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Law of persons > Theme 1 > Flashcards

Theme 1 Flashcards

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1
Q

What is a person as defined by law?

A

The law defines a person as someone or something that can have legal rights and duties.

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2
Q

What does the rights and duties of a person depend on?

A

The rights and duties of a legal person depend on that person’s status in law and the capacities that status gives

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3
Q

How does Boberg define person?

A

Boberg states that a person may be defined as a being, entity or association which is capable of having legal rights and duties

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4
Q

What is legal personality?

A

All persons have a legal personality, which describes the quality of being a person.

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5
Q

What is legal subjectivity?

A

Legal subjectivity emphasizes the legal aspects of a person’s activities and existence, it is similar to a legal personality.

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6
Q

What are the various classes of rights and what are the legal objects to which the right relate?

A
  • Physical things, the right is a real right. It operates against the whole world. Everybody else in the world has a corresponding duty towards each other.
  • Performances, the right is a personal right. It operates primarily against a particular person, the person who owes the performance.
  • Aspects of your personality, the right is a personality right. Every person has the right to these aspects of personality and may claim damages if they are infringed. They have a duty to respect these rights and must not interfere with them.
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7
Q

What are the personality interests protected in South Africa?

A
  • Physical integrity (the body)
  • Bodily freedom
  • Reputation (good name)
  • Dignity
  • Privacy
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8
Q

What are private law rights and public law rights?

A

Real rights, personal rights and personal rights are private law rights. Constitutional rights are public law rights.

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9
Q

What is capacity?

A

Capacity means ability or competence, it refers to what a person is capable of doing in terms of the law.

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10
Q

What is passive legal capacity?

A

Passive legal capacity means the capacity merely to have legal rights and duties. No effort or positive action is necessarily required of you.

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11
Q

What are juristic acts?

A

Juristic acts are voluntary human acts and expressions of will of the person performing the acts which have intended legal consequences.

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12
Q

What is the capacity to perform juristic acts?

A

The law only recognises capacity to perform juristic acts if the person is capable of understanding the legal nature and legal consequences of their acts. It refers to a person’s capacity to actively change your legal position.

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13
Q

How does Boberg define passive legal capacity?

A

Boberg defined passive legal capacity as the capacity merely to have rights and duties. All personas have passive capacity and can be bearers of rights and duties.

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14
Q

Who can be found guilty of crimes?

A

A person can only be found guilty of a crime or liable for a delict if they acted with fault. If the person is capable of having the mental status of intention or negligence they can be held accountable for their crimes and delicts.

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15
Q

What is culpae capax?

A

If a person is accountable they are culpae capax

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16
Q

A person will be held accountable for crime and delict if?

A
  • The person has the mental ability to distinguish between right and wrong
    The person is able to act in accordance of their understanding
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16
Q

What is the capacity to litigate?

A

The capacity to litigate means the capacity to be a party to a lawsuit, either as a plaintiff or as a defendant. People’s capacity to litigate is referred to as their locus standi in judicio.

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17
Q

What is status in law?

A

The word status means your standing in the eyes of the law. A person’s legal status is based on membership of a particular class or group.

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18
Q

What does it mean when you have no legal capacity?

A

This generally means that a legal subject cannot exercise a capacity by themselves as someone else with full capacity has to do it on their behalf.

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19
Q

What does it mean when you have have limited legal capacity?

A

This generally means that a legal subject can exercise a capacity but with the assistance of someone else who has no limitations to their capacity.

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20
Q

What does it mean when you have have full legal capacity?

A

This generally means that a legal subject can exercise a capacity by themselves without any limitations or without the assistance of others.

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20
Q

How does sex, gender and sexual orientation relate to a groups legal capacity?

A

Sex, gender and sexual orientation - Historically, the law was influenced by patriarchy which limited the capacities of individuals of a certain sex, gender or sexual orientation. More recently, the law has provided greater equality. The influence that these factors have on capacity changes according to the changing attitudes of society.

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21
Q

How does mental illness relate to a groups legal capacity?

A

Mental illness - When legal subjects are unable to understand the nature and legal consequences of their acts or are motivated to perform these acts by delusions. Then the legal subjects who suffer from mental illness have no capacities. A judicial determination must be made before this factor becomes applicable.

