Personality ppt .............................

Personality........................................................................................................................................................................

1. Personality

2. 1. Definition of person The word “Person” is derived from the Latin word “ Persona”. The term is used in the sense of a being who is capable of sustaining rights and duties. According to German Writers “ Will is the essence of a personality. A legal person is one who is capable of will.” Zitelmann writes “ Personality is the legal capacity of will .”

3. Karlowa “ The body is not merely the house in which the human personality dwells; it is together with the soul which now for this life is inseparably bound with it, the personality. So, not only as a being which has the possibility of willing, but as a being which can have manifold bodily and spiritual needs and interests as a human center of interests, is a man, a person.”

4. A person is not necessarily be a human being. There may be human beings who are not persons. Slaves are not persons in the legal sense as they cannot have rights. (Concept of slave is no more) In the same way, there may be person who are not human beings : eg . Corporations. In H indu law, idols are legal persons . Although they have personality in the eye of law, they are not human beings.

5. Salmond “ A person is any being whom the law regards as capable of rights or 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 person, even though he be a man. Persons are the substance of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance and this is the exclusive points of view from which personality receives legal recognition”

6. Savigny define person as subject or bearer of a right . That means who hold the right not the duty bearer. Nepal Laws (Interpretation Act), 2010 define “Person” shall include any company or association or body of individuals whether incorporated or not. (Sec. 2(19))

7. 2. Kinds of Person Natural Person Artificial person/Legal person

8. i . Natural Person According to Salmond and Holland, there are certain attributes required for natural person/personality: Status : Status is an identity of person. It’s a legal capability of a person to exercise his/her right and fulfill duty. Born Alive A person need to be born alive. Some time natural person though born alive may not be legal person. For instance : For entering in person below 16 cannot get citizenship.

9. Natural Person as per Muluki Civil Code 2074 Sec. 30 : Every body born alive will be recognized as person and will have authority to enjoy rights as per provided by law, till s/he is alive. Sec. 31: Right to name Sec. 32 : Capable person : 18 +

10. Incapable person: Sec. 33 Below 10 years Mentally unsound : due to physical or mental disease No legal obligation Can act through guardian

11. Quasi capable person (Sec. 34) 10 – 18 years Hold rights and duties as per provided by law Can operate legal work through guardian Documents with regards to quasi capable person in presence of guardian If question raised about capable, incapable or quasi capable person then it will be decided by Court. Sec. 35

12. Sec. 40 : Deemed to be death If a person’s where about is unknown from 12 years (In general) But in following situation are for specific types If person above 80 years : Unknown for 5 years Militant or army : Unknown for 4 years, after end of war Accident (Aircraft, ship or other) : Unknown for 3 years from date of accident

13. Judicial declaration of death (sec. 40(4)) If concerned person drop application to concerned court to declare death of a person If a person is disappeared/accident/ natural calamities Application with date of date, venue, cause With due consideration of evidences court can declare death of a person But if a person declared to be death came back alive and asked for nullifying the declaration Or, other relative can request for declaring death on other date or cause

14. But… Marriage once nullified due to declaration of death, if she got married to another man then previous marriage will not have legal existence though death declaration was nullified There will be no change on rights of those person

15. ii. Artificial Person/Legal Person Legal Person are real or imaginary beings to whom personality is attributed by law by way of fiction where it does no exist in fact. Juristic persons are also defined as those things, mass of property, group of human beings or an institution upon whom the law has conferred a legal status and who are in the eye of law capable of having rights and duties as natural persons. A legal person has a real existence but its personality is fictitious. Personification is essential for all legal personalities but personification does not create personality is mere metaphor.

16. All business registered in Nepal are not legal person. Eg . Private firm registered under Private Firm Registration Act 2014 B.S Cottage Industry registered under Department of Industry Partnership firm registered under Partnership Act 2020 (sec. 3c : No partnership frim shall be a person except partners)

17. Characteristics required to be Legal Person: Distinct personality Separate legal entity Limited liability Perpetual succession Common seal Capacity to sue and being sued Transfer share

18. Distinct personality The personality of the artificial person is distinct. Salmond vs. Salmond and Company, 1897 , “the company is at law a different person altogether from the subscribers to the memorandum”. Company Act 2006 sec. 7 : Any company incorporated under this Act shall be an autonomous and corporate body with perpetual succession. Subject to this Act, company like an individual, can acquire, hold, sell, dispose off or otherwise deal with, any movable or immovable property A company may sue and be also sued by its own name A company may, like an individual, enter into a contract and exercise the rights and perform the obligations as referred to in the contract.

