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

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1 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

2 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

3 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-

4 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-

5 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

6 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 respiration, Olide never managed to get Jean Sot to breae again spontaneously. Eventually an EMS helicopter team arrived on e scene and, after bagging Jean Sot (putting a -285-

7 breaing bag over his nose and mou), continued to respirate him artificially. Jean Sot was en flown to Our Lady of e Bayou Medical Center. To is day (about ree mons from e date of e accident) he has remained ere in e intensive care unit on an iron lung. His doctors don t believe at he could breae on his own were he to be removed from e respirator, but ey aren t sure and, in any event, are afraid to try it. EEG (brain wave) monitors attached to Jean Sot s head show some brain activity, but it is marginal. Jean Sot s children Beau, Meau, and Seau, who consider Jean Sot to be dead already, want to pull e plug on e respirator, but Jean Sot s wife, Chloe, who has e final call, refuses. Beau Sot en files a petition for a judgment of possession, asking at he, his siblings, and his moer be put into possession of Jean Sot s estate. Chloe opposes e petition, arguing at it is premature in at Jean Sot is not yet dead. Who wins? Why? b) Presumed dea 1] Exposure to peril PH 9. Late one night, while Jean Sot and his friend, Olide, were sound asleep in e hold of his bateau, Le Cause Perdu, out in e Gulf of Mexico just off e shore of Grande Isle, a huge oil tanker struck Le Cause Perdu, causing it to break up and to sink. An intensive week-long manhunt by e Coast Guard and numerous volunteers managed to turn up bo e remains of Le Cause Perdu and e body of Olide, but not e body of Jean Sot. Beau Sot, Jean Sot s eldest son, en filed a petition for a judgment of possession, asking at he, his siblings, and his moer be put into possession of Jean Sot s estate. Chloe opposes e petition, arguing at it is premature in at we don t know for sure yet if Jean Sot is dead. Who wins? Why? PH 9. Several years after Pascal purchased a life insurance policy (on his own life) from Cajun Insurers, Inc., he was diagnosed wi TB. His condition ereafter worsened, and he allegedly became despondent and melancholy. Then he just disappeared. Seven years later, Julie, as e beneficiary of e policy, sued Cajun for e proceeds. Is she entitled to em? Why or why not? 2] Absence for five years PH 10. Several years ago, Pascal, who was in perfect heal, left Nulle Part on a business trip to Bunkie. He never returned. Desperate to find him, Julie, his wife, hired a private investigator. Though e investigator conducted a diligent inquiry (he interviewed e staff at e hotel in which Pascal had stayed, Pascal s business partners, etc.; contacted local police; checked nearby hospitals & morgues), he was unable to discover what had become of Pascal. Seven years have come and gone. Julie now wants to open Pascal s succession. Can she do so? Why or why not? b Effect of natural personality: capacities 1) General juridical capacity (or capacity of enjoyment or capacity to be a title-holder ) What is general juridical capacity? Read CC art. 27. Then read e following doctrinal material: 1 Jorge Joaquín Llambías, TRATADO DE DERECHO CIVIL: PARTE GENERAL os n 558, at 383 (6 ed. 1975) 558. Capacity: concept. One calls capacity e aptitude of e -286-

8 person to be e title-holder of juridical relations. This aptitude is e salient quality of juridical personality to such an extent at one can say, wi justification, at it cannot be lacking from an individual in an absolute manner: e absence of capacity would be contradictory to e personality at modern law predicates of all individuals. Nevereless, it cannot exist in anyone fully and intact: juridical capacity is always a question of degree; each person oscillates between e two extremes [i.e., full capacity and no capacity] wiout reaching eier Terminology. It is desirable to know at e start e terminology at is used in is matter. Juridical capacity is more frequently denominated capacity of enjoyment, by opposition to capacity of exercise, which is also called capacity to act.... The Italian auors have come up wi e denomination titularability, a term at is very expressive for defining e [distinctive] characteristic of juridical capacity Nature. From e point of view of [its] juridical nature, capacity is an inherent attribute of personality. It has been rightly said capacity is e most typical attribute of persons: [it is] at which serves precisely to define persons as such, from e angle of e law, because it pertains not only to e nature but also to e essence of personality. That is, one is not dealing here wi a quality at is [merely] suited for or conformed to e notion of e legal person, but wi one at is consubstantially integrated into is very same notion. Gérard Cornu, DROIT CIVIL: INTRODUCTION, LES PERSONNES, LES BIENS os n 473, 475, & 477, at 167 (8 ed. 1997) 473. Juridical capacity is a fundamental element of e law of persons. It is defined as e aptitude to become e title-holder of rights and obligations.... It erefore becomes evident at juridical capacity and juridical personality partially coincide wi each oer Because ey [juridical personality and capacity of enjoyment] are developed on e same plane, e two notions necessarily meet each oer. The absence of juridical personality would be defined as a general incapacity of exercise. If it were recognized, a general incapacity of enjoyment would be equivalent to e absence of juridical personality. Wiin eir limits, e special incapacities of enjoyment are encroachments on partial amputations of juridical personality Capacity... is susceptible of degrees. It suffers certain particular exceptions at result precisely from incapacities of enjoyment

