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ADDIS ABABA UNIVERSITY

College of Business and Economics

Chapter One
General Introduction

1.1. General Remark

The history of law reflects the history of mankind because any society has a need for rules to govern
relations between people. In modern times this need has become greater and the application of legal
rules has become more extensive. Consider an ordinary day in life. You may probably purchase and
owns your macaroni for breakfast. The name and packaging of that macaroni belong to someone, and
no one else is entitled to use them. You may pay for transportation when you go from home to work.
You may enter in to the office of factory at your place of work as an employee, the enterprise for which
you are working may be the company which has issued shares, the holding of which by the public entails
membership of the company and a say in the running of which by the public entails membership of the
company and a say in the running of its affairs. Family relationship and employee, citizen and state and
numerous other relationships are all affected by the law in one way or another. Business as one set of
human life never immune itself from being the subject matter of law. Just like many concepts, it is
difficult to define business in universally agreed manner. However, business embrace all sort of opening
up, operation and closing up commerce. Like with, the business law applies from the setting up a
particular business to winding up it. Nevertheless, different set of rules and regulation will govern
business. Again, a business person is required to appreciate all aspects of laws pertaining to business.
With this aim in mind, the course is offered for business students to embrace substantive legal issues
relating to business. For the thorough understanding of the term law and what does it do with the business
it is essential to have some knowledge about the theories as well as the functions it provides to the
business sector as well as to the community at large.

1.2. Definitions of Law

What is Law? Can you guess what essential points should be taken into account to define law? There
are many schools of jurisprudence which concentrate on the nature and function of law. For our practical
purpose we shall confine ourselves to the treatment of the most important schools. Hence, in this material
the following schools shall be discussed briefly.

i. Natural Law School : -

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Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like
Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus, Cicero,
Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. In their studies of the relation between
nature and society, these philosophers have arrived at the conclusion that there are two types of law that
govern social relations. One of them is made by person to control the relations within a society and so it
may vary from society to society and also from time to time within a society. The other one is that not
made by person but controls all human beings of the world. Such laws do not vary from place to place
and from time to time and even used to control or weigh the laws made by human beings. These
philosophers named the laws made by human beings as positive laws and the laws do not made by
human being as natural laws. Tomas Aquinas alleges that whenever man-made laws, was constructed
by human beings to fit and accommodate the requirements of natural law to the needs and contexts of
different and changing societies. For him natural law is self-evidently existed. Thus, for them law is
originated from the divine. They also alleges that in order to validate a certain law as a la there must be
the ingredient of moral. Hence, according to them when law lack such an ingredient called moral it will
not be considered as a law at all. Many asked however how we are going to ascertain morality through
existing societal geographical as well as other differences.

The question remains therefore, where we get these ingredients called morality. The natural law however
suggest that we can get morality from the religious books (holly books), person’s rations or rational
thinking, societal ethos and good behaviors etc. In sum, the natural law theoreticians came up with an
idea to understand the term law from the perspective of its content. The natural law theorists brought
tremendous contribution to the present day of legal concept. One of the pioneer concept is ‘human right’.
They also laid down immeasurable contribution on moral compensation and intellectual property rights
as well as other areas of law. Despite its contribution, however, no scholar could provide the precise
contents of the natural law. As a result, it was subjected to criticisms of scholars like John Austin who
rejected this theory and later developed the imperative called positive law theory. In sum, for natural
law theoreticians the law could be considered as a law only if they inhibits moral values.

ii. Legal Positivism: (Positive or Imperative School of Law)

Also called Analytical School of jurisprudence, it holds that there is no higher law than that created by
governments, legitimate or self-imposing, and that such law must be obeyed, even if it appears unjust or
otherwise at odds with the “natural” law. Unlike the natural law theory, this one treats law and other
values, such as, morality and religion separately. Positive law theory is also called, imperative or analysts

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law theory. It refers to the law that is actually laid down by separating “is” from the law, which is “ought”
to be. It has the belief that law is the rule made and enforced by the sovereign body of the state and there
is no need to use reason, morality, or justice to determine the validity of law.

