PVL1008H: Law of Persons and Family
Semester 1 Notes
CONTENT NOTES
Birth
• Legal person = Person born alive (van Heerden v Joubert, citing Voet and the Digest).
• Common law requirements for live birth:
(1) Complete separation between mother and baby.
(2) Baby must have lived after separation.
(3) Viability (surviving after birth) is not necessary.
• Law relies on medical evidence to determine live birth. Traditionally, it was when the
baby breathed. Now, any sign of life qualifies for live birth (The Registration of Births and
Deaths Act).
Legal Personhood
• Person = Being/entity which is capable of having rights and duties (Boberg).
• Legal personality:
(1) Natural person.
(2) Juristic person.
• Categories of rights and duties:
(1) Real rights to tangible property, which are enforceable against everyone.
(2) Personal rights created for performance by contract, which are enforceable against
the other party to the contract.
(3) Personality rights to aspects of personality, which are enforceable against the whole
world.
(4) Constitutional human rights granted to persons only.
• Significance of being a person in the eyes of the law:
(1) Become a role player in the legal system.
(2) Have rights and duties.
(3) Not all legal persons are equal - they have differing legal capacity.
Legal Capacity
• Legal capacity = The ability to do things that the law takes notice of.
• Things that the law takes notice of:
(1) What is the person capable of doing in legal terms?
(2) Which actions of that person does the law pay attention to?
, • Capacity:
(1) Full capacity - Valid.
(2) No capacity - Void.
(3) Limited capacity – Complicated.
• Main types of legal capacity:
(1) Passive legal capacity - Can be the bearer of rights and duties. Everyone has this.
(2) Active legal capacity - Can actively acquire rights and duties and be an active
participant in the legal system. This depends on legal status.
• Main types of active legal capacity:
(1) Commit delicts and crimes.
(2) Litigate.
(3) Perform juristic acts (acquire/alienate property, conclude binding contracts, consent
to medical treatment, get married).
• Juristic act = Voluntary human act to which the law attaches at least some of the legal
consequences desired by the person who performs the act (van der Vyver) OR Act that
changes your legal position because you actively acquire/lose legal rights/duties.
• You can only perform a juristic act if you can understand the nature and legal
consequences of your act (Pheasant v Warne; Lange v Lange).
• Infant's capacity to perform juristic acts:
(1) Irrebuttable presumption that infant can never understand the legal consequences of
their acts, and thus, have no capacity to perform juristic acts (including contracts with
only benefits and no duties).
(2) Any juristic acts that infant purports to perform are void and have no legal
consequences.
(3) Guardian cannot assist infant, guardian must act on infant's behalf, but infant
passively incurs the rights and duties (including transfer or receipt of ownership, and
contractual rights or obligations).
• Minor's capacity to perform juristic acts:
(1) Minor has limited capacity to perform juristic acts.
(2) Unassisted minor can improve their legal position but cannot worsen it.
(3) Minor can only incur binding contractual obligations with the assistance of their
guardian (Edelstein v Edelstein, citing Old Authorities).
(4) Minor might be unable to make a mature and informed assessment of the situation.
Maturity and experience of guardian supplements minor's own limited ability and
protects them from their recklessness and immaturity of judgment.
• Adult's capacity to perform juristic acts:
(1) The law presumes that adults understand the legal nature and consequences of their
juristic acts, and thus, their juristic acts are usually valid and fully binding.
(2) Possible exceptions include mental disability and marriage in community of property.
• Statuses affecting capacity in common law:
(1) Age - Infants are aged 0 to 6 and minors are aged 7 to 18.
(2) Mental illness or disability.
(3) Marriage in community of property.
Semester 1 Notes
CONTENT NOTES
Birth
• Legal person = Person born alive (van Heerden v Joubert, citing Voet and the Digest).
• Common law requirements for live birth:
(1) Complete separation between mother and baby.
(2) Baby must have lived after separation.
(3) Viability (surviving after birth) is not necessary.
• Law relies on medical evidence to determine live birth. Traditionally, it was when the
baby breathed. Now, any sign of life qualifies for live birth (The Registration of Births and
Deaths Act).
Legal Personhood
• Person = Being/entity which is capable of having rights and duties (Boberg).
• Legal personality:
(1) Natural person.
(2) Juristic person.
• Categories of rights and duties:
(1) Real rights to tangible property, which are enforceable against everyone.
(2) Personal rights created for performance by contract, which are enforceable against
the other party to the contract.
(3) Personality rights to aspects of personality, which are enforceable against the whole
world.
(4) Constitutional human rights granted to persons only.
• Significance of being a person in the eyes of the law:
(1) Become a role player in the legal system.
(2) Have rights and duties.
(3) Not all legal persons are equal - they have differing legal capacity.
Legal Capacity
• Legal capacity = The ability to do things that the law takes notice of.
• Things that the law takes notice of:
(1) What is the person capable of doing in legal terms?
(2) Which actions of that person does the law pay attention to?
, • Capacity:
(1) Full capacity - Valid.
(2) No capacity - Void.
(3) Limited capacity – Complicated.
• Main types of legal capacity:
(1) Passive legal capacity - Can be the bearer of rights and duties. Everyone has this.
(2) Active legal capacity - Can actively acquire rights and duties and be an active
participant in the legal system. This depends on legal status.
• Main types of active legal capacity:
(1) Commit delicts and crimes.
(2) Litigate.
(3) Perform juristic acts (acquire/alienate property, conclude binding contracts, consent
to medical treatment, get married).
• Juristic act = Voluntary human act to which the law attaches at least some of the legal
consequences desired by the person who performs the act (van der Vyver) OR Act that
changes your legal position because you actively acquire/lose legal rights/duties.
• You can only perform a juristic act if you can understand the nature and legal
consequences of your act (Pheasant v Warne; Lange v Lange).
• Infant's capacity to perform juristic acts:
(1) Irrebuttable presumption that infant can never understand the legal consequences of
their acts, and thus, have no capacity to perform juristic acts (including contracts with
only benefits and no duties).
(2) Any juristic acts that infant purports to perform are void and have no legal
consequences.
(3) Guardian cannot assist infant, guardian must act on infant's behalf, but infant
passively incurs the rights and duties (including transfer or receipt of ownership, and
contractual rights or obligations).
• Minor's capacity to perform juristic acts:
(1) Minor has limited capacity to perform juristic acts.
(2) Unassisted minor can improve their legal position but cannot worsen it.
(3) Minor can only incur binding contractual obligations with the assistance of their
guardian (Edelstein v Edelstein, citing Old Authorities).
(4) Minor might be unable to make a mature and informed assessment of the situation.
Maturity and experience of guardian supplements minor's own limited ability and
protects them from their recklessness and immaturity of judgment.
• Adult's capacity to perform juristic acts:
(1) The law presumes that adults understand the legal nature and consequences of their
juristic acts, and thus, their juristic acts are usually valid and fully binding.
(2) Possible exceptions include mental disability and marriage in community of property.
• Statuses affecting capacity in common law:
(1) Age - Infants are aged 0 to 6 and minors are aged 7 to 18.
(2) Mental illness or disability.
(3) Marriage in community of property.
