Ethiopian Law of Persons

278 Pages·2011·2.82 MB·English

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Ethiopian Law of

Persons:

Notes and Materials
______________________________
_

Elias N. Stebek
St. Mary’s University College, Faculty of Law

___________________________________________

Sponsored by

Justice and Legal System Research Institute
Addis Ababa, Ethiopia
2007

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Preface

Ethiopian Law of Persons: Notes and Materials is the outcome of lecture notes
and outlines that I had used in due course of teaching Law of Persons. This
course material has benefited from the suggestions obtained from the panel of
assessors: Ato Tadesse Lencho, Ato Mehari Redae, W/ro Martha Belete and Ato
Gebregriabher Debeb (November 24th 2005 to February 6th 2006). The material
was further discussed at Subject Instructors’ Discussion Forum and at the
Plenary Discussion Forum of Instructors (on September 26th 2007) who
represented all Ethiopian public and private Law Schools. Introductions and
learning outcomes have been incorporated in each chapter pursuant to the
suggestions obtained during the discussion with subject instructors.

I have used certain parts of Law of Persons Sample Syllabus (with some
adjustments) as a General Introduction to the course material (on pages vi to viii).
The Sample Syllabus was approved by the Technical Committee for Legal
Education Reform comprised of Law School deans and stakeholders (on
December 12, 2005). Very important suggestions such as the inclusion of
juridical persons in the syllabus were given during the Technical Committee
meeting.

This course material is mainly designed to cater for the needs of law students
who are meanwhile expected to read various textbooks of the course including
Professor Jacques Vanderlinden’s Commentaries upon the Law of Physical
Persons (HSIU, 1969). It introduces concepts, relevant provisions and principles
on Ethiopian Law of Persons and provides review questions that would facilitate
the learning process. It also avails extracts from relevant sources targeting at
comparative analysis on the various issues relevant to law of persons. The
materials under the heading “Supplementary Reading” are not requirements for
students unless they opt to undertake a deeper reading.

Lawyers may also use the material as quick refresher of the issues, concepts and
relevant provisions involved in particular topics.
_________________________________________________________________

Acknowledgment

I am grateful to Ato Tadesse Lencho for his comments and suggestions during
the first draft of the Brief Notes (54 pages) that was provided to students as a
teaching material in February 2004. I thank Ato Fasil Abebe and Miss Elise G.
Nalbandian for the cases that they have translated in this book. And, W/t
Misrak Aragaw deserves gratitude for having typed some of the extracts
incorporated in this book

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Contents
Page

Preface ...................................................................................................................ii

General Introduction.........................................................................................vi

Chapter 1- Acquisition of physical personality.............................................1

1. Definition: Persons......................................................................................2
Readings on the definition of persons......................................................5
Background on the ‘Persons Case’, Canada, 1916...................................9

2. Commencement of Physical Personality.................................................12
2.1- Birth.................................................................................................12
2.2- Anticipated personality: Conception and viability.........................13

Case 1.....................................................................................................15
Readings on commencement of personality...........................................17
Case problems and issues for discussion................................................30
O’Donovan’s problems on attribution of personality............................35
Supplementary reading on birth, conception and viability....................41

Chapter 2- Individualizing and locating physical persons.......................51

1. Name..........................................................................................................52
Readings on name ..................................................................................57
Cases 2 to 5.............................................................................................59
O’Donovan’s problems on names..........................................................64
Planiol on names ....................................................................................68

2. Residence and domicile............................................................................78
Case 6.....................................................................................................83
Readings on residence and domicile......................................................85
R. S. Sedler on Domicile........................................................................88
O’Donovan’s problems on residence and domicile...............................99
Supplementary reading on residence and domicile..............................103

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Chapter 3- Rights held by physical persons..............................................119

1. Rights of personality and constitutional liberties.................................120

2. International Covenant on Civil and Political Rights..........................121

3. Rights of personality under the Civil Code ..........................................123

Readings on rights of personality.........................................................128
Case problems and issues for discussion..............................................133
O’Donovan’s problems on residence and domicile.............................135
Case 7...................................................................................................139

Chapter 4- Lessened Capacity......................................................................141

1. Capacity to exercise rights and duties
1.1- General principles.........................................................................142
1.2- Categories of lessened capacity....................................................143
1.3- Purposes of lessened capacity.......................................................144

2. Minority
2.1- Definition and effects of minority.................................................144
2.2- Juridical acts that can be performed by minors ............................144
2.3- Sanctions against acts performed in excess of powers.................146
2.4- Termination of minority................................................................148

