Law of persons:
Week 1:
Status and capacity:
What is a ‘person’?
- Legal subject & person are interchangeable
- The law defines a person as someone/ something that can have legal rights & duties.
- This includes natural persons (human beings) & artificial/ juristic persons
- All persons have legal personality/ legal subjectivity (emphasises the legal aspect of a
person’s activities & existence)
- Only persons can have legal rights & duties (this is what distinguishes a person from
a thing)
Rights, duties & legal objects:
1. Real right:
- Physical things (car, house, pencil, etc.)
- Object of the right is a physical thing
- Enforceable against the world
2. Personal right:
- Performances (babysitting, payment of $, uber)
- Object of the right is a performance
- Enforceable against a particular person
3. Personality right:
- Aspect of personality (physical integrity, bodily freedom, reputation, dignity, privacy)
- Object of the right is an aspect of your personality
- Enforceable against the world
4. Constitutional right:
- Public law rights
- No rule of law should violate any constitutional right
Capacity:
1. Passive legal capacity:
- The capacity to merely have legal rights & duties
- All persons have passive legal capacity
- E.g. babies are born with the personality right to physical integrity- everyone has a
duty NOT to injure/ harm the baby’s body
2. Capacity to perform juristic acts:
- Juristic acts= voluntary human acts which have intended legal consequences.
Examples of juristic acts:
• Entering into contracts
, • Getting married
• Acquiring & alienating property
• Making a will
• Consenting to medical treatment
• Holding office
- Capacity to perform juristic acts= persons capacity to actively change their legal
position
- The law only recognizes capacity to perform juristic acts if the person is capable of
understanding the legal nature & legal consequences of their acts.
- E.g. if an unmarried, 45-year-old man of sound mind enters into a contract, he will be
bound by the contract. He has full capacity to act, and the law will attach all the
intended legal consequences of his acts.
3. Capacity to be held accountable:
- Person can only be found guilty of a crime/ liable for delict if they acted with fault
(negligence or intention)
- If the person is capable of having the mental states of intention/negligence, they can
be held accountable for crimes & delicts.
- If they are NOT capable, they can NEVER be accountable for delicts or crimes.
A person will be held accountable if:
a. They have the mental ability to distinguish right & wrong
b. They are able to act in accordance with this understanding
4. Capacity to litigate:
- Capacity to be a party to a lawsuit as plaintiff or defendant
- Capacity to litigate= locus standi in judicio
5. Active legal capacity of infants (0-6)
- There is an irrebuttable presumption that infants under 7 can never understand the
legal consequences of their acts.
- infants have no capacity to perform juristic acts
This includes:
a. Contracts that give only benefits and impose no duties
E.g. Donations
b. Guardian cannot assist infant. Guardian must conclude any agreement on infant’s
behalf
E.g. accept donation on infant’s behalf
NB: If guardian acts on infant’s behalf the infant incurs the rights and duties, not the
guardian.
6. Minors’ limited capacity to act (7-18)
- Minors have limited capacity to perform juristic acts
- General rule is that they need the assistance of their guardian.
, - Minors can only incur binding contractual obligations with the assistance of their
guardians (Edelstein)
- No presumption that minors cannot understand the legal consequences of their
actions.
• The maturity & experience of the guardian will supplement the minor’s own limited
ability to assess the situation.
Status:
- Status= a person’s standing in the eyes of the law
- determines a person’s ability/capacity to relate to the legal system
- determines which legal capacities a person has in the eyes of the law
1. Statuses affecting capacity in the common law
- Age (minority)
Infants (minors under the age of seven)
Minors seven and older
- Mental illness / disability
- Marriage in community of property
2. Statuses affecting capacity in customary law
- position in the family
- In principle, only the household head has full “legal capacity.”
E.g.1: if any member of the household commits a delict, the household head is liable
E.g.2: the household owns property collectively, but only the household head has full
capacity to buy and sell household property.
• Himonga argues:
– The Children’s Act confers full majority and capacity on people who turn 18
and that the customary law relevant to age-determined capacity has been
abolished [Wille p 174];
– The Matrimonial Property Act abolishes customary law on capacity for
married people.
– recent legislation has replaced the customary law restrictions on capacity.
Common law status and capacity based on age
- infant (0-6)
- minor (7-18)
Week 2:
Forms of liability:
1. Contractual liability
- Contract= a juristic act through which the parties agree that 1 or both of them will
incur legal obligations to carry out certain performances. E.g. to do/ give something
- Most contracts are reciprocal (parties agree that their performances will be offered
in exchange for the other [party’s performance)
- Ex contractu = on the basis of contract (very powerful claim)
Week 1:
Status and capacity:
What is a ‘person’?
