Download Law of Persons PVL 1501 Questions and Answers 100% Correct and more Exams Advanced Education in PDF only on Docsity!
Law of Persons PVL 1501
General concepts – answer nie n vraag Agreement: - answer Conscious meeting of minds (consensus ad idem) between two or more persons. An agreement creating obligations is known as a contract. Capacity to act: - answer The capacity to perform valid juristic acts. Capacity to litigate: The capacity to appear in court as a party to a suit. Capacity to litigate: - answer The capacity to appear in court as a party to a suit. Contract: - answer An agreement entered into with the intention of creating an obligation or obligations. Curator: - answerA 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. Damages: - answerThe 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. Delict: - answerA delict is a wrongful and intentional or negligent act as a consequence of which another suffers a loss. ''Wrongful'' is a term with speci c connotations that will be dealt with in the module on the law of delict. In short, this term signi es the infringement of a right (subjektiewe reg) or the non-ful lment of a legal duty. Enrichment: - answerUnjusti ed enrichment occurs when one person obtains a patrimonial bene t at the expense of another without a valid legal ground existing for the transfer of the benefit. Estoppel: - answerThe 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.
Exceptio non adimpleti contractus: - answerA 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 the latter himself or herself has not performed or tendered performance. Juristic act: - answerA 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 a voidable juristic 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 act, on the other hand, is valid and has all the usual legal consequences until it is nulli ed or set aside (e.g. by a party to the contract or a third party). It differs from a valid juristic act in that it has some or other defect that might lead to its nulli cation, but does not render the juristic act void from the outset. Law of succession: - answerThe 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 when the testator has left a valid will. Legal capacity: - answerThe capacity to have rights and duties. Legal (or juristic) fact: - answerA fact to which the law attaches consequences. Legal object: - answerAnything in respect of which a legal subject may have rights, duties and capacities. Legal (or juristic) personality: - answerThe attribute of having rights, duties and capacities in the eyes of the law. Legal subject: - answerA person or entity that can have rights, duties and capacities. A legal subject is a member of the legal community to whom the law applies and for whose bene t the law exists. Legal personality is the capacity of being a legal subject. Liability: - answerA person is legally liable if a performance which is due as a result of inter alia a contract or delict can be legally enforced against him or her. Majors and minors and mondig and onmondig: - answerWhile the first two concepts indicate only whether a person is older or younger than 18 years, the last two concepts indicate whether or not a person is legally regarded as being capable of conducting his or her own affairs. Child born of married parents and child born of unmarried parents: - answerA child born of married parents is a child who is born of parents who are legally married to each other at the time of the
Concepts and institutions are being encountered which are basic to all the other branches of the study of law The law of persons determines which beings are legal subjects how legal subjects originates and comes to an end what legal status involves what effect various factors have on a person's legal status Explain what the different kinds of legal subjects are? - answerMembers of the community are the legal subjects to whom the law applies and for whom the benefit exists= they are the hub of the law, since the relations between them are governed by the law.======= A person is a legal subject in the eye of the law: The legal subject can be the owner of a farm, enter into contracts, inherit or marry, must pay taxes, may not commit a crime, et cetera. Name the two classes of legal subjects recognized in SA law? - answerNatural and juristic persons natural person - answerAll human beings irrespective of their age, mental capacity and intellectual ability are recognized as legal subjects Juristic person - answerenjoys legal existence independent from that of its members or the natural persons who created it Associations incorporated: banks, companies, close corporations, and co-operatives Associations especially created and recognized as juristic persons ins separate legislation: universities, semi-state organizations such as the SABC Associations which comply with the common-law requirements for the recognition legal personality of a juristic person. must have continuous existence irrespective of the fact that its members may vary, it must have rights, duties and capacities or be able to have rights, duties and capacities and its objects must not be the acquisition of gain A trust is not a juristic person nor a partnership, individual partners are responsible for partnership debts out of private funds Law - answersystem of norms of conduct or rules by competent bodies to regulate relations between members of the community in a peaceful and just manner name the two classes of subjects recognized in SA? - answerNatural persons and juristic Is a Monstrum regarded as a legal subject in our law today? - answeryes, any form of human life is regarded as a legal subject
is a partnership regarded as a jusistic person in our law? - answerno, it is not Study unit 4.2 : Registration of births - answerHeaton p 8-12 (lees deur) Study unit 5 - answer Interests of the unborn child - answerThe nasciturus fiction nasciturus - answerconceived but unborn child nasciturus fiction - answerunborn child is regarded as a living person, although it has not been born yet abeyance - answerthe position of being without, or of waiting for, an owner or claimant. the interests are kept aside until the child is born, and at birth receives the interests nasciturus must benefit - answerthere is a condition that it must be to the unborn child's advantage Wherever a situation arises where it would be to the advantage of the nasciturus if he or she already been born, the law protects his or her__________________ _________________ by the implementation of the fiction that the nasciturus is regarded as having been born at the time of his or her_____________ whenever it is to his or her advantage. if it appears in a specific case, that the nasciturus already been born, he or she would have has certain claims or rights, the legal position is kept in _____________ until the unborn child does in fact become a person or until it becomes certain that no person has developed from the nascturus - answerpotential interests conception abeyance List the two requirements for the application of the fiction - answerthe child must have been conceived at the time when the benefit would have accrued to him or her must subsequently be born alive write down an example of a situation where the application of the nasciturus will be to the advantage of only third persons - answerwhere the unborn child would have been entitled to an inheritance has he or she been born when the testator died. If the child dies shortly after birth, the nasciturus fiction will not come into operation, because the only person to benefit from its application would be the child's intestate heirs and not the child himself or herself Write down and example of a situation where the application of the nasciturus fiction will be to the advantage of both third person and the nasciturus - answera parent is