9 .. Now, one must understand, e incapacities of enjoyment hold in check e juridical personality wiin eir limits. But is personality, as a generic aptitude to be e subject of e law, [nevereless] remains. Persons stricken wi an incapacity of enjoyment, [which is] necessarily limited, [nevereless] remain subjects of e law. 2) Special juridical capacity (or capacity of exercise or capacity to act ) What is special juridical capacity? Read CC art. 27 cmt. (b) & CC art. 28. Then read e following doctrinal material: 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) Juridical capacity [general] must not be confounded wi e capacity to act (at is, e capacity to contract... ) or e capacity to produce juridical effects by means of one s own will. Moreover, juridical capacity and e capacity to act do not always coincide. Minor children... and e mentally infirm are incapable of acting, but have juridical capacity. In Roman law, slaves did not have juridical capacity, but certainly had capacity to act. 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 most important juridical quality of man is e capacity to act, at is to say, e condition of e will at e law considers necessary in order for human acts to produce juridical effects. Those who are incapable of acting include children and e mentally infirm; e acts necessary for e exercise of eir rights and e safeguarding of eir interests belong to eir legal representatives.... The [German] civil code [so also e Louisiana Civil Code] ignores e term and e concept of capacity to act, limiting itself to e regulation of e capacity necessary for e most important acts, at is, for declarations of will (contractual capacity...) and e prerequisites for liability for illicit facts and for violations of contracts.... The legislation does not establish what grade of capacity is require for e efficacy of licit juridical facts at do not fall into e category of juridical acts. Capacity to act presents itself in diverse gradations: it can be limited, by requiring e auorization of oer persons, -288-

10 or unlimited; ere can be certain prerequisites for capacity for certain kinds of juridical acts. In is sense, alongside e general capacity to act ere exists a special capacity for marriage and anoer for making testaments. c Attributes of natural persons 1) Status What is status? Read e following doctrinal material. 1 Jorge Joaquín Llambías, TRATADO DE DERECHO CIVIL: PARTE GENERAL os n , at (6 ed. 1975) 465. Importance. In modern law e juridical notion of status has lost a great part of e importance at it had in Roman law. In Rome e word status alluded to e diverse elements at [were ought to be] constitutive of personality or caput [legal life], which consisted precisely in e union in e same subject of e ree integral stati ereof: e status libertatis [free, as opposed to slave, status], status civitatis [status of citizen, as opposed to at of foreigner ], and e status familiae [status of sui juris, i.e., one able to act for oneself (such as a paterfamilias, i.e., head-of-family, as opposed to at of alieni juris, i.e., a subordinate family member, e.g., child, wife, or daughter-in-law of e paterfamilias]. It was sufficient, in order for e disintegration of e personality to result, at any one of ese stati be lacking; at happened when e person was a slave..., a foreigner, or an alieni juris. The foreigner was at e margin of e jus civium romanorum [Roman civil law] and, as such, was not subject to at juridical order. And likewise e alieni juris, as one submitted to e power of anoer, lacked a personality different from at of e one who had him (her) under his power, in such a fashion at, in eory, he (she) could not come to be e holder of his (her) own rights unless ey were sponsored in e person of his (her) faer or her husband, depending on what e incapacity was [i.e., at of a child or at of a wife]. In modern law ese characteristics and discriminations have lost all meaning. The status libertatis no longer exists inasmuch as it has ceased to be a factor of differentiation of persons [for slavery is now prohibited].... In e same way status civitatis has ceased to be a recognizable elements, since Argentine law [and Louisiana law as well] protects and obligates [all] human beings on an equal basis, regardless wheer ey are national citizens or foreigners.... Thus, all at remains is e status familiae, which at present has a different sense from at of e Roman law Concept. According to Savatier, e status of a person is e -289-

