PERSONALITY
PERSONALITY
Status of Dead Person
Legal Status of Lower Animals
Legal Status of Unborn Person
Legal Persons
CORPORATE PERSONALITY
Corporation: Sole and Aggregate
Theories of Legal (Corporate) Personality
A. Fiction Theory Savigny vis Salmond
B. Concession Theory
C. Bracket Theory (Symbolist Theory) R. Ihering
D. Hohfeld's Theory
E. Realist Theory
F. Purpose Theory
G. Kelson's Theory
Conclusions
Liabilities of Corporations
The term‘person’ or ‘personality’ has been used in different sense for different purposes. In moral sense, the term has been used to mean the rational sub-stratum or quality of human being. In anthropological and biological sense, the term‘person’ has been used to mean as one of the species. In law the word person is given a wide meaning. Salmond says that so far as legal theory is concerned, a person is a being whom the law regards as capable of bearing rights and 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 not a person, even though is a human being.
Thus law recognises not only the human beings but also the associations as person. The term‘personality’ should be distinguished from humanity. Humanity means only human beings but personality includes inanimate objects also. Personality is wider than humanity. Sometimes personality and humanity coincide and sometimes not. There are human beings who are not persons in the legal sense such as outlaws and slaves (in early times) and also idiots, minors and lunatics. In the same way there are legal persons who are not human beings, such as an idol or a corporation. Legal persons means an entity which is capable of suing or being sued. In the same way there are legal persons who are not human beings, such as an idol or a corporation.
Broadly speaking the word Person can be divided into two types;
- Natural Person
2. Legal Person
Natural Person: Natural Persons are those which are born as humans and it is therefore that the role of legal governance formulated certain code of conduct to safeguard their rights and for the welfare as well as for the development of the society.
Legal Person: Legal Person is created by Law only. Without the knowledge oflaw, no legal personality can be created. Since it was felt by the dynamic society that the natural persons by themselves can not take the responsibility of all their activities therefore it was thought necessary to confer legal personality to not only living entities rather non living ones also.
Position of Slaves: In the olden times slaves were not treated as person in its true meaning. They had been given a chance to work and get food but no right to demand, as they were purely being governed by their masters. It means that the legal system .does not provide any guidelines in which the old society could recognize the rights & obligations of the slave. They were treated as movable property. But now the situation has completely changed.
The position of slaves during the British period was very bad. The one important saying of Duguit is “the only right which a man has to do is to do his duty”, i.e., only obligations for an individual without exercising his abilities, but this is not so in the present era.
This clearly shows that the slaves were merely the obeying and not the commanding personality. But after Independence, our constitution makers have clearly prohibited untouchability, slavery as well as any other form offorced labour derogatory to the personality and well being of an individual. This is the only way through which the real objective of equality can be achieved.
Status of Dead Person
Dead person in general have no rights because they have no interests. Their legal personality is extinguished by death.
It is said that the legal personality is created from birth & ends with death but sometimes desire of a dead person is protected by law. Basically the dead person gets three types of rights:
- Relating to his body (burial)
- Relating to reputation
- Related to his estate
The legal system recognises decent burial of dead person.
As far as reputation is concerned, the legal system protects the reputation of the dead person to some extent. This is mainly true in,cases of defamation-it is said that even a dead person has a right to safeguard his reputation. Any defamatory statement which affects the reputation of the family of dead person or the dead person himself is protected by the legal system under the civil as well as criminal liability. By way of testamentary succession, a man can after his death, may continue to regulate and determine the disposition and enjoyment of his property which he owed while living.
Legal Status of Lower Animals
In the present day context, the animals are deemed incapable of possessing legal rights & duties. They are merely things, often the objects of legal rights and duties but they are never subjects of them.
For example:-
A beast has no legal personality. Anything done to the animals may be a wrong to its owner or to the society but it is no wrong to the beast. But the animals have two rights to be protected.
- Cruelty to animals is made a criminal offence.
- A trust for benefit for a particular class of animals as opposed to one for individual animal is valid and enforceable as a public and charitable one.
Personality of animals.
Legal Status of Unborn Person
Generally an unborn person has no legal standing in the eyes of law. However it has to be distinguished from the one who is living but not yet born, i.e., a child in womb of its mother-in utero and an unborn child in the sense of future generations. A child in the uterus is regarded as a person in law in accordance with the maxim Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been born. The rights of an unborn person, whether personal or proprietary, are all contingent on his birth as a living human being.
