain and suffering delictual remedy For non-patrimonial loss caused by physical injury E.g. pain, suffering, disfigurement vi. Estoppel Where A has lied And B has relied on that lie to his disadvantage A will be prevented (estopped) from relying on the truth in his defence Chapter 3 Beginning of legal personality LEGAL PERSONALITY A natural person’s legal personality begins at birth. A foetus is not regarded as a legal subject but merely forms part of its mother. It only attains legal personality once it is born alive. The requirements for the beginning of legal personality are the following: Birth must be fully complete Separation between the mother and child Born alive Jabu is a successful surgeon, who is diagnosed with a terminal illness. He contacts his attorney to draw up a will, as any prudent person in his position would do. Jabu’s will contains the following clause: “I leave my entire estate to my wife Alexis, and my children, who are alive at the date of my death.” Sadly, Jabu dies six months later due to organ failure. At the time of his death, Alexis and Jabu have a 15-year-old son, Thulani, and Alexis is seven months pregnant with their second child (who they plan to name Diablo, after her birth). Imagine a situation like this, will Diablo be considered to inherit when he is eventually born? THE NASCITURUS FICTION  The nasciturus fiction has its origins in the law of succession and was invented to cater for the perceived unfairness of situations. The nasciturus fiction is employed to protect the potential interests of an unborn child. Requirements Child must have been conceived at the time the benefit/ advantage accrued Child must have been born alive Questions for Discussion Read Facts Ex parte Boedel What happened in Steenkamp this case Legal question Nasciturus Identify the legal Does this apply in question this case? Questions for Discussion Read Facts Pinchin v Santam What happened in this case Legal question Nasciturus Identify the legal Does this apply in question this case?  Termination of Pregnancy 1 General The Choice on Termination of Pregnancy Act 2 Circumstances in which a pregnancy may be terminated Is a foetus a human being? CASE - Christian Lawyers Association v Minister of Health Pregnancy termination is regulated according to weeks of gestation: a) During the first 12 weeks of gestation b) From the 13th up to the 20th week of gestation c) After the 20th week Case Study Steward is an aging pop star, who finds out that his liver is failing due to a life of partying and alcohol abuse. He contacts his attorney and draws up a will in which he leaves his entire estate to his daughter Anne and her children “who are alive” at the time of his death. Six months later Steward dies due to liver failure, while playing a drinking game at his local bar. At the time of his death, Anne has a son Theo who is sixteen years old, and she is six months pregnant with her second child (who is going to be named Nina after her birth). Theo comes to see you three months later because his grandfather’s estate is about to be divided between him, his mother and his recently born sister. Theo is unhappy with the fact that he has to share the money with a sister that was not even born yet when his grandfather died.. Discuss, with reference to case law, whether the nasciturus fiction will make it possible for Nina to inherit Questions for Discussion / debates 1. Should abortion be illegal? Give good arguments for both sides of the debate. 2. Does South Africa protect the unborn child sufficiently? 3. Will Pinchin No v Santam Insurance 1963 2 SA 254 W be decided differently today? Quiz Indicate whether the following statements are true or false: 1. Eduvos is a legal object. False, legal subject 2. A motor vehicle is a legal object True 3. A student at Eduvos is a juristic persons False, natural person 4. A slave during Roman times would have been a legal subject False, legal object 5. Ownership gives a real right to the owner True 6. A personal right gives a right to performance True 7. Typically, personal rights flow from a contract. True 8. A person’s dignity forms part of personality rights. True 9. The nasciturus fiction is only applicable in the area of delict False, succession 10. For a legally valid birth, the umbilical cord must be cut. False  Activity QUESTION When Shanice is seven months pregnant, she is seriously injured in a motor vehicle accident. The accident is caused by Vuyu, the driver of the other vehicle. Two months later she gives birth to a baby girl named Naledi. Naledi is born with severe brain damage. Naledi’s doctor alleges that the brain damage is as a result of the motor vehicle accident (while Shanice was still pregnant). With reference to case law, discuss whether Naledi and her parents need to use the nasciturus fiction to claim damages for the injuries she sustained in the accident while in utero. (Use the IRAC method to answer this question). Preparation for next class Chapter 4 (Minority: How Age Affects Status and Capacity)