CHAPTER 13 SOME LEADING LEGAL CONCEPTS

I.
PERSONS, INCLUDING CORPORATIONS
Concentrated mainly on the human being coming into existence
Human Personality
Crime of murder intentional killing of a human being
o Is an unborn baby a person in being?
o When is a child considered to be born?
Fully extruded alive from mother or umbilical cord severed
Lawyers must make an arbitrary choice to answer the questions on character
Group Personality
Attribution of personality is not just to the individual human being but also to groups or
associations
Such groups may come into being either for limited or specific purposes, as in the case of
commercial company or a social club; or for general purposes as in the case of a national
territorial state
In common parlance it is usual to personify groups: to treat them as persons in their own rights
possessing continuity and a separate identity from the individuals who may compose them
Otto von Gierke (German lawyer)
o Urged that the personality of groups must be recognized by law as a real entity, just as real as
the individual human personality
o This approach was encouraged by Hegelian doctrine of the state as a supra-real person,
representing a higher reality than the citizens comprising it
o Aimed at preserving the autonomy of groups within the state
Entitled to claim legal recognition of its personality without need for any official grant
Runs counter to the general approach of most legal systems wherein a group can only
come into existence by express grant or certification by the state
Two difficulties faced by supporters of realist theory:
1. Even if personality of groups is a sociological reality of a kind (Durkheim), social
personality is identical with the psychosomatic personality of the individual human being
2. Group cannot be attributed to any identifiable entity
o Some test would have to be established to enable the law to accept that a particular
group personality had come into existence
o Instead of a preliminary certificate of incorporation, the group should established
its personality by satisfying the appropriate legal criteria laid down by the state
Modes of Incorporation
Corporations are created by very simple, expeditious and cheap methods
Still, there are some unincorporated groups or associations; e.g. social clubs, churches, trade and
professional associations, etc.
o English law treats them as a collective name for the individual members themselves
This means that any legal transaction has to be regarded as being entered into by or with all
the members themselves
Consequences of Incorporation
Law treats a corporation as a legal person separate from the members.

o It can engage in all ordinary transactions of law, it may sue and be sued in the courts
Contracts with unincorporated association is striking
o It cannot own a property, it cannot enter into a contract, it cannot sue or be sued and it has no
debts and liabilities distinct from those members
Refusal of English law to recognized legal suability of a club because it lacks legal personality
Some attempts have been made in English law to break down rigid line of demarcation between
corporations and unincorporated bodies
o E.g. partnerships, trade unions and quasi-corporations
The Separateness of Corporate Personality
Salomon Case
o Mr. Salomon owned virtually all the shares in a so-called one-many company
o He lent money to the company when it was perfectly solvent in return for the security of
debentures
o Later on, when the company became insolvent, Mr. Salomon claimed to be paid his debt in full
in priority to the other creditors.
o He claimed that the company was an entirely separate entity from Salomon and he was entitled
to be paid in full just as in other independent debenture-holder
Salomon case likened to a kind of corporate veil or curtain drawn between the company and its
members or shareholders
The problem will resolve itself into whether the court will be ready to pierce the corporate veil and
treat the company as no more than another name for those who control its fortunes
II.

RIGHTS AND DUTIES

Terminology of Duty - binding; subjected to an obligation
Terminology of Rights - both moral connotation and emotional tone
o Strongly brought out in European language where law also stands for moral right
Aspect of Legal Order essential from the analytical aspect, remains a sociological factor of the
first order
The Connexion Between Rights and Duties
Rights and duties are said to be correlatives
Kelsen
o Some duties are imposed without conferring any rights
Duties do not create corresponding rights in favor of other persons
Examples:
a. Public and social welfare duties
b. Duties not to publish obscene literature or make a tax return
Right of citizens not to publish obscene matter and states power is to suppress such
publication -> nature of a duty rather than right
o If every duty has a right, it would lead to the odd conclusion that the condemned criminal has a
right to be hanged (so not as to prolong its agony in prison)
o Duty fundamental concept of legal system
o Right may or may not be attached to duty according to whether that system willing to confer
upon some individual the power to decide whether to set the legal machinery in motion to
enforce the fulfillment of the duty