Right in the inherent property can be given to such a child if the child is born alive. A posthumous child may inherit, but ifhe dies in the womb, or still born, his inheritance fails to take effect and no one can claim through him. But if the child is born alive even for seconds, his heirs may claim his share through inheritance.
Legal Persons
Legal persons, being the arbitrary creations of the law, may be of as many kind as the law pleases. The important ones are:-
1)Corporations, Companies, etc.
2)Institutions e.g., a church, a hospital, a university, a library, etc.
3)Registered trade unions, friendly societies, etc.
4)Charitable fund, trust estate (e.g. property of a dead man).
5)The State.
The unincorporated associations e.g. a club, are not a legal person. The rights and duties of a club are nothing more that the rights and duties of its members. A partnership or firm is not a legal person, but yet resembles one in certain ways. It can sue and be sued in its own name, and its property is separate from the property of its members. But the rights of partnership are in fact the rights of the partners, as are its liabilities; for the partners, are in general fully liable personally for the debts of the firm. In contrast, a company or a corporation, is in law a distinct person from its members; the members are not liable personally for the debts of the company. The corporation is not a mere aggregate of shareholders (Salolllon v. Salomon & Co., 1897 A.C.)
CORPORATE PERSONALITY
Corporation: Sole and Aggregate
Corporation are persons incorporated or politique created by the policy of man. Corporation are of two types, viz. either sole or aggregate of many. A corporation aggregate is an incorporated group of co-existing persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that which has only one member at a time.
Corporations aggregate are by far the more numerous and important. Examples are a registered company consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough.
Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The sovereign or king for example, is said to be a corporation of this kind at common law, while the post master-general, the solicitor to the Treasury, the Secretary of State, the Minister, have been endowed by statute with the same nature. In England, the chief manifestation of
Corporate sole is also seen in the proclamation that is made on the death of reigning monarch. The proclamation says ‘The king is dead’, ‘Long Live the King’. It thus refers to with, to the individual who has died and the Corporation Sole that survives.
The purposes of the corporation sole are analogous to those of the corporation aggregate. The object of this device is to avoid the difficulties which are involved in the transmission from each officer to his successor of the property, liabilities, and contracts held, incurred or made by him in his official capacity. Such property, liabilities and contracts are imputed by the law to the permanent corporations which never dies or retires from office, as compared to individual holders of the office for the time being.
Theories of Legal (Corporate) Personality
“
A. Fiction Theory Savigny vis Salmond
Its principal supporters are Savigny and Salmond. As per this theory, Juritsic persons are also treated as if they are persons i.e. human beings. In other words, the theory presupposes that only human beings are ‘properly’ called ‘person’ of its own. The Corporation not being a real person, it has no will, no mind, no ability to act. It can have only so much as the law imputes to it by a fiction as if it were a real person. Salmond said that a group has 'reality' or existence, but it has no real personality in the philosophical sense. Savigny said that only a man is capable of rights and the original concept of personality must coincide with the idea of man.
B. Concession Theory
This is allied to the fiction theory and, in fact, supporters of the one tend also to support the other.
Its main feature is that it regards the dignity of being a ‘juristic person’ as having to be conceded by the State i.e., the law. The identification of 'law' with ‘State’ is necessary for this theory, but not for the fiction theory. A logical consequence of this theory would be that a company incorporated in America would not be recognised as a legal person unless it is specifically granted concession by Indian law.
C. Bracket Theory (Symbolist Theory) R. Ihering
This theory, put forward by R. Ihering, rests on the proposition that only human beings can have interests and rights (and thus the word ‘person’ is confined to them), and that a corporation is only a legal device offormula which will enable very complex jural relations to be understood more easily. ‘Juristic person’ is but a symbol to help in effectuating the purpose of the group, it amounts to putting a bracket round the members in order to treat them as a unit. A, B and C from a company and as it is inconvenient to refer always to all of them, a bracket is placed around them to which a name is given but, in order to understand the real position or real state of affairs we must remove the bracket.
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E. Realist Theory
According to this theory, a corporation is like a living organism, like a natural human being, which also possesses natural rights. A corporation is not the creation of a State, or fiction.
The modem realist theory builds on an analysis of human personality and regards group personality as in essence possessing the same characteristics. Gierke speaks of the group as having a real will, and real power of action. A corporation is real but mysterious entity with a special type of existence.
F. Purpose Theory
The theory originally perpounded by Britz and developed by Baker, is based on the assumption that person is applicable only to human beings. The so called juristic persons are no person at all. Since juristic persons are treated as distinct from their human substratum, if any, and since jural relations commonly vests in human beings, they should be regarded simply as subjectless properties designed for certain purposes. The theory was designed mainly to explain the foundation of German law and also explain the vacant inheritance of Roman law.