understand the operation, effect and requirements of the nasciturus fiction; - answer understand the concept of "a fiction", as well as the concept of "rights being kept in abeyance"; - answer differentiate between testate and intestate succession. Ex parte Boedel Steenkamp is of importance when discussing the difference between testate and instate succession. Also concentrate on the Pinchin and Mtati cases and the judgements in these two cases; - answer explain how the Children's Act changed the terminology. Note that a parent does not have parental responsibilities and rights over a foetus. Look at paragraph 5.2.3 in the Study Guide; - answer when and under what circumstances a pregnancy may be terminated. Focus on the two Christian Lawyers cases. - answer Study unit 6 - answerthe end of legal personality What criteria are applied in our law to determine when a person is legally dead? - answerPrior to the coming into operation of section 1 of the National Health Act 61 pf 2003, South Africa lacked a legal definition of "death". When the legislature enacted this Act, it adopted the criterion of brain death as the legal standard in so far as the provision of health services, donation of corpses or specified tissue in corpses, post-mortem examinations are concerned. This is in keeping with the prevailing vies in modern medical practice on when death occurs. However, keep in mind that the definition of death in the national health act applies only to the specific matters governed by the act. if the act does not apply, the courts may, as in the past rely on medical evidence Proof of death - answerimportant for two reasons:
- presenting a certificate that has been issued by a medical practitioner- if death was due to natural causes the certificate will indicate so
- if death was due to unnatural causes the certificate will not state the death name the two different procedures in terms of which presumption of death orders may be granted - answercommon-law procedure Statutory procedure Who can apply to the high court of South Africa to have a presumption of death expressed? - answerAny interested person( spouse, child or creditor of missing person) cam apply to the high court to have a presumption of death expressed in regard to the missing person
Name the things that myst be brought to the attention of the court in a common-law application for a presumption of death - answerall relevant facts and circumstances must be brought to the attention of the court. age of the person length of the absence from home the trade or occupation of such person after hearing the application the court set a return date on which the final order will be made. there will then be a notice of rule to be published in the government gazette and a newspaper in the circulation in the area where the missing person used to live. This enables other parties to object to granting the final order or to bring further facts to the notice of the court that could either rebut the presumption of death or strengthen it. ( the rule nisi) Statutory procedure - answerdiffers from the common law procedure where an order may be granted of it is proved on a balance of probabilities that the person is dead. There is thus a big difference in the onus of proof and it would obviously be easier to obtain an order presuming death in terms of the common law procedure. Inquest act 58 of 1959 if the magistrate is op the that a person's death was not due to natural causes, the necessary steps must be taken to ensure that an inquest as to the circumstances and cause of death is held by a judicial officer in terms of section 6
- it is clear that the state takes the initiative because an unnatural death is suspected
- section 16(1) provides that the judicial officer must be certain beyond reasonable doubt that the person is dead before a record of presumption of death is issued the effect of an order of presumption of death - answer Mrs X has successfully applied for a presumption of death order with regard to her husband, wha has been missing for 20 years. She now wishes to marry mr X 1)Name the act in terms of which she may apply to the court to dissolve her marriage? 2)Must she bring a separate application for the marriage to be dissolved? 3)What is the effect of such an order dissolving her marriage? - answer1) Section 1 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979 stipulates that the court which expresses a presumption of death may at the request of the remaining spouse make an order dissolving the marriage or civil union as from the date determined by the court
- Yes, an order can be made at the same time as the presumption of death is made or any time thereafter by means of a separate application
in private law what is the most important to determine status? - answerdomicile birth outside marriage youth physical illness or incapacity mental illness intoxication prodigality and insolvency legal capacity - answeris the capacity to have rights and duties capacity to act - answerrefers to the capacity to perform valid juristic acts. juristic act is a human act to which the law attaches at least some of the consequences desired by the party performing the act capacity to litigate - answerthe capacity to appear in court as a party to a lawsuit capacity to be held accountable for the crimes and delicts - answerthis capacity is to a large extent influenced bt a person's age and mental condition because fault in the form if either (dolus) or negligence(culpa) is, generally speaking, a requirement for criminal and delictual liability Unit 9 - answerDomicile domicile - answeris a place where a person legally deemed to be constantly present for the purpose of exercising his or her rights and fulfilling his or her obligations, even in the event of his/her factual absence how to acquire a domicile - answerin a legal sense the person must have the intention of settling at the particular place for an indefinite period list the different components of domicile - answerin law domicile is the place where a person is deemed to be constantly present *for the purpose of exercising his/her rights
- fulfilling his or her obligations
- even in the even of his/her factual absence importance of domicile - answerlaw of succession respect of jurisdiction three basic principles of domicile - answer* every person must have a domicile at all times
- the changing of a person's is never accepted without proof
- no one can have a domicile in more than one place at the same time
