Chapter Two

The Concept and Nature of Personality

 Personality

• The concept of personality is a fundamental one under the law. Under any modern
legal systems, it is persons only that are the subjects of rights and duties. Only
persons enjoy rights. Only persons are bound by law. The concept is, thus,
important because it provides for the definition of those beings that can be bound by
law.

 The Nature of Personality

• The word "person" has a different meaning in law than the ordinary connotation of
the word "human being".

• "Person" is a legal concept and we need to study the law to define and identify what
do we mean by person and who are persons. A person is anything recognized by
law as capable of bearing rights and duties.

• Only persons can undertake juridical acts. Juridical acts are undertakings that have
protection of the law. “Person” is a legal concept that is conferred on human beings
and entities by law. Thus, a person is anything that can have legal relations with
each other.

• There are two kinds of personality under the preview of law. These are Natural/
Physical and Legal/Artificial persons.

Legal personality

• Legal personality is an artificial or fictitious persons created by law in order to

confer rights and corresponding duties.
 • All entities recognized by law as capable of being parties to a legal relationship are
legal persons. Thus, a legal person can be an association, an organization, a
company, group of persons, government institution and etc. The state is recognized
by law as a person. Provided that they are given personality by law, these entities
are persons and can have legal relations with each other.

 Acquisition of legal personality

• Legal personality is an artificial or fictitious creation of law. Aartificial persons

acquire legal personality in different mechanisms, including:

a) Issuance of a particular legislation: for instance, public offices will start to have
personality upon the enactment of establishment proclamation or regulation
with no other conditions attached to it.
b) Carrying out registration and conditions of publicity: private business
organizations have to be registered with a competent public authority in order to
acquire legal personality. They should also comply with publicity requirements.

• Once the entities get legal personality they are:-

1) Recognized as equal before the law with the human person.

2) Can perform juridical acts, bears a right and assume an obligation like the
physical persons.
3) Do have their own names and separate legal existence.
4) Enjoy effects of personality by the help of physical persons that act through a
representative capacity.

 Attributes of legal personality

i. A legal person can own and administer its property: Property belonging to a legal
person is different from that of individuals who own the legal person. Property
 belonging to members chartering up the company is completely different from
property belonging to the legal person (the company).

Property belonging to the company is distinct from the property belonging to its
owners. A legal person administers its own property. It is obvious that a legal
person acts through human agents. A legal person acquires rights and incurs
liabilities through the acts of its human agents (representatives) in accordance with
the provisions governing agency.
ii. A legal person may sue or be used in its own name: To sue is to bring a legal action
against another. If three people A, B and C form a company, after a company has
satisfied the legal requirements for the acquisition of legal personality (after it has
become a legal person), it brings legal actions (legal suits) against others in the name
of the company, not in the name of A, B or C. Thus, there is a distinction between the
liability of the company and the liability of individual persons forming it.
iii. A legal person may enter into contractual relations: We have already seen that a
legal person is an entity that can be a party to a legal relationship; therefore, a legal
person can enter into contracts with another company or with a physical person
(Human being). The rights acquired and liabilities incurred as the result of the
contract, remains the rights or liabilities of the company. It is the company that is
either the creditor or the debtor of a third party.
iv. A legal person has an obligation to pay taxes on its property and any other
income: We have already noted that a legal person may own property in its own
name. Similarly, we know that a legal person may carry on business. In the same
way that a physical person pays tax on his income, a legal person is also required to
pay tax on any income it derives.

Natural Persons

 Commencement of Personality

• The importance of a definition of person in the physical sense of the word lies in the
fact that there can be persons in the physical sense of the world who are not
 considered as holders of rights and duties, in the same way that there may be
holders of rights and duties who are not fully person in the physical sense of the
word.

• In the Ethiopia legal system, birth is sufficient in itself to confer personality; no

conditions are laid down in this respect.

• Art. 1 of the Ethiopian Civil Code provides that the human person is the subject of
rights from its birth to its death. When the Art. 1 provides that the human person is
the “subject of rights”; it means that a human person begins to enjoy, or to hold
rights starting from the time of birth. In principle, therefore, the personality of
natural persons begins at birth and ends at death. In principle, there is no
personality before birth or after death.

• Birth means a complete extrusion of the child from its mother’s womb. Whether the
extrusion is natural or by an operation like the Caesarean, it makes no difference.
Under the Ethiopian law, birth is sufficient in itself to confer personality. No other
conditions are laid down in this respect. Once a human baby is born, it is a person.

• For some purposes, a merely conceived child is considered as a person. But this is
only for the purpose of enabling the child to take a benefit. To this effect, certain
conditions provided under Art. 2 of the Civil Code must be fulfilled.

