Jurisprudence E Notes

Chanderprabhu Jain College of Higher Studies
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School of Law
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi& Approved by Bar Council of India)
E-NOTES
Class : BBA LL.B VI Semester
Paper Code : LLB 302
Subject : Jurisprudence
UNIT-3
Rights and Duties
Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of decisions
of suitably authoritative bodies within them.
According to positivists, legal rights are essentially those interests which have been legally
recognized and protected. John Austin made a distinction between legal rights and other types of
rights such as Natural rights or Moral rights. By legal rights, he meant rights which are creatures of
law, strictly or simply so called. He said that other kind of rights are not armed with legal sanction
and cannot be enforced judicially.
On the other hand, Salmond said that a legal right is an interest recognized and protected by rule of
law and violation of such an interest would be a legal wrong. Salmond further said that:
A legal duty is an act that obliges to do something and act, the opposite of which would be a legal
wrong.
Whenever law ascribes duty to a person, a corresponding right also exists with the person on whom
the duty is imposed.
There are two kinds of duties: Moral Duty and Legal Duty
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Salmond also believed that no right can exist without a corresponding duty. Every right or duty
involves a bond of legal obligation by which two or more persons are bound together. Thus, there
can be no duty unless there is someone to whom it is due; there can be no right unless is someone
from whom it is claimed; and there can be no wrong unless there is someone who is wronged, that is
to say, someone whose right has been violated.
This is also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds
one person to another.
On the other hand, Austin said that Duties can be of two types:
a. Relative Duty – There is a corresponding right existing in such duties.
b. Absolute Duty – There is no corresponding right existing.
Austin conceives this distinction to be the essence of a right that it should be vested in some
determinate person and be enforceable by some form of legal process instituted by him. Austin thus
starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the
society or the people. The second assumption with which Austin starts is that sovereign creates
rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the
holder such right. It avails against a person, upon whom lies the correlative duty. He may be
distinguished as the person bound, or as the subject of duty, or as the person of incidence.
1. It obliges the person bound to an act or omission in favour of the person entitled. This may be
termed the content of the right.
2. The act or omission relates to something (in the widest sense of that word), which may be termed
the object or subject matter of the right.
3. Every legal right has a title, that is to say, certain facts or events by reason of which the right has
become vested in its owner.

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Some jurists hold that a right may not necessarily have a correlative duty. They say that legal rights
are legal concepts and these legal concepts have their correlatives which may not necessarily be a
duty.
Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal rights are
essentially interests recognized and administered by law and belong to the ‘science of law’ instead of
‘law’. He proposed that such Rights are conceptions by which interests are given form in order to
secure a legal order.
Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in another
and liability is the presence of power in another. Jural Opposites represent the absence of in oneself.
Thus, no right is the absence of right in oneself and disability is the absence of power in oneself.
Conclusion derived from Hohfeld’s System
a) As a person’s right is an expression of a wish that the other person against who the right or claim
is expressed has a duty to obey his right or claim.
b) A person’s freedom is an expression of a right that he may do something against other person to
change his legal position. A person’s power is an expression of a right that he can alter other
person’s legal.
Salmond on Rights and Duties
Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect duty is one
which is not merely recognized by law but also enforced by law. In a fully developed legal system,
there are rights and duties which though recognized by law are not perfect in nature. The rights and
duties are important but no action is taken for enforcing these rights and duties. The rights form a
good.
Conclusion derived from Hohfeld’s System
a) As a person’s right is an expression of a wish that the other person against whom the right or
claim is expressed has a duty to obey his right or claim.
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b) A person’s freedom is an expression of a right that he may do something against other person to
change his legal position.
c) A person’s power is an expression of a right that he can alter other person’s legal position.
d) A person’s disability is an expression of a wish that another person must not alter the person’s
legal position.
Salmond on Rights and Duties
Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect duty is one
which is not merely recognized by law but also enforced by law. In a fully developed legal system,
there are rights and duties which though recognized by law are not perfect in nature. The rights and
duties are important but no action is taken for enforcing these rights and duties. The rights form a
good ground for defence but duties do not form a good ground for action. However, in some cases,
an imperfect right is sufficient to enforce equity.
1) Right in Rem and Right in Persona -
'Rem' means world and 'Persona' means persons. The Right in Rem is the right available against the
whole world while right in Persona is the right against a particular person. Right in Persona
generally arises out of contractual obligations for example - breach of contract. Whereas right in rem
is generally outcome of law.
For example - Tort, Crime.
Right in Persona is generally transitory in nature, which can be transferred in right in rem. Right in
rem is a final thing, whereas right in Persona is transitory in nature.
2) Personal and Proprietary Right -
Personal right is in respect of person of owner of right whereas Proprietary right is in respect of
property of which the person is an owner. Proprietary Rights are those, which constitute a man's
property or wealth. These are the rights, which possess some economic or monetary value and

