LAW OF PERSONS

Persons – Nature of Personality

A juristic person is things, the mass of assets, a community of human beings or an

organization on which one can apply the legal law. Juristic personality is the capability
to have legal rights and duties. The nature of legal personality is a prior need for legal
capacity and ability of any legal person to amend rights and duties. For the Judicial
person, one has to incorporate in accordance with the law. On the other hand for the
natural person, one has to acquire legal personhood by birth. Let us discuss the nature
of personality in detail.

Persons- Nature of Personality

According to Salmond, “A person is any being whom the law regards as capable of
rights and bound by legal duties.” There are two kinds of persons, Natural persons, and
Legal persons.

Legal persons are juristic, fictitious or artificial persons and a natural person is a human
being with a natural personality and as per law, is capable of rights and duties. A legal
person has a real existence but its personality is fictitious, because such a thing does
not exist in fact but which is deemed to exist in the eye of law.

Persons – Dimensions of modern Legal Personality

To elaborate on the concept of modern legal personality, we have to provide its

different dimensions. The dimensions of modern legal personality explain nature,
perspective, and the categories of modern legal personality. Some of these theories are:
1.Fiction Theory – by Von Savigny, Salmond, Coke, Blackstone, and Holland:

As per this theory, the personality of a corporation is different from that of its members.
So any change in the membership does not affect the existence of the corporation. It is
important to identify clearly the element of legal fiction involved in this process. A
company in law is different from its shareholders or members. The company may
become bankrupt, but its members may remain rich.

2.Concession Theory:

This theory is concerned with the tyranny of a State. It presumes that a corporation as
a legal person has great value because it is recognized by the State or by the law. As
per this theory, a juristic person is solely a concession or creation of the state.

3. Group Personality Theory or Realist Sociological Theory:

The more profound of this theory was Johannes Althusius and carried forward by Otto
Van Gierke. This group of theorists supposed that every collective group has a real
mind, a real will and a real power of action. A corporation has a real existence,
irrespective of the fact whether it is conceded by the State or not.

Gierke stated that the existence of a corporation is real and not based on any fiction. It
is a psychological and not a physical actuality. He further stated that the law has no
power to create an entity but solely has the right to identify or not to identify an entity.

A corporation from the realist perspective is a social creature while a human is

considered as a physical creature. But, Horace Gray denied the existence of a collective
will. He called it a figment. He said that to get rid of the fiction of an attributed by
saying that corporation has a real general will, is to derive out one fiction by another.
4. The Bracket Theory or the Symbolist Theory:

This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According
to Jhering, the conception of corporate personality is important and is only an
economic device by which we can simplify the task of coordinating legal affairs.
Hence, when necessary, it is focused that the law should look behind the entity to
discover the real state of affairs. This is also the same as the concept of the lifting of
the corporate veil.

Purpose Theory or the theory of Zweck Vermogen:

The supporters of this theory are Ernst Immanuel Bekker and Alois von Brinz. This
theory is also quite the same as fiction theory. It focuses that only human beings can
be a person and have rights. This theory also believed that a legal person is no person
at all but solely a “subjectless” property bound for a particular purpose. There is
ownership but without an owner. So a juristic person is not formulating round a group
of persons but based on an object and purpose.

6. Hohfeld’s Theory:

He stated that legal persons are creations of arbitrary rules of procedure. He believed
that human beings alone are capable of having rights and duties and any group to which
the law ascribes legal personality is only a procedure for working out the legal rights
and legal affairs and making them as human beings.

7. Kelsen’s Theory of Legal Personality:

He believed that there is no differentiation between the legal personality of a company

and that of an individual. Personality in the juristic term is merely a technical
personification of a complex of norms and assigning complexes of rights and duties.