NOTE. Argentina: 1 Jorge Joaquín Llambías, TRATADO DE DERECHO CIVIL: PARTE GENERAL o - PDF

II Persons A Definition of person What is a person or, as its sometimes called, a subject of e law? The part of e CC at concerns persons in general (Book I, Title I), in fact, never defines e term, presumably

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II Persons A Definition of person What is a person or, as its sometimes called, a subject of e law? The part of e CC at concerns persons in general (Book I, Title I), in fact, never defines e term, presumably because e drafters of at title believed at e task of developing such definitions should be left to doctrine. The note at follows gives you a sample of what e doctrine has come up wi. NOTE Argentina: 1 Jorge Joaquín Llambías, TRATADO DE DERECHO CIVIL: PARTE GENERAL o n 314, at 245 ( Wi e word person, e law designates every being endowed wi e aptitude to acquire rights and to contract obligations. ); Belgium: 1 Henri de Page, o TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL BELGE n 233, at 349 (3d ed. 1962) ( In juridical language, a person is considered to be every being capable of having rights and duties. ); Brazil: Washington de Barros Monteiro, CURSO DE DIREITO CIVIL: PARTE GERAL 56 (14 ed. 1976) ( In its juridical acceptation, person is an entity, physical or moral, at is susceptible of rights and duties. ); France: 1-2 Henri & Léon Mazeaud et al., o LEÇONS DE DROIT CIVIL: LES PERSONNES n 438, at 5 (8 ed. 1997) ( In e language of e law, e person is e subject of rights and duties; it lives e juridical life. Personality is e aptitude to become a subject of rights and obligations. ); Germany: 1-1 Ludwig Enneccerus, Theodor Kipp & Martín Wolff, TRATADO DE DERECHO CIVIL: PARTE GENERAL 76, at 325 (Hans Karl Nipperdey rev. 39 ed., 13 rev. 1931; Blas Pérez Gonzalez & José Alguer trs. [German to Spanish] 1947) ( The concept of subjective rights, as a power invested by e juridical order at serves for e satisfaction of human interests, presupposes a subject to whom is power is attributed or, at which is e same ing in juridical language, a person. Personality, however, is not a right (subjective), but a juridical quality, one at constitutes e prerequisite for all rights and duties; it is equivalent to juridical capacity. ); see also Hans Kelsen, GENERAL THEORY OF LAW & STATE (Anders Wedberg tr. 1945) ( The concept of e legal person who, by definition, is e subject of legal duties and legal rights, answers e need of imagining a bearer of e rights and duties.... In reality, however, e legal person is not a separate entity besides its duties and rights, but only eir personified unity.... ); Italy: Alberto Trabucchi, ISTITUZIONI DI DIRITTO CIVILE (40 ed. 2001) ( Personality means to be a subject of rights, wi e aptitude to become e titleholder of every situation of juridical rights or duties. ) Mexico: 1 Rafael de Pina, ELEMENTOS DE DERECHO CIVIL MEXICANO (7 ed. 1975) ( A person is a being of physical or legal existence who possesses e capacity to have rights and duties. ) 1 1 Add to is doctrine Argentine Código Civil art. 30, which reads as follows: Persons are all entities susceptible of acquiring rights or of contracting obligations B Types of persons 2 Following modern civil law eory (which, in turn, is rooted in Roman law), e CC recognizes two different types of persons. What are ey? See CC art. 24, par Natural persons a Definition What is a natural person? See CC art. 24, par. 2, sent. 1. b Duration of natural personality 1) Commencement a) General rule: live bir When does natural personality begin? Read CC art. 25; en read e following note. 2 The subdivision of e category persons into e two sub-categories of human beings and associations of human beings is a nearly universal feature of modern civil-law doctrine. See, e.g., 1 C. o Massimo Bianca, DIRITTO CIVILE n 95, at 138 (1982) ( Person is distinguished [in Italian law] into physical person and juridical person. );1 Jorge Joaquín Llambías, TRATADO DE DERECHO CIVIL: PARTE GENERAL n o 319, at 249 ( Our juridical order recognizes two species of persons: (1) persons of visible existence and (2) persons of ideal existence. ) 1-2 Henri & Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LES PERSONNES o n 439, at 5 (8 ed. 1997) ( Among persons in e juridical sense, some, called physical persons, are human beings; oers, called moral persons, are eier groups or masses of goods endowed wi autonomy. ); Washington de Barros Monteiro, CURSO DE DIREITO CIVIL [DE BRASILIA]: PARTE GERAL 56 (14 ed. 1976) ( There are... two species of persons recognized by e [Brazilian] juridical order: e natural person, sometimes called a physical person (or a man or woman, a human entity, a human being), and e juridical person, likewise called a moral or a collective person (human groups aimed at ends of common interest). ); 1-2 Arur von Tuhr, DERECHO CIVIL: TEORIA GENERAL DE DERECHO CIVIL ALLEMAN 2.I, at 4 (Tito Ravà tr. [from German to Spanish]1946) ( The [German] legislation distinguishes between natural persons (human beings) and juridical persons (associations, foundations, and all ose of e public law). ). 