11 conjunction of e extra-patrimonial qualities at are determinative of his individual and familial situation. This conjunction of personality qualities translates itself into a mode of being of e person in society. But if we want to move forward some distance [in our understanding of] is very vague concept to identify which are e constitutive elements of e status of persons, we notice in e modern doctrine a manifest uncertainty. The positions of e auors vary depending on wheer ey have a more or less broad view of e factors at one should take into account for is purpose Elements of status. Wi respect to is topic, diverse opinions have been set out. They can be grouped into ree distinct conceptions, which we will consider separately a) First conception (Aubry and Rau, Colin and Capitant, Bonnecase, Coviello, and Stolfi). The first conception more closely approximates e Roman concept of status. By e elimination of its oer elements [i.e., ose at, as Lllambias explained earlier, don t fit modern law, namely, status libertatis and status civitatis], it is conceived of as e position at corresponds to e person in relation to e social and e familial group to which he belongs b) Second conception (Baudry-Lacantinerie, Planiol, Josserand, de Ruggiero, and Salvat). For e auors who profess e second conception, status responds to a much broader concept. It includes not only e factors at fix e position of e person in e face of society and e family, but also e inherent qualities of e person, such as age, sex, or mental heal. The qualities at are not related to e person in himself but raer to his occupation or profession are e only qualities at lie at e margin of is notion c) Third conception (Ferrara). This auor has e broadest understanding of status. It is made up of all e qualities of e person at have an influence on a more or less extensive conjunction of juridical relations: us, e quality of absentee, heir, employee, military, etc. Washington de Barros Monteiro, CURSO DE DIREITO CIVIL [DE BRASILIA]: PARTE GERAL 56 (14 ed. 1976) Status of natural personality. The expression status comes from e Latin status, used by e Romans to designate e various integral predicates of personality. It was e mode of being by virtue of which men find emselves to be susceptible of rights in civil society. Status as a whole presented itself under ree aspects: liberty, citizenship, and family (status libertatis, status civitatis, and status familiae). Natural personality attained its plenitude only when e ree elements were united

12 ... caput civile. The loss of one of e attributes configured e capitis deminutio [diminution of legal life], which were ree-fold: maximum, medium, and minimum. The capitis deminutio maxima followed from e loss of liberty, which brought about e loss of e oer stati. The capitis deminutio media resulted from e inhibition of citizenship, which implied e los of e status of family, but wiout affecting at of liberty. The capititis deminutio minima was e consequence of e loss of e last status, by having a citizen change families. In modern law only e last two stati nationality and family have managed to survived, for, presently, all men are equally free and capable of rights and obligations. Wi justification, en, Picard has affirmed at e word liberty has today less sonority an it did in earlier times. Wi Clovis, we can define status as a particular mode of existing. It is e juridical position of e person in e heart of e collectivity. Every person has a status, from which result multiple juridical relations. This status can be considered under ree different angles: individual, familial, and political. Individual status (or physical status) is e mode of being of a person under e aspect of his organic constitution. In is status are set out diverse objective elements, such as age, sex, and heal, which exercise a decisive influence over one s civil capacity.... Familial status is e position occupied by e person in e heart of e family. Every individual is framed wiin a determinate family by ree order of relations: e conjugal bond, relatives by consanguinity, and relatives by affinity. Under is aspect, familial status distinguishes persons into married, single, widowed, separated, related (by consanguinity or affinity) or not related.... Finally, political status is e juridical quality at comes from e position of e individual as a part of a politically organized society, which is called a nation.... Of e political status: nationality and citizenship.... Sometimes expressions such as ese are used as well: status of heir, status of partner [in a business]. This usage is improper. To designate such situations, says Torrente, it is preferable to use e locution juridical quality. Gérard Cornu, DROIT CIVIL: INTRODUCTION, LES PERSONNES, LES BIENS os os o n , at ; n , at ; n 539, at 203; o o o n 542, at ; n 544, at 204; n 547, at 205(8 ed. 1997) 531. The distinction of person rests on certain substantive criteria. These distinctive elements determine, by virtue of e consequences at e -291-