According to this theory, rules made by the sovereign are laws irrespective of any other considerations.
For Jhon Austin therefore, ‘law is the command of the sovereign backed by sanction’ these laws,
therefore, vary from place to place and from time to time. The followers of this theory include Austin,
Bentham and H.L.A Hart. For these philosophers and their followers law is a command of the sovereign
to his/her subjects and there are three elements in it: command; sovereign; and sanction. Command is
the rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign refers
to a person or a group of persons demanding obedience in the state. Sanction is the evil that follows
violations of the rule. For positivist law will be regarded as law only when the law is made by correct
authority and that correct authority must follow the existing law making procedures. As long as the
above cumulative elements are present law could be regarded as a law. This theory alleges that the law
or norm has the status of law or being recognized as law if it recognize the human authority declared it
to be law. It is said they recognized human authority because this theory is distinguishing itself from the
natural law theory. Thus the content of law from the positivist law theory is irrelevant. What matters for
positivist rather what matters for positivist more is whether the law is enacted by the sovereign or correct
authority. Morality is therefore irrelevant. Therefore, the law is valid only if the sovereign said it is
valid. Here, there some pedigrees for the validity of law according to positivist theory. One of such
pedigree is the sovereign must follow the established rules of law making procedures. And make sure
first the law is passed by the correct law making authority.

This theory has criticized by scholars for defining law in relation to sovereignty or state (what is called
correct authority) because law is older than the state historically and this shows that law exists in the
absence of state. Thus, primitive law (a law at the time of primitive society) serves the same function as
does mature law [Paton; 1967: 72-3]. Further the term sovereignty is different from jurisdiction to
jurisdiction. For some it it’s the constitution document is a sovereign by itself and for the other it is
vested on the parliament or the highest law making organ of the state. It could either be understand in
some country from the leader who assume power on the given state. In addition to that the positive law
theorists encountered a contention with respect to law making procedures. Specially the question who
should label down those procedures and how. Particularly how does this sovereign qualify or decide
which law to pass. Based on what? Then, morality is not guiding the law making of laws. Then what is?
How the sovereign could decide the good law from bad laws. Hence, positive law theory is not helpful

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to distinguish good laws from bad laws or correct laws from incorrect. Rather all the positivist theory
help us to distinguish valid law from invalid. In addition to that positive law theory fails for not
ascertaining or justify the process of law making or how the law is enacted.

With regard to sanction as a condition of law in positive law, it is criticized that the observance of many
rules is secured by the promise of reward (for example, the fulfilment of expectations) rather than
imposing a sanction. Even though sanction plays a role in minority who is reluctant, the law is obeyed
because of its acceptance by the community “habit, respect for the law as such, and a desire to reap the
rewards which legal protection of acts will bring” are important factors the law to be obeyed [Paton;
1967:74]. The third main criticism of definition of law by Austin (positive law theory) is that it is
superficial to regard the command of the sovereign as the real source of the validity of law. For positivist
two things must be present before it is considered to be a law. One the law should always be passed by
competent or correct authority. Second that correct authority should follow the correct established law
making procedures.

iii. Legal Realism ( Realist School of Law)

Conceives law as judge made and by doing so it puts the court at the center. It contends that positive law
cannot be applied in the abstract, rather, judges should take into account the specific circumstances of
each case, as well as economic and sociological realities. In other words, the law should not be static, it
must adapt to various social and economic realities. This theory emphasizes the role of the judge that is
it emphasizes that law is made not found, and considers judges as the true law makers. Realist theory of
law is interested in the actual working of the law rather than its traditional definitions. It provides that
law is what the judge decides in court. According to this theory, rules not put to use to solve practical
cases are not laws but merely existing as dead words and these dead words of law get life only when
applied in reality. Therefore, it is the decision given by the judge but not the legislators that is considered
as law according to this theory. Hence, this theory believes that the lawmaker is the judge and not the
legislative body. This theory has its basis in the common law legal system in which the decision
previously given by a court is considered as a precedent to be used as a law to decide future similar case.
This is not applicable in civil law legal system, which is the other major legal system of the world, and
as a result this theory has been criticized by scholars and countries following this legal system for the
only laws of their legal system are legislation but not precedents. This implies that the lawmaker in civil
law legal system is the legislative body but not the judge. For realist the judicial decision making or the
ruling of the court is subjective since law is ambiguous, unclear etc. what legal realist say is what legal
realist say what bring the outcome of the case is not the fact involved in the particular case nor the law

