Chapter Two

The Law of Persons

Law governs behaviors. But what are these subjects of
the law?
The law only governs its subjects.
And it is only persons which are the subjects of the
law.
 Meaning of the term person
What is personality? Why is the understanding of the concept
important under the law?
The word "person" has a different meaning in law than the
ordinary connotation of the word "human being".
 "Person" is a legal concept and we need to study the law to define
and identify what do we mean by person and who are persons.
 This is because it is only persons who can have a right and
assume a legal obligation.
Personality in law refers to the authority which is given by law
to be considered as a person and hence to have a right and
assume an obligation.
In other words, humans and fictitious entities cannot perform
juridical acts without being recognized as persons before the
law.
In order to obtain rights and bear duties that are enforceable by
law enforcing institutions, one needs to have personality first.
So who are persons in law?
There are two kinds of persons. The term person in its
normal sense refers to human beings.
So human beings are the first group of entities that are
considered as a person.
However it is not only individual human beings who
have personality upon completion of certain given
requirements, but also artificial creations of the law are
also endowed legal personality.
As we discussed Personality is granted to two categories of
beings.
One is physical or natural personality that is possessed by
human beings.
In the past, not all human beings were subjects of the law.
For instance, slaves were regarded as mere chattels of their
masters and did not have any rights or duties of their own.
But these days, with the elimination of slavery and its strict
prohibition, virtually all human beings enjoy personality
and involve in juridical acts.
The second type of personality is given to the entities
which don’t have material existence.
These entities are alternatively called artificial persons
or legal persons or juristic persons.
All entities recognized by law as capable of being
parties to a legal relationship are legal persons.
Thus, a legal person can be an association, an
organization, a company, group of persons etc.
The state is recognized by law as a person. Provided
that they are given personality by law, these entities
are persons and can have legal relations with each
other.
These legal persons are exclusive creation of the law
and accordingly given personality because of the
necessities of modem complex legal transactions.
Acquisition of Artificial Personality
How do artificial persons acquire legal personality? Legal
personality is an artificial or fictitious creation of law.
These artificial persons acquire legal personality in
different mechanisms.
These mechanisms include issuance of a particular
legislation, carrying out registration and conditions of
publicity.
Once the entities get legal personality they are recognized
as equal before the law with the human person.
Physical person can perform juridical acts, bears a right and
assume an obligation like the physical persons.
Legal (Juristic person) do have their own names and
separate legal existence.
Juristic persons enjoy effects of personality by the help of
physical persons that act through a representative capacity.
Personality of Physical Persons
2.4.1. Acquisition of Physical Personality
How does a human person acquire personlity?
In ancient times, not all human beings were
recognized as person.
 In the history of human society, there were times
when slaves were considered as mere property.
Today, all human beings are considered as equal and
the principle of personality has already changed.
All legal systems grant legal personality to all human
beings. Every legal jurisdiction tries to answer when is the
personality of human beings begin.
The first four articles of the Ethiopian civil code deals with
this matter.
Article 1. Principle
The human person is the subject of rights from its birth to
its death.
Article 2. Child merely conceived.
A child merely conceived shall be considered born whenever his
interest so demands, provided he is born alive and viable.
Article 4. Viable or not viable child.
(1) A child shall be deemed to be viable where he lives for forty­ eight
hours after his birth, notwithstanding any provision to the contrary.
(2) A child shall be deemed to be not viable where he dies less than
forty-eight hours after his birth.
(3) The presumption laid down in sub-article (2) may be rebutted by
proving that the death of the child is due to a cause other than a
deficiency in his constitution.
The Principle
The Ethiopian civil code sets the principle when the personality of human
beings commences.
It begins at birth. Article 1 of the civil code states that the human person
is the subject of rights from its birth to its death.
When the article provides that the human person is the "subject of
rights", it means that human beings enjoy, or hold rights starting from
the time of birth.
In principle, therefore, the personality of natural persons begins at birth
and ends at death.
 Hence, there is no personality before birth or after death.