Case problems and issues for discussion..............................................150
Case 8...................................................................................................151

3. Insane and infirm persons
3.1- Insanity that is not notorious.........................................................153
3.2- Notorious insanity and apparent infirmity....................................154

4. Judicial interdiction
4.1- The phases involved from application to appeal...........................155
4.2- Acts that may be performed by judicially interdicted persons.....156
4.3- Acts performed in excess of powers.............................................157
4.4- Withdrawal of judicial interdiction...............................................157

5. Legal interdiction....................................................................................158

6. Organs of protection
6.1- Guardian, tutor, co-tutor, and tutor ad hoc....................................159
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6.2- Family council and assistant tutor.................................................160
6.3- Termination of functions of organs of protection.........................161

Case problems......................................................................................162
Cases 9, 10, 11......................................................................................163
O’Donovan’s problems on lessened capacity......................................166
Readings on lessened capacity.............................................................177
Mehari Redae on Organs of Protection of Minors ..............................180
Supplementary reading on lessened capacity.......................................189

Chapter 5- End of physical personality......................................................205

1. Probable death of a person: Absence
1.1- Declaration of absence..................................................................206
1.2- General effects of absence............................................................208
1.3- Special effects of absence.............................................................208
1.4- Termination of absence.................................................................210

Cases 12 to 15.......................................................................................211
Readings on absence ............................................................................216
Case problems and issues for discussion..............................................226
O’Donovan’s problems on absence......................................................227

2. Death.........................................................................................................228
Extract on death....................................................................................229
Planiol on end of personality................................................................231
Supplementary reading on absence and death......................................234

Chapter 6- Juridical persons ........................................................................239

Juridical persons: An overview............................................................240
Readings on juridical persons...............................................................243
Criminal liability of juridical persons..................................................257
Readings on international legal personality.........................................263

* * *
• Annex I.....................................................................................................267

NB. The materials under supplementary readings are recommended, but not required.
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GENERAL INTRODUCTION

Law of Persons is a branch of private law and serves as a foundation for many
branches of the law such as contracts, family law and others. The course on Law
of Persons introduces the concept of personality which is a requirement for entry
into and/or the performance of juridical acts. This course material is, inter alia,
concerned with the definition of natural (physical) persons and juridical persons,
acquisition (or the beginning) and end of physical and juridical personality, rights
of personality, individualizing and localizing persons by name, residence and
domicile, absence, capacity to hold rights, capacity to exercise rights, and organs
of protection of persons with lessened capacity.

The general objective of this course material is to facilitate the learning process
of law of persons. It targets at assisting students in their efforts towards in-depth
understanding and analysis of the laws, concepts and principles which deal with
various issues regarding human persons and entities as subjects of the law
entitled to rights and entrusted with duties.

Specific Learning Outcomes:

At the end of the course students are expected to be able to:
a) contrast subjects of law and objects of law;
b) define physical and juridical persons;
c) explain juridical personality;
d) explain the beginning and end of physical and juridical personality;
e) discuss registration of birth and death in law and practice;
f) discuss civil rights concerning the body, privacy, action, inaction
and others embodied in the Ethiopian Civil Code of 1960;
g) identify the key constitutional provisions that are applicable to the
law of persons;
h) explain name of persons under the Civil Code and in practice;
i) explain and contrast residence and domicile;
j) distinguish between the concepts of holding and exercising rights;
k) explain categories of persons with various degrees of lessened
capacity to exercise rights;
l) discuss the organs of protection of persons with lessened capacity;
m) analyze recent reforms (relevant to law of persons) embodied in
the Federal and Regional Revised Family Codes;
n) discuss termination of grounds for lessened capacity;
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o) state the scope of juridical acts that cannot be performed by
foreigners;
p) analyze the declaration, effects and termination of absence;
q) Analyze and comment on documents relating to law of persons
including birth certificates, death certificates, declaration of
absence and declaration of death;
r) appreciate the role of Law of Persons in everyday life and juridical
interactions;
s) synthesize the learning outcomes stated from ‘a’ to ‘r’ in order to
propose practical solutions to problems associated with the Law of
Persons;
t) write brief legal opinion based on learning outcome ‘s’;
u) be convinced that legal issues require thorough attention to the
various perspectives that need to be considered.