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that should apply to resolve dispute rather the judge. Therefore, judges moral belief, his particular
position in the society, his upbringing and schooling matters most. So does to the positivist realists also
has four pedigrees of thoughts.
i. Law protect powerful economic interest first;
ii. The outcome of the legal dispute is determined by judge’s morality, perspective
personality; judges are not super human and are likely influenced by their lives.
iii. Since judges are responsible to interpret law, are likely being influenced by public
good;
iv. Since lawyers can predict how judge’s ruling could likely be on certain case by
examining judges’ behavior or past cases they will chose forum whereby they will be
at disadvantage.

Law and the ideals that it stands for is difficult to define and over the millennia of time legal writers and
philosophers, from Anicient Greece and Rome such as Socrates, Aristotle and Plato and to modern times,
John Locke and Thomas Hobbes have tried to define law. Consequently, there are many varied definition
of the ’law’ but the common theme with all of them is that, it is a set of rules that regulate the relationship
of people in society to ensure legal, social and political order. The law, in the context of business law is
also concerned with legal rules, principles and procedures to ensure that people who engage in business
do so in a proper manner ensuring that transactions are entered into in a fair and just manner.
Accordingly, the law maintains a ’balance between the interests of all persons and business organizations
and provides a mechanism for transparency and check and balance to promote fairness. Equity and
consistency in the application of law. Therefore, business or commercial law is concerned with the rules,
procedures and customs that are associated with various business activities, such as the sales of goods
and services that are conducted on a regular daily basis such that impact on both contract law and tort
law. Even though not everyone or everyone understand or even knows all of the law, it is presumed that
everyone knows the existence of the body of law. This means that people cannot escape from legal
responsibility by claiming that they did not know the law was being broken people are generally at a
disadvantage if they do have some ideas of their legal position in society.

1.3. Functions of Law : -

Why we need law? What functions does law have in your localities? As the issue of definition of law,
there is no agreement among scholars as to the functions of law. Jurists have expressed different views

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about the purpose and function of law. It is well known that law is a dynamic concept, which keeps on
changing with time and place. It must change with changes in the society.

A. Means of Ascertaining Justice: - Law, in the modern sense, is considered not as an end in
itself, but is a means to an end. The end is securing of social justice. Almost all theorists agree
that law is an instrument of securing justice. The other object of law is ensuring justice. The
justice may be either distributive or corrective. Distributive justice seeks to ensure fair
distribution of social benefits and burden among the members of the community. Corrective
justice, on the other hand, seeks to remedy the wrong. Thus if a person wrongfully takes
possession of another’s property, the court shall direct the former to restore it to the latter. This
is corrective justice. Rule of law is sine qua non for even-handed dispensation of justice. It
implies that everyone is equal before law and law extends equal protection to everyone; judges
should impart justice without fear or favour and like cases should be treated alike.It must,
however, be stated that justice alone is not the only goal of law. The notion of law represents a
basic conflict between two different needs, namely, the need for uniformity and the need for
flexibility. Uniformity is needed to provide certainty and predictability. That is, where laws are
fixed and generalized, the citizen can plan his/her activities with a measure of certainty and
predict the legal consequence of his/her conducts. This is even more necessary in case of certain
laws, notably, the law of contract or property. Uniformity and certainty of rules of law also
bring stability and security in the social order. Today the following are taken as important
functions of law.
B. Social control – members of the society may have different social values, various behaviors
and interests. It is important to control those behaviors and to inculcate socially acceptable
social norms among the members of the society. There are informal and formal social controls.
Law is one of the forms of formal social controls. As to Roscoe Pound, law is a highly
specialized form of social control in developed politically organized society. Lawrence M.
Freedman explains the following two ways in which law plays important role in social control;
first, law clearly specifies rules and norms that are essential for the society and punishes deviant
behaviour. “Secondly, the legal system carries out many rules of social control. Police arrest
burglars, prosecutors prosecute them, courts sentence them, prison guards watch them, and
parole broads release them [Steven; 2003: 19]
C. Dispute settlement: - Disputes are un avoidable in the life of society and it is the role of the
law to settle disputes. Thus, disagreements that are justiciable will be resolved by law in court
or out of court using alternative dispute settlement mechanisms [Steven; 2003: 20].