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constitute the estate of the Person. Right to land, debts and Goodwill or patent rights are all
Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important like
Proprietary right. For example - right to reputation. Personal Rights is having no economic value.
They relate to Person's well-being or status.
3) Positive and Negative Rights -
Positive rights have corresponding Positive duty. Positive right therefore the right when some
positive act is required to be done by the person who has the corresponding duty. Thus the person on
whom such duty lies must do some positive act.
While on the other hand negative rights are those rights when some negative act by way of omission
is required. Negative rights correspond to negative duty, and the person on whom such negative duty
lies shall omit (not to do) such act.
4) Principal and Accessory rights -
The principal right is a basic or main right vested in Persona under law. They are Vital and important
Rights. While accessory right is incidental or consequential right. They are not essential but are
apparent to the more basic general right.
5) Perfect and Imperfect Rights -
Perfect right corresponds with perfect duty. Perfect rights are recognized and also enforced by law
and an action can be taken against the wrongdoer by filing a suit in Court of Law for the breach of it.
While Imperfect right corresponds with Imperfect duty, which are not recognized b law and hence
cannot be enforced by law.
For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect right to recover
loan from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'. If 'B' failed, then 'A' can file
Suit against him in court of law for recovery of loan. But if it is time-barred loan, for example no suit

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filed within the limitation period (within 3 years) and 'A' was sleeping over his right for a pretty long
time. 'A' can claim for the same as it becomes imperfect right which cannot be enforced by law.
6) Right in Re-proporia and Right in Re-aliena -
Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia contemplates
absolute ownership. Thus it is the outcome of jurisprudence aspect of ownership. Whereas right in
Re-aliena, is the right in respect of property of another person. Right in Re-aliena is the outcome of
jurisprudence aspect of dominant heritage and servient heritage. For example - right of easement.
7) Vested and Contingent Right -
Vested and Contingent rights are depending on the relationship as to owner of right and right itself.
Vested right means which is already vested in person, the person already has such right through it
depends upon the happening of certain events, that event is going to happen. (See also... Vested
interest) Whereas is in Contingent interest the right is dependent upon happening or non-happening
of certain events which may or may not happen.
8) Legal and Equitable Right -
Legal rights are the rights given by common law Courts of England. Common law was based on
statute by way of custom, usage. Equitable rights are the outcome of law of equity given by the court
of chancellor, or equity Court based on principle of natural justice and conscience of Lord
Chancellor.
By Judicature Act 1873, 1875 both systems are unified, but as per J. Snell 'Both the systems flow in
one stream but their water does not mix.' After the unification of the both these systems English law
came into existence. But still there are certain principles and rights, which are classified as equitable
right and legal right.
9) Corporeal and Incorporeal Right -

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Here a fine distinction is made of the subject matter of the right. Corporeal rights are having
physical existence. For example - I owned a book; the book has physical existence, so my right in
respect of the book is Corporeal in nature.
Whereas in corporeal rights are those right in respect of such subject matter having no physical
existence.
Example - copyright of the book or trademark. Both Corporeal Incorporeal rights are legally
protected rights.
10) Primary and Sanctioning Right -
Primary right is basic right. It is independent Right. These are the right ipso facto. for example -
right in rem; right to reputation, Right to satisfy is the primary right. If right of reputation is violated
then there is legal remedy. in Tort or in Crime. There is force behind it. Sanctioning rights are the
consequential rights. They are not right ipso facto. They are right in Persona, which originates from
some wrong.
Example - From violation of another right. Thus Sanctioning Right is supporting right to primary
right.
11) Public and Private Rights -
Legal Rights can also be classified into Public Rights and Private Rights. Public Rights are those
Vested in by State.
Example - Right to use High-way, right to vote etc. A private Right is one which is exercised by an
individual to protect his benefit.
Ownership
Salmond on Ownership