13 law attaches to em, e personal situations of individuals; ey compose e civil status of each: ese are e elements of status of persons The Elements of Status of Persons 532. Wiin e individual, e civil law takes into consideration a whole series of particularities and qualities to which it attaches diverse juridical consequences. In e traditional doctrine, e only elements considered were ose at racheted e individual to a state or to a family; covering e status of citizenship (status civitatis) and e status of family (status familiae), status [in is conception] entailed only nationality and parentage (paternal and maternal filiation). The modern doctrine tends to take an open and more diversified view of status. Age, sex, profession, and religion are also recognized as elements of status. The familial situation results not only from filiation, but, embracing e matrimonial and parental situation, reflects all e events at mark life marriage, widowhood, separation, divorce, remarriage, paternity, and maternity Though diverse, ese elements all assume e same general function: characteristics or types, ey concur in individualizing each person in society. They constitute, in e broad sense of e term, factors of civil identification. But, in a specific fashion, each elements produces juridical effects; each is a source of rights and duties. The sum of ese juridical consequences determines e personal situation of e an individual in regard to e civil law; it confers on him a certain civil status; it fixes his civil condition.... A. Natural Order Factors 535. These are some elements of a biological order, some natural criteria, some physical particularities. The civil law takes account, concretely, of certain of ese particularities, but not all of em. Never does it take into consideration e race of an individual so as to attach juridical consequences to it. There is no civil racial discrimination. The law forbids it. a) Sex 536. The civil law deduces diverse consequences from one s belonging to one sex or e oer b) Age 539. Age is an important element of e civil status of persons c) Heal 542. Heal is today recognized, in e background, as a secondary, but not negligible, element of e status of persons.... B. Social Order Considerations To e elements of biological order are adjoined some considerations -292-

14 of social order. a) Matrimonial condition & family origin 544. Founded in a true status [in e Roman sense of e word], certain social order considerations concur to determine e status of persons. It is e case wi e institution of marriage b) Oer elements 547. The oer considerations of a sociological order entail, in e civil law, only fragmentary and secondary consequences. It is e case wi one s profession, social milieu, social condition, level of fortune, etc.... a) Elements of status 1] Individual status a] Sex 1} Recognition Is sex among e stati recognized in current Louisiana law? Read CC arts. 89 & } Species What are e various alternative sex-based stati? There are, of course, at least two: male and female. But is at all? What about e hermaphrodite? Does Louisiana law attach any distinctive juridical consequences to being hermaphroditic? See La. Rev. Stat. 40:62.C (auorizing a pseudohermaphrodite who as undergone corrective surgery to obtain a new bir certificate at reflects his clarified sex, be it male or female). 6 3} Significance NOTE Though it would be an understatement to say at sex no longer has e same juridical significance at it once had, it would be an overstatement to say at it no longer has any such significance. There are, in fact, at least two contexts in which one s sex still matters, legally speaking. The first is at of e impediments to marriage. According to Civil Code art. 89, persons of e same sex cannot marry each oer. Because at is so, every man can do someing at no woman can do marry a woman and, by e same token, every woman can do someing at no man can do marry a man. 7 The second is at of proof of paternity. In Civil Code arts , one finds a number of rules at concern two related topics: presumptions of paternity and 6 This is e only Louisiana legislation at deals in any way wi hermaphrodites. 7 This distinction between e sexes is rooted in public policy. See CC art B ( A purported marriage between persons of e same sex violates a strong public policy of e state of Louisiana.... ) -293-

