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ADVANCED JURISPRUDENCE

CONTENTS

22. "e concept of legal personality

A person can be defined as an entity recognised by the law as separate and

independent, with legal rights and existence including the ability to sue and be
sued, to sign contracts, to receive gifts, to appear in court either by themselves
or by lawyer and generally, other powers incidental to the full expression of the
entity in law1. In common parlance we use person as only human beings, either
male or female. The prime case of a person is a human being, and personality
would seem to entail the possession of those characteristics belonging particu-
larly to mankind, i.e., the power of thought, speech and choice2.

Salmond observes that a person is any being whom the law regards capable
of rights and duties. Any being that is so capable is a person whether a human
being or not. So by this way we can distinguishes persons into two natural and
legal persons.
 A natural person is a being to whom the law attributes the personality in ac-
cordance with reality and truth.

Legal persons are beings to whom the attributes personality by way of fic-
tion, when there is none in fact.

In the advanced context of natural person means male, female or transgen-

der3. However all human beings do not possesses legal personality. The excep-
tions are, under Roman law slaves are not considered as persons. They were
treated as chattels destitute of any personality. Infants and lunatics enjoy a re-
stricted personality. Another example for restricted personality is under the
traditional Hindu Mitaksara joint family women’s are not entitled to any right
except right to maintenance and residence. Conversely entities other than hu-
man beings enjoyed full legal personality, e.g.; corporations, joint stock compa-
nies, partnership firms etc. A fictitious legal personality is assigned to these in-
stitutions that are why we call it as a juristic person.

Legal statues of an animal

The next question is whether an animal can be considered as person. If we

take the aforesaid proposition of Salmond, we can very well say animals are not
persons since they are incapable to hold rights and duties. But some jurist ar-
gues that animals are persons since the law prohibits cruelty towards animals
and English law recognises a trust for the benefit of a particular animal. But this
argument is deceptive. The duties of prevention of cruelty to animals and en-
forcing rusts in their favour as a public and charitable trust are regarded by the
law as duties towards the society itself.

1 http://www.duhaime.org/LegalDictionary/P/Person.aspx
2P.J.Fitzgerald, “Salmond on Jurisprudence” Universal Law Publishing co.pvt
.Ltd., New Delhi, ( 12-edn-2009), P.61.
3 National Legal Services Authority of India V. Union Of India, AIR 2014 SC
1863. In this case the honourable Supreme
 Court of India for the first time recognises transgender community as the
“third gender” for the purpose of protecting the valuable constitutional rights.

Legal status of dead men

Anything which is capable to hold rights will be considered as a person. If it is

so the question that would arise is whether dead men are persons or not. It is
the recognised principle that the personalities of a human being commences
on his birth and cease to exist at death. The only exception which we can say is
personality of unborn child. The rationale behind this rule is a dead person has
no rights and interest. The word and expression ‘person’ in Art.21, would in-
clude a dead person in a limited sense and that his rights to his life which in-
cludes his right to live with human dignity, to have an extended meaning to
treat his dead body with respect, which he would have deserved, had he been
alive subject to his tradition, culture and the religion, which he professed. The
State must respect a dead person by allowing the body of person to be treated
with dignity and unless it is required for the purposes of establishing a crime to
ascertain the cause of death and be subjected to post-mortem or for any scien-
tific investigation, medical education or to save the life of another person in
accordance with law, the preservation of the dead body and its disposal in ac-
cordance with human dignity. Under the Indian criminal law, disrespect to-
wards dead body is an offence and it ensures decent burial.

However the reputation of a dead person is protected both under civil as well
as criminal law. The Latin maxim indicates that it is socially inappropriate to
speak ill of the dead, De mortius nil nisi bonum means “Of the dead nothing but
good is to be said”4 A libel upon a dead person will be punished. The duty to
protect the reputation of the deceased is vested with relatives and it is the in-
herent right of the living descendants. Further the interest of the diseased is
protected through testamentary succession5. It will regulate the enjoyment
and disposition of property which he owned while living.

The legal status of an unborn person.