Primary and Remedial Rights

Note:
o Primary = substantive
o Remedial = procedural or adjective law
Substantive law laying down all the various rights and duties which the law treats as governing
people in all their legal relationships and existing prior to any actual breach of duty
Procedural law when a breach of duty has occurred and the injured party seeks by legal
proceedings to obtain some remedy or relief
Examples:
1. Property Owner
o Land Owner entitled to use or dispose it
o Other people under the duty to refrain from doing any acts that would infringe the owners
rights
2. Person driving a car
o Driver duty to take reasonable care for the safety of other road users
o Other road users they will not have any right or claim as long as the driver take such care
or until an accident occurs
Law creates a huge apparatus of rights and duties which may properly be regarded as primary,
in as much as they are directed at controlling the behavior of people in general by delimiting and
demarcating those classes of acts which they must do or refrain from doing in the course of their
daily lives

Examples of Procedural Bar

a. Statute-barred debts/Statute of Fraud wherein certain contracts required to be evidenced
in writing
b. Claims against a person enjoying diplomatic privilege has immunity from suit and
proceedings
c. If one does not know his right and duty he can file a declaratory relief in court to ask only
for legal opinion and not judgment

Hohfelds Analysis of Rights and Duties

Hohfeld (American Jurist) splits up the traditional right-duty pattern into 4 distinct pairs of
correlatives
Four Pairs of Correlatives
1. Right Duty
o One person is entitled by legal process to compel another person to act in a certain way
o Example: Jones can right to enforce payment of a debt from Robinson, where he has a
duty to pay
2. Liberty No Right (Inability)
o In this case, legal rights do not correspond or confer with the duty wherein person can be
forced to by the possessor of the right to act in a particular way
o Example: Land owners right (liberty or freedom) to walk on his own land is the legal
consequence that everyone else has no-right or unable to interfere with the exercise of
the owners privilege

3. Power Liability
o In this case, legal rights do not correspond or confer with the duty wherein person can be
forced to by the possessor of the right to act in a particular way
o Examples:
a. Person is entitled to dispose by will of his property upon his decease, which represents
a legal power to produce a change in the legal relationships of other persons, who are
liable to have their legal relations change in this way
b. Principal gives an agent a power of attorney to negotiate or enter into a transaction,
wherein agent becomes liable
4. Immunity Disability
o Person enjoys freedom from having given legal relationship altered by the act of another
person
o Example: Making a statement in a parliamentary debate where the speaker enjoys
absolute privilege from suit however defamatory statement might be. There immunity from
legal action with a corresponding disability on the part of the person defamed, since he is
legally disabled from bringing proceedings
Two Hypothetical Examples
1. An Irrevocable License
Smith purchased a ticket from Browns theater
o Brown cannot exclude Smith from taking his seat this is called irrevocable license
Smith has a liberty to enter the theater and Brown has no-right to interfere with this
freedom of Smith
o If Brown prohibits Smith to enter the theater
Smith cannot legally compel Brown to let him in, and his only remedy is to sue for
damages for breach of contract
Smith has no liberty to enter but only a right to sue for damages
o Smith actually entered the theatre and watched the performance. For some unwarranted
reason, Brown tells him to go and upon Smiths refusal, he was forcibly ejected
Smith was only on the premise with license of Brown but Brown had no right to
withdraw that license and treat Smith as a trespasser
Smith can sue for damages for breach of contract AND damages for tort of assault for
infringement of Smiths right not to be assaulted
o Analytical terminology which enable to draw a line between Smiths license or liberty to
see the performance and his separate right not be assaulted
2. The Right of Compulsory Purchase
Power of Eminent Domain -The power of the government to take private property and convert it
into public use
o Authority/Government has a power of compulsory purchase in relation to the particular land and
the land owner is under a liability as being exposed to the possible exercise of this power
o If the power is actually exercised, the authority will obtain a right to the transfer of the land and
the land owner will be under a duty to proceed with the transfer

o If the land owner can establish that the authoritys legal powers do not extend to this particular
land, then the land owner can enjoy immunity from this procedure and the authority is under a
correlative disability in regard to this transaction