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Ownership denotes the relationship between a person and an object forming the subject-matter of his
ownership. It consists in a complex of rights, all of which a rights in rem, being good against the
entire world and not merely against specific persons.
Incidence of Ownership
1. The owner has the right to possess things that he owns.
2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to
decide how it shall be used and the right of income from it. However, Right to possess is not a right
strictu sensu because such rights are in fact liberties as the owner has no duty towards others and he
can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.
3. The owner has the right to consume, destroy or alienate the things. The right to consume and
destroy are again straight forward liberties. The right to alienate i.e. the right to transfer the existing
rights involves the existence of power.
4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has a
residuary character. Salmond contrasted the rights of the owner with the lesser rights of the
possessor and encumbrance by stating that “the owner's rights are indeterminate and residuary in a
way in which these other rights are not”.
Austin’s Concept of Ownership
Ownership or Property may be described accurately enough, in the following manner: ‘the right to
use or deal with some given subject, in a manner, or to an extent, which, though is not unlimited, is
indefinite’.
Now in this description it is necessarily implied, that the law will protect or relieve the owner against
every disturbance of his right on the part of any other person. Changing the expression, all other
persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of
the right. Austin further said that “Ownership or Property, is, therefore, a species of Jus in rem. For
ownership is a right residing in a person, over or to a person or thing, and availing against other

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persons universally or generally. It is a right implying and exclusively resting upon obligations
which are at once universal. After referring to the views of Salmond and other Jurists, Dias came to
the conclusion that a person is owner of a thing when his interest will outlast the interests of other
persons in the same thing. This is substantially the conclusion reached by many modern writers, who
have variously described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring interest’.
According to Dias, an owner may be divested of his claims, etc., to such an extent that he may be
left with no immediate practical benefit. He remains owner nonetheless. This is because his interest
in the thing, which is ownership, will outlast that of other persons, or if he is not presently exercising
any of his claims, etc., these will revive as soon as those vested in other persons have come to an
end.
In the case of land and chattels, if the owner is not in possession, ownership amounts to a better right
to obtain the possession than that of the defendant. It is 'better' in that it lasts longer. It is apparent
that the above view of Dias substantially agrees with that of Salmond. According to Dias it is the
outlasting interest and according to Salmond, ownership has the characteristic of being indeterminate
in duration and residuary in nature[5].
Types of Ownership
1. Corporeal ownership:
Corporeal ownership is of that object which is tangible in nature. Example: Land, goods, etc.
2. Incorporeal ownership:
Incorporeal ownership is that which is intangible in nature. Example: Copyright, reputation and etc.
3. Sole ownership:
When a property is owned by only one legal owner it is called sole ownership. Example: A person
owns a car.
4. Co-ownership:

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When a property is owned by two or more legal owners it is called co-ownership or joint ownership.
Example: Partnership of business between three partners.
5. Legal ownership:
It is the legal claim or title to an asset or property. Therefore, a person who has legal ownership on a
property can transfer it to the ownership to another party. Example: a lender who has lent money for
a property is the legal owner of that property.
6. Equitable ownership:
We do not consider equitable ownership as true ownership because it is only the benefit of the
property that the buyer will use and enjoy. Example: If MR. X is the legal owner of a property and
MR.Y is the equitable owner. Then MR.X is not entitled to the use and enjoyment of the property
whereas, MR.Y doesn’t own the property but has the right to use and enjoy it, something which
MR.X cannot do.
7. Trust and beneficial ownership:
Legal and beneficial ownership belongs to an entity who has the specific property right “use and
Title” in equity. But the property belongs to some other person. Example: If MR. John’s property is
transferred to trustees to hold it for the benefit of the beneficiaries. It is not MR. John’s trust that
owns the land or shares but the trustees of MR. John’s who owns it. So their names would be used as
the trust and beneficiaries.
8. Vested ownership:
According to law vested ownership has the complete and full ownership on the property. Example:
Two people sharing ownership of a property. If one dies the other gets the gain of vested ownership
of the property.
9. Contingent ownership:

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In Contingent ownership, the owner does not have the full claim to the property, but he can claim it
on the fulfillment of some conditions. These conditions are of two types namely condition precedent
and condition subsequent.
10. Absolute Ownership:
Absolute ownership is a free transferable and inheritable property a person can have as his actual
right. Example: The mortgage of some property by its owner.
11. Limited Ownership:
Limited ownership is the ownership that is not absolute or perfect. Where the owner enjoys the right
to use and enjoy the property for a limited period of time as long as some other person is alive.
Salmond on Possession
Salmond said that in the whole of legal theory there is no conception more difficult than that of
possession. The legal consequences which flow from the acquisition and loss of possession are many
and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed
to be the owner of it, and may put all other claimants to proof of their title. The transfer of
possession is one of the chief methods of transferring ownership.
Salmond also said that possession is of such efficacy that a possessor may in many cases confer a
good title on another, even though he has none himself.
He also made a distinction between possession in fact and possession in law.
1. Possession may and usually does exist both in fact and in law. The law recognizes as possession
all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the
contrary.
2. Possession may exist in fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognized as such by the law, and he is then said to have
detention or custody rather than possession.

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3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does not
possess. The possession thus fictitiously attributed to him is termed constructive.
4. In Roman law, possession in fact is called possessio naturalis, and possession in law as possessio
civilis.
What, then, is the exact nature of that continuing de facto relation between a person and a thing,
which is known as possession?
According to Salmond, the possession of a material object is the continuing exercise of a claim to
the exclusive use of it.
It involves two distinct elements, one of which is mental or subjective, the other physical or
objective.The mental element comprises of the intention of the possessor with respect to the thing
possessed, while the physical element comprises of the external facts in which this intention has
realised, embodied, or fulfilled itself.
The Romans called the mental element as animus and the subject element as corpus. The
mental or subjective element is also called as animus possidendi, animus sibi habendi, or animus
domini.
The Animus Possidendi - The intent necessary to constitute possession is the intent to appropriate to
oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object.
Salmond made following observations in this regard.
1. It is not necessarily a claim of right.
2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.

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5. The animus possidendi need not be specific, but may be merely general. It does not necessarily
involve any continuous or present knowledge of the particular thing possessed or of the possessor’s
relation to it.
The Corpus Possessionis – The claim of the possessor must be effectively realized in the facts; that
is to say, it must be actually and continuously exercised. The corpus possessionis consists in
nothing more than the continuing exclusion of alien interference, coupled with ability to use the
thing oneself at will. Actual use of it is not essential.
Immediate and Mediate Possession
The possession held by one man through another may be termed mediate, while that which is
acquired or retained directly or personally may be distinguished as immediate or direct There are
three kinds of Mediate Possession
1. Possession that is acquired through an agent or servant who claims no interest of his own.
2.The direct possession is in one who holds both on the actual possessor’s account and on his own,
but who recognizes the actual possessor’s superior right to obtain from him the direct possession
whenever he choose to demand it.
3. The immediate possession is in a person who claims it for himself until some time has elapsed or
some condition has been fulfilled, but who acknowledges the title of another for whom he holds the
thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end.
Concurrent or Duplicate Possession
1. Mediate and Immediate Possession co-exist in respect of the same thing as already explained
above.
2. Two or more persons may possess the same thing in common, just as they may own it in common.
This also called as compossessio.

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3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object, just
as corporeal and incorporeal ownership may.
Incorporeal Possession
In Incorporeal Possession as well, the same two elements required, namely the animus and the
corpus. In the case of incorporeal things, continuing non-use is inconsistent with possession, though
in the case of corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a right, and corporeal possession is
distinguished from it as the possession of a thing. The distinction between corporeal and incorporeal
possession is clearly analogous to that between corporeal and incorporeal ownership.
Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like
incorporeal ownership, is that of a right. In essence, therefore, the two forms of possession are
identical, just as the two forms of ownership are.
Hence, Possession in its full compass and generic application means the continuing exercise of any
claim or right.
Paton on Possession
Paton said that even though Possession is a concept of law still it lacks a uniform approach by the
jurists. Some jurists make a distinction between legal and lawful possession. Possession of a thief is
legal, but not lawful. In some cases, where possession in the popular sense is meant, it is easy to use
some such term as physical control. Possession is also regarded as prima facie evidence of
Ownership.
According to Paton, for English law there is no need to talk of mediate and immediate possession.
The Bailee and the tenant clearly have full possession: Salmond's analysis may he necessary for
some other systems of law, but it is not needed in English law.
Oliver Wendell Holmes and Von Savigny on Possesion

