CAPACITY. – It is the suitability or aptitude of a natural or juridical person to be the subject of a juridical relationship, or the author or recipient of a juridical act. These two aspects of c. correspond to two designations: in the first case one speaks of juridical capacity or capacity of rights, and in the second of capacity to act; but the term “juridical capacity” is also used in a generic sense to include both kinds of c.
Juridical capacity in the strict sense, or capacity of rights, is therefore the suitability 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 this c. is considered, as it necessarily must be, with reference to the individual acts in which juridical powers and duties are exercised, both the power or duty to perform the act and the subject’s suitability or lack thereof to possess the powers or duties that are the juridical consequence of the act itself must be taken into account for c.; that is, for the act to be valid, or not null on account of the incapacity of the subjects, it is necessary that the subjects possess c. not only with regard to those powers or duties whose existence, prior to the act, is a necessary presupposition of it (initial juridical situations), but also with regard to those powers or duties that are its juridical effect (final juridical situations); and this applies both to the authors of the act and to its recipients.
Thus, to confine ourselves to examples drawn from canon law, the administration of the Sacraments, in order to be valid, requires that the person administering them possess the qualities necessary to have the power to administer them (e.g., the quality of bishop in order to confer Major Orders), and that the person receiving them possess the qualities necessary to acquire those rights and obligations that are the consequence of the Sacrament (e.g., the quality of being baptized and the male sex, necessary in order to acquire the power of Orders deriving from the sacrament of Orders).
Capacity to act exists instead when a person possesses all the (personal) qualities required by law in order to perform an act validly, that is, producing (provided that the other requirements, distinct from c., prescribed for that act are also present) the juridical effects proper to that act, or in order to be the recipient of that act itself.
It is clear that, with regard to a particular act, a person who lacks juridical capacity in relation to it cannot have capacity to act.
The converse, however, is not always true; that is, it may happen, and indeed often does happen, that a person who lacks capacity to act with regard to an act nevertheless possesses 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 may be performed through a representative, a person who has not attained majority (which in canon law, as in a large part of civil legislation, is reached upon completion of the twenty-first year) does not have capacity to act, because he cannot validly perform the act; he does, however, have juridical capacity, that is, the suitability to be
the holder of the right necessary to perform the act and of the rights and obligations arising from the contract (e.g., the right of ownership, the obligation to pay the price, etc., in a sale); and therefore he may perform the act only through a representative who has reached majority.
There are, however, acts in which the two kinds of c. coincide, so that one who lacks either of them also lacks the other. This occurs in all acts that cannot be performed through a representative (e.g., the administration and reception of the Sacraments, a will, the taking of vows, etc.), and in various others determined by law.
In marriage, for example, the various personal qualities required of the two contracting parties (age, the possibility of performing intercourse, not being a cleric in sacris, etc.) are necessary both for juridical capacity and for capacity to act, so that a person lacking any one of them cannot contract marriage, not even through another, since they are necessary in order to become a spouse, that is, to acquire the complex of rights and duties arising from marriage.
Capacity is also discussed with regard to unlawful acts and, in particular, offenses, because the law requires, for an offense to exist, that its author possess certain qualities (age, mental soundness, and in canon law also being baptized, etc.; and, for many offenses, the quality of cleric or, conversely, of layperson, a particular sex, and so forth); and, for many offenses, it also requires certain qualities in the passive subject, that is, in the victim of the offense (age, sex, the quality of cleric, etc.); so that a person who does not possess all those qualities cannot respectively be the author or passive subject of the offense (e.g., in canon law there is no offense of abduction if the victim is not a woman or an impubescent).
Not infrequently, the juridical rules governing the c. of persons are founded on the very nature of things, insofar as the law derives juridical capacity or incapacity, or capacity or incapacity to act, for a given act from personal qualities which (for natural causes, or, in canon law, also supernatural ones) render the performance of the act or the production of a juridical effect actually possible or impossible; at other times, the law derives juridical incapacity or incapacity to act from lesser natural aptitude; finally, at other times, the law bases the c. or incapacity of persons on purely juridical (or legal) causes, according to criteria of justice or expediency.
Among the causes that most influence c., in the sense of making a person capable or incapable of performing many acts, the following should be noted: birth (under those legal systems which, like canon law, recognize a limited c. even in every living human being who has not yet been born), age, sex (v. DONNA; EBMAFRODITISMO), mental soundness and mental illness (v. INFERMITÀ), and the status of a natural person (human being) or juridical person (association or institution). In canon law, moreover, unlike most civil legal systems, the following also influence c.: the status of being baptized or unbaptized (v. BATTESIMO), the status of being Catholic or non-Catholic (v. ACATTOLICO), the status of being unmarried, widowed, or married (a married person cannot contract another marriage or be validly admitted to the religious novitiate), the legitimacy or illegitimacy of birth (v. AFFILIAZIONE), membership in one rite or another, the status of cleric or layperson (and, in turn, the status of minor or major cleric), the status of religious, and various others.
Since the personal qualities required by law for c. vary in relation to the various juridical acts, there is never an absolute c. for all juridical relationships and all juridical acts; there is, however, absolute incapacity if among the qualities that the law requires for c. there are one or more that are constant, that is, required jointly or alternatively for any relationship and act: and this in fact occurs in almost all civil legal systems, which recognize no c. (for any juridical relationship or any juridical act) in one who has not at least been born alive (e.g., Italian and German legislation), or in one who has not been born alive and viable (as in France). A person in such a situation does not possess juridical personality, whereas one who possesses at least that quality is a person.
In canon law it is commonly asserted that the quality of being baptized is indispensable for the existence of personality in a human being, that is, it is held that anyone who has not received Baptism lacks any legal capacity or capacity to act. But since there are legal relationships governed by canon law of which even someone who is not baptized may be the holder (e.g., many proprietary legal relationships), and indeed only the unbaptized person has the capacity to receive Baptism, it has recently been maintained that every homo viator (that is, every human being living on this earth), including the living fetus not yet born, which has the capacity to receive Baptism (cf. can. 746), and, moreover, although without practical importance, Confirmation and, if male, Orders, must also be regarded as a person: with this qualification, that whoever 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 applies to physical persons (human beings); whereas, for juridical persons (associations, institutions, etc.), different principles govern the existence of personality and therefore of capacity (v. PERSONA).
In modern law, the extinction of capacity occurs only upon death, since all the other causes affecting it, even when they sometimes considerably diminish it (as excommunication and solemn profession do in canon law, and interdiction in civil law), never have the effect of completely extinguishing it, as so-called civil death did in other periods.
The extinction of capacity through death has always been accepted by theologians and canonists, who, from as early as the twelfth century (cf. citations in P. Ciprotti, p. 195, note 64), deduced, for example, that a person restored to life should not still be considered bound by the marriage contracted during the first life.
In legal systems that recognize the institution of presumed death (v. PRESUNZIONE), presumed death likewise has the effect of completely, but in itself not definitively, extinguishing capacity.