Chapters of the article
Legal personality of a natural person: creation and dissolution
A person acquires legal personality at birth and loses it at death. During this time, he may acquire rights and obligations. In certain cases, legal personality may be conferred on an unborn child, provided that he or she is born alive. If you are wondering what the unborn child’s legal personality is for, the answer is simple: for example, if the father dies during the mother’s pregnancy, the unborn child can become an heir. The foetus is also protected by criminal law and other legislation.
Tip: It is essential for the inheritance that the child is born alive. If the child died in the mother’s body, or if the mother underwent an abortion, it is considered that the child never became an heir. If it were the case that the child (heir) is born alive but dies, for example, three days after birth, then the heir acquires the inheritance and is then himself the testator, after whom, for example, his own mother or other heirs may inherit.
The legal personality of a natural person isextinguished by death, but it can also result in a declaration of death, where the court determines the date of death. This too can play a significant role in inheritance law. The declaration of a person as dead is usually preceded by a declaration of missing.
Legal personality in practice
There are two main categories of persons with legal personality: natural persons (people) and legal persons (corporations, non-profit organizations, government agencies, etc.). Legal personality allows individuals and organizations to own property, enter into contracts, and be sued or sued within the legal system.
However, not all living beings have legal personality. Although you can have your dog insured, operated on or wear booties, it does not have legal personality. So he cannot inherit from you, for example, and although you give him presents for his birthday, there is no traditional gift contract in legal terms.
Application for restriction of legal capacity
We can help you protect the safety, property, or other interests of a loved one who is no longer able to act fully legally on his or her own through a motion to limit capacity. We will also protect yourself if someone is trying to limit your legal capacity without justification.
Legal personality and legal capacity: how do they differ?
As we have already explained, legal personality is a concept that refers to whether an individual or an organisation has the capacity to be the bearer of rights and obligations within the legal system. The bottom line is that no one can be deprived of his or her legal personality, nor can it be waived.
In contrast, legal capacity (formerly referred to as legal capacity) is theability to independently make legal acts or decisions without the need for the consent or supervision of another person. It is usually fully acquired at adulthood, i.e. in most countries at the age of 18, but it can be earlier or later. Before that age, it is also possible to acquire full legal capacity either by marriage or by being granted it by a court. For example, a legally competent individual can enter into contracts, carry out legal transactions and be sued or sue within the legal system. An important observation is that legal capacity can be substantially limited (newly, no one can be deprived of legal capacity).
Tip: Legal capacity is the ability to acquire various rights or obligations. Children have limited rights, but full rights are acquired when they reach the age of majority. In some cases, however, even an adult cannot be allowed to make full decisions in his or her own interest about himself or herself and his or her affairs. What are these situations and how can they be dealt with? This is dealt with in our separate article.
Legal personality of a legal person
Legal personality is by no means limited to natural persons. In the case of legal persons, it also means the ability of a legal person (e.g. a company, a non-profit organisation) to be the bearer of rights and obligations. As a result, legal persons can also enter into contracts, own property, be liable for their actions, and sue or be sued or punished.
The legal personality of a legal person usually arises at the time of its incorporation or registration under the law. For example, in the case of companies, legal personality arises at the moment of their registration in the commercial register.
The legal personality of a legal person may be limited by law or by the terms of its incorporation. For example, legal persons cannot vote in elections or hold public office. There may also be restrictions on the types of activities that a legal person can carry out.
The legal personality of a legal person ceases when the legal person is dissolved, merged or otherwise terminated under the law of the jurisdiction. The dissolution of a legal entity may occur, for example, as a result of liquidation, striking off the commercial register or legal merger with another company. Upon dissolution of a legal entity, its assets are usually distributed among its creditors and shareholders, if any.
Tip: If the mental state of a loved one makes it necessary to limit his or her legal capacity, how should I proceed? And what other forms of protection does the law know about (a contract for assistance or representation by a household member)? This is the focus of our separate article.
A company without legal personality
In accordance with the Civil Code, two or more natural persons may join together to form a so-called Company, which also has no legal personality. The term “Company” can be a bit confusing in this context, as it can be used as a shorthand for, for example, a limited liability company that has legal personality. The former name “association of persons without legal personality” was perhaps more apt in this context. Such a Company does not have legal personality and is not liable for income tax; income tax is only declared and paid directly by the individual members.
Each of the partners is liable for the obligations of the unincorporated company with all of its assets and each of the partners acts under its own billing details when invoicing on behalf of the unincorporated company.
The advantage is, however, the administrative simplicity of the creation and dissolution of such a legal entity. Compared to other types of companies, no registration is required, just an oral or written contract between the members. Similarly, on dissolution, a simple agreement of the members and an accounting and property settlement is sufficient.
A branch plant also lacks its own legal personality. It is an organisational unit of a company which has a certain degree of autonomy, may have its own name, management, employees and may carry out activities in the market, but it is not a separate legal entity. A branch plant is established and operated by a legal entity which bears full responsibility for it.