Definitions and main concerns for test.

What is the law of persons defined as?

That part of the objective law regulating the coming into being, private-law status and coming to an end of a natural person or legal subject.

What are the four types of legal object?

Real ( corporeal ), acts and performances, intellectual property, personality property.

What are the four subjective rights?

Real, personal, intellectual, personality.

What is the definition of a legal subject?

The bearer of juristic capacities, subjective rights and legal duties.

What is the main requirement for a juristic person.

They have independent right of existence.

What is the definition of a juristic person?

Social entities, in other words, associations of people, who according to the law have an independent right of existence.

What is the definition of legal subjectivity?

The characteristic of being a legal subject in legal intercourse.

What are the two terms to describe legal subjectivity?

Natural Person: Legal subjectivity. Juristic person: Legal personality.

What are the sources of law in south africa.

Constitution, Case Law, Customary Law, Legislation, Foreign law.

What is the definition of law?

A body of legal rules that is applied and enforced in a country and which regulates the behaviour of people in a society.

What is status

The sum total of a legal subject’s capacities.

What is legal capacity?

The juristic capacity that vests the individual with legal subjectivity and enables him/her to hold offices as a legal subject.

What is the capacity to Act?

The juristic capacity to enter into legal transactions.

What is the capacity to litigate ( Locus Standii )?

The juristic capacity that enables a person to act as plaintiff, defendant, appellant or respondent in a private-law suit (or civil action)

What is the definition of a legal object

Any thing/object with value and which is not the bearer of juristic capacities, subjective rights and legal duties

What happens in the ukungena custom?

If a married man dies before he can procreate, a relative enters into the relationship with the wife and creates a successor. No legal subjectivity on the deceased.

What is one of the most important factors that determines a persons status in another country.

Domicile.

What is lex loci domicilii

It is the law of that place in which the person in question is domiciled.

When concluding a simple commercial contract in another country what happens to the laws that govern a person?

It is governed by the lex loci contractus of the place that contract was concluded in.

What happens when immovable property is involved in the juristic act?

The lex loci rei sitae is put into effect.

What are the golden rules with regards to domicile

No person can be without a domicile, acquire a domicile at birth. No person can have more then one domicile at a time.

What is the definition of domicile?

That place where, in terms of the law, a person is deemed to reside for the purpose of exercising his or her rights and duties.

What factor determines the Matrimonial Property Regime of the marriage.

It is chosen by the laws of the place in which the husband was domiciled at the time of the marriage.

What is the role of domicile in the law of succession.

It is of great importance when the lex loci rei sitae is concerned ( the law of the place where the immovable property is situated )

What is the role of domicile in the Interstate succession.

Devolution will be governed by the lex loci domicilii of the testator at the time of his/her death.

What is the role of domcile in testate succession?

The lex loci domicilii of the testator determines whether or not they had the legal capacity to make a will. If they are competenet, the lex loc domicilii at the time of the testators death governs the proceedings. w

What was the principle of unity?

The wife accepts the domicile of the husband after marriage ( this persists through the marriage ).

What were the concerns that the principle of unity created.

If a women wanted to sue her husband or get divorced, she has to do so where he was domiciled, even if she had never even visited that place.

What act officiially through out the Principle of Unity in South African law.

Section 6 of the Domicile Act of 1992 ( came into operation on the 1 August 1992 ).

What does Section 6 of the Domicile Act of 1992 explain with regards to the principle of unity.

It unseated it and a divorce action can be initiated by either spouse having lived in that region for more then a year.

Who can acquire a domicile of choice?

Anyone over the age of 18.

What are the two types of Domicile?

Domicile of choice, Domicile by operation of law.

What section regulates Domicile of choice and it’s requirements?

Section 1 of the Domicile Act.

What are the factors which effect status?

domicile, age, birth from unmarried parents, mental disability, prodigality.

Does the Domicile Act of 1992 ( 1 August ) have retrospective force?

No

What does Section 1 of the Domicile act mention with regards to who can choose a domicile of choice?

Anyone over the age of 18 or who has the status of a major on condition that the person has the mental capacity to make a rational choice.

How can someone who is below the age of 18 be considered as a major?

They are legally married.

