The Code of Canon Law refers to “juridic persons” in the following canon:
Canon 113 – §2. In the Church, besides physical persons, there are also juridic persons, that is, subjects in canon law of obligations and rights which correspond to their nature.
In civil law, the recognition of legal personality apart from physical persons is not codified in one civil law resource or work or statute. There are many sources to be considered in identifying in civil law those entities which have legal existence apart from physical or human persons which inherently possess legal rights and obligations.
Corporations are the essential legal structure in civil law separate in law from physical persons. Trusts and partnerships do not enjoy separate obligations and rights separate from the physical persons.
A BRIEF HISTORY OF “CORPORATIONS AS PEOPLE”
Professor Bruce Welling, a former professor of mine from the University of Western Ontario Law School, in his book entitled, Canadian Company Law, introduced this topic as follows:
“One of the most dramatic consequences of incorporation is the creation of a new legal person, separate in law from its … [incorporators]. Corporate personality is not entirely a modern phenomenon – the basic theory appears in writings of Pope Innocent IV (1243) and in Roman Law. The office of bishop has long been regarded as a corporation sole, existing independently of its incumbent in canon law. So, in common law, was the English crown held to exist in perpetuity, quite independently of the presence of any transient human occupant of the throne. The recognition of commercial corporations as legal entities has led to much difficulty and has spawned several theories, notably the fiction theory and the realist theory.”
I should add that the fiction theory and realist theory have been extended in corporate law in Canada and elsewhere in the common law world to apply to not
The fundamental attributes of a corporation which are desirably sought include:
- ability to sue and be sued independent of its incorporators;
- perpetual existence (ie., beyond the human lifetime of its incorporators);
- segregation of funds and liabilities separate from incorporators (and individual participants such as directors and officers), also called “limited liability”;
- and where desirable, the natural powers of a corporation may be restricted notwithstanding the reality that the rights and obligations of a human person are not so easily limited (ie., consider a corporation that is the civil expression of a Roman Catholic Religious Community which is restricted by its constitution to pursuing a mission for the salvation souls, for example)
Corporations may be constituted or created with one or more participants. A corporation sole has historically been most often recognized, although not exclusively so, in the context of the Roman Catholic Church as the ecclesiastical property holder of diocesan properties with the diocesan bishop in office, ex-officio, the only member and director of the corporation sole.
This historical construct is not surprising given that these corporations were established at a time when monarchs in the Commonwealth, France and elsewhere occupied as the Crown office holders non-statutory corporations sole with the benefit of perpetual existence.
An important distinction is between corporations with share capital and those without.
This concept was recognized in Roman Law as a Jus in Rem or a Jus in Personam. Not-for-profit corporations and statutes for Religious Dioceses and Religious Institutes fall into the category of involving rights in personam of office holders, contrasted with business corporations with share capital, which are ultimately controlled with reference to rights in rem on account of shares being property capable of transfer.
CORPORATIONS CREATED BY LEGISLATURES:
Legislative competent bodies such as the Parliament of Canada and the Legislatures in each of the Provinces of Canada HAVE legislation creating entities with legal personality. The reasons for these legislative corporations appear to be largely grounded in the limited options available to dioceses and religious institutes at the time of their historical creation.
For instance, if we were to review the Statues of Incorporation for Saint Paul University, from May 30th, 1849, prior to the confederation of Canada, the university was established as a corporation composed of the office-holder of the Bishop of Ottawa, and others, under the name of The College of Bytown with perpetual succession:
The foregoing description of individual office-holders as “hereby constituted a Body politic and Corporate in deed and name” does appear to bear some resemblance to the canons from the code, for example:
Can). . 115 §1. Juridic persons in the Church are either aggregates of persons (universitates personarum) or aggregates of things (universitates rerum).
Russell Gibson is a civil lawyer in Ottawa who practices with an emphasis on Corporate and Regulatory law, often as corporate counsel to Roman Catholic Dioceses, religious communities, and sponsored undertakings, including as advisor for associations, not-for-profits and charities. Russell Gibson is a founder of the law firm of Gibson Tanner Rabin LLP.