There is no legal impediment to prevent unborn person to hold the proper-

ties of their ascendants. His ownership is necessarily contingent because he
may or may not born. If a person died intestate his posthumous son is entitled
to inherit property and not otherwise but in a case where a person died testate,
the testator can allot his legacy to unborn descendants to any generations. A
child in its mother’s womb is for many purposes regarded by a legal fiction as
already born, in accordance the maxim; Nasciturus pro jam nato habetur6
means foetus is legally presumed to have born for the purpose of inheritance.
Under the law of property, there is a fiction that a child en ventre sa mere is a
person in being for the purpose of (1) the acquisition of property by the child
itself, or (2) being a life chosen to form part of the period in the rule against
perpetuity.

The right of the unborn person to hold property varies in different jurisdic-
tions. In the United States, the word “person” does not have the same meaning
as “human being” until the process of live birth has been completed7. The Four-
teenth Amendment to the Constitution

4 R,H, Kersley(ed), “ Brooms Legal Maxims”, Pakistan Law House

,Karachi(10thed),1998.
5 Section 30, Hindu Succession Act, 1956; section of Indian succession Act,
1923
6 R,H, Kersley(ed), “ Brooms Legal Maxims”, Pakistan Law House
,Karachi(10th,ed),1998.
7 Richard G. Wilkins & Jacob Reynolds, “International Law and the Right to
Life”, 4 Ave Maria le. (2006), P.123 & 152

ensures right of equal protection and due process so that no person is de-
prived of his life or liberty. This does not include any human being who is not
defined a person – all unborn human beings. However, the United States
Supreme Court’s decision in Roe v. Wade8 and as modified by Planned Parent-
hood v. Casey9, held that the States are free to confer legal rights upon unborn
children . So now the interpretation goes person includes unborn person also.
However the US Supreme Court interpreted and held that “persons” to include
all human beings born or unborn and are entitled to get protection under the
Fourteenth Amendment. In India also recognised the rights of unborn person
under Constitutional as well as statutes10.

Miscarriage or wilful injury to unborn child is a serious offence in India11. A

posthumous child may inherit but if he dies in the womb or is stillborn, his in-
heritance fails to take effect and no one can claim through him and the proper-
ty shall devolve upon the existing living heirs12.

Legal persons

A legal person is any subject matter other than a human being to which the
law attributes personality. The thing personified may be termed the corpus of
the legal person so created; it is the body into which the law infuses the animus
of a fictitious personality. Under Indian criminal law, person includes any com-
pany or Association or body of persons, whether incorporated or not13. It
recognises the personality of a legal person. Like natural person legal persons
are also entitled to rights and liabilities and can sue and be sued.

According to Professor Keeton Juristic persons are those things or groups of

persons which the law deems capable of holding rights and duties. He further
observed that artificial persons are now usually composed of human beings, the
group comprising either human beings associated contemporaneously.

According to Holland a legal person is of two kinds:- (1) universitates bono-

rum, such as funds left to pious uses without trustee (2) universitates person-
arum, such as the state itself, departments or parishes, college, churches etc.
Such juristic people come into being when there exists a mass of property or a
group of persons and law attributes to the mass or group in question the char-
acter.

The term “legal person” is applied also to natural persons, the argument be-
ing that all legal personality is the creation of law , so that it does not matter
whether the substratum of the lawyers “person” is a human being or something
else. This is merely a question of terminology.14
 There are three classes of juristic person recognised by legal system:-

8 410 U.S. 113 (1973)

9 505 U.S. 833 (1992),

10 Article 21 of the constitution and section 312 to 318 of Indian Penal Code

11 Section 312 and section 314 of Indian Penal code

12 Paul Benjamin Linton, “The Legal Status of the Unborn Child Under State
Law” [ 2011] St.Thomas

Journal of Law and Public Policy, V.6.1, P.141.

13 Section 11 of Indian Penal Code

14 P.J.Fitzgerald, “Salmond on Jurisprudence” Universal Law Publishing

co.pvt .Ltd., New Delhi, ( 12-edn-2009), P.66

1. Corporations.
2. Institutions
3. Charities etc.

It is pertinent to note that English law recognises only one class of legal per-
son’s viz.

Corporations.

Corporations are constituted by the personification of groups or serious of

individuals. The individuals thus who form the corpus of the legal person are
termed its members. The corporation may be corporation aggregate and cor-
poration sole.

The second category is which the corpus . or object selected for personation
, is not a group of person, but an institution. Church, Hospitals, Universities,
Library etc. The fictious personality is attributed not to the group of persons
connected with the institution but to the institution itself. The English law at-
tributes fictious personality not to the institution but to the incorporated hu-
man beings namely chancellor, Vice chancellor etc.

