Study Unit 1 Flashcards
The law of persons
Part of the objective law which regulates the coming into existence, the private law status, and the coming to an end of a natural person as a legal subject.
Objective law
The national law subdivided into private, public, and mercantile law. It is all rules/regulations seen collectively as a legal framework
Subjective law
The individual rights and duties that apply between persons, or between persons and objects
What does the objective law determine?
The content/scope of the subjective rights i.e., the objective law regulates the subjective law.
What is a person according to law?
A being, entity, or association capable of bearing legal rights and duties
Diff between natural persons & juristic persons.
Natural: Human Beings
Juristic Persons: Group/association of natural or juristic persons whose existence is independent of its members
What are the 3 types of juristic persons?
- Societies incorporated in terms in terms of a general enabling act (Companies).
- Societies created by separate legislation (Universities).
- Societies meeting common law requirements (Church).
What are subjective rights?
Network of relationships existing between legal subjects, or between legal subjects and objects.
Real Right
Object of the right is a physical thing. Ownership is a real right protected by a claim in rem, and they apply against the entire world. Everyone else has a duty in respect of that real right (i.e., to respect your property).
Personal Right
object of the right is a performance. Personal rights operate against a particular person (who owes the performance) and are protected by claims in personam.
Personality Rights
object of the right is an aspect of your personality (reputation, privacy etc). Everyone has certain personality rights, and they will have claims if infringed upon. Personality rights protected in SA: physical integrity, bodily freedom, reputation, dignity, and privacy. These too operate against the whole world.
Intellectual Property Right
Subjective Right = Intellectual
Property Right
What are the 4 rights ?
Real, Personality, Personal & Intellectual Property Right
Define Capacity
Ability/competence; what a legal subject is able to do according to the law
What are the 4 Capacities
Passive Legal Capacity
Capacity to Perform Juristic Acts
Capacity to be held delictually Accountable
Capacity to Litigate
Passive Legal Capacity
Capacity to possess legal rights and duties.
No positive action required from you
The law inherently confers them due to you being a natural person. Can also be seen as the ability to hold a certain office (because if you can hold that office you will, naturally, inherit the rights/duties of that office).
Capacity to Perform Juristic Acts
Voluntary human acts to which the law attaches at least some of the consequences intended by the party performing the act.
This involves one’s ability to actively change their legal position.
Person is only capable of this capacity if capable of understanding the legal nature/implications of their acts.
Examples:
entering contracts, marriage, acquisition/alienation of property, making a will, consenting to medical treatment, and holding office.
Capacity to be held delictually Accountable
The ability to distinguish between right/wrong and act in accordance. A person can only be held liable for a delict/found guilty of a crime if negligence/intention was present.
Intention v Negligence
Intention: deliberate act of doing something with awareness of the consequences
Negligence: carelessness of a particular kind.
Reasonability Test
If a reasonable person in the same circumstances would’ve taken steps to prevent the negligent outcome, then negligence was present. A person will have accountability if they are culpae capax
culpae capax
- Are capable of the requisite mental ability to distinguish between right/wrong.
- Have the requisite ability to act in accordance with this distinction.
Status
What legal capacities they have
Sum total of one’s juridical capacities and is based on one’s membership to a particular class/group based on age, physical/mental disability, domicile, sex, gender, prodigality, intoxication, etc
Which group you belong to is not a choice and, consequently, the capacities conferred by that status can’t be changed; they are conclusively fixed.
In order for justice to avail everyone must be treated the same unless circumstances dictate otherwise.
The law doesn’t care about ALL categories e.g., people with blue eyes.
