Legal person

A legal person (in legal contexts often simply person, less ambiguously legal entity)[1][2] is any human or non-human entity, in other words, any human being, firm, or government agency that is recognized as having privileges and obligations, such as having the ability to enter into contracts, to sue, and to be sued.[3][4][5]

The term "legal person" is however ambiguous because it is also used in contradistinction to "natural person", i.e. as a synonym of terms used to refer only to non-human legal entities.[6][7]

So there are of two kinds of legal entities, human and non-human: natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons, Latin: persona ficta), which are other entities (such as corporations) that are treated in law as if they were persons.[4][8][9]

While human beings acquire legal personhood when they are born (or even before in some jurisdictions), juridical persons do so when they are incorporated in accordance with law.

Legal personhood is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations.

In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.

Juridical persons

Artificial personality, juridical personality, or juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.

A juridical or artificial person (Latin: persona ficta; also juristic person) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. The concept of a juridical person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (corporations law).

Juridical personhood allows one or more natural persons (universitas personarum) to act as a single entity (body corporate) for legal purposes. In many jurisdictions, artificial personality allows that entity to be considered under law separately from its individual members (for example in a company limited by shares, its shareholders). They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes. An entity with legal personality may shield its members from personal liability.

In some common law jurisdictions a distinction is drawn between corporation aggregate (such as a company, which has a number of members) and a corporation sole (which is where a person's public office is deemed to have a separate personality from them as an individual). Both have separate legal personality. Historically most corporations sole were ecclesiastical in nature (for example, the Archbishop of Canterbury is a corporation sole), but a number of other public offices are now formed as corporations sole.

The concept of juridical personality is not absolute. "Piercing the corporate veil" refers to looking at the individual natural persons acting as agents involved in a company action or decision; this may result in a legal decision in which the rights or duties of a corporation or public limited company are treated as the rights or liabilities of that corporation's members or directors.

The concept of a juridical person is now central to Western law in both common-law and civil-law countries, but it is also found in virtually every legal system.[10]

Examples

Some examples of juridical persons include:

Not all organizations have legal personality. For example, the board of directors of a corporation, legislature, or governmental agency typically are not legal persons in that they have no ability to exercise legal rights independent of the corporation or political body which they are a part of.

History

The concept of legal personhood for organizations of people is at least as old as Ancient Rome: a variety of collegial institutions enjoyed the benefit under Roman law.

The doctrine has been attributed to Pope Innocent IV, who seems at least to have helped spread the idea of persona ficta as it is called in Latin. In canon law, the doctrine of persona ficta allowed monasteries to have a legal existence that was apart from the monks, simplifying the difficulty in balancing the need for such groups to have infrastructure though the monks took vows of personal poverty. Another effect of this was that as a fictional person, a monastery could not be held guilty of delict due to not having a soul, helping to protect the organization from non-contractual obligations to surrounding communities. This effectively moved such liability to individuals acting within the organization while protecting the structure itself, since individuals were considered to have a soul and therefore capable of being guilty of negligence and excommunicated.[15]

In the common law tradition, only a person could sue or be sued. This was not a problem in the era before the Industrial Revolution, when the typical business venture was either a sole proprietorship or partnership—the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners/shareholders enjoyed limited liability—the owners were not liable for the debts of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy, because limited liability protected the owners and the corporation wasn't a legal person subject to the law. There was no accountability for corporate wrongdoing.

To resolve the issue, the legal personality of a corporation was established to include five legal rights—the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance).[16]

Since the 19th century, legal personhood has been further construed to make it a citizen, resident, or domiciliary of a state (usually for purposes of personal jurisdiction). In Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), the U.S. Supreme Court held that for the purposes of the case at hand, a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person." Ten years later, they reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329, 14 L.Ed. 953 (1854). These concepts have been codified by statute, as U.S. jurisdictional statutes specifically address the domicile of corporations.

Sample cases using the doctrine

  • In U.S. v. The Cooper Corp., (1941) the court held that the United States government, as a juristic person, could sue under the Sherman Act. Section 7 of the act granted the right to sue only to persons. The corporate defendant, which was accused of illegally conspiring and colluding to raise prices on tires, argued that the U.S. government didn't have power to enforce the act because the government wasn't a person. The court held that the term "person" includes the U.S. Government, and allowed the action against the collusive corporations to continue.
  • In Cook County v. U.S. ex rel Chandler, (2003) the County was accused of violating a law which forbids "any person" from falsely obtaining research funds from the government. The county received a $5 million grant, but used it to conduct inappropriate tests on human subjects. The county argued that it could not be held liable because it was not a person. The court held that the county could be sued under the law as a legal person.
  • In Rowland v. California Men's Colony, Unit II Men's Advisory Council, (1993) the court declined to extend certain rights to legal persons. The association of prisoners sought to proceed in forma pauperis. The court held that the right to sue in forma pauperis existed only for natural persons, not legal persons.

Brazil

The term juridical person ("pessoa jurídica" in Portuguese) is used in legal science for designating an entity with rights and liabilities which also has legal personality. Its regulations are largely based on Brazil's Civil Code, where it is distinctly recognized and defined, among other normative documents.

Brazilian law recognizes any association or abstract entity as a juridical person, but a registry is required through a Constitutional Document, with specifications depending on the category of Juridical Person and local law of state and city.

Germany

Article 19(3) of the German Constitution sets forth: "Fundamental rights shall also apply to domestic artificial persons insofar as the nature of such rights shall permit."[17]

Italy

In Italy trade unions have legal personality, as stated in Article 39, Paragraph 4 of the Constitution:

Registered trade unions are legal persons. They may, through a unified representation that is proportional to their membership, enter into collective labour agreements that have a mandatory effect for all persons belonging to the categories referred to in the agreement.

