Wednesday, March 3, 2021

Definition of Persons

(Source: Ethiopian Law of Persons:  Notes and Materials

Elias N. Stebek)

 

The word ‘person’ traces its roots from the Latin ‘persona’ which in its ancient usage of the theatre meant “the mask which covers the figure of the actor.”  The mask indicated the role that the actor played, and the audience in effect “recognized the character as soon as it saw the mask.” (Planiol: 243).  Persona thus designated what we now call a role or part.

    

Under earlier legal systems human beings who took part in juridical relations were regarded as persons while those who couldn’t perform juridical acts were considered as lacking legal personality.  “It is very probable that the scholastic philosophers of the Middle Ages were the first to use the word ‘persona’, with all its metaphysical implications, to designate the legal entity.  In Roman Law we do not find the expression used in this sense.  ‘The admission must be made’, says Maitland, ‘that there is no text [in Roman Law] which directly calls the Universitas a persona …’  ” (Nékám: 50).    At present, application of the term ‘person’ has gone beyond the sphere of legal entities under municipal laws, and it also applies to entities that have international legal personality.

 

The words “human being” and “person” are not interchangeable.  All human beings in modern legal systems are persons, and take part in legal relationships as subjects of rights and duties.  Thus unlike Ancient Roman Law there is no distinction among human beings with regard to legal personality.  However, entities other than human beings also take part in legally defined relationships as holder of rights and bearer of obligations.  Unfortunately, however, the same term is used in Ethiopia (for example “sewoch” in Amharic) for two different referents: that is, to refer to ‘human beings’ as creatures and to humans and legal entities as subjects of the law.

 

In popular parlance “person” denotes physical or natural persons.  But in day-today social interaction, entities other than natural persons interact among themselves and/or with natural persons Thus the term ‘person’ refers to both human beings and juridical entities.  However, unless otherwise designated or unless the context so requires, the word person usually refers to human persons. 

 

Articles 1 to 393 of the Civil Code deal with natural (or physical) persons.  And, juridical (or legal) persons (Articles 394 ff) are entities other than natural persons that are endowed with legal personality by virtue of the law.  The state, territorial subdivisions of the state, ministries, public associations, trade unions, partnerships, companies, etc. are juridical persons from the time of their establishment until they are dissolved and liquidated.

A juridical person usually has a distinct legal existence separate from its members.  A case in point (in this regard) is the continued existence of the entities even after the partial or total change of their founding individual members.  Such legal entities (either public or private} as stated above are endowed with juridical personality.  Same as physical persons, these legal persons have rights and duties; enter into contracts, can sue, be sued and perform various juridical acts.  However, it must be noted that there are rights of personality that cannot be exercised by juridical persons, such as the right to vote. 

 

Thus, “persons” can be defined as human beings or legal entities that are holder (or bearer) of rights, and “personality” refers to all the attributes that have legal protection.   The phrase “subject of rights” (used in Article 1 of the Ethiopian Civil Code) obviously implies corresponding duties as well, because the rights of any person apparently impose a reciprocal duty on others to observe these rights.  For example, a certain person’s rights with regard to the privacy of correspondence or the inviolability of residence presuppose the duty of others to respect these rights.   The French version uses the words “sujet de droit” (subject of the law), and this clearly includes duties.

 

The term “subject of the law” is different from “object of the law”.  Everything that is covered by the law is its object, but it is not expected to bear rights and duties.  A negligent driver who runs over a dog violates the rights of property of the owner of the dog.  The owner of the dog is subject of rights in this example.  And he will be subject of duties (extra contractual liability) in case his dog bites anyone.  Similarly, a person who kills a wild animal in violation of the laws on wildlife conservation infringes the law.  In such instances, harm is said to have been caused to objects of the law.  

Definition and Etymology 

 

M. Planiol, Treatises on Civil law, Volume I, Part I (2nd part), Louisiana State Law Institute, 1959, pp. 243, 244

 

Those beings capable of having rights and obligations are called “persons.” 

 

The word “person” is a metaphor borrowed by the ancients from the language of the theatre.   Persona designates, in Latin: the mask which covers the figure of the actor.  It had an open mouth, containing a metallic thin plate, so adjusted that it gave greater resonance to the actor’s voice.     As there were invariable types for each part in the play, the audience recognized the character as soon as it saw the mask.  Persona served in this way to designate what moderns call a role or part.  And the word passed into current speech.     

 

Two kinds of persons Distinguished 

Contemporary legal literature recognizes two categories of persons. They are real persons who are living beings and fictitious persons who have only an imaginary existence. …

 

Who are the real persons? 

Every human being is a person.  This, however, is only true since the suppression of slavery.  But only individuals of the human species are persons.  Animals are not. 

 

Principal Attributes of Personality

Persons have names which serve to distinguish them from one another.  They also have a juridical status, made up of manifold elements, which defines their capacity ….  They alone may have a patrimony and a domicile

No comments:

Post a Comment