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D. Social change: - A number of scholars agree about the role of law in modern society as
instrument to social change. Law enables us to have purposive, planned, and directed social
change [Steven; 2003: 20-21]. Flexibility of law provides some measure of discretion in law
to make it adaptable to social conditions. If law is rigid and unalterable, it may not respond to
changes spontaneously which may lead to resentment and dissatisfaction among the subjects
and may even result into violence or revolution. Therefore, some amount of flexibility is
inevitable in law [Biset; 2006].

1.4. What is Business Law?

It is quite logical to define the term ‘business first before resort to define the law. Like that of defining
the term law, defining business law is not a simple task. The Commercial Code of Ethiopia defines the
law as a composite of corporeal and incorporeal things as well as good will. Rather than giving a detail
characteristics to the term business the law opts for articulating what does business embraces off.
Henceforth, the Code define business as a composite of incorporeal, corporeal things and good will.
Though it is not seems helpful from the code to define the term business, we can draw a definition with
the combined readings of article 127 – 129 of the same code as : Business is either incorporeal or
corporeal things or their combination to render trading activities as set out by the competent
governmental authority so as to generate a profit. The term business law however could either be defined
as the composite of all the laws that dictate how to form and run a business. This includes all of the laws
that govern how to start, buy, manage, and close any type of business. Business law then establishes
rules that all businesses should follow. Therefore, the term Business law could be defined as a set of
laws that identify the manner how one can form, operates and close the business. As it is clearly depicted,
business law is not only a simple law but it is systematized and set of laws which states the modalities
of doing business, the form how one can render its business as well as it identifies the situation when
and the modalities how to close certain business. Business law is the body of law which governs business
and commerce and is often considered to be a branch of civil law and deals both with issues of private
and public laws. Commercial law regulates corporate contracts, hiring practice, and the manufacture and
sales of consumer goods.

1.5. Source of Business Law: - In the literature of jurisprudence the problem of ‘sources’ relates to
the question: where does the judge obtain the rules by which to decide cases? In this sense, among
the sources of law will be commonly listed: statutes; judicial precedents; custom; the opinion of