- Legal subject & person are interchangeable
- The law defines a person as someone/ something that can have legal rights & duties.
- This includes natural persons (human beings) & artificial/ juristic persons
- All persons have legal personality/ legal subjectivity (emphasises the legal aspect of a
person’s activities & existence)
- Only persons can have legal rights & duties (this is what distinguishes a person from
a thing)
Rights, duties & legal objects:
1. Real right:
- Physical things (car, house, pencil, etc.)
- Object of the right is a physical thing
- Enforceable against the world
2. Personal right:
- Performances (babysitting, payment of $, uber)
- Object of the right is a performance
- Enforceable against a particular person
3. Personality right:
- Aspect of personality (physical integrity, bodily freedom, reputation, dignity, privacy)
- Object of the right is an aspect of your personality
- Enforceable against the world
4. Constitutional right:
- Public law rights
- No rule of law should violate any constitutional right
Capacity:
1. Passive legal capacity:
- The capacity to merely have legal rights & duties
- All persons have passive legal capacity
- E.g. babies are born with the personality right to physical integrity- everyone has a
duty NOT to injure/ harm the baby’s body
2. Capacity to perform juristic acts:
- Juristic acts= voluntary human acts which have intended legal consequences.
Examples of juristic acts:
• Entering into contracts
, • Getting married
• Acquiring & alienating property
• Making a will
• Consenting to medical treatment
• Holding office
- Capacity to perform juristic acts= persons capacity to actively change their legal
position
- The law only recognizes capacity to perform juristic acts if the person is capable of
understanding the legal nature & legal consequences of their acts.
- E.g. if an unmarried, 45-year-old man of sound mind enters into a contract, he will be
bound by the contract. He has full capacity to act, and the law will attach all the
intended legal consequences of his acts.
3. Capacity to be held accountable:
- Person can only be found guilty of a crime/ liable for delict if they acted with fault
(negligence or intention)
- If the person is capable of having the mental states of intention/negligence, they can
be held accountable for crimes & delicts.
- If they are NOT capable, they can NEVER be accountable for delicts or crimes.
A person will be held accountable if:
a. They have the mental ability to distinguish right & wrong
b. They are able to act in accordance with this understanding
4. Capacity to litigate:
- Capacity to be a party to a lawsuit as plaintiff or defendant
- Capacity to litigate= locus standi in judicio
5. Active legal capacity of infants (0-6)
- There is an irrebuttable presumption that infants under 7 can never understand the
legal consequences of their acts.
- infants have no capacity to perform juristic acts
This includes:
a. Contracts that give only benefits and impose no duties
E.g. Donations
b. Guardian cannot assist infant. Guardian must conclude any agreement on infant’s
behalf
E.g. accept donation on infant’s behalf
NB: If guardian acts on infant’s behalf the infant incurs the rights and duties, not the
guardian.
6. Minors’ limited capacity to act (7-18)
- Minors have limited capacity to perform juristic acts
- General rule is that they need the assistance of their guardian.
, - Minors can only incur binding contractual obligations with the assistance of their
guardians (Edelstein)
- No presumption that minors cannot understand the legal consequences of their
actions.
• The maturity & experience of the guardian will supplement the minor’s own limited
ability to assess the situation.
Status:
- Status= a person’s standing in the eyes of the law
- determines a person’s ability/capacity to relate to the legal system
- determines which legal capacities a person has in the eyes of the law
1. Statuses affecting capacity in the common law
- Age (minority)
Infants (minors under the age of seven)
Minors seven and older
- Mental illness / disability
- Marriage in community of property
2. Statuses affecting capacity in customary law
- position in the family
- In principle, only the household head has full “legal capacity.”
E.g.1: if any member of the household commits a delict, the household head is liable
E.g.2: the household owns property collectively, but only the household head has full
capacity to buy and sell household property.
• Himonga argues:
– The Children’s Act confers full majority and capacity on people who turn 18
and that the customary law relevant to age-determined capacity has been
abolished [Wille p 174];
– The Matrimonial Property Act abolishes customary law on capacity for
married people.
– recent legislation has replaced the customary law restrictions on capacity.
Common law status and capacity based on age
- infant (0-6)
- minor (7-18)
Week 2:
Forms of liability:
1. Contractual liability
- Contract= a juristic act through which the parties agree that 1 or both of them will
incur legal obligations to carry out certain performances. E.g. to do/ give something
- Most contracts are reciprocal (parties agree that their performances will be offered
in exchange for the other [party’s performance)
- Ex contractu = on the basis of contract (very powerful claim)
