Ethiopian Law Of Persons - Ethiopian Legal Brief

www.chilot.meCHAPTER 1- ACQUISITION OF PHYSICAL PERSONALITYIntroductionThe first chapter of this book deals with the definition of persons andcommencement of physical personality. Students are expected to first read thenotes and then proceed to the readings. Review questions and case problems canbe addressed immediately after the notes and class discussion. Some of thereview questions might, however, require a prior understanding of the conceptsand principles in the readings embodied in each section. It is to be noted that thesupplementary reading on pages 41 to 50 is optional which might be read forfurther understanding.Objectives:At the end of this chapter students are expected to be able to:a) contrast physical and juridical persons;b) explain the ancient and medieval usage of the term “persons”;c) contrast the definitions of “human being” and “person”;d) define and illustrate “subject” of law and “object” of law;e) explain the issue of personality involved in the Persons Case (Canada,1916);f) explain the beginning of physical personality;g) define birth, conception and viability;h) analyze the scope of application of the concept of viability;i) analyze case problems that involve the concepts and issues here-above.Chapter 1- Acquisition of physical personality1

www.chilot.me1. Definition: PersonsThe word ‘person’ traces its roots from the Latin ‘persona’ which in its ancientusage of the theatre meant “the mask which covers the figure of the actor.” Themask indicated the role that the actor played, and the audience in effect“recognized the character as soon as it saw the mask.” (Planiol: 243). Personathus designated what we now call a role or part.Under earlier legal systems human beings who took part in juridical relationswere regarded as persons while those who couldn’t perform juridical acts wereconsidered as lacking legal personality. “It is very probable that the scholasticphilosophers of the Middle Ages were the first to use the word ‘persona’, withall its metaphysical implications, to designate the legal entity. In Roman Law wedo not find the expression used in this sense. ‘The admission must be made’,says Maitland, ‘that there is no text [in Roman Law] which directly calls theUniversitas a persona ’ ” (Nékám: 50). At present, application of the term‘person’ has gone beyond the sphere of legal entities under municipal laws, andit also applies to entities that have international legal personality.The words “human being” and “person” are not interchangeable. All humanbeings in modern legal systems are persons, and take part in legal relationshipsas subjects of rights and duties. Thus unlike Ancient Roman Law there is nodistinction among human beings with regard to legal personality. However,entities other than human beings also take part in legally defined relationships asholder of rights and bearer of obligations. Unfortunately, however, the sameterm is used in Ethiopia (for example “sewoch” in Amharic) for two differentreferents: that is, to refer to ‘human beings’ as creatures and to humans and legalentities as subjects of the law.In popular parlance “person” denotes physical or natural persons. But in day-today social interaction, entities other than natural persons interact amongthemselves and/or with natural persons Thus the term ‘person’ refers to bothhuman beings and juridical entities. However, unless otherwise designated orunless the context so requires, the word person usually refers to human persons.Articles 1 to 393 of the Civil Code deal with natural (or physical) persons. And,juridical (or legal) persons (Articles 394 ff) are entities other than natural personsthat are endowed with legal personality by virtue of the law. The state, territorialsubdivisions of the state, ministries, public associations, trade unions,partnerships, companies, etc. are juridical persons from the time of theirestablishment until they are dissolved and liquidated.2Ethiopian Law of Persons: Notes and Materials (2007)

