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Published online by Cambridge University Press: 22 November 2024
INTRODUCTION
The law of persons
‘All our law is about persons, things and actions.’ In other words, who has rights, what rights they have and how they are enforced. The law of persons is one of the fundamental pillars of private law. It is not possible in the short space available here to sketch the entire law of persons and to explain, for example, how the University of Glasgow was originally founded by Papal Bull; how the Aberdeen Harbour Board is considered to be the UK's oldest commercial corporation; or why unincorporated associations do not, in Scots law, generally enjoy legal personality. For present purposes, suffice it to say that, in commercial law – as well as many other areas of legal practice – the law of persons is of fundamental importance, not least because, more often than not, the parties to commercial transactions are juristic rather than natural persons. It is thus necessary to identify certain fundamental principles of legal personality before turning to consider the particular rules that apply to the juristic persons considered in this book: partnerships, limited partnerships and limited liability partnerships.
GENERAL PRINCIPLES OF LEGAL PERSONALITY
Legal personality
The concept of legal personality is central to any legal system. Only a legal person can enter into legal transactions or hold patrimonial rights. Natural persons – human beings – acquire, on being born alive, legal personality. With legal personality comes, normally, at least passive legal capacity: an infant can benefit from juridical acts even if, at that stage, an infant has no active transactional capacity. So fundamental is legal personality to vindicating legal claims, that the very right to be recognised as a person is enshrined in the UN's Universal Declaration of Human Rights and, for similar reasons, some national constitutions tightly regulate the related issue of the withdrawal of citizenship. In Scotland, one of the most extreme sanctions historically imposed on a natural person was where that person was declared an ‘outlaw’ or a rebel, resulting in limitations on civil legal personality and forfeiture of assets.
Not all associations of natural persons create juristic persons. Unincorporated associations, such as sports and social clubs, do not have legal personality and cannot, therefore, hold patrimonial rights or be a party to juridical acts.
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