The Fictional Legal Person.

Manic Moran

Question for anyone with legal history books to hand.

Currently involved in a discussion on the benefits/demerits of the fictional legal person (body incorporate, if you will), limited liability of an agent, and limited liability of owners. Three distinct, but related issues. Sadly, I've not seen my corporate law books in years.

There is some dispute as to the origin of the concept of the fictional legal person and how recent it is. I am of the opinion that the concept of an organisation in certain circumstances as being a separate legal person with its own rights pre-dates the 17th Century. For example, see the 1612 "The Case of Sutton's Hospital" http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106352&layout=html&Itemid=27 in which Sir Edward Coke lists an incorporated body as having rights such as (inter alia) "to have authority, ability, and capacity to purchase but no clause is added that they may alien, and it needeth not, for it is incident. To sue and be sued, implead and be impleaded. To have a Seal, that is also declaratory, for when they are incorporated they may make or use what seal they will." He also states that "the essence of the Incorporation, are persons to be incorporated, and that in two manners, persons natural, or bodies incorporate and political."

This latter point, to me, seems to expressly state that a body incorporate is a person.

So I guess the question is where are the actual origins of this concept, and how did it come about?

If you want to throw in about the origins of limited liability for an executive (such as in a Qirad in the 10th Century) or limited liability for owners (Either LLPs, Ltds or PLCs), please feel free.

NTM

Kosseegan

It appears that you are confusing natural and artificial legal persons. The fictional legal person is more in the nature of the officious bystander or the man on the clapham omnibus.

dermot_sheehan

Bodies Corporate existed since time immemorial as a legal person distinct from the members behind it.

For example bodies founded by royal charter (such as universities like TCD) and bodies corporate sole (an office holder like the lord chancellor) held property for the benefit of their office distinct from holding property for their personal benefit.

In answer to your question, there are bodies corporate from the pre 17th century (TCD 1592) founded by royal charter. The exact origin of the concept of a body corporate being a separate legal person i'm not sure of without looking at a history book.

Manic Moran

It appears that you are confusing natural and artificial legal persons

Unless I am making a very grave error, I don't think I am: A natural person is basically a citizen, human being, with soul, consciousness, and a beating heart. A fictional legal person is an entity without body (incorporate) recognised at law as having capacity to perform certain functions whilst remaining legally distinct and separate from any other persons, natural or fictional.

NTM

someoneok

Hi lads. I mean no vexation or ill will but do none of you guys own a reputable law dictionary such as blacks,murdocks or bouviers. I'm finding that many of these dictionarys are vital for a proper understanding of legalese. It is a very deceptive language and 'person' has many different definitions. Looks like we have persons and are not actually defined as a person in legalese. Person is a legal term which has become part of our everyday nomenclature. As far as I can tell it is a term used for commercial use and outside of commerce we are not 'persons'.

Here is an essay where this very subject is discussed and below is a thread where they are talking about the very same topic. Enjoy.
http://rapidshare.com/files/262279055/The_Controversial_Person.pdf

http://www.tpuc.org/forum/viewtopic.php?f=35&t=4571

dermot_sheehan

Ahem
Section 18(c) Interpretation Act 2005

(c) Person. “Person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “person” shall be read accordingl

freefromgov

gabhain7 wrote: »

Ahem
Section 18(c) Interpretation Act 2005

Hey I just had an idea.... now don't go banning me again for saying this ... but why not come on TNSradio for a debate/discussion about this topic.

someoneok

What is tns radio all about? What do you discuss on it? What frequency is it on? When is your show? This is great we have a radio show that will help with my law degree! ace!

Kosseegan

Manic Moran wrote: »

Unless I am making a very grave error, I don't think I am: A natural person is basically a citizen, human being, with soul, consciousness, and a beating heart. A fictional legal person is an entity without body (incorporate) recognised at law as having capacity to perform certain functions whilst remaining legally distinct and separate from any other persons, natural or fictional.

NTM

You are making a very grave error. legal personality does not require a living body. A dead person has a legal personality exercisable through personal representatives. Body's corporate and other entities such as nation states also have legal personalities. These legal personalities are not fictitious.

Manic Moran

I think we're speaking past each other here. Even though the dead person has no heartbeat right now, he had to have one once in order to qualify as a natural person, no?

On the other hand, the fictional legal person, AKA the artificial person, juristic person, corporate person, or whatever other term for it you wish to use in your part of the world, has no corporeal form and exists purely as a fiction developed by the legal system.

I don't see how this differs from what you're saying.

NTM

partyguinness

Perhaps its the concept of objectivity that you are looking to explore?

The Judges attempts to seperate between objectivity and subjectivity such as the (as mentioned above) the man on the Clapham Omnibus was not a legal person or entity as such just (was it Denning of Diplock?) a neat way way for the Judge to explain the concept of the 'ordinary man' and the standards of care in negligence. Nothing to do with legal personality and the rights etc that that concept entails.

Kosseegan

Manic Moran wrote: »

I think we're speaking past each other here. Even though the dead person has no heartbeat right now, he had to have one once in order to qualify as a natural person, no?