www.chilot.meA juridical person usually has a distinct legal existence separate from itsmembers. A case in point (in this regard) is the continued existence of theentities even after the partial or total change of their founding individualmembers. Such legal entities (either public or private} as stated above areendowed with juridical personality. Same as physical persons, these legalpersons have rights and duties; enter into contracts, can sue, be sued and performvarious juridical acts. However, it must be noted that there are rights ofpersonality that cannot be exercised by juridical persons, such as the right tovote.Thus, “persons” can be defined as human beings or legal entities that are holder(or bearer) of rights, and “personality” refers to all the attributes that have legalprotection. The phrase “subject of rights” (used in Article 1 of the EthiopianCivil Code) obviously implies corresponding duties as well, because the rights ofany person apparently impose a reciprocal duty on others to observe these rights.For example, a certain person’s rights with regard to the privacy ofcorrespondence or the inviolability of residence presuppose the duty of others torespect these rights. The French version uses the words “sujet de droit” (subjectof the law), and this clearly includes duties.The term “subject of the law” is different from “object of the law”. Everythingthat is covered by the law is its object, but it is not expected to bear rights andduties. A negligent driver who runs over a dog violates the rights of property ofthe owner of the dog. The owner of the dog is subject of rights in this example.And he will be subject of duties (extra contractual liability) in case his dog bitesanyone. Similarly, a person who kills a wild animal in violation of the laws onwildlife conservation infringes the law. In such instances, harm is said to havebeen caused to objects of the law.*Review Questions1. Is a child brought to life through cloning a human person?2. Article 16 of the 1966 International Covenant on Civil and Political rights(ICCPR) provides that “Everyone shall have the right to recognitioneverywhere as a person before the law.” Explain.3. Under slavery, birth and viability were not (for some people) sufficient forthe acquisition of personality. Explain the statement.Chapter 1- Acquisition of physical personality3

www.chilot.me4. Contrast objects and subjects of the law, and give examples not stated in thischapter. Is a newly born child subject of the law?5. How is the term ‘person’ defined in your community? Does your communityattribute personality to a tribe, a clan, a family or common lineage?6. How is Roman law different from the Civil Code in its concept ofpersonality?7. Compare the notions of subject of a sentence (in grammar) and subject oflaw.8. Personality in legal parlance involves ‘taking part.’examples.*4*Explain and give*Ethiopian Law of Persons: Notes and Materials (2007)

www.chilot.meReadings on the Definition of PersonsDefinition and EtymologyM. Planiol, Treatises on Civil law, Volume I, Part I (2nd part), Louisiana StateLaw Institute, 1959, pp. 243, 244Those beings capable of having rights and obligations are called “persons.”The word “person” is a metaphor borrowed by the ancients from the languageof the theatre. Persona designates, in Latin: the mask which covers the figure ofthe actor. It had an open mouth, containing a metallic thin plate, so adjustedthat it gave greater resonance to the actor’s voice. As there were invariabletypes for each part in the play, the audience recognized the character as soon asit saw the mask. Persona served in this way to designate what moderns call arole or part. And the word passed into current speech.Two kinds of persons DistinguishedContemporary legal literature recognizes two categories of persons. They arereal persons who are living beings and fictitious persons who have only animaginary existence. Who are the real persons?Every human being is a person. This, however, is only true since thesuppression of slavery. But only individuals of the human species are persons.Animals are not.Principal Attributes of PersonalityPersons have names which serve to distinguish them from one another. Theyalso have a juridical status, made up of manifold elements, which defines theircapacity . They alone may have a patrimony and a domicile. *(Persons in Swiss Law)(Francois Knoepfler, Caole Zulauf, Inroduction to Swiss Law (KluwerLaw International: Hague, 1997) Chapter IV, p. 47In Swiss law, the word “person” is synonymous with being a holder of rights.Personality means all the attributes of a person that are protected by law. ItChapter 1- Acquisition of physical personality5

www.chilot.meincludes ability to be a holder of rights and the capacity to exercise rights andassume obligations. According to Swiss law, all individual human beings(physical or natural persons) and to a certain extent collectivities –private aswell as public - such as corporations and associations (legal persons) havepersonality.*Problems of Terminology (regarding ‘persons’ and‘subject of rights’)Jacques Vanderlinden, Commentaries upon the Ethiopian Civil Code:the Law of Physical Persons, HSIU, 1969 (pp. 11,12)Generally speaking the Amharic text does not distinguish between ‘physicalpersons’ and ‘persons; the former expression is translated by the latter word.This is apparently due to the lack of distinction between a person in theordinary sense of the word (human being) and the legal sense (sujet de droit).It also does not differentiate between personality and persons. But this doesnot create major problems. If one speaks of personality and rights inherent inpersonality or of persons and rights inherent in persons it amounts in practiceto the same.As for the translation of “Attribution of personality” in the title of Chapter I,Section I, it is The Conferring of Rights on Persons. This would be quite acceptableif duties were inserted after rights to avoid the idea that the law only confersrights and not duties to persons.Article 1The main issue is the translation of the French expression ‘sujet de droit.’ TheEnglish translation subject of rights has led to the question whether persons hadonly rights and no duties. This is totally misconceived as the idea behindpersonality is by definition the bundle of rights and duties. It would perhapsbe better to say subject of rights and duties; this would convey directly the ideabehind the French expression that persons are subjected to the effects of thelaw, while who ever is not a person escapes from that subjection. As for theAmharic translation, it says that persons have legal rights from their birthonwards. Such translation is as inadequate as the English one. As in theEnglish text, the idea of duties is skipped over. Thus it would seem better toadopt the following translation: persons have rights and duties. The idea ofsubjection to the law would be absent, but the general idea would be betterexpressed than at the present time.6Ethiopian Law of Persons: Notes and Materials (2007)

