Persons
The word ‘person’ traces its roots from the
Latin ‘persona’ which in its ancient usage of the theatre meant “the
mask which covers the figure of the actor.” The mask indicated the role that
the actor played, and the audience in effect “recognized the character as soon
as it saw the mask.”.Persona thus designated what we now call a role
or part.
In popular parlance “person” denotes physical or
natural persons. But in day-to-day social interaction, entities other than
natural persons interact among themselves and/or with natural persons Thus the
term ‘person’ refers to both human beings and juridical entities. However,
unless otherwise designated or unless the context so requires, the word person
usually refers to human persons.
natural (or physical) persons are human beings . And,
juridical (or legal) persons are entities other than natural persons that are
endowed with legal personality by virtue of the law. The state, territorial
subdivisions of the state, ministries, public associations, trade unions,
partnerships, companies, etc. are juridical persons from the time of their
establishment until they are dissolved and liquidated.
Somali law recognizes two persons upon whom its
confers rights;
Natural persons:
This is the human being who is recognized as a person by law by reason of his
characteristics.
Artificial persons:
is an abstraction of the law often described as a juristic person. It is
a metaphysical entity created in contemplation of the law. This person is
referred to as a Corporation or an Incorporated Association.
• Corporations: an
association of persons recognized as a legal entity.
A juridical person
usually has a distinct legal existence separate from its members.
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 legal protection. The phrase “subject
of rights” obviously implies corresponding duties as well, because the
rights of any person apparently impose a reciprocal duty on others to observe
these rights. For example, a certain person’s rights with regard to the privacy
of correspondence or the inviolability of residence presuppose the duty of
others to respect these rights. The French version uses the words “sujet de
droit” (subject of the law), and this clearly includes duties.
The term “subject of the law” is different from
“object of the law”. Everything that is covered by the law is its
object, but it is not expected to bear rights and duties. A negligent driver
who runs over a dog violates the rights of property of the 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 bites anyone.
Similarly, a person who kills a wild animal in violation of the laws on
wildlife conservation infringes the law. In such instances, harm is said to
have been caused to objects of the law.
Legal personality: Natural Persons
Modern doctrine speaks of legal personality as the
capacity to be bearer of rights and duties (a subject of rights) and
calls him (her) who has this capacity a person in the legal sense. Today
all human beings (natural persons) have legal personality. Furthermore, certain
forms of organizations (associations with legal personality, foundations, the
state, etc.) are recognized by law as persons, and these organizations,
therefore are called juristic persons. Modern theory has derived the concept of
legal personality from Roman sources although the Romans themselves did not
arrive at this concept.
Whereas legal personality today is conceived of on the
basis of liberty of all (humankind) and their equality before the law, the
Romans answered the questions of what rights a person should have differently for
each group of human beings. Three conditions according to which the legal
position of a human being stood out: liberty (libertas), citizenship (civitas),
and the position within the family unit.
2. Commencement of physical
personality
“The human person is subject of
rights from its birth to its death”
The word “human person” refers to anyone who is
member of mankind; i.e. to anyone who has the distinct features of a human
being. Deformities and handicaps are acceptable as long as they are the sorts that
could occur through various natural or other misfortunes. But in case the
new-born offspring’s variation from the common features of human beings is such
that coining some other new word becomes necessary, it can’t apparently be
considered a human person.
Physical personality begins from birth and
lasts until death. Birth is thus the beginning of physical personality,
and will be briefly discussed below.
2.1- Birth
The term “birth” may create some problems of
interpretation. Black’s law dictionary defines birth as “the act of being
wholly brought to separate existence.” When is a child considered to
have a separate existence? “In this respect one tends to make a
distinction between the complete extrusion of the child from his mother’s womb
and the cutting of the umbilical cord. At any rate from that moment on, the
child becomes a person in the legal sense of the word and, in the ultimate
instance; birth will be established through medical evidence.”
A child merely conceived shall be
considered born whenever his interest so demands provided that he is born
alive and viable .
A child is deemed to have been conceived on the 300th
day preceding its birth .
A conceived child may acquire personality while he is
still in his mother’s womb provided that:
a) hisinterest
so requires, particularly where the interest of a conceived child requires
that he be called for succession
b) he is born alive, and,
c)
he is viable (i.e.- capable of living at least forty-eight hours after birth ).