Can an emancipated 18 year old minor acquire a domicile of choice?

No, emancipation does not bestow a minor with the status of a major.

What are the requirements for a domicile of choice?

Lawful presence, physical presence, a particular intention.

What does lawful presence speak of with regards to domicile?

Illegal immigrants and refugees may not acquire a domicile of choice.

What does physical presence speak of?

The person concerned should be living in a particular place. There is no minimum time for a person to reside at the place. Temporary absence does not rule of domicile of choice.

What final clause is there to the factum requirement ( physical presence ) of a domicile of choice.

The person in question has to reside there, it can’t be just his wife or children.

What is a domicile by operation of law?

It is seen as the place to which the person concerned is most closely connected to.

What section of the Domicile Act of 1992 defines who is eligible for a domicile by operation of law?

Section 2

Who is eligible according to Section 2 of the Domicile act to acquire a domicile by operation of law

unmarried children, those who do not have the mental capacity to make a rational choice.

With regards to section 2 of the domicile act, what determines the domicile of an unmarried child.

The domicile of the parent to which he/she resides with on a day-to-day basis. If stepparent is involved, the child is domiciled where the care-giving parent is domiciled.

What happens with regards to the domicile by operation of law for those who do not have the mental capacity to acquire a domicile of choice?

It is determined by the person he/she is most closely connected too.

What is a domicile of origin.

Every person acquires a domicile by operation of law at birth ( referred to as the domicile of origin )

What happened to the revival of domicile of origin?

It fell away, once a second domicile has been acquired domicile of origin has served it’s purpose and is no longer valid.

What happens to prisoners that get a life sentence.

Their domicile becomes the place of their imprisonment.

What happens with members of the armed forces with regards to a domicile of choice.

They can not acquire one as they are stationed there against their own will and for a limited time.

What happens to the domicile of illegal immigrants and others.

Upon being deported you are no longer lawfully present therefore your domicile falls away.

What are the three age groups with regards to status?

Infans: 0 → 7. Minor: 7 → 18: Major.

What are the important ages with regards to status.

10: Child must consent to adoption, 12: Minor can receive medical treatment without consent of parents, independently buy contraceptives. Age of puberty is 12 for boys 14 for girls ( they can marry with the consent of their parents aswell as the Minister of Home Affairs ). 15 a girl no longer requires consent from Minister, 16 a minor may execute a will plus bank, 18 majority status.

What is notable about all transactions an infans enters into?

They strictly speaking are void as the Infans has no capacity to act/

What are the legal consequences if an infans is party to the agreement?

Infans requires rights and obligations, agreement valid and enforceable against the infans.

What remedies are there for a breach of contract?

Specific performance ( ftn 78 ): Compel a person in ito agreement by way of court order. Cancellation of agreement ( + refund performance delivered ). Damages: party must be placed in the same position they were before the agreement was made.

What happens if an infans is in breach of contract?

Property of infans attached and sold, proceeds used. P/g are not liable.

What are the exceptions to the rule that bind the p/g for liability if an infans is concerned.

If the p/g did not inform the other party acting on behalf of infans, the p/g stood as surety, the debts incurred were for maintenance.

What are the consequences of a agreement entered into by the infans on their own behalf with the consent of p/g

Contract void, parties must give back performance recieved.

What are the remedies available for parties if they do not receive the performance’s

condictio indebiti: remedy to claim back sum of money. Rei vindicatio: owner to claim back the property.

What is an infans capacity to litigate?

None: Can only be sued if p/g acts on behalf of infans.

What is the legal capacity of a minor?

Limited

What offices can a minor not hold.

Trustee of an insolvent estate, director of a company, director of a mutual bank, a traditional leader.

What agreements does a minor have full capacity to act.

Over the age of 16 a minor can be a depositor at a bank, a minor can be a member of a friendly society at age 16 and may execute all documents.

What is the common law stance on a minor capacity to act?

A minor may enter into agreements to which he acquires only rights and obligations without assistance. Any obligations, the assistance of a p/g is necessary.

What was the Benefit theory?

Minor is bound to an agreement which is more beneficial for him/ even thought he was not assisted by p/g. If agreement benefits the minor, they are bound by it.

What are the three ways in which a p/g can assist a minor?

