Questions
and Notes on Legal Personality 1
1. The word `person` is derived from the latin word persona
which meant a mask worn by actors playing different roles in a drama.
2. Who considered `will` as the essence of legal personality
and said “Personality is the legal capacity of will, the bodiliness of men for
their personality a wholly irrelevant attributive”?
Zitelmana
3. Who defined a `person` as “Any eing to whom the law
regards as capable of rights or duties”?
Salmond
4. Who defines a `person` as “An entity to which rights and
duties may be attributed”?
Gray
5. Who said that legal personality is a medium through which
some such units are created in whom rights can be vested?
Paton
6. What is the meaning of en ventre sa mere?
Ownership may be vested in a child in mother`s womb.
7. What was the opinion of Salmond on the personality of a
dead man?
The dead does not have any personality. The personality
of a human being may be said to commence with his birth and ceases with his
death.
8. What was the opinion of Salmond as regards personality of
animals?
Salmond regarded them as mere objects of legal rights and
duties, but never subjects of them.
9. Who wrote the book `Principles of Criminology`?
Sutherland
10. Some decisions of judiciary in India regarding legal
personality:
a. Pramatha Nath Mullick v Pradyumna Kumar Mullick: idol is
a juristic person,
b. Krishna Singh v Mathura: the preside of a Math, i.e.,
mathadheesh or a Mahant or Mathadhipati has a legal personality from the deity,
c. Maula Bux v Hafizudding: A mosque has a corporate
personality,
d. Siromani Gurudwara Prabandhak Committee v Somnath Das:
Guru Granth Sahib is a legal person,
11. Who said “The law in creating legal persons, always does
so by personifying some real thing”?
Salmond
12. Some ancient Roman principles of legal personality:
a. Predium Dominans and Pradium Servians: It is a part of
law of easements, which means that owner of the latter, was subject to the
rights of the owner of the earlier.
b. Heriditas Jacens: The law conferred legal personality on
the dead man until the heir had entered upon his inheritance.
13. What is a corporation aggregate?
It is an association of human beings united for the
purpose of forwarding their certain interests. Eg a limited liability company.
14. In which case the Supreme Court observed that the
corporation in law is equal to a natural person and has a legal entity of its
own?
Tata Engineering & Locomotive Company Ltd v State of
Bihar
15. Who wrote the book `On Corporations`?
Professor Grant
16. Who wrote the book `Principles of Modern Company Law`?
Gower
17. In which case the Supreme Court held that “broadly
speaking the corporate veil of a coporation may be lifted where the statute
itself contemplates lifting the veil or fraud or improper conduct is intended
to be prevented…”?
Life Insurance Corporation of India v Escorts Limited
18. In which case the Supreme Court has held that a company
or a corporation could not be a citizen of India and therefore could not claim
such of the fundamental rights, as had been conferred upon the citizen only?
State Trading Corporation v Commercial Tax Officer
19. What is the meaning of Corporate Sole?
It is an incorporated series of successive persons. A
single person who is personified and regarded by law as a legal person. A
single person who in exercise of some office or function, deals in the legal
capacity and has rights and duties. Example: Comptroller and Auditor General of
India, President of India.
20. Characteristics of Fiction Theory of Corporate
Personality
a. Expounded by Savigny, Salmong, Coke, Blackstone, Holland,
b. Personality of a corporation is different from that of
its members,
c. Savigny pointed out double fiction
i. First, when the corporation is given a legal entity,
ii. Secondly, when it is clothed by the will of an
individual,
d. Kelson : ”It is a convenient peg upon which to hang legal
rights and duties. Thus a group of persons or a successive series of persons is
a legal person because it has an imaginary personality by the fiction of law.”
e. Gray: “Like fictious personality, the will of the
corporation is also an imaginary creation of law.”
21. Characteristics of Realist Theory of Corporate
Personality:
a. Founder of the theory are Johannes Althusius and Gierke,
b. Every collective group has a real mind, a real will and a
real power of action.
c. Corporation has a real existence, irrespective of the
fact whether it is recognized by the State or not,
d. Corporation will of the corporation finds expression
through the acts of its directors, employees or agents,
e. The existence of a corporation is real and not based on
any fiction,
f. Grey: “To get rid of the fiction of an attributed will be
saying that corporation has a real general will is to drive out one fiction by
another.”
22. Who wrote the book `Comparitive Legal Philosophy`?
Miraglia
23. Realist theory is closely connected with `Institutional
Theory` which marks a shift of emphasis from an individualist to a collectivist
outlook. An individual is integrated into the institution and becomes a part of
it.
24. Characteristics of Bracket Theory:
a. Also called symbolist theory,
b. Associated with jurist Ihering,
c. Only the members of the corporation are `persons` in real
sense and a bracket is put around them to indicate that they are to be treated
as one single unit when they form themselves into a corporation.
d. Hohfeld said : “Only human beings are persons and juristic
personality is mere creation of arbitrary rules of procedure”
25. Characteristics of Concession Theory of Corporate
Personality:
a. Proponents: Savigny, Salmond, Dicey,
b. Pre supposes that corporation as a legal person has great
mportance because it is recognized by the State or the law,
c. Juristic Personality is a concession granted to
corporations by the state
26. Characteristics of Purpose Theory of Corporate
Personality:
a. Proponents: Bekker,
b. Corporations are treated as persons for specific
purposes,
c. Only living persons can be subject matter of rights and
duties,
d. Hence necessary to attribute `personality` to corporation
for the purpose of being capable of having rights and duties,
e. Origin dates to Stiftung of German law, which means
foundations, like education foundations,
f. Duguit said that endeavor of law should be furtherance of
social solidarity, if a group is pursuing a purpose which conforms with social
solidarity, the same should be protected by conferring upon it legal personality`
27. Who said that “The existence of corporation is neither
wholly fictitious nor wholly real, instead”
Dr. Sethna
28. Who said “There is no divergence between natural persons
and legal persons for the purpose of law”?
Kelson
Questions
and Notes on Legal Personality 1
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