www.chilot.mePersons (in Roman Law)Max Kaser, Roman Private Law, Hamburg 1962 (Translated fromGerman by Rolf Dannenbring, Durban 1965), pp. 60- 64The position man occupied within the social community and accordinglywithin the system of law, changed considerably during the course of Romanhistory. The early Roman period did not regard man as an individual, but as amember of the group to which he belonged. Of all such groups, the smallestunit, the family, was, side by side with the state which was the largest unit andwhich included all Roman citizens.The Roman family (familia) formed a monocratic legal unit consisting of thepaterfamilias as its head and the persons subjected to his extensive power: hiswife . and his children (as long as they had not passed out of his power).In principle, the grouping into family units within the Roman people waspreserved . until the late Roman Period. Nonetheless, it can be observed thatthe whole . history of the Roman family was dominated by its gradualdisintegration from the end of the agriculture age. The free individual freedhimself from ties of all kinds and attained independence; in this process thesocial reality often preceded the development of the law. There are twoexplanations for this progressive individualization: first, the change frompeasantry to economic conditions dominated by commerce, trade and monetaryeconomy and secondly, the general sophistication of the ways of life andthought furthered by Hellenism. In the post-classical period Christian influencestrengthened the progressive independence of children in power. Certain relics,however, of the old paternal power were preserved even in the late Romanperiod.Legal personality: Natural PersonsModern doctrine speaks of legal personality as the capacity to be bearer ofrights and duties (a subject of rights) and calls him (her) who has this capacity aperson in the legal sense. Today all human beings (natural persons) have legalpersonality. Furthermore, certain forms of organizations (associations withlegal personality, foundations, the state, etc.) are recognized by law as persons,and these organizations, therefore are called juristic persons. Modern theoryhas derived the concept of legal personality from Roman sources although theRomans themselves did not arrive at this concept.Chapter 1- Acquisition of physical personality7

www.chilot.meWhereas legal personality today is conceived of on the basis of liberty of all(humankind) and their equality before the law, the Romans answered thequestions of what rights a person should have differently for each group ofhuman beings. Three conditions according to which the legal position of ahuman being stood out: liberty (libertas), citizenship (civitas), and the positionwithin the family unit.*Persons (in English Law)Denis Keenan, Smith & Keenans’s English Law, 12th Ed., FinancialTimes Pitman Publishing, 1998 (Chapter 8: Persons and the Crown), p.154In law a person possesses certain rights and owes certain duties. There are twocategories of persons as follows:a) Natural persons.These are human beings who are referred to as natural persons. . Non-humancreatures are not legal persons and do not have the full range of rights andduties which a human being acquires at birth. Yet animals may (as objects ofthe law) be protected by the law for certain purposes, e.g. conservation.b) Jurisitic personsLegal personality is not restricted to human beings. In fact various bo

Commentaries Upon (Ethiopian) Law of Physical Persons (HSIU, 1969) Robert Allen Sedler, Nationality, Domicile and the Personal Law in Ethiopia, Journal of Ethiopian Law, Vol. II, No.1, Summer 1965 Mehari Redaie, Some Remarks on the Revised Family Code (Amharic), Volume II, 1999 E