19. Separate legal entity A company and members of the company are different. It has its own seal and its own name, its assets and liabilities are separate and distinct from those of its members. Death of the member of company do not effect company. Members can come and go but company will proceed ahead

20. Limited liability The liability of the members of the company is limited to the contribution to the assets of the company up to the shares held by them. Sec. 8 of Company Act, states that a the liability of a shareholder of a company incorporated under this Act in respect of its transaction shall be limited on to the maximum value of shares which s/he has subscribed.

21. Perpetual succession A company doesn’t cease to exist unless it is specifically wound up or the task for which it was formed has been completed. Death of members or insolvency of members do not effect the company. For the end of the company it ought to be dissolved with due process of law. K/9 Meat Suppliers (Guildford) Ltd. 1966 continued its existence even after the death of all its members and employees during bombing in World War II.

22. Common seal As a company is an artificial person. No physical presence Thus, it acts through BoDs . The common seal is the official signature of the company.

23. Capacity to sue and being sued A company can sue or can be sued in its own name as distinct from its members. Sec. 7(3) of Company Act , states that a company may sue and be also sued by its own name. Eg . Liebeck v. McDonald's Restaurants , also known as the  McDonald's coffee case  and  the hot coffee lawsuit , was a case of 1994   . Stella Liebeck , a 79-year-old woman who suffered third-degree burns in her pelvic region when she accidentally spilled hot  coffee  in her lap after purchasing it from a  McDonald's  restaurant, ultimately Liebeck was only awarded $ 640,000 as compensation.

24. Transfer share Shares of company are transferable. Sec. 10 of Company Act , states that private company shall not sell its hares and debentures in public. Sec. 18 of Company Act, states about restrictions in purchase or transfer of shares. When joint stock companies are established, one of the major objectives is that its shares should be with capacity of being easily transferred. Eg . Shares of bank, public company can be easily transferred.

25. Artificial person under Muluki Civil Code 2074 Sec. 42 : Organization/entity established as per the law is legal person and have authority as per. (Sec. 42(1)) Need to be registered as per law (Sec. 42(2)) Corporate personality/ separate common seal (Sec. 42(5)) Rights and duties as per law (Own property/transaction of property/enter into contract/ make require laws/appoint employees/ hold bank account/ etc ) (Sec. 42(6)) Can sue and can be sued (Sec. 42(7))

26. Can be represented by other agent or person (Sec . 49) Legal person shall be responsible for the act committed on behalf of it and need to compensate as well. (Sec. 51) If dissolved then need to liquidate property as per law by corporation. (Sec. 52)

27. iii. Personality of fetus The law recognize the legal personality of the fetus. i.e. unborn child The fetus in the womb of mother by fiction is treated as already born. For instance: Sec. 206(2) of Muluki Civil Code 2074, if a woman is pregnant while doing partition of property then share of property ought to be divided to the child within womb of mother as well. Sec. 188 of Muluki Criminal Code 2074, prohibit abortion

28. iv. Personality of dead body Salmond says that there is no personality of dead body; the personality is created by birth and ends with death of person. But there are three things which are secured for the dead body. Dead person’s body Reputation Estate

29. Sec. 237 of Chapter on Inheritance of Muluki Civil Code , 2074, it is stated that property of person is said to be open after death of the owner. Sec. 238 of Chapter on Inheritance : near heir will get the inheritance Sec. 244(4) of Chapter on Inheritance : though a person do not take inheritance, s/he is oblige to follow rituals and complete funeral process of deceased person. Sec. 246 (1) Chapter on Inheritance : Rights and responsibilities of person who have rights to take inheritance Funeral as per ritual Pay debt of deceased person Will have rights over property of deceased and obligation to pay debt

30. Body parts of death person Dying person can donate his/her body parts Human Body Organ Transplantation Act 2055 sec. 38 of Muluki Civil Code , a person can donate body organ after death, have to give legal consent before death Funeral process of death person ought to be done as per the ritual of the deceased. And s/he can decide the process. sec. 37 of Muluki Civil Code 2074

31. Reputation & Estate With regards to Reputation , Defamation Act 2016, sec. 3(1) states that dead body should not be defamed, If done then fine up to Rs . 5000 and 2 years imprisonment in case of defamation. Regarding Estate , the will of the person after his/her death is respected, if the trust is created then it is also respected.