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experts; morality; and equity. In the usual discussions, these various sources of law are analyzed
and some attempt is made to state the conditions under which each can appropriately be drawn
upon in the decision of legal controversies. This question directs to the source of business law.
a. Custom as a source of law: - Custom is one of the oldest sources of law making. However, the
importance of custom as a source of law continuously diminishes as the legal system grows. The
reason being that with the emergence and growing power of the State, custom is largely
superseded by legislation as a source of law. [Paranjape; 2001: 190ff].
b. International Agreements as Source of Ethiopian Laws: Ethiopia signs different international
bilateral and multilateral trade related agreements with different countries of the world.
Furthermore Ethiopia is the member of different trade related institutions covenants and treaties.
The enforcement of these agreement primarily depends on national laws of states for the benefit
of the nationals of which they are developed. Consequently, it induces states to conform their
national legal systems to the standards it set-up. By signing international instruments, states
undertake to comply, in good faith, with rights and freedoms recognized in the instruments they
endorse. As members of community of nations, they are also under obligations to live up to the
standards entrenched in customary international trade laws. They are also duty bound to
accomplish all those other tasks necessary for the realization of the rights and freedoms.
c. Legislation as a source of Law : The term ‘legislation’ is derived from Latin words, legis
meaning law and latum which means “to make” or “set”. Thus, the word ‘legislation’ means
‘making of law’. Legislation is that source of law, which consists in the declaration of legal rules
by competent authority. The term legislation has been used in different senses. In its broadest
sense, it includes all methods of law making. In its technical sense, however, legislation includes
every expression of the will of the legislature, whether making law or not. Thus, ratification of a
treaty with a foreign State by an Act of Parliament shall be considered law in this sense.
Nevertheless, in strict sense of the term, legislation means enacted law or statute law passed by
the supreme or subordinate legislatures.
d. Court Decisions as Source of Law: The doctrine of stare decisis literally means “let the decision
stand in its rightful place.” When a decision contains a new principle, it is binding on
subordinates courts and has persuasive authority for equivalent courts. This rule is based on
expediency and public policy. Although this doctrine is generally followed by the courts but it
may not be applicable if the court is convinced that the earlier wrong is likely to perpetuate
resulting into erroneous decision.

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- End of Part One -

Part – Two Legal

Personality

2.1. Personality:-
The law of persons is that part of private law which regulates the conception, the existence, and the
termination of the natural person as a legal subject. The law of persons thus determines: -

(a) Who are legal persons

(b) How one becomes or ceases to be a legal subject
(c) The various classes of legal subjects
(d) What is the legal position (status) of each of these various classes of legal subject is.

The word ‘person ’ traces its roots from the Latin ‘persona’ which in its ancient usage of the theatre
meant “the mask which covers the figure of the actor.” The mask indicated the role that the actor played,
and the audience in effect “recognized the character as soon as it saw the mask.” The words “human
being” and “person” are not interchangeable. All human beings in modern legal systems are persons,
and take part in legal relationships as subjects of rights and duties. Thus unlike Ancient Roman Law
there is no distinction among human beings with regard to legal personality. However, entities other than

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human beings also take part in legally defined relationships as holder of rights and bearer of obligations.
In popular parlance “person” denotes physical or natural persons. But in day-to-day social interaction,
entities other than natural persons interact among themselves and/or with natural persons Thus, the term
‘person’ refers to both human beings and juridical entities. Modern doctrine speaks of legal personality
as the capacity to be bearer of rights and duties (a subject of rights) and calls him (her) who has this
capacity a person in the legal sense. Today all human beings (natural persons) have legal personality.
Furthermore, certain forms of organizations (associations with legal personality, foundations, the state,
etc.) are recognized by law as persons, and these organizations, therefore are called juristic persons.

2.1.1. Natural Persons: - The concept of natural persons refers to a human being. Every human being,
from a new –born baby to an adult, is a legal subject, and every human being can have rights and duties.
For instance, the law protects the physical integrity and honour of a new –born child, and also determines
that he or she can inherit property.

2.1.2. Juristic /Juridical Persons/ Legal personality is not restricted to human beings. In fact various
bodies and associations of persons can, by forming a corporation to carry out their functions, create an
organization with a range of rights and duties not dissimilar to many of those possessed by human beings.
In Ethiopian law such corporations are formed by partnership Agreement, proclamation, or registration
under the Companies. As a result of requirements of legal and commercial intercourse, the law is obliged
to recognize as legal subjects entities other than human beings. This does not mean that these entities
aquire natural personality of human beings of that they have a physical existence, but merely that these
entities recognized as holders of rights and powers and subject to duties. These entities are elevated by
the law to the status of juristic or artificial persons. but not to that of natural persons. A company,
universities, agencies, and state are all examples of juristic persons. One of the features of juristic persons
is that it has rights and is subject to duties; another features is that it has perpetual succession. This means
that although the individuals who comprise the juristic person may die, the juristic person continues to
exist. A juridical person usually has a distinct legal existence separate from its members. A case in point
(in this regard) is the continued existence of the entities even after the partial or total change of their
founding individual members. Such legal entities (either public or private} as stated above are endowed
with juridical personality. Same as physical persons, these legal persons have rights and duties; enter
into contracts, can sue, be sued and perform various juridical acts. However, it must be noted that there
are rights of personality that cannot be exercised by juridical persons, such as the right to vote. It has
been already indicated that every human being can be the bearer of rights and duties. Every human being
is therefore a legal subject. At what stage does a human being become the bearer of rights and duties?

