Friday, 3 February 2012

Definitions and terminology


SECTION ONE: INTRODUCTION  TO THE MODULE:

Contents of the module:

Law of persons, focuses on the distinction the law makes between persons as “natural persons” and juristic persons and also the point at which a person’s legal personality begins, namely at birth and special rules applicable (Nasciturus fiction) should the interests of an unborn child be affected.

Presumption of death, the end of legal personality including the rules applicable where a person disappears and it is uncertain whether he/she is still alive.

Status of the legal subject i.e. a person’s standing in law, legal capacity, to act/litigate and to be held accountable for crimes and delicts.

Domicile, is an aspect of law that influences a person’s status.

Extra-marital children.

Age, as an important factor influencing a persons status i.e. the capacity of infants.  Termination of minority.  Diverse factors that influence a person’s status i.e. mental illness, intoxication etc.

General Concepts

1.     Agreement:  Conscious meeting of minds (consensus ad idem) between 2 or more persons.  An agreement creating obligations is known as a contract.

2.     Capacity to act:  The capacity to perform valid juristic acts.

3.     Capacity to litigate:  The capacity to appear in court as party to a suit.

4.     Contract:  An agreement entered into with the intention to create an obligation

5.     Curator:  A person who manages another person’s affairs on behalf of the latter because he or she is not capable of doing so.  A curator ventris acts, in general on behalf of an unborn child, A curator ad litem acts on behalf of another only for the purposes of litigation and a curator bonis administers another’s property.

6.     Damages:  The amount which a person can claim as compensation for actual patrimonial loss he or she has suffered as a consequence of delict or breach of contract.  See also “reparation” infra.

7.     Delict:  A wrongful and intentional or negligent act as a consequence of which another suffers a loss.  “Wrongful” signifies the infringement of a subjective right or the non- fulfilment of a legal duty.

8.     Enrichment:  Undue enrichment occurs where one person obtains a patrimonial benefit at the expense of another without a valid legal ground existing for the transfer of the benefit.

9.     Estoppel:  The doctrine that provides that if someone culpably represents that a certain state of affairs exists, and another person acts to his or her own disadvantage in consequence of such a representation, the deceiver is precluded from raising the true facts.

10.   Exceptio non adimpleti contractus:  A defence which a party to a reciprocal contract may, under certain circumstances, employ against the other party when the latter sues the former on the contract and latter him or herself has not performed or tendered performance.

11.   Juristic act:  A human act to which the law attaches at least some of the consequences desired by the party or parties performing the act.  The distinction between a void and voidable uristic act is important.  A void juristic act is void ab initio and devoid of all legal consequences.  The position is simply as if the juristic act had never taken place.  A voidable juristic ac, on the other hand, is valid and has all the usual legal consequences until it is nullified or set aside (i.e. by a party to the contract or a third party).  It differs from a valid juristic act un that it has some or other defect that might lead to its nullification, but does not render the juristic act void from the outset.

12.   Law of succession:  The law of intestate succession determines how and on whom a person’s estate devolves when he or she dies without a valid will.  The law of testate succession determines how and on whom a person’s estate devolves where a testator has left a valid will.

13.   Legal Capacity:  The capacity to be the bearer of rights and duties

14.   Legal/Juristic Fact:  Fact to which the law attaches consequences.

15.   Legal object:  Anything to which a legal subject may have rights

16.   Legal or juristic personality:  The attribute of having, rights duties and capacities in the eyes of the law.

17.   Legal subject:  A person or entity subject to the law.  A legal subject is a member of the legal community to whom the law applies and for whose benefit the law exists.  Legal subjectivity is the capacity of being a legal subject.  Legal subjectivity is apparent from the fact that every legal subject is the bearer of rights, duties and capacities

18.   Liability:  A person is legally liable if a performance which is due arising inter alia from contract or delict, can be legally enforced against him or her.

19.   Majors and minors and mondig and onmondig:  Majors and minors indicate whether a person is older or younger than 21 years, mondig en onmondig indicate a person is legally regarded as being capable of conducting his/her own affairs or not.

20.   Marital and extra-marital (legitimate and illegitimate) Children:  (An extra-marital child is also called an illegitimate child, but the preferred term is extra-marital)  A Marital child is a child born from parent who are legally married at the time of its conception,  birth or at any intervening time, and is also probably a child born from a  putative marriage.  Extra-marital children are all children who do not meet the requirements stated above.

21.   Negotiorum gestio:  That is the administering of another’s affairs to his or her advantage, but without his or her knowledge.

22.   Obligation: A juristic bond in term of which on the one hand a person/s has a right to a performance and, on the other hand, a person/s has a duty to render performance.  A civil obligation is legally enforceable while a natural obligation is unenforceable.

23.   Performance:  Human conduct which may consist of either doing or not doing something.  An obligation consists of a duty to render performance.

24.   Presumption:  An assumption made by the law on the basis of the available facts.  An irrebuttable presumption cannot be rebutted by proving facts to the contrary - in such a case the presumption is actually a legal rule which states that a certain acceptance must be made by the law if certain facts are proved to exist.   A rebuttable presumption is an acceptance which is made but which can be made rebutted by proving the contrary.

25.   Putative marriage:  A void marriage where one or both of the parties to the marriage are bona fide unaware of the defect invalidating the marriage.  As long as one or both of the parties remain bona fide unaware of the fact that the marriage is in fact invalid,  the putative marriage has the legal consequences of a valid marriage.

26.   Ratification:  That behaviour (tacit or express) whereby an error in a juristic act is rectified to that it acquires full validity retrospectively.

27.   Reparation (genoegdoening, solatium, satisfaction):  Compensation which a person may claim in regard to non-patrimonial loss that he or she has suffered as a result of a delict.  The word “damages” is often used both in the sense of patrimonial and non-patrimonial loss.  The distinction is nevertheless very important since different rules apply in regard to recovery of the two types of loss.  See also “Damages” Supra.

28.   Restitutio in Integrum:  A legal remedy by means of which the former position is restored, that is the return of whatever had been performed in term of a contract.

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