Class notes on subjective rightsl PDF

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OBJECTIVE LAW AND SUBJECTIVE RIGHTS

Objective law is all the legal rules that are applicable as a system in South Africa, ie “the law”. In its widest sense it is the whole South African national law. It is therefore the law in the sense of a set of norms or rules of behaviour that regulate relations in a community. The law can also operate in another context. If you refer to the law as the rights and obligations of people towards each other, such as the rights of an owner in respect of his home, you are referring to the law in the sense of subjective rights. A subjective right can be defined as the claim by a member of the legal community which claim is recognised by the objective law of the community and in protection whereof the help of bodies, such as the courts, can be called in. EXAMPLE: Objective law is divided into different areas, such as public law and private law. The objective law regulates the relationship between individuals through private law. This is the relationship between equals on a horisontal level. The reason for private law is to ensure that people live and work in a peaceful and organised manner. These relationships between the individuals on a horisontal level are regulated through the concept of subjective law, also known as subjective rights. Subjective rights are applicable to people in the day to day relationship with each other. CATEGORIES OF SUBJECTIVE RIGHTS A subjective right does not only presuppose a subject (bearer), but also an object. Subjective rights can be divided into a number of categories according to the nature of the object to which it has bearing. a.

Real rights.

Subjective rights that have bearing on corporeal things. The object of this right can be a moveable corporeal thing, such as a vehicle or an immovable thing, such as a building. b.

Immaterial property rights.

The object of these rights is the bearer’s “immaterial goods”. For instance the object of a patent right is the incorporeal product of the human mind, namely the invention. Also the idea of the author of a book to which he has copyright. c.

Personality rights.

The object is part of the entitled person’s personality, such as his reputation or personal integrity. d.

Personal rights.

This is a subjective right that has “performance” by others as an object. For example, the right of the employer to the services of the employee as against the subjective right of the employee to remuneration. Or the claim for the payment of money that the creditor has against his debtor. Claims of this nature are known as personal rights because they are aimed against a specific person. The relationship between a creditor and a debtor can be used as an example. The creditor is the bearer (subject) of the subjective right. The object of the relationship is the money that is owed, in other words, the performance. The relationship is called a debt relationship or obligation. Distinguish between: i.

Reciprocal obligations

Example: Contract of service - there are duties and obligations to be observed by both parties - the employee must deliver his services, while the employer must pay remuneration for the services to be delivered - their distinctive obligations are reciprocal towards each other

ii.

Unilateral obligations

Example: A gift or donation - there is only an obligation on one of the parties to perform - there is no obligation on the party who receives the gift to perform at all - hence the name unilateral obligation

One must be on one’s guard against using the term “right” in a loose sense. For example the right to make a will. In this case we rather have to do with competency. The reason for this is the lack of an object. RELATIVE RIGHTS AGAINST ABSOLUTE RIGHTS While the division of subjective rights in the four categories is based on the nature of the object, there is also another distinction that can be drawn, based on the difference in functioning, namely absolute and relative rights.

Absolute rights are rights that are enforceable against the whole world. Examples hereof are public rights, ie the right of the subject to freedom of speech, etc and real rights, immaterial property rights and personality rights. Relative rights are rights that may only be enforced against a specific person. personal rights.

Example

REAL RIGHTS AND PERSONAL RIGHTS In essence the difference between real rights and personal rights lies in the distinction between that which belongs to me and that which is due to me. That which is due to me can be a thing, but as long as delivery does not take place, I still do not have any corporeal right; only a right with regard to a thing, which right is enforceable against the person who owed the thing to me (it is a personal right). The debtor is under the obligation to deliver, but as long as he does not deliver, he stays the owner of the thing and in his capacity he may do with it as he pleases. CATEGORIES OF REAL RIGHTS Real rights can be divided into:

a.

ius in re propria

b.