Restatements compiled by the American Law Institute

o Although lacking in authority, these are extremely influential in American courts and assumed to
exert a continuing influence not only as to the substantive rules but also in regard to their
analytical form and pattern
o It has the three-fold function of allowing expression:
1. To be given to the existing rules of law
2. Of providing machinery which affords scope for the rational development of those rules or for
the creation of new rules
3. Of affording a means of directing or channeling human behavior be creating the feeling in
peoples minds that they are or are not justified in doing or refraining from certain things or
making certain claims
o The importance of the conceptual aspect of legal rules is not diminished by mere legal formalism
o For it is out of interaction of the formal structure of legal thought and language with the
sociological facts of human activities that meaning is imparted to the living body of the law.

III.
OWNERSHIP, PROPERTY AND POSSESSION
Ownership and Property
It is necessary to distinguish between right of ownership itself and the subject matter of that right
Concept of right itself
o It is an expression of a legal relationship resulting from a set of legal norms
o E.g. patent rights, copyright and share certificate in a company
Ownership in a physical thing
o E.g. lands and goods
Ownership of Rights
Right is owned by a particular person or transferred from one person to another
However, some are non-transferrable
o E.g. right to own ones reputation, right to claim damages in tort
Generally, rights can be and frequently treated as themselves capable of being owned
But it should not be confused by with ownership which is a species of proprietary right
o Owner of a proprietary right as the owner of the right of ownership
The words holder or possessor can also be employed

Is Ownership an Absolute Right to a Thing?

Treat ownership as involving an absolute right to some thing which may be either tangible or
intangible
o Two Objections:
i. Idea of intangible thing as a subject matter of ownership is merely an attempt to
avoid the difficulty created by such instances as ownership of patents or copyright
There is absolute right to legal right which is a pleonasm for absolute legal rights

ii. Notion of absoluteness is introduced to indicate the unlimited character of the

owners right
He can do anything he likes with the thing
Two objections for this criterion
1. Ownership may be virtually completely divested of the elements of enjoyment
and control an still remain ownership
2. No such thing in law as unlimited right for the law will inevitably impose
restraints on the use or disposal of property
Rights in rem
Approach to ownership is not on the content of the right itself but rather to its ambit
1. Rights in rem certain rights are only exercisable against a particular person or closely
defined group of persons
2. Right in personam rights are available against anyone
Certainly a distinction of considerable value but it does not serve by itself as an effective
means of defining ownership
Trust a key feature of modern property law in which it enables the legal title to property to be
vested in a trustee/s but they hold the property on behalf of the beneficiary who owns the
beneficial interest an is in effect the real owner
Ownership cannot be reduced to one simple central idea
Ownership as a bundle of rights
Ownership is not a single category of legal right but is a complex bundle of rights whose
precise character will vary from legal system to legal system
Two categories of bundle of rights:
1. Root of title more fundamental
2. Beneficial ownership
Doctrine of possession vaut titre or possession in nine points of law
o Tend to regard possession as good evidence of lawful title
But ownership cannot be regarded as conclusive evidence of a good title but must always be
relative to the circumstances in which it was acquired
o For this reason, a lawyer distinguishes between actual or physical possession and the
right to possess
Beneficial Ownership
An owner may exercise certain legal powers or liberties in relation to its subject-matter
Includes wide range of activities: using or disposing of the property, excluding others from its
use or even destroying the thing itself