On the other hand, the fictional legal person, AKA the artificial person, juristic person, corporate person, or whatever other term for it you wish to use in your part of the world, has no corporeal form and exists purely as a fiction developed by the legal system.

I don't see how this differs from what you're saying.

NTM

There is a difference between artificial and fictional which you do not seem to appreciate. Micky Mouse is fictional. Micky Mouse Limited is artificial. The former has no legal personality, the latter does.

partyguinness

Is it the concept of non-human entities with legal personality that the OP is trying to explore? Such as Cos or partnerships?

It seems a bt muddled.

A body corporate is not the same as a fictional legal person as stated in the OP. Different concepts.

Although the concept is a lot older than the case itself, perhaps a starting point on limited liabilty is the 19th century case of Solomon vrs Soloman. It is one of the seminal cases in Company Law jurisprudence. Articles on that case will prob explore the origins leading up to the case and may be of benefit to you.

Reloc8

Manic Moran wrote: »

the fictional legal person, AKA the artificial person, juristic person, corporate person]

NTM

artificial/juristic person does not equal corporate person. They are completely different things. The artificial/juristic person is a construct used to illustrate the thought process involved in an objective test. The corporate person is a person.

Manic Moran

The artificial/juristic person is a construct used to illustrate the thought process involved in an objective test.

So in this case, you're talking about the (in)famous 'reasonable man?'

NTM

Reloc8

I think so - I was more trying to work out what you were trying to describe. The phrase 'artificial person' is not a term of art. The phrase 'juristic person' has been used in respect of the reasonable man.

The more usual terms used in discussing 'corporate persons' is to refer to 'legal persons' (this does include individuals) and 'natural persons' (which includes individuals but excludes legal persons). This is so because natural persons do have some rights which legal persons don't but natural persons enjoy all of the rights which legal persons enjoy.

freefromgov

Reloc8 wrote: »

I think so - I was more trying to work out what you were trying to describe. The phrase 'artificial person' is not a term of art. The phrase 'juristic person' has been used in respect of the reasonable man.

The more usual terms used in discussing 'corporate persons' is to refer to 'legal persons' (this does include individuals) and 'natural persons' (which includes individuals but excludes legal persons). This is so because natural persons do have some rights which legal persons don't but natural persons enjoy all of the rights which legal persons enjoy.

So are you saying that a man is a natural person y/n ?
Because I can't find that spelled out clearly anywhere....
I can find all the different references that you and others here discuss, but nowhere can I find in any of the words of art (which imho all words are to some extent) the simple form stating it unambiguously Man = Person.
Now I do realize in common parlance that is how it is used but more and more I am finding that, that is changing.
A lot of folk seem to be discussing this very idea on a lot of forums across the world, on youtube there are some excellent videos that relate to it.
http://www.youtube.com/watch?v=XUQOTKYkIUE&feature=player_embedded this one I find particularly interesting from youtube .... Corporate Personhood: Lecture on Corporate Personhood by Dr. Eugene McCarraher P1 (5/8)
The whole premise seem to lie in the mind only.
For ex. There is a Man, it is accepted by most that he is King, so the King is a person, but to some they do not accept he is King so they do not see the person when they look at him all they see is a man.
I can clearly see where some will see king/man combination an in-divisible duality where they in there mind cannot separate the two. However there will be some that only see a man and not a man/king combination and they will only ever see (in their mind) a Man.
Is that any help to anyone ? or would anyone like to explore it further.?
Interestingly, the person has been historically the main weapon of choice, as it relieves (in their mind) the operator of the person of responsibility and liability from the events that may flow from the "persons" actions.

Reloc8

No.

I was trying to clarify what the opening poster was talking about, regarding the legal terms used.

I wasn't entering into the kind of metaphysical/philosophical discussion which you now seem to be describing. If you notice my answer was confined to the use phrases has been put to. I don't see how you could relate that to my stating that a man is or is not a natural person.

If it is of any assistance to you whatsoever (which I doubt )) I am happy to confirm that a man is indeed considered to be a person in law.

Victor

Kosseegan wrote: »

There is a difference between artificial and fictional which you do not seem to appreciate. Micky Mouse is fictional. Micky Mouse Limited is artificial. The former has no legal personality, the latter does.

Are you saying someone is running some sort of Mickey Mouse company? :pac:

Reloc8 wrote: »

This is so because natural persons do have some rights which legal persons don't but natural persons enjoy all of the rights which legal persons enjoy.

Possibly moot, but can't a company have limited liability and immunity from prosecution for murder?

freefromgov wrote: »

So are you saying that a man is a natural person y/n ?

Yes, men were the only form of persons before the concept of companies and the like were formed.

By the way, I'd like you to take this personally. Fock off! :pac:

Reloc8

Victor wrote: »

Are you saying someone is running some sort of Mickey Mouse company? :pac:

Possibly moot, but can't a company have limited liability and immunity from prosecution for murder?Yes, men were the only form of persons before the concept of companies and the like were formed.

By the way, I'd like you to take this personally. Fock off! :pac:

Point taken - I should have said that I was referring to constitutional rights only, and also something else that I can't quite articulate correctly right now but will try to do so later on.