Persons

Question 1

Regarding persons, point the utility function of law.

Answer 1

It tells us how to deal with persons that engage the law.

Question 2

What does it mean to have a Legal Personality?

Answer 2

Means to be capable of having legal rights and duties within a certain legal system.

Question 3

Match:

A. Legal Personality
B. Legal Capacity

with:

1. Qualitative concept
2. Quantitative concept

Answer 3

A - 1

B - 2

Question 4

Is Legal Personality a necessary condition for Legal Capacity?

Answer 4

Yes. It’s a prerequisite.

Question 5

When does the acquisition of Legal Personality take place?

Answer 5

Within the transition of Natural Persons to Legal Subjects. This moment is governed by a positive and continent rule.

Question 6

Define both Natural Persons and Legal Subjects.

Answer 6

Natural Persons - human beings individually considered.

Legal Subjects - entities to which law acknowledges liability, the ability to hold rights and duties.

Question 7

When do human beings acquire and lose Legal Personality in Portugal?

Answer 7

They acquire it upon complete birth and lose it upon death.

Note:
Sometimes the legal system protects the “conceived but yet unborn” child, by attributing personality to the unborn child - nascituro - for the purpose of being the holder of a legal expectation to inherit.

Question 8

What does nascituro stand for?

Answer 8

Legal personality given to the “conceived but yet unborn” child for the purpose of being the holder of a legal expectation to inherit.

Question 9

Point the two perspectives of Legal Capacity.

Answer 9

Capacity of enjoyment and capacity of exercise.

Question 10

Define capacity of enjoyment.

Answer 10

Flows from the concept of inherent dignity of any person, that is, almost legal persons can benefit from enjoyment of active situations.

Question 11

Define capacity of exercise without assistance.

Answer 11

It’s about knowing to what extent each person is admitted to exercise those rights and comply with those obligations, without assistance.

Question 12

What kind of limitations are there for capacity of exercise?

Answer 12

Minority and diminished capacity (interdictions and inabilities).

Question 13

Minority limitation of capacity of exercise has one consequence. Point it.

Answer 13

Under aged child require representation from a parental authority or legal guardian.

Question 14

What are the two mechanisms the legal system created to protect people with diminished capacity?

Answer 14

Tutors and curators.

Question 15

In what cases does law sanction a tutor?

Answer 15

In the case of someone with legal personality, capacity of enjoyment but with no ability to exercise willingly and freely the rights that they are holders of.

Question 16

In what cases does law sanction a curator?

Answer 16

When the individual’s inability is less extreme.

Question 17

Distinguish tutor from curator, based on the power that they hold.

Answer 17

Tutor “corrects” the absence of capacity of exercise while the curator holds the power to authorise the will of the “person without ability to perform a specific act”.

Question 18

What are the four exceptions to the capacity constraint?

Answer 18

1. Minors may become emancipated through marriage.
2. Acts of governance over assets that a minor 16+ previously acquires through the outcome of his/work.
3. Acts related to a job that a minor was previously authorised to exercise.
4. Arrangements of minors’/disabled people’s everyday life that imply minor costs.

Question 19

What are collective entities made of?

Answer 19

They are composed by Prevalent or Preponderant substrate (reality subject to certain kind of organisation), either a group of individuals or assets that individuals manage.

Question 20

What requirements does a collective entity need to fulfil in order to have legal personality?

Answer 20

1. Organised substrate = existence of people/assets to achieve certain goals worthy of legal protection
2. Registration
3. Acknowledgement of Legal Personality to the Organised Substrate Recognition

Question 21

Should collective entities be awarded legal capacity?

Answer 21

Yes.

Question 22

What do we call collective legal capacity?

Answer 22

Special Capacity (is instrumental to the aims and interests pursued by the entities).

Question 23

What’s the factor that shapes the capacity to hold rights and to comply with duties by collective entities?

Answer 23

The scope of the entity = the purpose that the entity aims to achieve.

Question 24

What does the Principle of Speciality or Special Capacity say?

Answer 24

Collective entity’s capacity is limited to the conveniente and necessary powers to attain their objectives, the scope.

Question 25

How do collective entities act?

Answer 25

Collective persons act(/exercise their positions) through their Governing Bodies.

Question 26

Enumerate the intrinsic elements of a collective entity.

Answer 26

• Substrate
• Formal Organisation
• Legal Personality

Question 27

Enumerate the extrinsic elements of a collective entity.

Answer 27

• Scope (determines Capacity)

- Corporate purpose

Question 28

Define substrate.

Answer 28

A social organism subject to a certain kind of organization.

Question 29

What types of substrate are there?

Answer 29

Personal and Patrimonial.

Question 30

Define corporate purpose.

Answer 30

Profitable economic purpose.