Private Law 171: Law of Persons
Textbook: Law of Persons and the Family, A Barratt
Unit 1: Introduction To The Law Of Persons:
Definitions Of Concepts And Terminology
Division of Law:
● The law of persons is part of objective law (national; SA law that covers all law in the country) that
regulates the coming into existence, private law status and the coming to an end of a natural
person as a legal subject.
● Subdivision of objective law:
○ Objective law: national law (e.g. driving on one side of the road); an umbrella subdivided into
different components - public and private law (used to be a watertight division but since the
constitution came into use, the subdivision is less rigid).
○ Public law: deals with relationship between state and an individual or group of persons
(company, trade unions); the state is always in a position of authority in this relationship (e.g.
criminal law); a vertical relationship.
○ Private law: relationship between individuals; horizontal relationship (e.g. marriage).
■ Delictual claims fall under private law: no one is in a state of authority but there is still
a legal issue to be solved.
■ But the state can be involved: when there is a contractual relationship with an organ of
state; but there is still no vertical relationship/position of authority.
● Connection: the objective law determines the content and limits of every subjective right
Legal Subjectivity:
, ● The rights and duties of a legal person depends on their status in law and the capacities (what a
person is capable of doing in terms of the law; legal abilities and competencies that such status
gives.
● A person / legal subject: someone or something (a being, entity or association) who has legal
rights, duties or capacities:
○ Natural persons: human beings; under SA law, slaves weren’t seen as legal subjects, but
objects, which only changed around 1871 in SA; in Roman law & Roman Dutch law, monstra
(i.e. badly deformed children) also weren’t considered legal subjects and the father had the
right to decide whether baby would live or die.
○ Artificial / juristic persons: a group or association of persons (can be a group of
natural/juristic persons); a legal subject in terms of law - considered a juristic person if there is
an existence independent of members (members have to act on its behalf but company is
bound outside of members; members can leave and join etc but juristic person remains
HOWEVER e.g. in a partnership, if a partner dies the juristic person fails to exist and a new
one has to be formed.
■ In SA there are 3 types of juristic persons: societies incorporated in terms of general
enabling act; societies created and recognised in separate enabling legislation (e.g.
university in terms of higher education act, SABC in terms of broadcasting act);
societies meeting common law requirements (goal may not be profit-motivated or for
gain of members - e.g. political party)
■ e.g. entities such as companies, banks, church, political party, trade union and
universities
Legal Objects:
● Legal object: an entity over which a legal subject may hold rights; cannot itself hold rights, duties
or capacities but has a subjective right attached to it.
● Categories:
○ Things: inanimate, physical things (e.g. house, textbook); real right (can exercise this
right against the whole world) = ownership
○ Performance: to do or not to do something (e.g. buy the textbook & selling the textbook;
living in the house & not going into the house); personal right (can only exercise against
one person) = right to claim payment
○ Intellectual property (also: immaterial): owners of information they created (e.g. with covid
vaccines: the vaccines are the property of SA when they come into the country but
whosever intellect was used to create the product owns it); intellectual property right =
copyright
, ○ Personality property: personality right (creates a relationship with every other legal
subject in the world); right to a good reputation.
Rights:
● Subjective rights: network of legal relationships that exist between legal subjects (rights &
consequences for others to respect one’s rights; as well as obligations/responsibility)
● Real right: physical object; operates against the whole world (e.g. real right to own a house).
● Personal right: performances; operates against a particular person (e.g. performances owed in
terms of a contract: right to the performance of babysitting with the corresponding duty to pay;
right to be paid with the corresponding duty to babysit).
● Personality right: physical integrity, bodily freedom, reputation, dignity, privacy, everyone has the
duty to respect & not interfere with these.
● Constitutional right: while the above are private law rights, these are public law rights set out in
the Bill of Rights; constitutional law is above all other rules of law.
Status:
● Status: the ability or capacity to relate to the legal system; where you stand in terms of the law
and a person’s role and function in legal intercourse (what you can or can’t do).
● Private law status: sum total of a legal subject’s juridical capacity.
● In SA law, your status is determined by your legal domicile; the law of your country of domicile
determines which groups are important. You cannot, on the whole, choose which groups you
belong to; the law assigns classes and determines capacities (i.e. capacities are conclusively
fixed).
Legal capacity:
● Legal capacity: the capacity to have rights and duties; every legal subject has passive legal
capacity (capacity to have rights and duties) and can participate in legal intercourse, but their
status affects the manner (e.g. must a parent assist; must the court do it on behalf of someone
etc) and extent of participation (e.g. children cannot enter into certain contracts).
● Capacity to act: capacity to participate in legal intercourse / perform a valid juristic act; actively
changes one’s legal position; therefore capacity depends if one is capable of understanding the
nature and consequences of the act.