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The answers to these questions appears to be that a human being and its legal capacity come into
existence at birth. The right of an unborn child are, however also protected provided that the child is
indeed subsequently born alive and viable.

Thus, “persons” can be defined as human beings or legal entities that are holder (or bearer) of rights,
and “personality” refers to all the attributes that have legal protection. The phrase “subject of rights”
(used in Article 1 of the Ethiopian Civil Code) obviously implies corresponding duties as well, because
the rights of any person apparently impose a reciprocal duty on others to observe these rights. For
example, a certain person’s rights with regard to the privacy of correspondence or the inviolability of
residence presuppose the duty of others to respect these rights. The term “subject of the law” is different
from “object of the law”. Everything that is covered by the law is its object, but it is not expected to bear
rights and duties. A negligent driver who runs over a dog violates the rights of property of the owner of
the dog. The owner of the dog is subject of rights in this example. And he will be subject of duties (extra
contractual liability) in case his dog bites anyone. Similarly, a person who kills a wild animal in violation
of the laws on wildlife conservation infringes the law.

2.2. Commencement of physical personality

“The human person is subject of rights from its birth to its death”
(Article 1 of the 1960 Civil Code of Ethiopia)
ሰው ፡ ከተወለደበት ፡ ቀን ፡ አንስቶ ፡ እስከ ፡ ሞተበት ፡ ቀን ፡ ድረስ ፡ የሕግ መብት ፡ አለው፡፡

(የኢትዮጵያ ፍትሐ ብሔር ሕግ ቁጥር 1)

The words “human person” (under Article 1) refer to anyone who is member of mankind; i.e. to anyone
who has the distinct features of a human being. Deformities and handicaps are acceptable as long as they
are the sorts that could occur through various natural or other misfortunes. Physical personality begins
from birth and lasts until death.

2.3. Anticipated personality: Conception and viability

But the child not yet born is already, from the time of its conception, capable of acquiring rights. It is
considered, by anticipation, as already figuring as a person. This anticipated personality, recognized on
behalf of the child, may also produce concrete effects. This takes place either where there is a question
of acquiring a new nationality, or of the voluntary recognition of natural paternity or maternity, or of a

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right to an allowance in the case of a workman’s accident which happened to its father. But this
personality is admitted only in the interest of the child. There are instances where the interest of a
conceived child is put at stake if personality is attributed only after birth. A case in point is the inheritance
right of a child whose father has died before he is born, as envisaged under Article 834 of the Civil Code.
Similarly, the interest of a conceived child should be protected where a parent dies under circumstances
that entitle children of a deceased to receive damages, life insurance or other payments. Article 2 is
meant to solve such problems. It reads:

A child merely conceived shall be considered born whenever his interest so demands provided that he
is born alive and viable (Article 2).

የተፀነሰ ፡ ልጅ ፡ በሕይወት ፡ ከተወለደና ፡ የሚኖር ፡ ከሆነ ፡ የራሱን፡ ጥቅም ፡ በሚሻበት፡ ጊዜ፡ ሁሉ፡ እንደ ፡ ተወለደ

፡ ይገመታል፡፡ (የፍ/ሕ/ቁ 2)

th
A child is deemed to have been conceived on the 300 day preceding its birth (Article 3). A conceived
child may acquire personality while he is still in his mother’s womb provided that:

(a) his interest so requires, particularly where the interest of a conceived child requires that he be called
for succession (Article 834),
(b) he is born alive, and,
(c) he is viable (i.e.- capable of living for at least forty-eight hours after birth (Arts. 4/1 and 4/2).