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Savigny with other German thinkers (including Kant and Hegel) argued that possession, in
the eyes of the law, requires that the person claiming possession intend to hold the property in
question as an owner rather than recognize the superior title of another person, so that in providing
possessory remedies to lessees, Bailees, and others who lack such intentions, modem law sacrifices
principle to convenience.
To this Holmes responded that he “cannot see what is left of a principle which avows itself
inconsistent with convenience and the actual course of legislation. The first call of a theory of law is
that it should fit the facts. It must explain the observed course of legislation. And as it is pretty
certain that men will make laws which seem to them convenient without troubling themselves very
much what principles are encountered by their legislation, a principle which defies convenience is
likely to wait some time before it finds itself permanently realized.”
Holmes also criticised Savigny and other German theorists by saying that “they have known no other
system than
Property
According to Salmond: The substantive civil law can be divided into three major sections, namely,
the law of property, the law of obligations and the law of status. The first deals with the proprietary
rights in rem, the second with proprietary rights in personam and the third deal with personal or non-
proprietary rights, whether in rem or in personam. The Supreme Court of India in Guru Dutt Sharma
V. State of Bihar, defined property as a legal concept and observed that:
It is a bundle of rights' and in the case of tangible property, it would include the right of possession,
the right to enjoy, the right to retain, the right to alienate and the right to destroy. The term 'property'
also includes goodwill of a business, which is an intangible asset. It includes not only immovable
and movable object, but also patents, copyrights, shares, claims etc. According to Salmond,
ownership of corporeal property is general, permanent and inheritable right of user of a thing.
Natural Law Theory

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According to this theory, property was first acquired by occupation of an ownerless object as a result
of individual labour. Blackstone, Locke, Pufendrof and Grotius supported this theory. Kant also
supported this theory in his work 'Philosophy of Law'.
According to Blackstone: By the law of nature and reason, he who first began to use a thing
acquired therein a kind of transient property that lasted so long as he was using it and no longer. Sir
Henry Maine and Bentham criticized the natural law theory of property.
According to Maine: It is erroneous to think that possession gives rise to title for there is no
reasonable ground to support this contention. According to Bentham Property has not originated by
first occupation of an ownerless thing, but it is a creation of law. He does not believe in the existence
of property without the existence of law.
Labour Theory
According to this theory, property can be claimed on the exclusive basis of one's work, which
produced that property. This theory recognises the role of labour for adequate rewards. When a
person acquires property, he or she is entitled to hold it exclusively. These theory further states that,
a thing (res) is the property of the person who produces it or brings it into existence, but this view
was criticized by Laski on the basis that labour does not produce property, it is only a means to earn
property. The Marxist theory of property is based on predominance of labour in economy of a
country, however, this theory is not significant in modern time because it has been proved many
times that property can be acquired without labour e.g. inherited property or under The labour theory
of property is also called as the positive theory which was propounded by Spencer who founded it on
the fundamental law of equal freedom of individual. He asserted that property is the outcome of
individual labour, so no one has a moral right to property which he has not acquired by his personal
labour.
Metaphysical Theory
Hegel and Kant were the chief exponents of this theory.

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According to Hegel, Property is the objective manifestation of the personality of an individual. It
means property is the object on which a person has the liberty to direct his will. Kant also justified
the existence of property and need for its protection.
According to Kant: The law of property does not merely seek to protect possession where there is an
actual physical relation between the possessor and the object, but it goes beyond it and considers
personal will of the individual more important in the concept of property. Historical Theory Henry
Maine was the main supporter of the historical theory of the origin of property. According to him,
property originally did not belong to individuals, not even to isolated families, but to large societies
composed on the patriarchal pattern.
According to Roscoe Pound: the earliest form of property was group property which later
disintegrated into family property and finally the concept of individual property came into existence.
Miraglia, an Italian jurist, also supported this theory of property.
Psychological Theory
Bentham has supported psychological theory of property and has observed that property is altogether
a conception of mind. It is nothing more than an expectation to derive certain advantages from the
object according to one's capacity. According to this theory, property came into existence on account
of the acquisitive tendency of human beings. This theory has been criticised because it is considered
to be Maine's imaginative reconstruction based on Indian village communities and certain local
customs prevalent in ancient Indian villages, so it lacks universal application.
Functional Theory
This theory considers property as a social interest for promoting general security and protection of
individual interests in personality, domestic relations and in subsistence. As observed by Roscoe
Pound: Interests of personality like security of one's physical being, privacy, honour, reputation, etc,
can be realised only through some access to property. Interests of subsistence include right to