ius in re aliena

The distinction can be explained by stating that in the first instance one deals with a right to your own things and in the latter one deals with a real right to the things of another. The right to your property is the only absolute real right ( ius in re propria ) as this gives rights to the owner himself. All other real rights are rights to the things of others, such as pledge, mortgage, servitude and lease. They are ius in re aliena because they do not afford the same wide rights as with property. You will only have certain specified rights with regards to the things of others. THE CREATION AND TERMINATION OF SUBJECTIVE RIGHTS A subjective right can only be created through the operation of the objective law. The objective law in turn can only become operative by some or other occurrence. These occurrences, in other words occurrences through which subjective rights are created or terminated, are called operative or juristic facts, ie events that have legal consequences. Operative facts can be divided into: a.

Acts (human acts) This can be divided into: i.

Legal acts/acts in the law – a human act to which the objective law links the consequences that were anticipated by the parties, eg the terms of a contract (1)

Unilateral legal acts – acts for which the consent of only one party is required, eg a will

(2)

ii.

b.

Multilateral legal acts – acts for which the consent of more than one party is required, eg a contract

Wrongful acts – human acts to which the objective law also links consequences, but not necessarily consequences that were anticipated by the parties, eg a motor-vehicle accident.

Events or coincidental occurrences (non-human). Occurrences that do not establish operative facts, but legal consequences can certainly be linked to it, eg birth (a duty towards maintenance is created), death (claims of heirs that are established), lightning (an insurance claim is established), etc

LEGAL SUBJECTS AND THEIR CAPACITIES Rights and duties do not exist in a vacuum, but are linked to a person. Definition: rights.

Legal capacity is the capacity to be the bearer (subject) of subjective

This means that a person have rights in terms of the law, and is subject to obligations Two types of legal subjects can be distinguished: a.

Natural persons – all humans are natural persons.

b.

Juristic persons – societies of people eg companies and foundations.

All people receive legal capacity in conjunction with legal duties and obligations, eg the newly born has a right towards maintenance against his/her parents, etc. Legal capacity usually originates from birth. From legal capacity one should distinguish the capacity to perform an act. Performing or acting capacity is the capacity to perform independent legal acts. As against legal capacity the creation of performing capacity is linked to certain age limits: a.

A child under the age of 10 years does not have the capacity to perform any legal act at all.

b.

Children of 10 years and above only have limited capacity to perform a legal act.

c.

Majority is attained at the age of 18 at which stage a person obtains full capacity to act.

There are also other statutory prescribed age limits, at which the law entitles a person to incur certain specific legal acts: a.

A person can draw up his own will at the age of 16 or sign as a witness at the age of 14.

b.

Any person can get married at the age of 18. If the said person hasn’t yet attained majority, marriage can only be concluded with the consent of the parents, providing that the minor involved is older than 15 years in the case of a female and older as 18 in the case of a male. Male persons under the age of

18 and females under the age of 15 can also conclude marriages, but they will need the consent of the Minister of the Interior. c.

At the moment a person gets married he or she immediately obtains majority, regardless of the fact that he may be under 18 years of age. This state of majority is permanent. In other words the minor who got married before the age of 18, will be considered to be a major, with full acting capacity, even if that same person gets divorced before the age of 21.

CRIMINAL CAPACITY Criminal capacity is an indispensable prerequisite for culpability. A person can be blamed for having committed the unlawful act only if he was able to act in accordance with the law, which he would be only if he was endowed with the mental ability necessary to attract liability. It is quite clear that the mentally ill and children below a certain age cannot be held responsible for their unlawful behaviour, since they lacked the necessary mental ability, at the time of the act, to distinguish between right and wrong and to act in accordance with that insight. Because a child of 5 years has legal capacity, he can also act wrongfully, eg by hurling a stone through a window. However it does not mean that he can be held criminally liable. According to our law a child who has not yet completed his 10 th year, in other words who has not yet had his 10th birthday, is irrebuttably presumed to lack criminal capacity. This means that a person should have the mental ability to be held liable for a crime....