2.4. Conditions of Personality for Child Yet to be Born

For the personality of the conceived child to be recognized after its birth there are two basic elements
must fulfilled:

i. The child must be born alive: A child must not only born but also born alive. Not much needs
to be said on this condition. This will essentially be a question to be determined by medical
evidence. As already mentioned, a test consists in establishing the existence of respiration by
checking the entry of air into the lungs; another one refers to independent circulation. Let us only
mention that the condition of being born alive is as essential as the previous one. A child, dead

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in his mother’s womb, will never be considered as having had personality. But it is also true that
this condition has no importance as such because of the existence of the viability condition.
Obviously if the child has to live for forty-eight hours in order to be considered a person, he must
necessarily be born alive. Viability clearly includes the condition of being born alive. Yet, Article
2 distinctly states the requirements of being born alive and viable, most likely because in the case
of a stillborn child, the condition of being born alive is not met; and in effect, the issue of viability
doesn’t arise. If on the other hand, the child who had acquired personality during conception is
stillborn, or is born alive but not viable, the personality that was conditionally acquired during
its conception is of no effect. Viability is presumed where a child lives for 48 (Forty eight) hours
after its birth (Article 4/1). Moreover, a child who dies within 48 hours after its birth “due to a
cause other than a deficiency in (bodily) constitution” is presumed to be viable because s/he
wouldn’t have died at that moment had it not been for the incidence that caused the child’s death.

ii. The child must be born viable Under Article 4 of the Civil Code, the Ethiopian legislator has
opted for a solution in which some presumptions are constituted enabling one to determine (in
some cases without any possible contestation) if a child is or is not viable. First, a child who lives
for 48 hours is presumed to be a person from the moment of his conception onwards. This
presumption is irrebuttable. The only important point in this case is the exact determination of
the hour of birth as, once the time has passed, there is no possible rebuttal of the presumption.
We will consider this problem subsequently. Second, if a child dies before the expiry of the 48
hour limit, there is a presumption that he is not viable and the first presumption, that he was a
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person from the 300 day before his birth onwards, cannot operate. But contrary to the first case,
this second presumption is not irrebuttable and can be challenged in court. Again medical
evidence will be essential as the party challenging this presumption will have to prove that death
is not the result of a deficiency in the child’s constitution. These last six words are fundamental
for the application of this section of Article 4. They cannot be interpreted at the moment as it will
be for the courts, on the basis of medical evidence, to decide progressively what are or are not
deficiencies in a child’s constitution. Still there are obvious cases where the death does not result
from a constitutional deficiency, e.g., if the child is dropped by someone and dies of a fracture
of the skull, if he is killed in an automobile accident, etc. If it is proved that death came as a result
of something other than a deficiency, then the child can be considered as having been viable.
Assuming that the three above-mentioned conditions exist, the date of conception is fixed by
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Article 3 of the Civil Code at the 300 day before birth. This avoids all discussion about the exact

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Extracted Materials on AAU, College of Business and Economics
Business Law

date of conception (which cannot yet be determined by medical evidence). The presumption is
declared irrebuttable by the same article and there is, accordingly, no possibility of establishing
that a child was conceived more or less than three hundred days before its birth, even if one could
prove, for instance, that his parents were separated on that precise day.

However, although the presumption laid down in Article 3(1) is irrebuttable, Article 3 (3) establishes the
principle that the rule laid down in Article 3 (1) shall have no bearing on the provisions of the Civil Code
dealing with filiation, in the case where the identity of the father of the child is in issue. This seems to
refer to Article 743 (Article 128 of the Revised Family Code). It deals with presumptions as to
conception in wedlock and fixes the moment of the latter at a minimum of 180 days after the marriage
and a maximum of 300 days after its dissolution. Thus according to Article 743, the moment of
conception is not necessarily fixed at a certain number of days before birth; it can vary between 300 and
180 days. On the contrary, Article 3 fixes the precise date for the moment of conception. The purpose
of section 3 of the latter article is to avoid.
- End of Part Two -

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