3.INDIVIDUALIZING AND LOCATING
PHYSICAL PERSONS
a) Name
Names have the purpose of identifying individual
physical persons. They are among the attributes of physical personality “Every
child has the right to a name and nationality.”
b) Residence and Domicile
In addition to identifying persons by name, persons
should also be individually located. Citizenship, domicile and residence
identify the location of persons for the purpose of legal transactions.
Citizenship denotes
the moral, social and political tie of a person to a State. The State is an
entity with an international personality (i.e. - recognition as a result of
having defined territory, a relatively stable population, government and
sovereignty). Persons owe allegiance to the State, which in return protects
their rights within the framework of peace, order, freedom, social harmony and
sustained development.
Domicile defines
a person’s legal tie to a place that has its systems of law. A person can have
only one domicile at a time. New domicile is acquired where a person
establishes his residence in a new country with the intention to live there (animus
manendi). Such a person may acquire new domicile without changing his
citizenship. A person may be an Somali or a foreigner with regard to nationality
or citizenship, and can have Mogadishu as his domicile.
Residence is
more specific and links a person to the particular place where he normally
resides.
3.1- Residence
a) Definition
“The residence of a person is the
place where he normally resides” The French version
uses the word “habitually” instead of “normally.
b) Rationale
The determination of residence is essential for the
purposes of marriage, successions ,contracts and summons. It is also essential
during elections, for taxation and other purposes.
c) Residence –versus- mere sojourn
Residence is different from a mere sojourn in a
certain place for some days or weeks. Thus mere sojourn in a place doesn’t
constitute residence .
Yet, residence is acquired if a person’s sojourn is to
last or actually lasts for the certain period. If a person:
• intends to stay at a place (i.e.- at a
sojourn) for more than three months, or,
• actually stays in such sojourn for more than
three months without a prior intention of staying that long, he acquires residence
in such place.
d) Principal and secondary residence
A person may have several residences and in such cases
one of them shall be considered as “principal residence” owing to the criteria
of normality, frequency and the length of time that a person
relatively stays in one of the residences. The issue whether a person’s
presence in a particular residence is normally more predictable than
that of other residence(s), and how frequently and how long he
lives in that particular place are the factors we may consider when two or more
residences seem to have the characteristics of principal residence .
e) Stipulated residence
Residence may be stipulated for the purpose of a
specific relationship, business or activity. Agreement of the person in whose
favour the stipulation is made is mandatory.
f) Residence determined by law
Persons without proved residence:
“The place where such person is shall be deemed to be
his residence” because a person has to have at least one residence.
Married couple, minors and judicially
interdicted persons:
Married couple shall live together in their conjugal
residence to the conjugal residence, a married woman may have her own residence
Minors and interdicted persons may have residence of their own other than the
one determined by the guardian for the minor or the interdicted person .
Public officials and traders
The place where a public official exercises his
functions is considered as his residence and the place where a person carries
on trade shall be deemed to be the residence of the trader.
g) Special rules of residence
Although a person acquires residence if s/he stays in
a place for three months .there are special rules that require longer periods.
For the purpose of marriage, elections and taxation, the law requires longer
periods of residence owing to the fact that a minimum of six months have been
considered to be necessary. It is to be noted that a spouse need not be
resident of the place where his/her marriage is to be registered if his/her
parents or close relatives are residents of the place for over six months.
3.2- Domicile
a) Definition
the definition of
domicile is “the place where such person has established the
principal seat of his business and of his interest, with the intention of
living there permanently”. Principal seat of business refers to the place
where occupational activities are carried out; and a person’s seat of social
and family life is considered as the principal seat of his interest. Permanent
intention to reside in a certain place is presumed “where a person has his
normal residence in such place”.
b) Rationale
The issue of domicile arises when conflict of laws
require the determination of the legal system that must be applicable.
c) Unity of domicile:
Unlike residence, one can’t have more than one
domicile. A person can have only one domicile at a time. Where a person’s place
of work differs from the place where he has his family and social life, the
latter shall be deemed to be his domicile.
d) Change of domicile
The locality of a person’s previous domicile
shall be retained until he establishes a domicile in another place.
.
e) Domicile determined by law
• Persons whose last domicile is unknown shall be
deemed to have domicile at their:
- normal residence; or,
- in default of normal residence at their ordinary
residence; or,
- in default of residence, where a person is shall be
deemed to be the place of domicile.
• Married couple shall have the same domicile.
• A minor who is not emancipated shall have the
domicile of his guardian.
• The place where the interdicted person was at the
time of his interdiction shall be considered as his domicile.
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