15 disavowal of paternity. These presumptions operate against only husbands (current or former), and e right to disavow operates in favor of only husbands (current or 8 former) ; and under our law, as we have seen, only men can be husbands. b] Age 1} Recognition Is age among e stati recognized under Louisiana law? Read CC arts. 27, 28, 1476, 1918; 2333; & } Species What are e various alternative age-based stati? There are, of course, at least two: minor and major. But is at all? Consider e following doctrinal material: 1-2 Arur von Tuhr, DERECHO CIVIL: TEORIA GENERAL DE DERECHO CIVIL ALLEMAN 24.II, at (Tito Ravà tr. [from German to Spanish]1946) The qualities of a person at constitute e natural foundation for his capacity to act do not arise wi bir, but will unfold in a progressive manner. For is reason, e juridical order must establish distinctive norms for e adult and e juvenile. The Romans recognized ree stages for juveniles: [I] infantia, up to e seven (7 ) year; [ii] impubertas, up to e fourteen (14 ) year; and [iii] minor ætas, up to e twenty-fif (25 ) year. In e common law [pre-codification Germano-Roman law], minores and impuberes were combined and, en, wi e Law of e Year 1875 on e status of persons, e age of majority was fixed at twenty-one (21) years completed. In is way have arisen e two grades of age [for juveniles] of e [German] Civil Code: infancy, up to seven (7) years, and minor age, which endures up to twenty-one (21) years. Infants completely lack e capacity of acting [cannot make juridical acts] and of imputability [cannot commit delicts]; minors have a limited capacity to act.... As long as one has not 8 This distinction between e sexes is rooted in nature. Because e moer s role in procreation is, shall we say, more extensive and intensive an at of e faer, in particular, because she not only participates in e act of fertilization, but ereafter incubates e child for nine (9) mons or so and en delivers it into e world, determining who e moer of a given child is presents no difficulty: she is e one from whose body e child emerged. Determining who e faer is is anoer matter. His role in procreation is, of course, limited to fertilization, an event at takes place nine (9) mons or so before e bir, in secret and to which ere are only two witnesses. And so it is at when e child is born, an outside observer can never be as sure of who e faer is as he can be of who e moer is. Bo e presumptions of paternity and e right of disavowal are part of a legislative response to is unique indeterminacy at surrounds e identity of e faer. The presumptions consist of rules at attribute paternity, at least tentatively, to what one might say is e most probable candidate. The right of disavowal enables is candidate to prove at e tentative identification was inaccurate

16 attained e age of majority, one is under e power of one s parents or, if one has none, one s tutor. A status inferior to at of majority [but nevereless different from at of infancy or minority] has importance in certain relations:... [e.g.,] e capacity to make a testament runs from [e age of] seventeen (17) years.... Gérard Cornu, DROIT CIVIL: INTRODUCTION, LES PERSONNES, LES BIENS os n , at 203(8 ed. 1997) 540. Legal age. It happens at e law sets an age (e legal age ) at, wiin civil society, distinguishes various age classes (at which has surpassed is age limit [and] at which has not) so as to give to all individuals of e same category an appropriate status. To discuss e most typical example, e law distinguishes majors and minors in is way on e basis of eighteen (18) years. It attaches to is age a considerable juridical consequence: to e individual who has completed eighteen (18) years, e law grants full capacity of exercise e full capacity to accomplish all e act of civil life (notably to engage himself by way of contracts: contractual capacity) alone and by himself (wiout representation or assistance). During his minority, e individual is ought to have need of protection: in e acts of civil life he is eier represented or assisted by persons who have auority over him. It is, however, important to observe at civil legislation today has a tendency to stagger majorities. Benea e general age of majority, it institutes some special anticipated majorities at, in particular domains, confer on e minor a certain independence or, at least, e right to be consulted Real age. The real age of an individual (wiin his age class) is not a matter of indifference. Considerations of age (young age [or] advanced age) constitute, for e judge, elements of evaluation in e application of e law; ese are balancing factors for judicial individualization. In civil matters, delictual capacity (distinct from contractual capacity) furnishes one of many characteristic examples of is. The capacity to obligate oneself by means of civil delicts is not tied to general majority (18 years): it attaches to a minor of less an 18 years from e moment at which he is endowed wi discernment. But e acquisition of discernment is a question of age, and e age of reason e age of discernment is a question of fact for e judge, one e settlement of which, in each case, is a function of e real development of e child (in general, 7 or 8 years). In e matter of delictual responsibility, age is an element in e determination of e personal injuries suffered by e victim