32. v. Personality of animal There is no personality of animal . Animal has an identity as animal, but does not have rights and duties. Salmond regards them as merely the object of legal right and duties but never the subject of them. However there is duty towards animals. National Parks and Wildlife Conservation Act 1973 A.D Chapter 27 : Offence relating to animals/birds of Muluki Criminal Code 2074

33. Advocate Om Prakash Aryal vs. Nepal Government साल: २०६५ महिना: पौस अंक: ९ संवत् २०६३ को रिट नं. २०६३ – WS – ००३३ गाई हिन्दु धर्मको प्रतिकात्मक जनावर मात्र नभई धर्म निरपेक्षतालाई अंगालेको वर्तमान अन्तरिम संविधानले राष्ट्रिय जनावर भनी उल्लेख गरेको र जनावर विरुद्धको अपराधलाई राष्ट्रले कसूरजन्य बनाएको कारणले त्यस्तो कार्य संविधान विपरीत नहुने , मौलिक हकको हनन भएको सम्झन नमिल्ने र धर्म निरपेक्षताको प्रतिकूल पनि नहुने ।

34. vi. Personality of idol Idol is a juristic person and as such can hold property, but it is treated as a minor and the pujari or somebody else acts on its behalf as guardian. In case of Yogendra Nath Naskar vs. Comissioner of Income Tax , the Supreme Court of India held that the H indu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property.

35. vii. Theories of Corporate personality/Legal personality Fiction theory Concession theory Bracket theory Realistic theory Purpose theory

36. a. Fiction theory Savigny , Salmod and Holland focused on this theory. The basic assumption is that human being alone is a person and the institution is regarded “as if” they are the person. In real there is no personality of the corporation but only in fiction. Prof. Gray says, by fiction an abstract entity called the corporation is created and by second fiction the wills of individuals are attributed to it.

37. Corporation is cloth as the legal person by the law and the will is incorporated to the corporation. But in reality, the personality of the corporation is different than that of the natural person. It is only imagined by the law that the corporation has a will but in fact it does not have the independent will, only the law imagines it.

38. b. Concession theory This theory starts on the assumption that only the human beings are the realistic persons . All the groups which get the personality are the result of a concession by the State. It is entirely at the discretion of the state to recognize or not to recognize a juristic person.

39. Fiction theory vs. Concession theory Fiction theory Concession theory Fiction theory does not treat the state as synonymous with law. All that the fiction theory requires is the existence of legal rules for bringing corporation into existence and determining their rights and liabilities. It attributes to a State. A discretionary power in the matter of recognizing corporation. Paton says that this theory suppresses autonomous bodies within the State and is used to strengthen the State for political purposes. Concession theory may be made on the basis of State dictatorship and arbitrary ban of corporate entities.

40. Fiction theory Concession theory Law is prime concern in fiction theory of personality. State is prime concern in fiction theory of personality.

41. c. Bracket theory Ihering is profounder of this theory. The members of the corporation are the bearers of rights and being bound by duties which are, for convenience referred to the corporation it self. For eg . Mr. B, Ms. O and Ms. D formed a Company and since it is not convenient to refer all always, so a bracket is placed around them; to which a name is given. But to understand the real nature the veil of the corporation must be removed.

42. d. Realistic theory Gierke (German Jurist) is main exponent of this theory He believed that every collective group has a real mind a real will and a real power of action. A corporation therefore, has real existence irrespective of the fact whether it is recognized by the State or not. The Corporate will of the corporation finds expression through the acts of its directors, employees or agents.

43. The existence of corporation is real and not based on any fiction It is a psychological reality and not a physical reality. The corporation, therefore, is not imaginary, it is a reality but the reality is not like of natural human body.

44. e. Purpose theory Brinz (German Jurist) is main exponent of this theory This theory is founded on the view that corporations are treated as persons for certain specific purposes. The corporate personality is made to fulfill certain purposes. All artificial person are merely legal devices for protecting or giving effect to some real purposes. This theory says that the personality is only enjoyed by the human beings , they alone can be subject of rights and duties So called juristic person is not person at all.