The Exception
Exceptionally however a child merely conceived may also be
considered born and get physical personality.
As stated in Art.2 of the Civil Code,
A child merely conceived shall be considered born whenever
his interests so demands, provided he is born alive and viable.
Because personality begins at birth as a matter of principle
(as per art. 1), an unborn body is not a person in the eyes of
the law and can have no rights
. But this general rule is excepted in that personality may be
granted to a merely conceived baby without waiting for its
birth for some purposes.
As an exception, personality of a fetus should be restrictively
construed and it is applicable only in certain circumstances.
The circumstance generally revolves around the interest of
the unborn child.
The law has invented this fiction only for the purpose of
enabling the child (if it is born) to take a benefit in all
matters affecting its interest.
But two requirements must be fulfilled, according to art. 2. of the
civil code, to grant personality to a merely conceived child. These
are:
1. The conceived child interest shall demand this recognition
2. The conceived child must born alive and be viable.
(The second requirement is that the baby must be born alive and
viable. For instance, personality will never be granted if the fetus is
aborted.
So the child must be born alive and becomes viable. Viability is
capacity to live. Under Article 4(1), a child shall be deemed to be
viable if it lives for forty-eight hours after birth. )
Attributes of personality
What are the attributes of personality?
Legal personality, then, refers to a particular
device by which the law creates or recognizes units
to which it ascribes certain powers and capacities.
 Under the law, persons possess certain capacities.
These capacities are called attributes of
personality.
A. Having a name
Names affect the legal position of a person.
 Names are mechanisms of identifying the civil identity
of a specific person in the society and of the legal status.
Generally, it is through name as an expression of civil
identity that a person in the eyes of the law can become
a party to juridical acts, and thus it is a fundamental
attribute of personality.
B) A person may sue or be sued in its own name:
To sue is to bring a legal action against another, and, on the
contrary, to be sued is to defend a legal case brought against
oneself by another.
 If three people Abebe, Bekele and Selam form a company, after a
company has satisfied the legal requirements for the acquisition
of legal personality (after it has become a legal person), it brings
legal actions (legal suits) against others in the name of the
company, not in the name of Abebe, Bekele and Selam.
This is because legal persons have independent legal existence
and their liability is separated from the shareholders liability.
C) A person may administer and own a Property
Only persons can own property.
Both legal and physical persons can own and administer property.
Non person entities cannot own property.
Property belonging to a legal person is different from that of individuals who
establish the legal person.
A legal person administers its own property. It is clear that a legal
person acts through human agents. A legal person acquires rights
and incurs liabilities through the acts of its human agents
(representatives) in accordance with the provisions governing
agency. (216(1)) Com.cod
D. A person can enter in to a contract
It is only a person who can conclude a contract.
Contract is a source of obligation and the parties need
to be a person in order to be legally bound by it.
Legal persons can enter into various contracts in their
own name.
E) Obligation to pay taxes
The entities which are recognized as a person before
the law have also obligations.
A legal person as well as a physical person is liable to
pay taxes on taxable benefits and gains.
Hence from every taxable income or benefit that they
earn, legal persons have the duty to pay tax.
End of physical personality
How is personality come to an end?
The Ethiopian civil code deals with the mechanisms
which brings the personality of human beings to an end.
The first ground is death.
Article 1 of the Ethiopian Civil Code also provides for the
way personality of individuals ends through death. It
states that human person is the subject of rights from
birth to death, meaning personality ends at death.
The other mechanism where personality of human persons
comes to an end is the declaration of absence.
If a certain person is disappeared and no news of him has heard
for two years any interested party may apply to the curt for the
declaration of absence.
 If once the court declares that the person is absent the absentee
is considered dead.
And death is considered das the ground to end the personality of
the absentee.
Capacity of Physical Person
What is capacity? How do you understand the term?
Enjoyment and exercise of rights are not the same. To enjoy rights
means to have, to hold rights. A physical person enjoys rights,
holds rights or is the subject of rights starting from the time of
birth. And the law presumes capacity. Article 192 of the civil code
states that:
Art. 192. - Rule of capacity
Every physical person is capable of performing all the acts of civil
life unless he is declared incapable by law.
