Persons

Course-LL.B-IISubject-Jurisprudence-II

Unit-II

1

Person• It simply means mask• Later on ,it was used to denote the part played

by a man in life• After that ,it was used in sense of the man

who played the part.

• Will is the essence of a personality• A legal person is capable of will.• A person is not necessarily human being• Slaves are not legal person in the legal sense

as they can not have rights.• There may be persons who are not human

being

According to Salmond

• A person is any being whom the law regards as capable of rights or duties .Any being that is so capable is a person ,whether a human being or not and no being that is not so capable is a person ,even though ,he be a man .persons are the substances of which rights and duties are the attributes .It is only in respect that person possesses juridical significance and this is the exclusive point of view from which personality receives legal recognition.

Legal status of lower animals

• The only natural persons are human being • Beast are not persons,either natural or legal • They merely thing• Object of legal rights and duties but never the subject

of them.• They are not recognized by law• Law is made for men and allows no fellowship or

bonds of obligation between men and lower animals.

Cases in which beast may be thought to possess legal rights

• Cruelty to animals is a criminal offence• A trust for the benefit of particular classes of

animals ,is valid and enforceable as a public and charitable trust.

• Ex. A provision for the establishment and maintenance of a home for stray dogs or broken down horses.

Legal Status of Dead persons

• The personality of human being commences its existence on birth and ceases to exit at death.

• Dead are no longer persons in the eye of law.• They have no rights because they no interest• Without conferring rights upon the dead ,law

recognizes and takes account after the death of a person of his desires and interests when alive.

Three things in respect of which anxieties of living men extend even after death

• 1. His body• 2. His reputation• 3. His estate.

• The reputation of a dead person receives some degree of protection from criminal law.

• Williams v. Williams

Status of unborn person

• Unborn person possess legal personality• There is nothing in law to prevent a man from

owning property before he is born• His ownership is contingent as he may never be

born at all, but it is a real and present ownership

• No testator can direct his fortune to be accumulated for a hundred years and then distributed among his descended

• To what extent an unborn person can posses personal and proprietary rights is a somewhat unsettled question all right of unborn person ,whether personal and proprietary ,all are contingent on his birth as a living human being.

• A posthumous child may inherit , but if he dies in the womb or still –born ,his inheritance fails to take effect and no one can claim through him

Corporate Personality

• Legal personality is an artificial creation of law. Entities recognized by law are capable of being parties to a legal relationship. A natural person is a human being whereas

• Legal persons are artificial persons, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being

Theories of Juristic Personality

• Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland etc

• According to this theory, the personality of a corporation is different from that of its members. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts are attributed to the corporate entity.

• As a result of this, any change in the membership does not affect the existence of the corporation

• It is essential to recognize clearly the element of legal fiction involved in this process.

Concession Theory

• This theory is concerned with the Sovereignty of a State. It pre-supposes that corporation as a legal person has great importance because it is recognized by the State or the law

• According to this theory, a juristic person is merely a concession or creation of the state.

• Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (State) from which the legal power of the corporation is derived.

Group Personality Theory or Realist Sociological Theory

• This theory was propounded by Johannes Althusius and carried forward by

Otto Van Gierke. This group of theorists believed that every collective group

has a real mind, a real will and a real power of action. A corporation therefore,

has a real existence, irrespective of the fact whether it is recognized by the

State or not.

•

The main defect of the fiction theory according to the realist jurists was the

ignorance of sociological facts that evolved around the law making process.

The Bracket Theory or the Symbolist Theory

• This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs. This is also similar to the concept of lifting of the corporate veil.

Purpose Theory or the theory of Zweck Vermogen

• The advocates of this theory are Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only human beings can be a person and have rights. This theory also said that a juristic person is no person at all but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner. Thus a juristic person is not constructed round a group of persons but based on an object and purpose.

Kelsen’s Theory of Legal Personality

• He said that there is no difference between legal personality of a company and that of an individual. Personality in the legal sense is only a technical personification of a complex of norms and assigning complexes of rights and duties.

Advantages of Incorporation• Collective ownership and collective action are

cumbersome in law• Common interest vested in them and to have

act commonly in the management and protection of that interest.

• Independent corporate existence • Successive existence• Owing ,enjoying and disposing of property• A freely transferable share

Thank you

References • B.N.M. Tripati : An Introduction to Jurisprudence (Legal Theory)• 1.https://lh3.ggpht.com/

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