jueves, 11 de abril de 2019

Person and thing. Individual and patrimony

“In what way is a thing not a person?” asks the bestial protagonist in Margaret Atwood’s short story Lusus Naturae... Why, what, and when does a person become a mere thing or a thing a person? What is the function of the legal distinction between persons and things, if any? The most canonical answer to this question argues that persons are ones who command a capacity to possess things—that distinction between the two is a means to establish property relationships. A person has rights and duties that allow her to do, to have, and to be, while a thing merely exists.

This sentence clarifies a fundamental question that has obstructed the analysis of legal personality from the outset: a legal person is a "subject", because if we do not qualify legal persons as subjects, they cannot possess things, which is the core of legal capacity (see art. 38 CC: "Legal persons may acquire and possess goods of all kinds, as well as incur obligations and exercise civil or criminal actions, according to the laws and rules of their constitution"). In other words, subjects can possess things but things cannot possess subjects. And, I would add, can one thing possess another? Can a good possess another good? Can a good have a credit or a debt? The obvious answer is, of course, no. But if we change "thing" or "good" for "patrimony", (or the english word <>>) maybe we get an insight on the problem. In what sense? What is patrimony? A universitas rerum, a patrimony is a delimited (with respect to others) set of goods, rights (incorporeal goods), credits (rights to demand of another to deliver or do something) and debts (obligations to do or deliver something). Well, if a patrimony is composed of things, if we say that a thing belongs to a patrimony, why shouldn't be said that a patrimony "can" possess things? There is nothing that makes that statment illogical. An estate can own things. It can alienate them - stop owning them -; it can give credit and it can incur debts. Each " action " - acquiring or disposing of a property, giving of credit or contraction of a debt - modifies the composition of the patrimony. After those actions, the patrimony will no longer possess that thing or will possess a new thing, it will have the right to claim the payment of a credit that it could not claim before or it will be obliged to pay a debt, that did not weigh on that patrimony before being contracted. Thus, legal personality and patrimony (separate from others, i.e. bounded) are synonyms. Because, in addition to individuals - men and women - patrimonies can also possess (are composed of) things.

Thus, it is not correct to oppose "persons" to "things" if it is a question of determining who can own what. If that is the goal, it is right to oppose "things" to " patrimonies". Then, once a thing is part of a patrimony, that patrimony is a legal person if it has an organization that allows it to modify it, that is, to acquire things, to contract obligations, to alienate things, to grant credit. This organization - or governance - is a set of rules for making decisions about the patrimony (usually two organs of governance, - administrators of the patrimony and assembly - or only one - board of trustees - ) and the designation of those who can link the patrimony with other patrimonies (representatives).

All human beings have a patrimony. Every man or woman, even if very poor, has at least the capacity to work and to generate income or produce goods with his work. Therefore, we call individual patrimony, in reality, to the patrimonial aspect of the being and of the activity of individuals; to the production of goods for human support and personal flourishing. But patrimonies as sets of goods, rights, credits and debts can be conceivable without the need to link them to an individual. It is enough to provide them with an organization - a governance mechanism -. In the case of individuals, it is the individual himself who governs his patrimony (she decides about it). In the case of non-individual patrimonies, we need a legal transaction simultaneously to the establishment of the patrimony through which the necessary rules of governance are provided.

Conclusion: the distinction between people and things, as a legal distinction of Roman origin, is correct. But as patrimonies are not things. Patrimonies are persons or "legal subjects". And persons or legal subjects are not individuals, they are not human beings. Although the latter is less frequently forgotten.

La versión española - ampliada - se encuentra aquí

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