Notes 1 The first point to be made about the institution of the persona is that it acted as the foundation of one of the great categories of law: the law of persons. In modern civil law, the law of persons can be divided into two broad areas: legal personality and status. The former is concerned with the nature and definition of the legal subject (for example, children in the womb, companies, associations), while the latter is ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities’ (the Ampthill Peerage case [1977] AC 547, p 577) (for example, children, citizens, aliens, etc). In truth, the law of persons is much more complex than this broad division suggests, in that it has come to embrace not just company law (and associated groups), nationality, aspects of mental health law and the like, but also family law, including the law relating to children. These subjects are often intimately tied up with the law of things (property and obligations) and law of actions (remedies)—indeed, persona and partrimonium are inextricably interlinked in a bipolar relationship. And thus, in some respects, the arbitrary allocation of a subject like company or family law to the law of persons can appear both conceptually and empirically artificial (cf CC, Art 1387). Nevertheless, there is a logic to the inclusion of family law within the law of persons, since marriage is more than a contract between two individuals; it is an institution capable of attracting its own rules and marriage itself is a form of status. Accordingly, viewed from the institutional scheme as preserved by the European codes, the law of persons remains a valuable category for orientating thinking towards the legal subject as starting point. 2 If the human (homo) is the starting point for legal thought, it should by no means be assumed that all human beings, even in modern law, automatically have legal personality. Unborn children present particular problems, in that they have interests, but not personality (as the 1976 Act above indicates, and see Dig 1.5.7); and death of a human does not always extinguish the right to sue (as the 1934 Act illustrates). That said, birth and death act as the fundamental factual determinants for legal personality (Código civil, Arts 30, 32) and thus detailed rules are required to deal with problems such as disappearance and the presumption of death. New technology is presenting new problems (Airedale NHS Trust v Bland [1993] AC 789). The moment of death can also give rise to difficulties when it comes to succession (Re Rowland, p 166). Western legal systems once recognised civil death, but this has almost completely disappeared in modern liberal democracies.
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A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.