17 It is clear, en, at in ancient Rome, as in Germany and France today, oer age-based stati aside from ose of majority and minority were / are recognized. But what about in Louisiana? Does our law, too, recognize additional grades of age beyond ose of majority and minority? Consider, first, e following legislation: CC arts. 134(9) & 136.B(3); CC art. 230.B; CC arts , 382 & 385; CC art Then consider e following jurisprudence: Turner v. Bucher, 308 So. 2d 270, & 276 n. 14 (La. 1975)... e Louisiana and French concepts coincide in holding at nondiscerning persons do not possess e capability of knowing e consequences of eir conduct; ey lack e moral guilt usually associated wi delictual responsibility and, erefore, ey should not be legally liable for acts under an objective standard designed for normal reasoning persons We are not called upon to decide in is case wheer a nondiscerning minor child may also be liable for his delicts. However, it must be very apparent from our discussion... at it almost necessarily will follow at a nondiscerning minor child will not have delictual liability since our language had indicated at a nondiscerning minor is incapable of being legally at fault.... We believe at our jurisprudence, e French jurisprudence and e French doctrine are all correct in finding at ose minors incapable of discernment are immune from legal liability for delicts arising from negligence. Any basis in is opinion for concluding at ere is no liability on e part of e minor for his offenses or his quasi-offenses is limited to e minor of tender age who is so incapable of discernment as to also be incapable of being legally at fault. 3} Significance PH 11. Not long ago Olide s ree children ran amok. His eldest child, Avarice (aged 18), persuaded her younger sister, Desirée (aged 13), and her still younger broer, Ti-O (aged 4), to join her in (i) stealing peaches from Pascal s orchard and (ii) ordering hundreds of dollars wor of merchandise by telephone from e home shopping network. Pascal en sued all ree children (but, curiously, not Olide), as did e still unpaid merchants from whom e children had ordered goods Hollywood Jewelers (from whom Avarice had ordered a ring), Mystic Music (from whom Desirée had ordered e collected works of Britney Spears), and Toys-R-Us (from whom Ti-O had -296-

18 ordered e complete line of Barney & Friends paraphernalia). Assess e potential liability of each child wi respect to (i) Pascal and (ii) e merchant from whom she / he ordered goods. Explain. c] Heal 1} Recognition Is heal among e stati recognized under Louisiana law? Read CC art. 28 cmt. (b); CC arts. 354 & 356; 389 & 390; 1477; 1918; } Species What are e various alternative heal-based stati? Look again at e legislation you just read; en read e following doctrinal materials: 1-2 Arur von Tuhr, DERECHO CIVIL: TEORIA GENERAL DE DERECHO CIVIL ALLEMAN 25.I, at 49, & II, at (Tito Ravà tr. [from German to Spanish]1946) In e civil law, physical defects do no have much importance; in particular, ey do not limit e capacity to act. But it is possible for em to make e administration of one s juridical relations difficult as a matter of fact. If e affected person in particular, if he is deaf, blind, or mute cannot manage his affairs, or a certain category of em for example, e patrimonial, and is not under parental power or tutorship, e court... can designate a curator for his person and his patrimony or for a certain category of his affairs Much more important are e intellectual defects, for ey directly affect e juridical core of e person volitional capacity. The [German Civil] Code contemplates ree grades: 9 1. Articles 104 and 827 [of e German Civil Code] designate e most grave case as paological disorder of e intellectual activity, which excludes e possibility of one s determining one s will freely. This status excludes imputability [delictual liability] and implies e nullity of declarations one has made. It takes away e capacity to act, if, by its nature, it does not have a transitory character. The incapacity begins ipso jure [by operation of law, i.e., no judicial finding is required for e incapacity to begin] and, erefore, also terminates wi e commencement and e end of e intellectual infirmity. During so-called lucid intervals, which sometimes take place in e course of e infirmity, e capacity to act exists, because e will can en be determined freely, and at is so even ough e lucid intervals, from a strictly medical point of view, may be such as not to interrupt e unitary process of e infirmity BGB 104(2) ( [Incapacity to act] A person is incapable of acting... who is in a medical condition of disturbance of mental activity at prevents e free exercise of his will, unless e condition is temporary in nature