22
Q

How does Intoxication relate to a groups legal capacity?

A

Intoxication - For the duration of the period of intoxication, a legal subject has no capacity to perform juristic acts or to litigate. Such legal subjects can still be held accountable for legal wrongdoings. A judicial determination must be made before this factor becomes applicable.

23
Q

How does Prodigality relate to a groups legal capacity?

A

Prodigality - When legal subjects are of sound mind but through a defect of character, will or judgement and irresponsible manner threatens to reduce themselves and their dependents to destitution. Creates an economic impediment which provides a legal subject with limited capacity to perform juristic acts or to litigate matters related to their juristic acts. A judicial determination must be made before this factor becomes applicable.

24
Q

How does Insolvency relate to a groups legal capacity?

A

Insolvency - A factor becomes applicable when legal subjects are unable to pay their debts because their liabilities exceed their assets. Creates an economic impediment which provides a legal subject with limited capacity to perform juristic acts or to litigate matters related to their sequestrated estates. A judicial determination must be made before this factor becomes applicable.

25
Q

How does Domicile relate to a groups legal capacity?

A

Domicile - This factor refers to the place where legal subjects are deemed to reside for the purpose of exercising their rights or fulfilling duties. Connects legal subjects to a private law system which will then determine their status and capacity.

26
Q

How does Minority relate to a groups legal capacity?

A

Minority - Our law makes a distinction between two types of minors: an infant (a child below the age of 7 years) and a minor (a child above the age of 7 years but below the age of 18 years). Generally, infants have no capacity while minors have limited capacity.

27
Q

What are the most important forms of civil liability?

A
  • Contractual liability.
  • Delictual liability- The basic and fundamental consideration is to determine whether one party caused private law harm or damage to another’s person, property or personality.
  • Liability for unjustified enrichment- The basic and fundamental consideration is to determine whether one party was enriched at the expense of another party while there was not an agreement or private law harm
28
Q

What is a contract?

A

A contract is an agreement between two or more people that can be enforced by legal mechanisms, it is a juristic act and is reciprocal. This means that the parties agree that their performances will be offered in exchange for the other party’s performance.

29
Q

What are the different claims that can be made in a contract?

A
  • When you sue someone ex contractu (on the basis of contract) you can use a contractual claim to get everything the person agreed to pay or do in terms of the contract.
  • To enforce the contract, one will use specific performance.
  • To claim loss of profits, one will use contractual damages.
30
Q

What is exceptio non adimpleti contractus?

A

The exceptio non adimpleti contractus is a defence that can be used when parties owe reciprocal obligations in terms of a contract

31
Q

What can the court order due to a breach of promise?

A

When there is a breach in contract, the court can order the breaching party to pay damages, this is aimed at putting the innocent party in the same position they would have been if the contract was fulfilled. People who have limited capacity to contract cannot incur binding contractual obligations.

32
Q

What are delictual claims?

A

Delicts are civil wrongs. To bring a delictual claim against a person, you must prove all the elements of delict. Such as the person’s conduct where the act is deemed to be wrongful in the eyes of the law and the person acted with fault, intention or negligence. Their action caused some damage to you.

33
Q

What are the different delictual remedies?

A
  • For property harm, we use the Aquilian action. A plaintiff can use this remedy to claim damages for patrimonial loss caused by the defendant’s wrongful act. The defendant must have acted with either intention or negligence
  • For harm to a person, we use the action for pain and suffering. A plaintiff can use this remedy to sue for non-patrimonial damages arising from physical injury. The defendant must have acted either intentionally or negligence.
  • For personality harm, we use the actio iniuriarum. A plaintiff can use this remedy to claim non-patrimonial damages when their personality rights have been infringed
34
Q

What is the rei vindicatio?

A

The rei vindicatio is one of the most powerful remedies in private law. The owner of the physical thing can use this to recover their thing from anyone who is in possession of it without cause

35
Q

What are patrimonial damages?

A

You sue patrimonial damages when the defendant act causes you financial or monetary loss. The aim of these patrimonial damages is to put the plaintiff in the same financial position that they would have been in

36
Q

What are the requirements to claim for unjustified enrichment?

