Personality & Patrimony

I.

Introduction
a. Ones personality can be expressed through their property, for
example, the clothes they wear, the cars they drive categorize them
socially and culturally as much as ones accent or how they look.
b. Ones possessions are inextricably linked to their personhood, and
without them true self-development is impossible.
c. The human person and its attributes have been hors commerce and
extrapatrimonial for the majority of legal theory No one can is
deemed to be the owner of his own limbs.
d. French writers speak of les biens de la personnalit as if it is
something that cannot be appropriated, in English, however,
personality can be appropriated.
e. Even though aspects of our personality (ex. Voice, image,
reputation) have traditionally been seen as extrapatrimonial rights
without monetary value, these aspects are now increasingly
brought into commerce and are becoming more patrimonalized.

II.

Historical Background on the protection of personality

a. Classical Roman law
i. Human personality was subject to legal analysis, but they
dealt with it in a logical and theoretical legal category than
as a practical aspect of applied law.
ii. Personality in the modern world is far more expansive as
defined in Art. 3 of the CCQ is far more expansive than what
Romans would consider aspects of their personality (mainly
ones name & reputation, but of greater importance would
be intangible things like honor or chastity).
iii. None of these things had pecuniary value and therefore
were hors commerce.
iv. In Gaius institutes, things were divided into corporeals and
incorporeals, and only corporeal things could be possessed.
v. While intangible things were able to be disputed legally (ex.
Protection of ones honor), they could not be the object of
property rights or be transferred by the usual means of
traditio (seizing) or usucapio (acquisitive prescription).

vi. Personality rights could be however legally fought under the

umbrella of iniuria (modern-day torts). It included physical
and non physical injuries (ex. damaged reputation)
vii. This relationship between delict (tort) and personality rights
was influential for the civil law.
viii. Damages awarded concerning these intangible rights were
punitive rather than compensatory, since these rights had no
pecuniary value.
ix. The abstract idea of personality never was explicitly made by
Romans, but given the fact that they still used delictual
remedies suggests that they acknowledged the importance of
personality rights.
b. Medieval and Early Modern developments
i. Continuation of Roman view of personality rights by
viewing it as iniuria, and thus separates from property law.
ii. Middle ages brought with it canon law; the human
personality was fused with Christianity. These rights now
were under the purview of Theologians.
iii. Modern doctrinal writers have used Christian moral ideas to
reject the patrimonialization of personality rights.
iv. 16th, Manfred Hermann emphasized the conceptual division
between action itself and the ius (legally protected right) that
underlay it.
v. Donellus developed the idea that life, body integrity, liberty
and reputation were individual protected rights, separate
from the actions used to vindicate them.
III.

Modern Protection of Personality and the right to ones Image

a. France
i. French courts did not use article 1382 of the code civil in
terms of civil liability when the right to ones image was
violated. Instead, they treated the issue as an absolute right
(a subjective right to ones image).
ii. Some doctrinal authors argue that a right to ones image
should just be covered under the encompassing right to
privacy, viewing it as a purely extrapatrimonial concept of
personality rights. Infringement of the right to ones image,
according to this view, however, would be within intellectual
property and not be a personality right at all.

iii. In 1970, a general right to privacy was inserted into the Civil
Code, article 9 something that the courts and doctrinal
writers had already recognized.
iv. Most doctrinal authors view the right to ones image as
having a dual nature, both extrapatrimonial and patrimonial,
touching both privacy and commercial issues. This
distinction could be explained by comparing droit limage
which treats ones image as an inherent party of the person,
compared to droit sur limage which views the right as
commodity to be exploited.
v. The right to ones image is protective and passive, whereas
the right over ones image is positive and active.