○ Juristic act: a (voluntary) human act which has intended legal consequences or to which the
law attaches at least some of the consequences desired by the party performing the act (e.g.
in some cases, there may be an impossible condition attached to the contract that cannot be
met).
, ○ Juristic acts can be divided into: entering into contracts, getting married, acquiring or
alienating property, making a will, consenting to a medical treatment, holding office.
● Capacity to litigate: capacity to be party in a court case in a civil claim (not criminal); capacity to
act as plaintiff (brings / institutes claim) or defendant (claim brought against them) OR applicant
or respondent in a case.
● Capacity to be held accountable: held accountable for wrongdoing; the ability to distinguish
between right and wrong and act in accordance with such a distinction, therefore to be held liable
in two ways: criminal accountability (have to have accountability to to be prosecuted or found
guilty); delictual accountability (civil law claim).
○ Incapacity: being a young child, mental incapacity, intoxicated etc.
● Factors affecting nature and extent of a person’s capacity: age (e.g. minor vs adult), mental
incapacity, prodigality to a legal subjects’ capacities.
Study Unit 2: The Beginning of Legal Subjectivity
Definitions of Birth:
● The nature of legal subjectivity is the ability of a legal subject to, through their legal capacities,
take part in legal intercourse. According to the law, legal personality for human beings at birth and
does not exist before, thus we focus on the coming into existence of a legal subject (natural
persons) here.
○ A foetus is biologically human, but not a legal person until it is born alive. When conceived
but not yet born, a foetus is only relevant to and protected by law in particular ways; in terms
of succession and abortion, foetuses do have legal rights.
○ The law does provide protection for the ‘dream’ of conception: there is limited protection
granted to not-yet-conceived and possible never-conceived babies (through the nasciturus
adage, and common law and statutory measures).
● Beginning of legal subjectivity in the Law of Persons:
○ Common law requirements: completion of birth is at separation (not necessarily cut umbilical
cord); any sign of life (breathed, cried, heartbeat etc); a baby is thus deemed born for
purposes of the Law of Persons and deemed to be a legal subject.
○ Viability: the stage of development of a baby’s organs which allows them to exist with or
without scientific aids, but without being fed from the mother’s bloodstream; certain countries
determine viability early on in development but this is not relevant in SA law as a child is
viable inside the mother’s womb.
■ This is not relevant for legal subjectivity: the baby can only live for a minute and still
have legal rights for that minute.
Textbook: Law of Persons and the Family, A Barratt
Unit 1: Introduction To The Law Of Persons:
Definitions Of Concepts And Terminology
Division of Law:
● The law of persons is part of objective law (national; SA law that covers all law in the country) that
regulates the coming into existence, private law status and the coming to an end of a natural
person as a legal subject.
● Subdivision of objective law:
○ Objective law: national law (e.g. driving on one side of the road); an umbrella subdivided into
different components - public and private law (used to be a watertight division but since the
constitution came into use, the subdivision is less rigid).
○ Public law: deals with relationship between state and an individual or group of persons
(company, trade unions); the state is always in a position of authority in this relationship (e.g.
criminal law); a vertical relationship.
○ Private law: relationship between individuals; horizontal relationship (e.g. marriage).
■ Delictual claims fall under private law: no one is in a state of authority but there is still
a legal issue to be solved.
■ But the state can be involved: when there is a contractual relationship with an organ of
state; but there is still no vertical relationship/position of authority.
● Connection: the objective law determines the content and limits of every subjective right
Legal Subjectivity:
, ● The rights and duties of a legal person depends on their status in law and the capacities (what a
person is capable of doing in terms of the law; legal abilities and competencies that such status
gives.
● A person / legal subject: someone or something (a being, entity or association) who has legal
rights, duties or capacities:
○ Natural persons: human beings; under SA law, slaves weren’t seen as legal subjects, but
objects, which only changed around 1871 in SA; in Roman law & Roman Dutch law, monstra
(i.e. badly deformed children) also weren’t considered legal subjects and the father had the
right to decide whether baby would live or die.
○ Artificial / juristic persons: a group or association of persons (can be a group of
natural/juristic persons); a legal subject in terms of law - considered a juristic person if there is
an existence independent of members (members have to act on its behalf but company is
bound outside of members; members can leave and join etc but juristic person remains
HOWEVER e.g. in a partnership, if a partner dies the juristic person fails to exist and a new
one has to be formed.
■ In SA there are 3 types of juristic persons: societies incorporated in terms of general
enabling act; societies created and recognised in separate enabling legislation (e.g.
university in terms of higher education act, SABC in terms of broadcasting act);
societies meeting common law requirements (goal may not be profit-motivated or for
gain of members - e.g. political party)
■ e.g. entities such as companies, banks, church, political party, trade union and
universities
Legal Objects:
● Legal object: an entity over which a legal subject may hold rights; cannot itself hold rights, duties
or capacities but has a subjective right attached to it.