A
  • The defendant has been factually enriched and the plaintiff has been factually impoverished
  • There is a causal link between the defendants enrichment and the plaintiffs impoverishment
  • There is no valid no legal reason that justifies the enrichment of the defendant at the plaintiffs expense or that justifies the retention of the enrichment by the defendant.
37
Q

What is unjustified enrichment?

A

Unjustified enrichment claim is limited to the amount of the plaintiff’s factual impoverishment. The plaintiff can sue only for the amount that the defendant in fact remains enriched by on the day that the plaintiff institutes the action

38
Q

What is a condictio?

A

A condictio is used to recover money when one person has been unjustly enriched at the expense of another

39
Q

What is the doctrine of estoppel?

A

The doctrine of estoppel provides that where A lied and B relied on the lie, to their disadvantage then A will be prevented from relying on the truth in their defence. It prevents a party from asserting a right or position that contradicts their previous conduct.

40
Q

What is intestate succession?

A

If you die without a valid will you die intestate and your estate will be divided up according to the rules of intestate succession.

41
Q

What is tastate succession?

A

Testate succession means succession in terms of a will. The wishes expressed in the will must be carried out

42
Q

When does legal personality start?

A

Legal personality for human beings begins at birth. There is no legal personality before birth or registration. Being bestowed with legal personality and entity acquires both status and legal capacity.

43
Q

What are the two persons in the legal system?

A
  • Natural persons- Individual human beings
  • Juristic persons- human beings acting together in groups for a particular purpose
44
Q

How can juristic persons be established?

A
  • By means of general enabling Act
  • By means of a specific Act of Parliament
45
Q

What are the two enabling acts of a juristic person?

A

There are two general enabling Acts, the Companies Act 71 of 2008 and the Close Corporations Act 69 of 1984.

45
Q

What makes a juristic person?

A

Once a company or a close corporation has been incorporated as provided for in the Act, they become juristic persons. A specific Act may be passed to establish a juristic person.

46
Q

What does Section 14 Companies Act?

A

Section 14(4) of the Companies Act states that the issuing of a registration certificate provides conclusive evidence that the requirements for incorporation have been met and that the company is incorporated. The company then has the same powers to the extent that as a natural person unless the companies memorandum states otherwise.

47
Q

What was the juristic precedent set in Salomon v Salomon?

A

In the Salomon v Salomon English case, was held that as soon as a company has been incorporated in compliance with all the legal requirements a company becomes a person separate from its incorporators

48
Q

What are the advantages of creating a juristic person?

A
  • It creates limited liability. A juristic person has perpetual existence, which means that a change in shareholding does not affect the existence of the company.
  • Is liable for its own debts, shareholders are only entitled to share in the profits if the board declares dividends.
  • The incorporation may sue and be sued in its own name
49
Q

What was found in Legator McKenna Inc v Shea case?

A

In Legator McKenna Inc v Shea, the SCA confirmed that in South African law ownership of property can pass even if there is a defect or invalidity in the underlying contract of sale. The only requirements for the transfer of ownership are delivery and a valid real agreement. The court held that the essential elements of the real agreement are an intention on the part of the transferor to transfer ownership and the intention of the transferee to become the owner of the property.

50
Q

What is a real agreement?

A

A real agreement is not a contract. A valid real agreement requires that the thing is capable of being owned, that the person who is giving up ownership has the capacity to pass ownership has the capacity to pass ownership and that the person receiving ownership must have the capacity to receive ownership.

51
Q

What are Boberg and Wille principles about unassisted minors?

A

Boberg and Wille principles are unassisted minors that have the capacity to receive ownership. However, minors do not have the capacity to give up ownership if unassisted. Infants though cant give up or receive ownership

52
Q

When does a natural person begin and end?

A

Natural persons begin at the birth and ends in death

53
Q

When does a juristic person begin and end?

A

Juristic persons begin at the registration, incorporation. Association of natural persons established by legislation and ends at deregistration

54
Q

What is actio de pauperie?

A

Actio de pauperie is a claim for harm caused by an animal of another. It’s a remedy that can be used in delict, against the owner as they hold the real right if the animal. If a person is harmed by the animal

Law of persons (7 decks)

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