19 o 10 Infirm persons can be incapacitated by interdiction ([BGB] art. 6, n I ). When e interdiction is founded on e motive of reference, it implies e incapacity to act.... There is considerable dispute regarding e cases in which e free determination of e will does not exist in certain directions by e effect of fixed ideas, manias, and analogous states, even ough, for e rest, e infirm person is capable of reasonable resolutions. By virtue of e connection at exists between mental functions, e medical profession treats ese persons as infirm. Do ey, for is reason, lack e capacity to act, wi e result at even eir reasonable acts will be null? I believe at article 104 ought to be applied exclusively when e possibility of e free determination of e will is absent, at is, when it is absent in every direction and not just in certain fields. An act founded on a fixed idea or some oer psychic abnormality o 11 will, of course, be null, but in accord wi article 105, n II. Such a solution is advisable [in view] of e respect at must be given to juridical interactions, in which man is considered to be capable of acting so long as his abnormality is not manifested.... Gérard Cornu, DROIT CIVIL: INTRODUCTION, LES PERSONNES, LES BIENS o n 543, at 204(8 ed. 1997) It is [wi respect to]... e capacity of exercise at e civil law takes account of e alteration of e mental and physical faculties of e individual. When, by virtue of an alteration of his personal faculties, an individual is not in a position to exercise his rights himself to provide for his own interests himself, he is provided wi one of e regimes of protection at has been established by e law. The principle is posed in article 490 of e [French] Civil Code: depending on e gravity of e interested person s state and e intensity of e need for protection at he is experiencing, he can be placed under judicial protection or put into curatorship [interdiction] or, in e most grave cases, placed under tutorship. The common character of ese ree regimes of protection is at ey are organized in e very interest of e individual whose faculties have been altered. The alteration of mental faculties is equally taken into consideration by e civil law in regard to consent to juridical acts. To make a valid act, one must be of sound mind ([French] Civil Code art. 489). It is a condition for e validity of e act. The nullity at sanctions [an act at does not meet is condition] is designed to protect e person who has taken an engagement while under e dominion of mental trouble. 10 BGB 6(1) (... ) 11 BGB 105(2) ( [Nullity of declaration of intention] A declaration of intention at is made in a condition of unconsciousness or during a temporary disturbance of mental activity is also null. ) -298-

20 Does Louisiana recognize e same heal-based stati as does Germany or France? Let me be more specific. Does Louisiana, as do Germany and France, recognize different stati based on physical (as opposed to mental) heal? Does Louisiana have some mental-heal based status comparable to at established by German Civil Code art. 104? Louisiana, like France and Germany, clearly has a regime of curatorship for mentally-disturbed persons. But does Louisiana, like France but unlike Germany, also have, in addition to is regime of curatorship, a regime of tutorship for mentally-disturbed adults? 3} Significance PH 12. When it became clear at Mamère had a serious case of Alzheimer s Disease, Papère, her husband, had her interdicted and, acting as her curator, placed her in a local nursing home. Depressed at his wife had lost her mind, Papère decided to tie one on : wiin a single hour, he managed to down a bottle of Ripple, a bottle of Mad Dog, a bottle of Boone s Farm, and half a case of Schafer Light, all on an empty stomach. While he was still very much under e influence, Papère behaved badly: first, he ordered The Complete Lawrence Welk, a collection, on videotape, of all of e Lawrence Welk television shows, from QVC for a price of $1,000 (ough e QVC employee who took e order could tell at Papère was impaired, she processed e order anyway) and, not long after at, backed his car over Fideaux, Olide s dog, killing it. Meanwhile, Mamère, who was enjoying a rare moment of lucidity (so her doctors, who were present at e time, will testify), decided to make out a testament, valid in form, in which she left all of her property to her nephew, Monte. Then, as she stood up from e table at which she d just finished signing e testament, she unintentionally, yet carelessly, bumped into anoer patient named Rosalie, causing her to fall and to break her hip. The next day, Mamère died and Papère sobered up. Rosalie now wants to collect damages for personal injuries from Mamère s estate and Monte wants to get from Mamère s estate e property at Mamère left him. So also QVC wants its $1,000 from Papère and Olide wants Papère to pay for e damages he caused by killing Fideaux. Will Rosalie, Monte, QVC, and / or Olide get what she / he / it wants? Why or why not? 2] Familial status a] Recognition Do e stati at are recognized by Louisiana law include some at are based on familial relations? Read CC arts. 86, 88, 90, 131, 141, , 184, 214, 216, 227, 263, 888, 891, 895, 896, and b] Species What are e various alternative family-based stati? Look again at e legislation you just read; en review e material on familial relations at appears at pp of is Supplement. c] Significance PH 14. Recall Ti-Boy s family tree (FH 1.0, Supplement pp ). Ti-Boy would like to marry Cassis. Would ere be any problem wi such a marriage? If so, what and why? Could he marry Denise, instead? Why or why not? See CC art. 90. PH 14. The same as before, except.... Suppose at Papère, who has just died, left behind a testament at contained some particular legacies for his grandchildren, including a legacy of Tract A to Cassis and a legacy of Tract B to Ti-Boy. Bo tracts have been and, for e foreseeable future, will continue to be leased to farmers on a mon-to-mon basis. Bo Cassis and Ti-Boy are minors. (i) Who is entitled to e next mon s rent on Cassis tract, Tract A? Why? (ii) Who is entitled to e next mon s rent on Ti-Boy s tract, Tract B? Why? See CC arts.223 &

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