The third kind of legal person is that in which the corpus is some fund or es-
tate reserved to particular uses. Trust estate or property of a dead man or of
bankrupt, funds for charity etc is the examples. Under Roman law, the estate of
a deceased person was regarded as having a legal personality by the notion of
hereditas jacens till it was vested in the legal heirs. In the same way the stiftung,
an inincorporated fund for charitable purpose, was vested with rights and du-
ties and was itself personified although the property was vested in nobody else.
The English law personifies not the fund or the estate but the body of persons
who administer it-namely, the official receiver, board of trustees etc.

Corporations

As we discussed above, under English law, corporations are of two types, cor-
porate aggregate and corporate sole. Indian law follows the English law. A cor-
poration aggregate is an incorporated group of co-existing persons, and a cor-
poration sole is an incorporated series of successive persons. The former con-
sisted of group of members at a time, e.g. Registered company and municipal
corporation etc, and the latter consisted of single member, e.g. President of
India, Post master general etc. Corporation sole are found only when the suc-
cessive holders of some public office are incorporated so as to constitute a sin-
gle, permanent and legal person.

A corporation sole does not require a seal, but a corporate aggregate can only
act or express its will by deed under its common seal. The power to possess
and use a seal is incidential to a corporation. The existence of common seal is
evidence of incorporation and non existence of evidence is against incorpora-
tion. A property owned by a person as a corporate sole is distinct from individ-
ual property which he acquired from his individual capacity and after his
demise the property owned by him under his former capacity will devolve upon
his successors in the office.

The acts and liabilities of a corporation

In ordinary cases principal can appoint an agent through will or with the
consent of the principal. However a legal person like a corporation is unable to
act in propria persona and can only confer, limit and determine its authority
upon agents and representatives either by wills of some human beings who are
for this purpose identified in law with the corporation, or by the law itself.

Generally the rights of the individuals are not limited and the only exception
is if the source of such right is from a contract his rights will be limited to the
terms of the contract. But in the case of companies theirs powers are restricted
by law. Any act which lies beyond these legally appointed limits is said to be ul-
tra vires of the corporation and such corporate act will be null and void. Ultra
vires rule is a necessary consequence of the fact that the corporation itself has
no will. However, although there is no will, the law can and does regard certain
human beings as the equivalent of the corporations for certain purposes.

Under the common law system a corporation may be held liable for wrongful
acts, and that this liability extends even those cases in which malice, fraud or
other wrongful motive or intent is necessary element. 15

A corporation may have both civil as well as criminal liability. Corporations,

no less than man, are within the reach of the arms of the criminal law. If its hu-
man representatives do an act on behalf of and in the name of the corporation
with a guilty mind , such mental condition would be imputable to the corpora-
tion and, therefore, even in a case in which mensrea is the essence of an of-
fence i.e. Fraud, malice, or other wrongful acts, the corporation would be liable
for the offence so committed. The corporation is responsible not only for what
its agents do, but also for the manner in which they do it. If its agents does an
act negligently or fraudulently that which they might have done it lawfully and
with authority, the law will hold the corporate liable.
 Two objections are raised with regard to the fixing of criminal responsibility
on a corporation. The first objection is whether it is natural justice to punish
corporate body for the acts of its agents, when the ultimate result of such pun-
ishment is bound to fall on the shoulders of beneficiaries. But this objection
doesn’t seems sound , according to Salmond, the representatives of a corpora-
tion, though in legal theory its agents, are in fact the agents of beneficiaries.
Just as the principle is held liable for the acts of the agents, so also in the case
of a corporation it is held liable for the acts of the directors.

The second objection is that a corporation which from its very nature is inca-
pable of acting or authorising should not be made liable for wrongful acts of its
agents outside the limits of its authority. Salmond offers two different solutions
for this objection. He says in the first place, although a fictious person cannot
do acts which go beyond the scope of his authority, he certainly can fail to do
what he has been authorised to do and can be punished for such omission. In
the second place, the liability of a corporation for the acts of its agents is a per-
fectly logical application of the laws as to an employer’s liability for the acts of
its servants. The corporation is liable not because it authorised its agents to
commit the wrongful act, but because it was wrongful for it to select careless
and dishonest agents.