P/g enter into an agreement on the minors behalf, P/g gives express consent, 3 P/G can ratify an agreement entered into without consent.

With regards to (p/g enters into an agreement on the minor’s behalf) what happens if an agreement of a personal nature?

It cannot be entered into by the p/g on behalf of the minor ( antenuptial contract ).

What happens if the p/g act unreasonably?

The high court will replace their consent.

What are the consequences if a minor enters into a contract without assistance?

The minor is party to agreement, acquires rights and obligations. Agreement is enforceable.

What happens if a minor has entered into a contract without assistance and one of the parties fails to perform?

Remedies are available: specific performance, cancellation of contract, damages.

What case affirms the facts if a minor acted as a representative for a p/g?

Marchell v National Wool Industries

What remedies are available to the minor if they are called upon to render performance?

Exceptio non adimpleti contractus, Resitutio in integrum

What is the definition of a void agreement?

Agreement which, in the eyes of the law, never came into existence. Parties must give ack what they have received ( go to position before agreement )

What is a voidable agreement?

Agreement legally comes into existence but party thereto can choose whether or not agreement should be annulled.

What happens in practice if minor is called to perform ( eg pay? )

Minor raises minority as defence.

What three actions can be taken that compel the minor to perform?

Agreement can be maintained ( P/G ratify the agreement, valid and enforceable ). Proceedings can be instituted to annul agreement ( condictio indebiti annd rei vindicatio ). Nothing is done from the minor side, unjustified enrichment action.

To succeed with an unjustified enrichment action what must the party prove?

Minor was enriched, enriched at parties expense, minor was enriched on the date he instituted the enrichment action.

What can the other party claim with the unjustified enrichment action?

Amount by which his estate was reduced, amount by which minors estate was enriched at his cost on date action was instituted.

What price is utalized when dealing with the unjustified enrichment action? When claiming back the money which your estate was reduced by

The value of the sold thing ( less then purchase price ). Always work with the smaller price.

What happens when a minor fraudulently misrepresents themselves

The minor is held liable, contract, delict or estoppel.

What is the most appropriate grounds on which a minor should be held liable

Delict, Fraudulent misrepresentation = delict.

What are the requirements for a minor to be delictually liable.

See Louw v MJ&H Trust (Pty) Ltd 1975 (4) SA 268 (T). Other party can claim damages to return to the position they were in before the contract.

What is estoppel?

Estoppel is a doctrine used to prevent minor to rely on the true facts to escape contractual liability.

What is the definition of emancipation/

A minor is emancipated when he/she has received express or tacit consent of his/her p/g to participate in commercial dealings as an economically independent person.

What are the requirements for emancipation?

Consent of p/g and nature of profession, economic independence, relationship with parents, whether or not the minor lives with his parents. Emancipation is a question of fact.

What requirements are there for a child born of married parents.

The biological parents were legally married to each other at the time of the child’s conception, birth or any time in between conception and birth.

What is a putative marriage

Void marriage, one or both parties unaware of the defect which makes the marriage void and believe in good faith the marriage is valid.

What happens if the parents marry each other after the birth of the child?

Subsequent marriage confers parental responsibilities and rights on both parents as from the date of birth. Section 38 of the Children’s Act.

What is a voidable marriage

A valid marriage but has some defect which was present, before or at the time of the marriage and can be set aside by the court.

What is an adoptive child considered?

A child of adopted parents

What is the definition of artificial fertilization?

The introduction by other than natural means of a male gamete(s) into the internal reproductive organs of a women for the purpose of human reproduction.

What is the definition of gamete.

The generative cell which is essential for human reproduction = sperm or ovum.

What is an AIH children?

Children conceived by artificial fertilization using the gamete(s) of the husband.

What is the condition that effects AIH children.

If the parents were married at conception, birth or any time between will be considered a child born of married parents.

What are AID children?

Children born of 3rd party or donor gametes.

What does the Children Act 40(1)(a).

A child who is conceived by artificial fertilization using gamete(s) of donor, with consent of both the spouses, is regarded born of married parents.

What does Children Act 40(1)(b) say?

creates rebuttable presumption that both spouses gave consent to artificial fertilization using the gamete(s) of a donor.