Suggested Readings

Major Laws
• The Civil Code of Ethiopia, 1960 (Articles 1 to 549)
• The Federal Revised Family Code, 2000 (Articles 215 to 323)
• Revised Family Codes of Regional States
• The Constitution of the Federal Democratic Republic of Ethiopia,
1995 (Articles 13 to 44)
• Selected articles of international instruments as assigned by the
instructor

Required reading
• E. Stebek, Ethiopian Law of Persons: Notes and Materials (Justice and
Legal System Research Institute), 2007
• Jacques Vanderlinden, Commentaries Upon (Ethiopian) Law of Physical
Persons (HSIU, 1969)
• Robert Allen Sedler, Nationality, Domicile and the Personal Law in
Ethiopia, Journal of Ethiopian Law, Vol. II, No.1, Summer 1965
• Mehari Redaie, Some Remarks on the Revised Family Code (Amharic),
Volume II, 1999 Eth. Cal. (Pages 126 – 147)
• M. Planiol, Treatises on Civil law, Volume I, Part I (2nd part),
Louisiana State Law Institute, 1959, pp. 243-383
• Others as assigned by the instructor.

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References:
• Introduction to Swiss Law (Edited by F. Dessenmontet and T. Ansay),
2nd Revised Edition, Kluwner/ Schulthess Publishers, Hague: 1995
(Pages 47 to 59)
• Maurice Sheldon Amos and Frederick Parker Walton, Introduction to
French Law, (Oxford University Press: London, 1935) pp. 29-54
• Max Kaser, Roman Private Law, Hamburg 1962 (Translated from
German by Rolf Dannenbring, Durban 1965), Pages 60-79
• Rudolf Huebner, A History of Germanic Private Law, The Lawbook
Exchange Ltd. 2000), Pp. 61-159
• Others recommended by the instructor.

Cases
• Cases on change of names
• Cases on residence and domicile
• Cases on capacity
• Cases on organs of protection of persons with lessened capacity
• Cases on absence

Demonstration of documents
• Birth certificates, death certificates, application for change of names,
declaration of absence and others.

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viii Ethiopian Law of Persons: Notes and Materials (2007)
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CHAPTER 1- ACQUISITION OF PHYSICAL PERSONALITY

Introduction

The first chapter of this book deals with the definition of persons and
commencement of physical personality. Students are expected to first read the
notes and then proceed to the readings. Review questions and case problems can
be addressed immediately after the notes and class discussion. Some of the
review questions might, however, require a prior understanding of the concepts
and principles in the readings embodied in each section. It is to be noted that the
supplementary reading on pages 41 to 50 is optional which might be read for
further understanding.

Objectives:

At the end of this chapter students are expected to be able to:
a) contrast physical and juridical persons;
b) explain the ancient and medieval usage of the term “persons”;
c) contrast the definitions of “human being” and “person”;
d) define and illustrate “subject” of law and “object” of law;
e) explain the issue of personality involved in the Persons Case (Canada,
1916);
f) explain the beginning of physical personality;
g) define birth, conception and viability;
h) analyze the scope of application of the concept of viability;
i) analyze case problems that involve the concepts and issues here-above.

Chapter 1- Acquisition of physical personality 1
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1. Definition: 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.” (Planiol: 243). Persona
thus designated what we now call a role or part.

Under earlier legal systems human beings who took part in juridical relations
were regarded as persons while those who couldn’t perform juridical acts were
considered as lacking legal personality. “It is very probable that the scholastic
philosophers of the Middle Ages were the first to use the word ‘persona’, with
all its metaphysical implications, to designate the legal entity. In Roman Law we
do not find the expression used in this sense. ‘The admission must be made’,
says Maitland, ‘that there is no text [in Roman Law] which directly calls the
Universitas a persona …’ ” (Nékám: 50). At present, application of the term
‘person’ has gone beyond the sphere of legal entities under municipal laws, and
it also applies to entities that have international legal personality.

The words “human being” and “person” are not interchangeable. All human
beings in modern legal systems are persons, and take part in legal relationships
as subjects of rights and duties. Thus unlike Ancient Roman Law there is no
distinction among human beings with regard to legal personality. However,
entities other than human beings also take part in legally defined relationships as
holder of rights and bearer of obligations. Unfortunately, however, the same
term is used in Ethiopia (for example “sewoch” in Amharic) for two different
referents: that is, to refer to ‘human beings’ as creatures and to humans and legal
entities as subjects of the law.

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.

Articles 1 to 393 of the Civil Code deal with natural (or physical) persons. And,
juridical (or legal) persons (Articles 394 ff) 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.
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