3 Some legal scholars, most (if not all) of em trained in e French civil law sub-tradition, poke fun at e Louisiana Civil Code for its use of e expression juridical person to refer to associations of human beings. The expression strikes em as inexact, for in contemporary French civil law writing, e expression of which it is e transliteration personne juridique means at which e law recognizes as a person (in contrast to, for example, a person as a matter of biology, which might be called a biological person, or a person for purposes of eical eory, which one might call an eical person ). Thus, as e French use e concept personne juridique, it entails not only associations of human beings but also human beings emselves. In my judgment, ese scholars need to broaden eir horizons, in particular, to open eir eyes to e fact at ere s more to e civil-law tradition an French civil law. If ey did at, ey d discover at in many, if not most, oer civil-law subtraditions, e transliteration of e expression juridical person is used precisely as at expression is used in Louisiana, namely, to refer to associations of human beings and noing more. Examples of jurisdictions wiin ose oer subtraditions include Argentina, see CÓDIGO CIVIL art. 32 (personas jurídicas); Brazil, see CÓDIGO CIVIL art. 40 (pessoas jurídicas); Chile, see CÓDIGO CIVIL art. 54 (personas... jurídicas); Germany, see BURGERLICHES GESETZBUCH 14 (juristische Person); Italy, see CODICE CIVILE art. (persone giuridiche); and Spain, see CÓDIGO CIVIL art. 35 (personas jurídicas), just to name a few NOTE What does it mean for a child to be born alive, as at phrase is used in CC art. 25? For is question, former CC art. 963 (1870; repealed 1999) made e following provision: Wi regard to e proofs necessary to establish e existence of e child at e moment of its bir, one judges wheer it be born alive not by e mere palpitation of its members, but by its respiration or its cries or by oer signs at demonstrate at it existed. That article was based on e following excerpt from Toullier s treatise on e French Code civil: [I]t is not always easy to determine wheer a child was born alive, when it died a brief instant after its bir. It s a question of knowing by means of what signs one can distinguish life. It is not doubtful when e child has been heard to cry at e moment of its bir. This sign is infallible. But it is not e only one: [Justinian s Codex bk. 6, tit. 29] de posumis, law 3 affirmatively declares at it is not 4 necessary at e child have pushed for cries. This law was always followed in e old jurisprudence. One even finds [wiin at jurisprudence] some judgments in which e determination at e child was born alive was based on very equivocal signs. It is, however, an error to treat as a sign of life any and every kind of movement in e body of e child who has been born. The doctors teach at a child who has just come into e world and has not yet been separated from his moer often has convulsive movements and at, if it is very weak, it sometimes has incomplete respirations accompanied by sighs, but at ese pulsations of e heart and e arteries, ese movements of e limbs, and even mere sighs do not accord civil life to a child.... o 2-2 C.-B.-M. Toullier, LE DROIT CIVIL FRANÇAIS n 96, at (J.-B. Duvergier rev. 1846). Modern French doctrine seems to be in accord wi Toullier s opinion. See, o e.g., Gilles Goubeaux, DROIT CIVIL: LES PERSONNES n 41, at 48 n. (2) (1989) ( It is generally admitted at a child is born alive when it has respired, which reveals e presence of air in e lungs. ) PH 1. In e course of time, Julie became pregnant by her husband, Pascal. The child was eir first. When Pascal broke e news to his friend, Olide, Olide made a donation of $10,000 in favor of e child, in proper form, wi e stipulation at e donation was to become effective when e child s legal personality begins. Seven and a half mons into e pregnancy, Julie delivered e child via Caesarian section. Once out of e bir canal, e child took one brea and en cried for 4 Justinian apparently laid down at rule in order to take account of dumb children, who, by virtue of eir disability, cannot, of course, cry aloud. JUST. COD ( The Sabinians held at if e child was born alive and did not utter a cry, it broke e [faer s] will; but it is evident at if it was born dumb it could not do so. ) -282- a few seconds, but, when at cry ended, immediately stopped breaing. The surgical team s efforts to revive e child proved fruitless. An autopsy revealed at e child suffered from a congenital heart defect, one so serious at e child was, as e paologist put it, foredoomed to die. In any event, a dispute soon erupted between Olide and Pascal regarding e donation. Pascal, insisting at e condition attached to e donation at e child s legal personality begin had been fulfilled, argued at e donation had become effective and, furer, at he and Julie, as e child s heirs, were now entitled to e $10,000. Olide argued at e condition had failed and, erefore, at e