G. Kelson's Theory
Kelson makes an analytical and formal approach to the concept of personality. He rejected, for purposes oflaw, any contrast between human beings as ‘natural persons’ and ‘Juristic Persons’. He also rejected the definition of person as an entity which has claims and duties. According to him the totality of claims and duties is the person in law; there is no entity distinct from them. Turning to corporations, he pointed out that it is the conduct of human beings that is the subject matter of claims and duties.
Conclusions
No single theory takes account of all aspects of the problem, and criticism becomes easy. There is no ‘essence’ underlying the various uses of ‘persons’. Its application to things other than human beings is purely a matter of legal convenience.
The theories are philosophical, political or analytical, but are not so much concerned with finding solutions to practical problems as with trying to explain the meaning of the word ‘person’. Courts, faced with problems of solving a case before it, have proceeded according to policy, not logic. Thus, courts haven't adopted any particular theory of corporate personality.
The way in which the idea of 'person' has been extended to corporation is no longer suited to modem commerce. Here, it is not flexible enough. For instance, the separate person of a corporation fails to cope with the problems of parent and subsidiary companies. The courts have evolved ways of dealing with the group activities without resorting to the device of persons. Thus, it seems that the legal concept of ‘person is not efficient in today’s society.
Liabilities of Corporations
From the above discussion, it is amply clear that the corporation has no physical existence. Therefore, its interests are only those which are attributed to it. So, the acts of the corporation are those of its shareholders. The representatives of the corporation are distinct from the members of the corporation.
POSSESSION
POSSESSION
DEFINITION
ITS ESSENTIALS
MENTAL ATTITUDE OF THE POSSESSOR
RELATION OF THE POSSESSOR TO OTHER PERSONS
RELATION OF THE POSSESSOR TO THE THING POSSESSED
Legal consequences of possession
KINDS OF POSSESSION
MODES OF ACQUIRING POSSESSION
‘Possession’ and ‘Ownership’ distinguished
POSSESSION POSSESSORY REMEDIES
Why Possessory Remedies are recognised
POSSESSORY REMEDIES AND ENGLISH LAW
(The Doctrine of jus tertii)
ADVERSE POSSESSION
CASES
DEFINITION
“Few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Human life and human’ society, as we know them, would be impossible without the use and consumption of material things. We need food to eat, clothes to wear and tools to use, in order to win a living from our environment. But to eat food, we must first get hold of it, to wear clothes, we must have them, and to use tools, we must possess them. Possession of material things then is essential to life; it is the most basic relationship between men and things”.- Salmond.
ITS ESSENTIALS
Possession involves two distinct elements, one of which is mental or subjective, the other, physical or objective. These were distinguished by the Roman lawyers as animus and corpus, The subjective element is more particularly called animus possidendi, or animus domini. “Neither of these”, observes Salmond, "is sufficient by itself. Possession begins only with their union, and lasts only until one or the other of them disappears”.
1. Animus possidendi
Animus possidendi or the subjective element is the intent to appropriate to oneself, the exclusive use of the thing possessed. It is an exclusive claim to a material object. It is the intention of using the thing oneself and of excluding the interference of other persons.
MENTAL ATTITUDE OF THE POSSESSOR
To constitute the animus possidendi, there must be an intention to possess, and the nature of the intention is governed by the following rules:
a)The animus need not necessarily be in the nature of a claim of right.
b)It may be consciously wrongful. Even a thief has possession which is no less real than that of a true owner.
c)The claim of the possessor must be one of exclusive possession, involving an intent to exclude other persons from the use of the thing possessed.
d)The exclusion need not be absolute.
e)The animus possidendi need not be a claim on ones own behalf; one may possess a thing either on his own account or on account of another.
f)The animus possidendi need not be specific; it may be general. X may intend to possess all the books on his book-shelf, though he might have forgotten the existence of some of the books on the shelf. This general intention to possess all the books in the bookshelf is sufficient animus for X possessing every book on the shelf.
2. Corpus
To constitute possession, the animus domini is not in itself sufficient; it must be embodied in a corpus. Corpus is the effective realisation in fact of the claim of the possessor. Effective realisation means that the fact must amount to the actual present exclusion of all alien interference with the thing possessed, together with a reasonable and sufficient security of the exclusive use of it in the future.
Corpus possessionis
The corpus of possession can be discussed:
(i)in relation of the possessor to other persons; and
(ii)in relation of the possessor to the thing possessed.