— The Italian Constitution[18]

New Zealand

Section 28 of the New Zealand Bill of Rights Act 1990 provides: "... the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons."

People's Republic of China

For a typical example of the concept of legal person in a civil law jurisdiction, under the General Principles of Civil Law of the People's Republic of China, Chapter III, Article 36., "A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law."[19] Note however that the term civil right means something altogether different in civil law jurisdictions than in common law jurisdictions.

United States

In part based on the principle that legal persons are simply organizations of natural persons, and in part based on the history of statutory interpretation of the word "person", the US Supreme Court has repeatedly held that certain constitutional rights protect legal persons (such as corporations and other organizations). Santa Clara County v. Southern Pacific Railroad is sometimes cited for this finding because the court reporter's comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that "the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

Later opinions interpreted these pre-argument comments as part of the legal decision.[20] As a result, because of the First Amendment, Congress may not make a law restricting the free speech of a corporation or a political action group or dictating the coverage of a local newspaper,[21] and because of the Due Process Clause, a state government may not take the property of a corporation without using due process of law and providing just compensation. These protections apply to all legal entities, not just corporations.

A prominent component of relevant case law is the Supreme Court decision Citizens United v. Federal Election Commission, which ruled unconstitutional certain restrictions on corporate campaign spending during elections.[22]

In Act II, Scene 1 of Gilbert and Sullivan's The Gondoliers, Giuseppe Palmieri (who serves, jointly with his brother Marco, as King of Barataria) requests that he and his brother be also recognized individually so that they might each receive individual portions of food as they have "two independent appetites". He is, however, turned down by the Court (made up of fellow Gondolieri) because the joint rule "... is a legal person, and legal person are solemn things."

See also

References

Footnotes

  1. ↑
  2. ↑
  3. ↑ Lewis A. Kornhauser and W. Bentley MacLeod (June 2010). "Contracts between Legal Persons". National Bureau of Economic Research. Retrieved 7 June 2013.
  4. 1 2 Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN 0198607563.
  5. ↑ Smith, Bryant (January 1928). "Legal Personality". Yale Law Journal. 37 (3): 283–299. JSTOR 789740.
  6. ↑
  7. ↑
  8. ↑ Deiser, George F. (December 1908). "The Juristic Person. I". University of Pennsylvania Law Review and American Law Register. 48 New Series (3): 131–142. JSTOR 3313312. [...] men in law and philosophy are natural persons. This might be taken to imply there are persons of another sort. And that is a fact. They are artificial persons or corporations [...]
  9. ↑ Frederic William (1911). "Moral Personality and Legal Personality 1". In H.A.L. Fisher. The Collected Papers of Frederic William Maitland. Cambridge University Press. Besides men or "natural persons," law knows persons of another kind. In particular it knows the corporation, and for a multitude of purposes it treats the corporation very much as it treats the man. Like the man, the corporation is (forgive this compound adjective) a right-and-duty-bearing unit.
  10. ↑ The Juristic Person. I, George F. Deiser, University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 3, Volume 48 New Series. (Dec., 1908), pp. 131-142.
  11. ↑ Frisch D. (2011). Commercial Law's Complexity Archived February 3, 2014, at the Wayback Machine.. George Mason Law Review.
  12. ↑ Opinion 2/13 [2014], nyr
  13. ↑ Williams v The Shipping Corporation of India (US District Court, Eastern District Virginia), 10 March 1980, 63 ILR 363
  14. ↑ Roy, Eleanor Ainge (16 March 2017). "New Zealand river granted same legal rights as human being". The Guardian. London, United Kingdom. Retrieved 2017-03-16.
  15. ↑ John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal, Vol. XXXV, April 1926, pages 655-673
  16. ↑ Kanti., Saha, Tushar. Textbook on legal methods, legal systems and research. ISBN 9788175348936. OCLC 892043129.
  17. ↑ "Basic Law. Art. 19 Abs. 3 GG". Retrieved 15 October 2014.
  18. ↑ "The Italian Constitution" (PDF). The official website of the Presidency of the Italian Republic. Archived from the original on 2016-11-27.
  19. ↑ Gary J. Dernelle. "DIRECT FOREIGN INVESTMENT AND CONTRACTUAL RELATIONS IN THE PEOPLE'S REPUBLIC OF CHINA." DePaul Business Law Journal, Spring/Summer 1994. (6 DePaul Bus. L.J. 331)
  20. ↑ See, for example, Noble v. Union River Logging
  21. ↑ First Nat. Bank of Boston v. Bellotti
  22. ↑ http://origin.www.supremecourt.gov/docket/08-205.htm

Books

  • Binder, J (1907). Das Problem der juristischen Persönlichkeit. Archived from the original on 2011-07-20.
  • Saleilles, R (1922). De La Personalité Juridique: Histoire et Théories.
  • Hallis, F (1930). Corporate Personality: A Study in Jurisprudence.
  • Duff, P.W (1938). Personality in Roman Private Law.
  • Cooke, C.A (1950). Corporation, Trust and Company: A Legal History.
  • Watson, A (1967). The Law of Persons in the Later Roman Republic.
  • Guterman, S (1990). The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century.

Articles

  • Dewey, J (1926). "The Historic Background of Corporate Legal Personality". Yale Law Journal. 35.
  • Machen, A.W (1910). "Corporate Personality". Harvard Law Review. 24.

Major legal factors affecting business

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