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property, economic advantages, and freedom of association and availability of employment-
opportunities.
According to Jenks: The concept of property should not only be confined to private rights, but it
should be considered as a social institution securing maximum interests of the society. According to
Laski, Property is a social fact like any other and it is the character of social facts to keep on
changing. Property, therefore, has assumed varied aspects and is further liable to changes with the
changing norms of the society.
Kinds of Property
The objects which are capable of becoming property are those over which a person exercises a right
and with reference to which another person owes a duty.
These objects may be:
1. Material objects e.g. physical things (res corporales) like house, horse, car, chair, tree etc.
2. Intellectual objects which are artificial things called res incorporales like patent, trademark,
copyright etc. So, the property is primarily of two kinds, namely corporeal and incorporeal.
Corporeal property is the right of ownership in material things whereas incorporeal property is any
other proprietary right in rem, e.g. patent right, right of way. Corporeal property is always visible
and tangible while incorporeal property is not. Both are, however, valuable rights in as much as they
are legal rights recognised and enforced by law. Corporeal property is of two kinds, namely,
movable and immovable.
Legal Personality
The term Person is derived from the Latin word 'Persona' it means those who are recognized by law
as being capable of having legal rights and duties.
Definition:

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1) Salmond - “A person is any being whom the law regards as capable of rights and bound by legal
duties.
2) Savigny defines the term person as the subject or bearer of a right.
3) According to Gray A person is an entity to which rights and duties may be attributed.
4) According to Austin the term 'person' includes physical or natural person including every being
which can be deemed human.
According to Section 11 of the Indian Penal code the word person includes any company or
association, or body of Persons, whether Incorporated or not.
Kinds of Persons: There are two kinds of persons are as follows
Natural persons
Legal persons (legal persons are also known as juristic, fictitious or artificial persons )
Natural Person
A natural person is a human being possessing natural personality.
According to Holland, a natural person is a human being as is regarded by the law as capable of
rights and duties. Requisite of normal human being is that he must be born alive moreover; he must
possess essentially human characteristics. Generally a person/human being who has a capacity to sue
and be sued is person.
Legal persons / artificial persons
A legal person has a real existence but its personality is fictitious. A fictitious thing is that which
does not exist in fact but which is deemed to exist in the eye of law. Example: Company or
corporation, idol etc.
Legal status of Dead Person

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Dead persons have no legal personality and hence, cannot sue and be sued. Dead men are no longer
persons in the eye of law. Legal personality of a person dies with his person. They do not remain the
owners of their property until their successors enter upon their inheritance. When a person dies
leaving Will, his property is distributed according to the Will. Law recognizes and takes account
after the death of the person of his desires and interest when alive. There are three things in respect
of which the anxieties of living men extend even after their death. Those are his body, his reputation
and his property.
1) His Body: A living person is interested in the treatment to be given to his own body. A person is
interested in a decent funeral and good burial. Criminal law secures a decent burial for all dead
persons and the violation of a grave is a criminal offence. It is because to the respect the feelings of
the relatives of a dead person, not in protection of dead person are right.
2) His reputation: Everyone is interested in maintaining reputation even after death. The reputation
of a dead person receives some degree of protection from the criminal law. Defamation suit can be
filed for loss of reputation of a dead person. If the publication is an attack on the internet of living
persons, as a matter of fact, this right is in reality not that of the dead person but of his living
descendants.
3) His Property Estate: A man is dead but his hand may continue to regulate and determine the
enjoyment of the property he owned while he was alive. He can dispose of his property by WILL.
When a person dies intestate (dies living will) the property is distributed according to the WILL.
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”.
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Contingent rights: The rights of an unborn person, whether personal or proprietary, are all contingent
on his birth as a living human being.
Damages: damages can be claimed for injury to the fetus of a woman if the woman was known to be
pregnant. Posthumous child can claim compensation for the death of his father in fatal accident.
Theories of Corporate Personality
Purpose Theory:
This theory given by Brinz primarily and developed in England by Baker, is based on the
assumption that ‘person’ is applicable only to human beings; they alone can be the subject of jural
relations. The so called juristic persons are not persons at all. Since they are treated as distinct from
their human substratum and since jural relations can only vest in human beings, they should be
regarded simply as ‘subject-less properties’ desired for certain purposes. It should be noted that this
theory assumes that other people may owe duties towards these subject-less properties without there
being correlative claims which is not impossible although critics have attacked the theory on this
ground.
To Duguit: ‘Purpose’ assumed a different meaning. The endeavor of law in its widest sense is the
achievement of social solidarity. He rejected the idea of collective will as unproven, but there can, he
said, be a collective purpose.
The Theory of Enterprise Entity