 Capacity is the ability to make or exercise a juridical act.
Juridical acts are acts which are legally binding and
enforceable by law.
This means that all persons enjoy rights without
exception, but all persons do not have the same capacity
to exercise rights.
Some persons have limited or restricted capacity. Some
persons are incapable of exercising rights.
The law calls these persons incapable persons.
Incapacity of Physical Persons
In the Ethiopian civil code there are a certain categories of person
incapable to exercise algal right.
Do you understand by the term incapacity?
Incapacity of physical person is an exception to the rule that every
physical person is presumed to be capable of exercising a civil
acts.
In certain circumstances the law may explicitly declare that
certain categories of persons are considered incapable to exercise
rights and duties.
In the Ethiopian civil code there are 3 kinds of incapacity: General
incapacity which is based on the age or mental condition of
persons or on sentence s pas upon them; and special incapacity
which is based on nationality.
A/ Minors
Article 215 of the revised Federal Family Code defines persons
regarded as minor. It states:
“A minor is a person of either sex who has not attained the full age
of eighteen years”
Thus physical persons under the age of 18 are minors. It is pointed
out that minors are taken as disable to engage in juridical acts.
On the basis of juridical acts to be performed, person that may assist or
represent the minor are categorized into two.
These are guardians or tutors.
Guardians represent the minor in respect to his personal matters, Article
216 (1) of the revised Family code provides:”
In matters concerning to financial (economic) interests the minor is
represented by tutor.
Article 216(2) of the revised family code states:
“In matters concerning his pecuniary interest means an economic
interest in all matters relating to economy the minor has to be
represented by the tutor”.
The minor may acquire capacity in two ways: attainment of a
majority and emancipation.
 When a physical person attains 18 years of age, he is no more a
minor and afterwards he is fully capable of entering into a contract.
The other case, which is rare, is emancipation, which refers to the
granting of capacity to the minor before he attains 18 years of age.
Emancipation may be ordered by a court of law or by authorized
members of the family.
In addition, the minor may be emancipated if he enters into lawful
marriage which is authorized by the public authority.
B/ Judicially Interdicted Persons
The court may sometimes interdict a certain
categories of individuals due to their mental problem.
These individuals don’t understand the consequences
of their action due to their mental condition.
So the law steps in to protect the interests of persons
with mental problem as a consequence of insanity,
infirmity, senility and the like.
Insane persons are believed to be unable to understand
the nature and consequences of their actions because
they have got a mental problem.
Infirm persons are those with serious physical
deformities so that such deformities will have the
ultimate substantial reduction in mental functioning.
For example, if a person is simultaneously deaf-mute and
blind, he/she is deemed to be infirm.
Senility is deterioration in mental faculty because of
old age. The court can declare the interdiction of the
above persons with mental deficiencies.
Any interested party may apply to the court for the
interdiction.
c) Legal interdiction
This kind of incapacity emanates from the law due to
the commission of a certain crime.
A person will be legally interdicted as a result of the
pronouncement of a legally prescribed punishment for
the violation of criminal law.
 The prescribed sentence will deny the person the
capacity to carryout economic affairs.
The End of Incapacity of Physical Persons
The incapacity arising as a result of minority may
terminate through a couple of ways.
A minor obviously assumes capacity to exercise rights
and duties himself when he attains the age of majority
(18 years).
 The incapacity of a minor may also come to an end
through emancipation even if the person is still below
the age of eighteen.
A judicially interdicted person may be free forming the
interdictions where the court, that has interdicted the
person, withdraws the interdiction.
If the grounds that affected the mental faculty of the
person are no more exist, the interdicted person or any
interested person may apply for withdrawal of the
interdiction.
The court examining the state of mind of the person
may make him free form the interdiction.
A person interdicted by law due to the commission of
a crime may also be capable in two ways: the first is
when the criminal serves the sentence and the second
is when the government grants a pardon as per the law.
Thank You !