PERSONS

• Salmond – A person is any being whom the law regards as capable

of rights and duties, Any being that is so capable is a person
whether human being or not and no being that is not so capable is a
person even though he be a man
• Persons are substances of which rights and duties are attributes
• German writers opine that will is the essence of personality
• Personality is the legal capacity of will
• Bodiliness of men is for their personality a wholly irrelevant attribute
• A being which can have manifold bodily and spiritual needs and
interests as a human but the centre of interests is a man a person
• Paton – Legal personality is a particular device by which the law
creates units to which it ascribes certain powers
• A convenient juristic device by which the law creates units to which
the problem of organizing rights and duties is carried out

• Hart – in all legal systems we pick out units and re-identify them
over a given period of time
• Is this the man who is accused?.....
• Is this man the landlord who guaranteed the tenant……….
Persons – human beings – legal persons?
Greek word – prosopon – mask
Part played by human beings in legal proceedings
But-
Doctrine of Trinity and Aristotlelian metaphysics
• Primary substance and Accidents
Boethius –defined persona as the individuality
God and Personality – Webb
• Personality as distinct from individuality – a person is the
individual subsistence of a rational nature
• Descartes
• Kant
• To God we attribute personality

The personality conception of the legal entity – A Nekam

• Use of term ‘legal entity’
• Objects to the use of the word ‘person’ as it carries a
baggage
1 is the basic unit in arithmetic
Legal person is the unit - for social organisation

It can be a human being, a corporation, idol or

even a succession of human beings wherever
required represented through agents
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Legal personality
Different capacities
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• Austin – Modern civilians have narrowed the import of the term who
define it as – homo cum statu suo consideratus – human being
invested with a condition or status
• But it implies that human beings who have no rights are not persons
but things – back to Roman laws
• Condition or status must mean character
• Man + character(s)
• Man + rights / obligations
• Human beings considered invested with rights or subject to duties
• Must be a member of a political society
• And not a sovereign therein
• Fictitious or legal persons are of three kinds
• Collection of legal persons
• Things
• Aggregates of rights and duties

Salmond -
• A legal person is any subject matter other than a human being
to which the law attributes personality
 DEAD PERSON

• Personality begins with birth and ends with death

• Dead men are no longer persons in the eye of law – they are
‘things’
• Without conferring rights law takes care of the wishes of the dead
• Body
• The dead man’s corpse is the property of no one
• The law seeks to ensure a decent burial
• Desecration of graves is an offence (in the interest of the society)
• Williams v. Williams – a person cannot during his lifetime make a
will disposing off his body eg giving his brain to the museum or
giving any part of the body to a medical college
• Now it is perfectly legal to do so
• Reputation

• Section 499 of IPC any imputation against a deceased if it harms

his reputation if living and intended to hurt the feelings of his family
or relatives shall be an offence
• Law here protects not the dead man but the descendants
• Estate
• The property that they hold shift to their heirs
• Testamentary dispositions (protects interests of the living persons)
• Will can be made for creating a charitable or a public trust e.g.
maintenance of graveyard
• But not a private trust for maintenance of his own grave
• Will directing testators property to be used for the building and
maintenance of tomb rejected
UNBORN PERSON
• Proprietary

• A man may die intestate and his property may be inherited by his
unborn child
• Or such may be mentioned in a will
• Some restrictive rules do exist though
• En ventra de sa mere
• Unborn child regarded by legal fiction as already born
• Personal

• Lord Campbell’s Act – Posthumous child entitled to compensation

for death of father
• Willful or negligent injury caused to an unborn by which it dies after
being born alive is murder
• Pregnant woman condemned to death has respite
• Walker v. Great Northern Rly of Ireland – injuries to the child in the
womb – no duty of care towards a person whose existence was
unknown
• Section 299 IPC – Culpable Homicide - Expl. 3 – causing death of
child in the mothers womb is not homicide. It is culpable homicide to
cause death if any part of the child is brought forth though not
completely born

• Causing Miscarriage is an offence u/s 312 – whoever causes a

woman to miscarry, if it is not to save the life of the woman, shall be
punished with……………….