In this theory, the corporate entity is based on the reality of the underlying enterprise. Approval by
law of the corporate form establishing a prima facie case that the assets, activity and
responsibility of cooperation are part of the enterprise where there is no formal approval by law, the
existence extent of responsibility and so forth of the unit are determined by the under lying
enterprise.
This way of looking at it does explain the attitude of the law towards unincorporated association and
also leaves room for the miscellaneous situations in which the corporate unity is ignored. The
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theory is a utilitarian one.
Symbolic or Bracket Theory
According to Ihering, the members of a corporation and the beneficiaries of a foundation are the
only persons. Juristic person is but a symbol to help in effectuating the purpose of the group, it
amounts to putting a bracket around the members in order to treat them as a unit. This theory
assumes that use of the word, person is confined to human beings. It does not explain foundation
for the benefit of mankind generally or for animals.
Holfeld’s Theory
Holfeld drew a distinction between human beings and juristic persons. The latter he said are the
creation of arbitrary rules of procedure. Only human beings have claim, duty, power and liability.
Transactions are conducted by them and it is they who ultimately become entitled and responsible.
There are however, arbitrary rules which limit the extent of their responsibility in various ways e.g.
to amount of the shares. The corporate person is merely a procedural form, which is used to work out
in a convenient way for immediate purposes, a mass of jural relations of a large number of
individuals, and to postpone the detailed working out of these relations among the individual inter-se
for a later and more appropriate occasion.
Kelsen’s Theory
Kelsen began by rejecting for purposes of law, any contrast between human being natural person
and juristic person. The law is concerned with human being only in so far as their conduct is
the subject of rules, duty and claim. Kelsen also rejected the definition of person as an entity
which has claims and duties.
Fiction theory
Its principle supporters are Savigny and Salmond. Juristic persons are only treated as if they are
persons i.e. human being. It is thought that Sinibald Fieschi who became Pope Innocent IV in
1234 was first to employ the idea of persona ficta. It is clear that the theory presupposes that only
human beings are properly called persons.
Savigny declared “Every single man and only single man is capable of rights.” and said – “The
original concept of personality must coincide with the idea of man. All that fiction theory asserts
is that some groups and institutions are regarded as if they are person and do not find it necessary to
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answer why. This gives it flexibility to enable it to accommodate the cases in English law where the
mask is lifted and those where it is not cases where groups are created as persons for some
purposes but not for others.
Concession Theory
This is allied to the fiction theory. In fact supporters of the one tend also to support the other. Its
main feature is that it regards the alignity of being a juristic persons as having conceded by state i.e.
by a law. The identification of law with state is necessary for this theory, but not for the fiction
theory.
Realist and Organism Theory
The Realist theory of which Gierke is the principle exponent and Maitland a supporter, asserts that
juristic person enjoys a real existence as a group. A group tends to become a unit and to function
as such. The theory is of German origin.
The organism theory with which the realist theory is closely associated asserts that groups are
person because they are organism and correspond biologically to human being. This is based on the
special use of the term organism and the implications of such biological comparison can lead to
absurdity. It is said that they have a real life. Professor Wolff points out that if this were true, the
‘group will’ is only the result of mutually influenced wills.
Gray: “To get rid of the fiction of an attributed will by saying that corporation has a real general
will is to drive out one fiction by another.”
Institution Theory:
 Based on Realist Theory.
 Hauriou (French) is the exponent.
 Collectivist outlook.
 Individual is integrated into the institution and becomes a part of it.
 Pluralist interpretation – many institutions within the supreme institution of state.
 Fascist interpretation: Other institutions are a part of the only institution i.e. State.
Problems of corporate personality

