Capacity

CAPACITY. - It is the fitness or aptitude of a natural or juridical person to be the subject of a juridical relationship, that is, the author or recipient of a juridical act. To these two aspects of capacity correspond two designations, since in the first case one speaks of juridical capacity or capacity in law, in the second case of capacity to act; but the term "juridical capacity" is also used in a generic sense to include both species of capacity.

Juridical capacity in the strict sense, or capacity in law, is therefore the fitness of a person to be the subject of a juridical relationship, that is, to have a right (power, authority, faculty, etc.) or a juridical duty (obligation, burden, etc.). If such capacity is considered, as it cannot but be considered, in reference to the individual acts in which juridical powers and duties are exercised, account must be taken, for capacity, both of the power or duty to perform the act and of the fitness which the subject has or does not have to possess the powers or duties that are the juridical consequence of the act itself: that is, in order for the act to be valid, that is, not to be null by reason of the incapacity of the subjects, it is necessary that the subjects have capacity not only in relation to those powers or duties whose existence, prior to the act, is a necessary presupposition of it (initial juridical situations), but also in relation to those powers or duties that are the juridical effect of it (final juridical situations); and this holds both for the authors of the act and for its recipients.

Thus, to limit ourselves to examples drawn from canon law, the administration of the Sacraments, in order to be valid, requires that he who administers them have the qualities necessary for there to be the power to administer them (for example, the quality of bishop to confer the major Orders), and that he who receives them have the qualities necessary to be able to acquire those rights and obligations that are the consequence of the Sacrament (for example, the quality of being baptized and the male sex, necessary to be able to acquire the power of Order, deriving from the sacrament of Order).

Capacity to act, on the other hand, exists when a person has all the (personal) qualities required by law to be able to perform an act validly, that is, producing (provided the other requirements, distinct from capacity, prescribed for that act also concur) the juridical effects proper to that act, or to be the recipient of that act itself.

It is clear that one who does not have, with respect to a determined act, juridical capacity, cannot have the capacity to act in relation to it.

The converse, however, is not always true; that is, it can happen, and indeed often happens, that one who lacks the capacity to act with respect to an act nevertheless has juridical capacity, in which case he cannot validly perform the act except through another person (a representative).

Thus, for example, in contracts and generally in almost all juridical acts that can be performed through a representative, one who has not reached the age of majority (which in canon law, as in a great part of civil legislations, is attained upon the completion of 21 years) does not have the capacity to act, because he cannot validly perform the act; he does, however, have juridical capacity, that is, the fitness to be the holder of the right necessary to perform the act and of the rights and obligations deriving from the contract (for example, the right of ownership, the obligation to pay the price, etc., in a sale); and therefore he can perform the act only through a representative who is of age.

There are, however, acts in which the two species of capacity coincide, so that one who lacks either one of them also lacks the other. This occurs in all acts that cannot be performed through a representative (for example, the administration and reception of the Sacraments, a will, the emission of vows, etc.), and in various others, determined by law.

In marriage, for example, the various personal qualities required in the two contracting parties (age, ability to perform the copula, not being a cleric in sacris, etc.) are necessary both for juridical capacity and for the capacity to act, so that one who lacks any one of them cannot contract marriage, not even through others, since they are necessary to be able to become a spouse, that is, to acquire that complex of rights and duties that derive from marriage.

Capacity is also spoken of with regard to illicit acts, and, in particular, to crimes, because the law requires, in order for a crime to exist, that its author have determined qualities (age, mental health, in canon law also being baptized, etc., and, for many offenses, the quality of cleric or conversely of layperson, a determined sex, and so on); and, for many crimes, it also requires determined qualities in the passive subject, that is, in the victim of the crime (age, sex, quality of cleric, etc.); so that one who does not have all those qualities cannot respectively be the author or the passive subject of the crime (for example, in canon law there is no crime of abduction if the victim is not a woman or a minor under puberty).

Not infrequently the juridical norms that regulate the capacity of persons are founded on the very nature of things, inasmuch as the law derives juridical capacity or incapacity, or capacity or incapacity to act, for that act from personal qualities that (through natural causes, or, in canon law, also supernatural ones) in fact make possible or impossible the performance of the act or the production of a juridical effect; at other times the law derives juridical incapacity or incapacity to act from a lesser natural fitness; at still other times, finally, the law founds the capacity or incapacity of persons on purely juridical (or legal) causes according to criteria of justice or expediency.

Among the causes that most influence capacity, in the sense of rendering a person capable or incapable for many acts, let the following be noted: birth (for those legislations which, like canon law, recognize a capacity, albeit limited, of every living human being, even if not yet born), age, sex (v. DONNA; ERMAFRODITISMO), sanity and mental infirmity (v. INFERMITÀ MENTALE), the quality of being a natural person (a human being) or a juridical person (an association or institution). In canon law, moreover, unlike the majority of civil legislations, the following also influence capacity: the quality of being baptized or unbaptized (v. BATTESIMO), the quality of being Catholic or non-Catholic (v. ACATTOLICO), the quality of being unmarried or widowed or married (a married person cannot contract another marriage, nor be validly admitted to the religious novitiate), the legitimacy or illegitimacy of birth (v. FIGLIAZIONE), belonging to one rite or another, the quality of cleric or layperson (and, in turn, the quality of minor or major cleric), the quality of religious, and various others.

Given that the personal qualities required by law for capacity vary in relation to the various juridical acts, there never exists an absolute capacity for all juridical relationships and for all juridical acts; however, an absolute incapacity does exist if, among the qualities that the law requires for capacity, there are one or more constant ones, that is, required jointly or alternatively for any relationship and act: which really happens in almost all civil legislations, which do not recognize any capacity (for any juridical relationship and for any juridical act) in one who is not at least born alive (for example, Italian and German legislation), or in one who is not born alive and viable (as in France). One who finds himself in such a situation does not have juridical personality, whereas he is a person who has at least that quality.

In canon law it is commonly asserted that the quality of being baptized is indispensable for the existence of personality in man, that is, it is held that anyone who has not received Baptism is devoid of any juridical capacity or capacity to act. But since there are juridical relationships, governed by canon law, of which even one who is not baptized can be the holder (for example, many juridical relationships of a patrimonial nature), and since, indeed, only the unbaptized person has the capacity to receive Baptism, it has recently been maintained that any homo viator (that is, a man living on this earth), including the animated fetus not yet [born], which has the capacity to receive Baptism (cf. can. 746) and moreover, although without practical importance, also Confirmation, and, if of the male sex, Orders, must be considered a person: with this caveat, that one who has received the sacrament of Baptism (Baptism of water) is a person in Ecclesia (cf. can. 87), while one who has not received it is a person extra Ecclesiam. It is understood that this holds for natural persons (men); whereas for juridical persons (associations, institutions, etc.) the principles regulating the existence of personality and therefore of capacity are different (v. PERSONA).

Extinction of capacity occurs, in modern law, only with death, given that all the other causes that affect it, even if they sometimes attenuate it considerably (as in canon law excommunication and solemn profession, in civil law interdiction), never have as their effect its complete extinction, as instead, in other epochs, so-called civil death did.

The extinction of capacity through death has always been admitted by theologians and canonists, who, from the 12th century onward (cf. citations in P. Ciprotti, p. 195, note 64) have deduced from it, for example, that a resurrected person must not be considered still bound by the marriage contracted in his first life.

In legal systems that admit the institution of presumption of death (v. PRESUNZIONI), even presumed death has as its effect the complete, but in itself not definitive, extinction of capacity.

Pio Ciprotti