• Art 2 reads as “A child merely conceived is considered as though born where its interest
so requires provided it is born alive and viable.” Accordingly, the conditions are:

1) A child merely conceived is considered as though born where its interest so

requires. Thus, the benefit of personality is granted to a child in the womb of its
mother on three cumulative conditions: the interest of the child must justify the
granting of personality; the child must be born alive and it must be born viable.

• Dear students, under what condition does the interest of a baby in the womb be
affected?
• In most cases, the interest of a merely conceived child comes into picture where a
father dies before the birth of the child. For easy apprehension of the subject under
discussion I have reproduced the relevant provisions from the Ethiopian Civil Code
on law of successions.

• Art. 842(1) First Relationship

The children of the deceased shall be the first to be called to his succession.

• Art. 843

Where the deceased is not survived by descendants, his father and mother shall be called to
his succession.

• In line with the provisions stated herein above, if a person dies leaving behind
things which have monetary value , his or her his rights on the things devolves
(passes) to his child or children, if he or she has got any. If the deceased person is
not survived by a child or children, his or her property passes to his parents.

• If the inheritance devolves to the second group in line (parents of the deceased), the
interest of the child in the womb is adversely affected. So, in order to protect the
interest of the child in the womb, the law created a fictitious personality or gives
personality to a baby still in the womb.

• The interest of the baby requires that he be considered as though born so that he can
be able to get his father’s property. Thus, in cases of the kind Art. 2 of the Civil Code
shall apply. When we apply Art. 2 of the civil code what we are in effect saying is
that the succession of the deceased person shall not open until the baby is born.

2) In addition to the interest of a baby, the baby must be born alive and viable.
These two conditions (viability and being born alive) are considered after birth. Here
under, an attempt is made to discuss the two conditions independently.
a. In order to be considered as a person, the baby must be born alive. Whether the
baby was alive or dead at birth must be verified by medical personnel. This will
 essentially be a question to be determined by medical evidence. As already
mentioned, a test consists in establishing the existence of respiration by checking the
entry of air into the lungs; another one refers to independent circulation.

Let us only mention that the condition of being born alive is as essential as the
previous one; a child, dead in his mother’s womb, will never be considered as
having had personality. But it is also true that this condition has no importance as
such because of the existence of the viability condition. Obviously if the child has to
live for forty-eight hours in order to be considered a person, he must necessarily be
born alive. If he is born dead, he will certainly not prove viable.
b. The child shall also be born viable:
• In order to apply Art.2 of the Civil Code the baby born alive must be viable.
Viability is capacity to live. Under Art. 4(1), a child shall be deemed to be viable if it
lives for forty-eight hours after birth. A child who lives for the next forty-eight hours
after birth is presumed to be a person from the moment of conception onwards. If,
in our example, W gives birth to a healthy baby three months after the death of her
husband, and the baby lives for forty-eight hours, the baby is considered as though
it was born at the time of H’s death.
• It is considered as if the baby was a “person” when H. died. This presumption is
irrefutable (cannot be challenged).
• There is another presumption. A baby born alive may die in less than forty-eight
hours after birth. According to Art. 4(2), if the child dies in less than forty-eight
hours, it shall not be deemed to be viable. If not viable, Art. 2 shall not apply. That
means, even though the baby was born alive, it is not a person. Without the
acquisition of personality, the baby cannot be considered as the subject of rights.
• But contrary to the first case, this second presumption that a child is not viable if it
dies in less than forty-eight hours after birth is rebuttable and can be challenged in
the court of law. If medical evidence is produced to show that the death is not the
result of a deficiency in the child’s constitution, the child may be presumed viable
even though it died in less than forty-eight hours.
• Still there are obvious cases where the death does not result from a constitutional
deficiency, e.g., if the child is dropped by someone and dies of a fracture of the skull,
if he is killed in an automobile accident, etc. If it is proved that death came as a result
of something other than a deficiency, then the child can be considered as having
been viable.

Enjoyment and exercise of rights

• Enjoyment and exercise of rights are not the same. To enjoy rights means to have or
to hold rights. A physical person enjoys rights, holds rights or is the subject of rights
starting from the time of birth. The principle governing the holding of rights and
duties is that as soon as personality begins, all rights and duties under the civil law
are held by an individual even though the person may not exercise such rights
personally.
• All persons enjoy rights without exception, but all persons do not have the same
capacity to exercise rights. Some persons have a limited or a restricted capacity.
Some persons are incapable of exercising rights. They include: minors, judicially and
legally interdicted persons.

End of Physical Personality

• For natural persons death is the only way through which personality can be
completely brought to an end, apart from the case where death is established by the
court as a result of procedure in order to have absence declared (Art. 172 C. C.).

• For legal persons, personality ends due to dissolution that may be due to consensus,
judicial order or operation of the law.