donation had never become effective. Who s right? Why? See CC art. 25 & cmt. (b); see also cmt. (e) to CC art. 26. b) Exceptions * Note on e relativity of e exceptions 1] Conception a] Operation of e exception PH 2. The same as before (PH 1), except at, is time, ere s no donation ; instead, ere s a succession, to be precise, at of Pascal, who died, intestate, six mons into e child s pregnancy (in oer words, 1 ½ mons before e bir ). The question now is who s entitled to what was Pascal s separate property his widow, Julie, or his broer, Baptiste? Here s Julie s eory: (i) when e child was born, Pascal s separate property devolved upon him under CC art. 888, inasmuch as e child was Pascal s sole descendant ; (ii) en, when e child died, e property (now e child s separate property) devolved upon her under CC art. 892, 2, inasmuch as e child had no siblings and she was his only surviving parent. And here s Baptiste s eory: (i) when Pascal died, he en had no descendants, inasmuch as e child had not en been born ; (ii) us, when Pascal died, his separate property devolved upon him (Baptiste) under CC art. 892, 1, inasmuch as Pascal had no parents and he (Baptiste) was Pascal s only sibling. Who s right? Why? See CC art. 26, sent. 1. PH 2. The same as before (PH 2 ), except at, is time, e child, after emerging from e bir canal, never breaed nor cried, not even once (in oer words, was stillborn ). What result now? Why? PH 3. The same PH 1 & 2, except at, is time, e child survived long after its bir (and, indeed, is still alive) and ere was neier a donation nor a succession; instead, ere was a quasidelict, to be precise, a slip and fall. The slip and fall occurred on an aisle in Jean Sot s grocery store; e immediate cause of e slip and fall was a piece of ice at Jean Sot, rough his negligence, had left out in e aisle; e slipper-faller was Julie, at at time six mons pregnant. When e child was born ree mons later, it exhibited multiple physiological defects, all of which e child s doctors attributed to e slip-and-fall accident. Wiin a year of at accident, Pascal and Julie, on behalf of e child, brought suit against Jean Sot to recover damages for e child s personal injuries. Jean Sot met e suit wi a peremptory exception of no cause of action. His eory was is: (i) to be entitled to sue for personal injuries under CC art or 2316, one must, of course, be a person at e time at which e injuries for which one seeks compensation were sustained; (ii) e child was not yet a person at e time of e accident, for it had not yet been born alive. What result would you predict? Why? See CC art. 26, sent. 1 & cmt. (c). PH 3. The same as before (PH 3 ), except at, is time, (i) e child, after emerging from e bir canal, never breaed nor cried, not even once (in oer words, was stillborn ) and (ii) e parents styled eir suit as a survival action (per CC art ) to recover damages for personal -283- injuries (pain and suffering) at e child suffered due to e accident. Will Jean Sot s exception be successful now? Why or why not? For purposes of is hypoetical, you should assume (i) at e cause of e child s still-bir was not e accident, but raer a congenital heart defect (as in PH 1), but (ii) at e child s body, as in PH 3, still exhibited numerous physiological defects at had been caused by e accident and (ii) at e wounds at caused ose defects were inflicted on e child before his congenital heart defect had finally killed him. See Wartelle v. Women s & Children s Hospital, 704 So. 2d 778 (La. 1998) ( [T]he stillborn fetus is not a person who can acquire and transmit a survival action pursuant to article ). 5 PH 4. After Clodice, who d been shackin up wi Olide for several years, discovered at she was wi child, she told Olide about it. Olide responded by promptly leaving her. Faced wi a mountain of pre-natal medical care expenses (Clodice was, at least, a conscientious moer), Clodice decided to sue Olide. In her suit, she sought two ings: (i) first, a judgment of filiation under CC art. 209, declaring at Olide was, in fact, e faer of her still unborn child; and (ii) second, a judgment of child support, ordering Olide to contribute to e payment of her pre-natal expenses. Olide met e suit wi a declinatory exception of prematurity. His eory was as follows: (i) ough a child is considered to be a person from e moment of its conception for all purposes related to its interests, is personality of e conceived child is contingent on e child s eventually being born alive ; (ii) for at reason, one can t determine wheer e child in fact has such a protectable interest unless and until it is actually born alive. Does Olide s exception have merit? Why or why not? See CC art. 26 & Malek v. Yekani-Fard, 422 So. 2d 1151 (La. 1982) (because unborn children are regarded by e law as already born in property matters undertaken for eir benefit and parental filiation wi consequent entitlement to support and heirship is a property right of an unborn child, an action for filiation and support can be brought on a child s behalf while e child is still in utero). PH 5. The same PH 