TERM 3 Flashcards
difference between subjective rights
each subjective right provides its particular powers
how does private law harmonise relationships between legal subjects
a subjective right always implies a corresponding duty
locus standi in iudicio
capacity to appear in court and be a party in civil proceedings
legal capacity
capacity to have rights and duties and to hold office
distinction between positive law and law in the subjective sense
in the subjective sense, law is viewed as different rights and duties which apply between persons and positive law is law as a normative system
law of persons
forms part of objective law that regulates the coming into existence, private law status and coming to an end of a natural person as a legal subject
subjective rights
legal network of legal relationships that exist between legal subjects and/or objects
legal subject
a person who can/is the bearer of rights, duties and capacities
requirements for the application of the nasciturus fiction
- fiction must be to the benefit of the nasciturus
- benefit must accrue to nasciturus after date of conception
- must be born alive in legal-technical sense
nasciturus fiction
unborn can be regarded as already having been born when it is to their advantage but does not grant legal subjectivity to the unborn
testate succession
when deceased expressed his will in the form of a legally valid will
intestate succession
when deceased did not leave a legally valid will to determine who will inherit his assets
ex parte boedel steenkamp
change in Wills Act to state that nasciturus fiction creates rebuttable presumption that not only children alive at time of testator’s death, but also those who have been conceived, stand to benefit
viability
ability of foetus to live with or without scientific aid but independent of mother, without being fed via the mother’s bloodstream
common law requirements for birth
- completion of birth i.e foetus must be completely separated from mother’s body
- must show a sign of life
legal subjectivity
ability of a legal subject, through their capacities, take part in legal intercourse
section 2
supremacy clause
section 9
equality clause
section 28
children’s rights
section 36
limitation clause
pali v diamond
customary law holds family head accountable for customary law delcits and crimes committed by family members
for something to be a delict
- an act
- must be wrongful
- must have caused damage
- act must be culpable by intention or negligence
- causation
capacity to litigate
capacity to be a party in a court case in a civil claim
capacity to act
capacity to perform juristic acts