Objects and use of incorporation

15 P.J.Fitzgerald, “Salmond on Jurisprudence” Universal Law Publishing co.pvt

.Ltd., New Delhi, ( 12-edn-2009), P.6

The object of incorporation is twofold, general and special. The general pur-
pose of incorporation of a group of persons is to reduce the complex form of
collective ownership in several men into the simple form of individual owner-
ship. Collective ownership is cumbersome to law as well as the owners will have
to act and will result in various difficulties in their management and protection.
These difficulties can overcome by incorporation. Incorporation, therefore, se-
cures permanency, uniformity and unity in the personality of the group of own-
ers.
 The special purpose is that it helps commerce. It enables the members to
trade with limited liability, without risking their whole fortunes. In a corpora-
tion the liability of the members being limited the shareholders are immune
from any further liability beyond the unpaid amount o the shares.

Theories of incorporation

There are four theories of incorporation of corporate personality. They are

hereunder:

The Fiction Theory

The exponents of this theory are Salmond and Holland, which says that a
personality is attached to groups and institutions by a pure legal fiction, and
this personality is distinct from personality of the individual beings. An idol is a
legal person because the law describes it as such. Salmond said that group has
reality or existence, but that is has no real personality in the philosophical
sense. Not being a real person, the corporation cannot have any “personality” of
its own; 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 though it were a real person16.

The Realistic Theory

This theory expounded by Gierke holds that the group or institutions has an
existence beyond the aggregate of the individualities of person forming the
group. A corporation has a real existence and not a fictions construction of the
law. Its personality exists not by a figment of imagination but is independent of
recognition by the state, for law has taken notice of it to keep pace with the
realities. This theory says a corporation is nothing more than the aggregate of
its members conceived as unity, and this unity – the organisation of human be-
ings-is a real person and a living organism, capable of actions. This view appar-
ently excludes corporation sole from its purview. Even in corporate aggregate
nobody disputes the reality of a company as the group of shareholders, which
although a real thing, is a fictitious person.
 The Concession Theory

This theory expounded by Savigny holds that the sovereign and the individual
are the only realities. All intermediate groups and institutions cannot claim
recognition as persons. They derive their existence from the sovereign and as
such as corporate personality arises only as a result of state acts and exists
merely by concession of sovereign.

16 G.W. Paton, “A Text of Jurisprudence” Oxford University Press, New Delhi,

( 4-edn-2007), p. 411.

Bracket Theory17

It rest on the proposition that only human beings can have interest and right,
and that a corporation is only a legal device or formula which will enable very
complex jural relations to be comprehended more simply or otherwise the
members of the corporation as the bearers of the rights, and as being bound by
the duties, which are for convenience referred to the corporation itself. A, B,
and C form a company , as it is incontinent to refer always to all of them, a
bracket is placed around them to which a name is given- but, in order to un-
derstand the real position, we must remove the bracket. One of the advantage
of this theory is that it emphasis that it may be necessary for the law to look
beyond the entity to discover the real state of affairs. But while ultimately we
may regard legal personality as merely a convenient device of the law , never-
theless it is a very important device, for it set up a new unit and makes possible
a clear distinction between the property , rights and duties of the corporation
on the one hand and of the individual on the other. One can hardly make a con-
tract with a bracket. It is socially and economically false, as well as legally un-
true, to say that only individual men can be the bearers of legal rights.

Hence we can say a person means who has the capacity to hold right and du-
ties. The best example for this concrete principle is the decision given by the
US court18. Recently there is a decision by the New York court of appeal that
chimpanzee is not entitled to the rights of a human and does not have to be
released from the cage in which he is housed. The three judge panel ruled
unanimously to deny chimps a writ of habeas corpus and “legal personhood”.
Further added a writ of habeas corpus is designs to protect from being held
against their will.

17 It is otherwise known as the symbolist theory of Ihering

18Available at https://www.animallaw.info/case/suica-habeas-corpus

CHARTS
 Further Reading:

1. P.J.Fitzgerald, “Salmond on Jurisprudence” Universal Law Publishing co.pvt

.Ltd., New Delhi, ( 12-edn-2009).
2. G.W. Paton, “A Text of Jurisprudence” Oxford University Press, New Delhi,(
4-edn-2007).
3. Richard G. Wilkins & Jacob Reynolds, “International Law and the Right to
Life”, 4 Ave Maria le. (2006).
4. Paul Benjamin Linton, “the Legal Status of the Unborn Child Under State
Law” [ 2011] St.Thomas Journal of Law and Public Policy, V.6.1.

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