3, except at, is time, e child died while still in utero (in oer words, before it even entered e bir canal) as a result of e slip-and-fall accident, at is to say, e accident precipitated a spontaneous abortion. Wiin a year of e accident, Pascal and Julie sued Jean Sot to recover damages for e wrongful dea of eir child. Jean Sot met e suit wi a 5 This is a folksy way of referring to what your grandparents and e remnant of moral traditionalists at survives today (myself included) like to call livin in sin and what e civil law, from its origins in Rome, has always called open concubinage. All ree terms refer to a situation in which a man and a woman live togeer more or less as if ey were husband and wife (i.e., live in e same house, where ey share household expenses and responsibilities; enjoy a more or less monogamous sexual relationship, which may or may not have produced children; appear at social and oer public gaerings togeer as a couple ), yet have never formally married, in particular, have never exchanged vows in a proper wedding ceremony. Historically e civil law has taken a dim view of concubinage, a view at remains in place to is day. That was true even in e classical period of Roman law, when at law, from a Christian standpoint, was still raer pagan. In e Middle Ages, when e Roman law was Christianized, concubinage was discouraged wi a vengeance, for orodox Christianity, en as now, regards all sexual intercourse outside of marriage as a grave moral fault. It was not until late in e Modern Era, indeed, e very end of e 20 century, at is hostile attitude toward concubinage began to wane a bit. But ough it has waned, it has hardly been eliminated peremptory exception of no cause of action. Here was his argument: (i) under CC art (A) ( If a person dies due to e fault of anoer...., a wrongful dea action presupposes, among oer ings, at some person must have died; (ii) because e child was never born alive, it never became a person. Will Jean Sot s exception be successful? Why or why not? See CC art. 26, sent. 2, & cmt. (d). b] Definition of conception PH 6. After years of trying, wiout success, to conceive a child e old-fashioned way, Pascal and Julie, husband and wife, sought out e assistance of e Acadian Fertility Clinic. Under e direction of e clinic staff, Pascal and Julie en made deposits of eir respective gametes at e clinic. Then e staff used Pascal s sperm to fertilize several of Julie s eggs, ereby producing several embryos. Pending e implantation procedure, at which time e embryos were to be implanted into Julie s uterine wall, e embryos were kept in cold storage at e clinic. But before at procedure could take place, Pascal died in a tragic gator-hunting accident. Determined to keep e memory of mon très cher mari Pascal alive, Julie decided to go ahead wi e procedure noneeless. A few weeks later e implantation was done; nine mons after at, Julie gave bir to a strapping baby boy, whom she named Ti-Cal. Not long after Ti-Cal s bir, a dispute erupted between Julie and Pascal s broer, Baptiste, regarding e proper disposition of what had been Pascal s separate property. Bo parties agreed on at least is much: to whom at property belongs depends on wheer Ti-Cal had already become a person as of e moment of Pascal s dea, which, in turn, depends on wheer he had already been conceived as of at moment (see CC art. 26): if he had been, en e property belongs to him as Pascal s sole descendant (see CC art. 888); but if he had not been, en Ti-Cal was never a descendant of Pascal, properly so called, and, as a result, Pascal s separate property falls to his sole sibling, Baptiste (see CC art. 892). What do you ink? Had Ti-Cal already been conceived as of e moment of Pascal s dea? Why or why not? See CC art. 26 cmt. (b). On e status and rights of human embryos, read La. Rev. Stat. 9: (Merely reading is legislation will be sufficient; don t waste your time outlining it.) 2] Mere collection of gametes, etc. PH 7. The same as PH 6, except as follows: (i) e cause of Pascal s dea is not a car accident, but SARS (sudden acute respiratory syndrome); (ii) not long after Pascal gets e diagnosis, he draws up an instrument in which he auorizes Julie to proceed wi our plans to conceive a child in e event at he should die; (iii) when Pascal dies, e staff at e clinic has not yet fertilized Julie s ova wi his sperm; (iv) a few mons after Pascal dies, Julie directs e staff to proceed wi e fertilization; (iv) a week after at, several of e embryos are implanted into her uterus; (v) nine mons after at (one year after Pascal s dea), Julie gives bir to a strapping baby boy, whom she names Ti-Cal. Who inherits Pascal s separate property now Ti-Cal or Baptiste? Why? See La. Rev. Stat. 9: ) End a) Actual dea PH 8. While trying to pull moss from e upper limbs of a cypress tree, Jean Sot slipped off e branch on which he d been standing and fell 20 feet to e ground. When he hit e ground, he immediately lost consciousness and stopped breaing. Though his partner, Olide, gave him mouto-mou resp
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