● Categories:
○ Things: inanimate, physical things (e.g. house, textbook); real right (can exercise this
right against the whole world) = ownership
○ Performance: to do or not to do something (e.g. buy the textbook & selling the textbook;
living in the house & not going into the house); personal right (can only exercise against
one person) = right to claim payment
○ Intellectual property (also: immaterial): owners of information they created (e.g. with covid
vaccines: the vaccines are the property of SA when they come into the country but
whosever intellect was used to create the product owns it); intellectual property right =
copyright
, ○ Personality property: personality right (creates a relationship with every other legal
subject in the world); right to a good reputation.
Rights:
● Subjective rights: network of legal relationships that exist between legal subjects (rights &
consequences for others to respect one’s rights; as well as obligations/responsibility)
● Real right: physical object; operates against the whole world (e.g. real right to own a house).
● Personal right: performances; operates against a particular person (e.g. performances owed in
terms of a contract: right to the performance of babysitting with the corresponding duty to pay;
right to be paid with the corresponding duty to babysit).
● Personality right: physical integrity, bodily freedom, reputation, dignity, privacy, everyone has the
duty to respect & not interfere with these.
● Constitutional right: while the above are private law rights, these are public law rights set out in
the Bill of Rights; constitutional law is above all other rules of law.
Status:
● Status: the ability or capacity to relate to the legal system; where you stand in terms of the law
and a person’s role and function in legal intercourse (what you can or can’t do).
● Private law status: sum total of a legal subject’s juridical capacity.
● In SA law, your status is determined by your legal domicile; the law of your country of domicile
determines which groups are important. You cannot, on the whole, choose which groups you
belong to; the law assigns classes and determines capacities (i.e. capacities are conclusively
fixed).
Legal capacity:
● Legal capacity: the capacity to have rights and duties; every legal subject has passive legal
capacity (capacity to have rights and duties) and can participate in legal intercourse, but their
status affects the manner (e.g. must a parent assist; must the court do it on behalf of someone
etc) and extent of participation (e.g. children cannot enter into certain contracts).
● Capacity to act: capacity to participate in legal intercourse / perform a valid juristic act; actively
changes one’s legal position; therefore capacity depends if one is capable of understanding the
nature and consequences of the act.
○ Juristic act: a (voluntary) human act which has intended legal consequences or to which the
law attaches at least some of the consequences desired by the party performing the act (e.g.
in some cases, there may be an impossible condition attached to the contract that cannot be
met).
, ○ Juristic acts can be divided into: entering into contracts, getting married, acquiring or
alienating property, making a will, consenting to a medical treatment, holding office.
● Capacity to litigate: capacity to be party in a court case in a civil claim (not criminal); capacity to
act as plaintiff (brings / institutes claim) or defendant (claim brought against them) OR applicant
or respondent in a case.
● Capacity to be held accountable: held accountable for wrongdoing; the ability to distinguish
between right and wrong and act in accordance with such a distinction, therefore to be held liable
in two ways: criminal accountability (have to have accountability to to be prosecuted or found
guilty); delictual accountability (civil law claim).
○ Incapacity: being a young child, mental incapacity, intoxicated etc.
● Factors affecting nature and extent of a person’s capacity: age (e.g. minor vs adult), mental
incapacity, prodigality to a legal subjects’ capacities.
Study Unit 2: The Beginning of Legal Subjectivity
Definitions of Birth:
● The nature of legal subjectivity is the ability of a legal subject to, through their legal capacities,
take part in legal intercourse. According to the law, legal personality for human beings at birth and
does not exist before, thus we focus on the coming into existence of a legal subject (natural
persons) here.
○ A foetus is biologically human, but not a legal person until it is born alive. When conceived
but not yet born, a foetus is only relevant to and protected by law in particular ways; in terms
of succession and abortion, foetuses do have legal rights.
○ The law does provide protection for the ‘dream’ of conception: there is limited protection
granted to not-yet-conceived and possible never-conceived babies (through the nasciturus
adage, and common law and statutory measures).
● Beginning of legal subjectivity in the Law of Persons:
○ Common law requirements: completion of birth is at separation (not necessarily cut umbilical
cord); any sign of life (breathed, cried, heartbeat etc); a baby is thus deemed born for
purposes of the Law of Persons and deemed to be a legal subject.
○ Viability: the stage of development of a baby’s organs which allows them to exist with or
without scientific aids, but without being fed from the mother’s bloodstream; certain countries
determine viability early on in development but this is not relevant in SA law as a child is
viable inside the mother’s womb.
■ This is not relevant for legal subjectivity: the baby can only live for a minute and still
have legal rights for that minute.
