CAPACITY. — It is the suitability or aptitude of a natural or juridical person to be the subject of a legal relationship, or the author or recipient of a legal act. These two aspects of capacity correspond to two denominations: in the first case, one speaks of legal capacity or capacity in the strict sense; in the second case, of capacity to act. However, the term “legal capacity” is also used in a generic sense to include both species of capacity.
Legal capacity in the strict sense, or capacity in the strict sense, is therefore the suitability of a person to be the subject of a legal relationship, i.e., to have a right (power, authority, faculty, etc.) or a legal duty (obligation, burden, etc.). If this capacity is considered, as it must be, in reference to the individual acts in which legal powers and duties are exercised, one must take into account, for capacity, both the power or duty to perform the act and the suitability of the subject to have the powers or duties that are the legal consequence of the act itself. That is, for the act to be valid, i.e., not null due to the incapacity of the subjects, it is necessary that the subjects have the capacity not only with regard to those powers or duties whose existence, prior to the act, is a necessary presupposition of the act (initial legal situations), but also with regard to those powers or duties that are the legal effect of the act (final legal situations); and this applies both to the authors of the act and to the recipients.
Thus, to limit ourselves to examples drawn from canon law, the administration of the sacraments, in order to be valid, requires that the minister have the necessary qualities to possess the power to administer them (e.g., the quality of bishop to confer major orders), and that the recipient have the necessary qualities to acquire those rights and obligations that are the consequence of the sacrament (e.g., the quality of being baptized and of the male sex, necessary 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 perform an act validly, i.e., to produce (provided that the other requirements, distinct from capacity, prescribed for that act are also met) the legal effects proper to that act, or to be the recipient of that act itself.
It is clear that a person cannot have capacity to act with regard to a given act if he does not have, with respect to it, legal capacity.
The converse, however, is not always true; it can happen, and indeed often does happen, that a person lacking capacity to act with respect to an act nevertheless has legal capacity, in which case he cannot perform the act validly except through another person (a representative).
Thus, for example, in contracts and generally in almost all legal acts that can be performed through a representative, a person who has not reached the age of majority (which in canon law, as in most civil legislations, is attained upon completion of the 21st year) does not have capacity to act, because he cannot perform the act validly; he does, however, have legal capacity, i.e., the suitability to
Capacity to perform an act (capacità giuridica) is the legal right necessary to perform the act and the rights and obligations arising from the contract (e.g., right of ownership, obligation to pay the price, etc., in a sale); and therefore one can perform the act only through a representative who is of legal age.
There are, however, acts in which the two types of capacity coincide, so that whoever lacks either of them also lacks the other. This occurs in all acts that cannot be performed through a representative (e.g., administration and reception of the Sacraments, testament, 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 conjugal act, not being in sacred orders, etc.) are necessary both for legal capacity and for the capacity to act, so that whoever lacks any of these cannot contract marriage, even through others, since they are necessary in order to become a spouse, i.e., to acquire that complex of rights and duties arising from marriage.
One also speaks of capacity with regard to unlawful acts, and in particular to crimes, because the law requires, for a crime to exist, that its author possess certain qualities (age, mental health, in canon law also being baptized, etc., and for many crimes, the quality of cleric or conversely of layperson, a certain sex, and so on); and for many crimes, it also requires certain qualities in the passive subject, i.e., in the victim of the crime (age, sex, quality of cleric, etc.), so that whoever does not possess all those qualities cannot respectively be the author or the passive subject of the crime (e.g., in canon law, the crime of rape does not exist if the victim is not a woman or a minor).
Not infrequently, the legal norms regulating personal capacity are based on the very nature of things, in that personal qualities which (for natural causes, or in canon law also supernatural ones) in fact render the performance of the act or the production of a legal effect possible or impossible, give rise to legal capacity or incapacity, whether juridical or to act, for that act; at other times, from lesser natural suitability, the law derives legal incapacity or incapacity to act; and at still other times, the law bases capacity or incapacity on purely legal (or statutory) grounds 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, the following should be noted: birth (for those legal systems, such as canon law, that recognize a—albeit limited—capacity in every living human being, even if not yet born), age, sex (v. DONNA; ERMARTIDTISMO), mental health and mental infirmity (v. INFERMITÀ), and the quality of being a natural person (man) or a juridical person (association or institution). In canon law, moreover, unlike most 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 single, widowed, or married (the married person cannot contract another marriage nor be validly admitted to the religious novitiate), the legitimacy or illegitimacy of birth (v. FILIAZIONE), membership in one or another rite, 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 relative to the various legal acts, there is never an absolute capacity for all legal relationships and all legal acts; however, there does exist an absolute incapacity if, among the qualities that the law requires for capacity, there are one or more that are constant, i.e., required jointly or alternatively for any relationship and act—which is what actually occurs in almost all civil legislations, which do not recognize any capacity (for any legal relationship or act) in one who is not at least born alive (e.g., Italian and German legislation), or in one who is not born alive and viable (as in France). Whoever finds themselves in such a situation lacks juridical personality, whereas whoever possesses at least that quality is a person.
In canon law it is commonly affirmed that indispensable for the existence of juridical personality in man is the quality of being baptized, it being held that whoever has not received Baptism is devoid of any juridical or active capacity. But since there are juridical relationships governed by canon law of which even an unbaptized person can be the subject (e.g., many patrimonial juridical relationships), and indeed the capacity to receive Baptism belongs only to the unbaptized, it has recently been argued that every living man (homo vivens) on earth, including the animated fetus not yet born who has the capacity to receive Baptism (cf. can. 746) and, though without practical importance, also Confirmation, and, if male, Holy Orders, must be considered a person—with the caveat that whoever has received the sacrament of Baptism (Baptism of water) is a person in the Church (cf. can. 87), while whoever has not received it is a person outside the Church. It is understood that this applies to natural persons (men); whereas for juridical persons (associations, institutions, etc.), other principles govern the existence of juridical personality and hence of capacity (v. PERSONA).
The extinction of capacity occurs, in modern law, only with death, since all other causes that influence it, even if they sometimes greatly attenuate it (such as in canon law excommunication and solemn profession, and in civil law interdiction), never have the effect of completely extinguishing it, as was the case in other eras with the so-called civil death.
The extinction of capacity upon death has always been admitted by theologians and canonists, who, since the 12th century (cf. citations in P. Cipriotti, p. 195, note 64), have deduced, for example, that a resuscitated person must not be considered still bound by the marriage contracted in the first life.
In legal systems that admit the institution of the presumption of death (v. PRESUNZIONE), even presumed death has the effect of completely, though not definitively, extinguishing capacity.