• Section 315 - Whoever before the birth of any child does any act
with the intention of thereby preventing that child from being born
alive or causing to die after its birth, shall, if such act be not caused
in good faith for the purpose of saving the life of the mother be
punished………..
• The dead person does not possess legal personality it is otherwise
with the unborn
• All rights contingent on his birth
• Legal personality attributed to him falls off ab initio if he is still born
• Criminal law identifies offences – child destruction is an offence -
offences against the society
ANIMALS
• Beasts are not persons either natural or legal
• They are things – objects of legal rights but never subjects
• They are capable of acts and have interests but their acts are never
lawful or unlawful
• Earlier view was different
• Earlier - “…………then the ox shall be surely stoned and his
flesh shall not be eaten”
• Law is made by men for men and shows no fellowship with other
beings
• Animals can’t own property – no valid trust can be created
• Trust for the benefit of a class of animals can be created
• Cruelty to animals is a criminal offence – Prevention of Cruelty
to Animals Act, 1960
• These are duties not towards animals but towards society itself
– a rightful interest legally recognised by the law
• Distress damage feasant – Cattle Trespass Act
• Delhi Municipal Corporation Act
• Where interests conflict interest of humans prevail
• Community has a rightful interest legally recognised in the well
being of the dumb animals which belong to it
• Nagaraja & Ors. v. Animal Welfare Board of India – Jallikattu
case
• People for Animals v. Mohazzim and others – Delhi High
Court in 2015 held that birds have a fundamental right to fly
• Sufflok County SC – December 2013 – NhRP did not have right
to appeal on behalf of chimpanzees (Stanley case)
• Meanwhile Lavery Court in 2014 – it was argued that
chimpanzees depicted autonomous behaviour and self
awareness; hence demanded fundamental rights of liberty and
equality as accorded to humans. Rejecting the argument court
held they are incapable of bearing legal responsibilities and
societal duties
• NYSC in – Stanley 2015 – Judge Barbara Jaffe issued notices –
later determining that Chimapanzees are not legal persons nor
quasi persons as personhood works on an ‘all or nothing’ fashion
 LEGAL PERSONS

• Corporations
• Corporations aggregate – incorporated group of coexisting
persons – company, municipal corporation
• Corporations sole – incorporated series of successive persons –
only one member at a time – Post Master General, Attorney
General
• Institutions (church, hospital – Universitates Personarum)
• Corpus is some fund or estate devoted to some special use (law
personalizes the body of persons who administer it – Universitates
bonorum)
THEORIES OF PERSONALITY

• Purpose Theory
• Brinz later developed by Barker
• Assumes persons can only be natural and not juristic
• They are ‘subjectless properties’ designed for certain
purposes
• To Duguit purpose of law is social solidarity
• The question is always whether a given group is pursuing a
purpose which confirms to social solidarity
• Theory of Enterprise Entity
• Based on the reality of the underlying enterprise
• Approval by law of the corporate form establishes a prima
facie case that assets activities and responsibilities of the
corporation are a part of the enterprise
• If not then the extent of the responsibility is determined by the
underling enterprise
• The theory explains the attitude of law towards unincorporated
associations
• The theory is a utilitarian one
• The Fiction Theory
• Salmond and Holland
• Personality is attached to groups and institutions by pure legal
fiction and this personality is different from the individual
beings
• Idol or a group of persons are persons because it is so
imagined by fiction of law
• The Realist Theory
• Gierke
• The group or the institution has an existence beyond the
aggregate of the individualities of the persons forming it
• A corporation has a real existence
• It has a corporate will that manifests itself through the actions
of its agents
• Maitland and Pollock develop the theory to state that it is a
living organism and a real person with body and members and
a will of its own
• The Concession Theory
• Savigny
• Sovereign and the states are the only real entities
• All intermediate groups cannot claim recognition as persons
• Corporate personality arises only as a result of state acts or by
concessions granted by the state
• Bracket theory or The Symbolist Theory
• Paton
• Regards members of the corporations as the bearers of rights
and as beings bound by the duties which are for convenience
referred to as persons
• A B and C form a company – it is inconvenient to refer to them
as such – so a bracket is put around them and a name given –
but in order to understand the real position we must remove
the bracket