A corporation has a distinct personality from its members.
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Cases:
 Saloman v. Saloman and Co. Ltd. (1897) – Shareholder is distinct from the company – a
shareholder could claim the preferential rights of a bond holder against the company.
 Farrar v. Farrar (1889) – A sale by a member of a corporation to the corporation itself is in
every scope, valid in equity as well as in law.
 People’s Pleasure Park Co. v. Rohleder (U.S. Case) – A covenant that a title to land
could not pass to a black. A corporation with all members black. Held: The corporation was
distinct from the members Title could validly pass to the corporation.
The doctrine of lifting the veil:

The whole law of corporation is based on the theory of corporate entity but the separate personality
of the company and its statutory privileges should be used for legitimate business purposes only. The
individuals concerned will not be allowed to take the shelter behind the corporate personality
where the legal entity of the company is being used for fraudulent and dishonest purpose. The
court in such cases shall break through the corporate shell and apply the principle of what is known
as “lifting or piercing the corporate or piercing the corporate veil”.
The corporate veil of a company may be lifted to ascertain the true character and economic realities
behind the legal personality of the company in the following cases.
Case: Daimler Co. v. Continental Tyre Co. (1916) – ‘Lifting of veil’ applied – all
shareholders were Germans (enemy) Enemy co.
U.S. v. Lehigh Valley Rail Road Co. (US) – Law – no transportation of coal by person who was
mining it – Railway co. bought all the shares ‘lifting of veil’ applied.
The policy followed by the courts has been one of convenience and policy – no definite theory
followed.
Divergence between practice and theory of legal personality:

Friedman: ‘Legal theory and legal practice have developed, independent of each other’
‘concession theory’ more applicable in a totalitarian system.

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Liability of a corporation
Form of contract – Through agents under the seal of the corporation. The form is the same in
cases of individuals or corporations.
A corporation can not personally commit a tort. It is an artificial person having no brain and body
of its own. However, it may be held liable for the wrongful acts committed by its agents or servants
during the course of their employment,
Vicarious liability for intra-vires but there is difficulty with respect to ultra vires acts – (a) Acts
without any authority – company is liable, (b) Acts under express authority – U.S. – not liable.
Goodhart – Liable (rejected in U.S.)
Winfield – Liable as joint tort feasors
Case – Campbell v. Paddington Corporation (1911) – company liable
For Criminal acts:

In England, earlier – not liableNow –
 (liable even when mens rea is required)
 Particularly in cases when fine is an alternative punishment.
Cases:
D.P.P. v. Kent & Sussex Contractors Ltd. (1944) – Manager of a company sent false returns for
obtaining petrol compensation – company liable.
R. v. C.R. Haulage Ltd. (1944) – Company liable for conspiracy to defraud.


Jurisprudence E Notes

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Chanderprabhu Jain College of Higher Studies

Class : BBA LL.B VI Semester

Paper Code : LLB 302

Rights and Duties

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a. Relative Duty – There is a corresponding right existing in such duties.

b. Absolute Duty – There is no corresponding right existing.

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Conclusion derived from Hohfeld’s System

Salmond on Rights and Duties

Conclusion derived from Hohfeld’s System

Salmond on Rights and Duties

1) Right in Rem and Right in Persona -

For example - Tort, Crime.

2) Personal and Proprietary Right -

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3) Positive and Negative Rights -

4) Principal and Accessory rights -

5) Perfect and Imperfect Rights -

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6) Right in Re-proporia and Right in Re-aliena -

7) Vested and Contingent Right -

8) Legal and Equitable Right -

9) Corporeal and Incorporeal Right -

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10) Primary and Sanctioning Right -

11) Public and Private Rights -

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1. The owner has the right to possess things that he owns.

Austin’s Concept of Ownership

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7. Trust and beneficial ownership:

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10. Absolute Ownership:

11. Limited Ownership:

He also made a distinction between possession in fact and possession in law.

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1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.

4. The animus possidendi need not be a claim on one’s own behalf.

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Immediate and Mediate Possession

Concurrent or Duplicate Possession

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Oliver Wendell Holmes and Von Savigny on Possesion

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Natural Law Theory

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Hegel and Kant were the chief exponents of this theory.

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These objects may be:

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2) Savigny defines the term person as the subject or bearer of a right.

Kinds of Persons: There are two kinds of persons are as follows

A natural person is a human being possessing natural personality.

Legal persons / artificial persons

Legal status of Dead Person

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Legal Status of Unborn Person

Theories of Corporate Personality

The Theory of Enterprise Entity