LL.B-II

1. Persons
Course-LL.B-II
Subject-Jurisprudence-II
Unit-II
1

2. Person
• It simply means mask
• Later on ,it was used to denote the part
played by a man in life
• After that ,it was used in sense of the man
who played the part.

3. • Will is the essence of a personality
• A legal person is capable of will.
• A person is not necessarily human being
• Slaves are not legal person in the legal sense
as they can not have rights.
• There may be persons who are not human
being

4. According to Salmond
• A person is any being whom the law regards as
capable of rights or duties .Any being that is so
capable is a person ,whether a human being or
not and no being that is not so capable is a
person ,even though ,he be a man .persons are
the substances of which rights and duties are the
attributes .It is only in respect that person
possesses juridical significance and this is the
exclusive point of view from which personality
receives legal recognition.

5. Legal status of lower animals
• The only natural persons are human being
• Beast are not persons,either natural or legal
• They merely thing
• Object of legal rights and duties but never the
subject of them.
• They are not recognized by law
• Law is made for men and allows no fellowship or
bonds of obligation between men and lower
animals.

6. Cases in which beast may be thought
to possess legal rights
• Cruelty to animals is a criminal offence
• A trust for the benefit of particular classes of
animals ,is valid and enforceable as a public
and charitable trust.
• Ex. A provision for the establishment and
maintenance of a home for stray dogs or
broken down horses.

7. Legal Status of Dead persons
• The personality of human being commences
its existence on birth and ceases to exit at
death.
• Dead are no longer persons in the eye of law.
• They have no rights because they no interest
• Without conferring rights upon the dead ,law
recognizes and takes account after the death
of a person of his desires and interests when
alive.

8. Three things in respect of which anxieties of
living men extend even after death
• 1. His body
• 2. His reputation
• 3. His estate.

9. • The reputation of a dead person receives
some degree of protection from criminal law.
• Williams v. Williams

10. Status of unborn person
• Unborn person possess legal personality
• There is nothing in law to prevent a man from
owning property before he is born
• His ownership is contingent as he may never
be born at all, but it is a real and present
ownership
• No testator can direct his fortune to be
accumulated for a hundred years and then
distributed among his descended

11. • To what extent an unborn person can posses
personal and proprietary rights is a somewhat
unsettled question all right of unborn person
,whether personal and proprietary ,all are
contingent on his birth as a living human being.
• A posthumous child may inherit , but if he dies in
the womb or still –born ,his inheritance fails to
take effect and no one can claim through him

12. Corporate Personality
• Legal personality is an artificial creation of law.
Entities recognized by law are capable of being
parties to a legal relationship. A natural person is
a human being whereas
• Legal persons are artificial persons, such as a
corporation, created by law and given certain
legal rights and duties of a human being; a
being, real or imaginary, who for the purpose of
legal reasoning is treated more or less as a
human being

13. Theories of Juristic Personality
• Fiction Theory – This theory was put forward by
Von Savigny, Salmond, Coke, Blackstone, and
Holland etc
• According to this theory, the personality of a
corporation is different from that of its members.
Savigny regarded corporation as an exclusive
creation of law having no existence apart from its
individual members who form the corporate
group and whose acts are attributed to the
corporate entity.

14. • As a result of this, any change in the
membership does not affect the existence of
the corporation
• It is essential to recognize clearly the element
of legal fiction involved in this process.

15. Concession Theory
• This theory is concerned with the Sovereignty of a State. It
pre-supposes that corporation as a legal person has great
importance because it is recognized by the State or the law
• According to this theory, a juristic person is merely a
concession or creation of the state.
• Nonetheless, it is obvious that while the fiction theory is
ultimately a philosophical theory that a corporation is
merely a name and a thing of the intellect, the concession
theory is indifferent to the question of the reality of a
corporation in as much as it focuses only on the source
(State) from which the legal power of the corporation is
derived.

16. Group Personality Theory or Realist
Sociological Theory
• This theory was propounded by Johannes Althusius and carried forward by Otto
Van Gierke. This group of theorists believed that every collective group has a real
mind, a real will and a real power of action. A corporation therefore, has a real
existence, irrespective of the fact whether it is recognized by the State or not.
•
The main defect of the fiction theory according to the realist jurists was the
ignorance of sociological facts that evolved around the law making process.
•

17. The Bracket Theory or the Symbolist
Theory
• This theory was propounded by Rudolph
Ritter von Jhering (also Ihering). According to
Ihering, the conception of corporate
personality is essential and is merely an
economic device by which we can simplify the
task of coordinating legal relations. Hence,
when necessary, it is emphasized that the law
should look behind the entity to discover the
real state of affairs. This is also similar to the
concept of lifting of the corporate veil.

18. Purpose Theory or the theory of
Zweck Vermogen
• The advocates of this theory are Ernst Immanuel
Bekker and Alois von Brinz. This theory is also
quite similar to the fiction theory. It declared that
only human beings can be a person and have
rights. This theory also said that a juristic person
is no person at all but merely a “subjectless”
property destined for a particular purpose. There
is ownership but no owner. Thus a juristic person
is not constructed round a group of persons but
based on an object and purpose.

19. Kelsen’s Theory of Legal Personality
• He said that there is no difference between
legal personality of a company and that of an
individual. Personality in the legal sense is
only a technical personification of a complex
of norms and assigning complexes of rights
and duties.

20. Advantages of Incorporation
• Collective ownership and collective action are
cumbersome in law
• Common interest vested in them and to have
act commonly in the management and
protection of that interest.
• Independent corporate existence
• Successive existence
• Owing ,enjoying and disposing of property
• A freely transferable share

21. Thank you

22. References
• B.N.M. Tripati : An Introduction to Jurisprudence (Legal Theory)
• 1.https://lh3.ggpht.com/zsaHKAcMxREVUTLUrzRkiU9Ndcgo7IDhGLyrEWCi
QNB30Ygq93lKEU0tAiwE-rs5EKj8wA=s131