LEGITTIMAZIONE AGLI ATTI GIURIDICI. — The l. to juridical acts or legal transactions (the terms juridical act and legal transaction are used interchangeably both in the CIC and in the Italian Civil Code) consists in the subject’s quality—one of the principal elements of the legal transaction itself—of being able validly and effectively to manifest his own will, either directly and personally or through another person directly or indirectly chosen by him (not, therefore, through a choice arising solely by force of law), with respect to a given juridical situation.
This l., which amounts to the adequacy of the subject himself, considered in the formal sense (that is, endowed not only with juridical or legal capacity but also with capacity to act [V. CAPACITÀ]), in relation to the other party interested in the legal transaction, does not necessarily coincide with l. in the substantive sense (legal or juridical capacity), although ordinarily in practice it is the same person who, endowed with juridical capacity, acts directly in his own name, with his own means and in his own interest, while also possessing the capacity, that is, the l. to act. The l. to juridical acts therefore, in itself, refers exclusively to capacity to act; it may be vested in the same subject who possesses juridical capacity, or be delegated by that subject (or by others on his behalf by force of law) to a representative, or be granted to a substitute. There is also an l. to juridical acts that may be called transactional (corresponding to the capacity to perform juridical acts and transactions both inter vivos and mortis causa), and one that may be called procedural (capacity to appear in court both as plaintiff and as defendant, and both in one’s own and in another’s interest).
Although every person is, by natural law, the subject of various genuine rights, it is clear that not everyone can exercise these rights or assert them personally; and this is so not only by positive law but also by natural law. The requirements indispensable for a person to be so authorized are often lacking for reasons arising from nature itself (as, for example, in one who has not attained a sufficient use of reason, or has subsequently lost it, or possesses it only intermittently), since the possibility, so to speak, of physically manifesting one’s own will is absent; moreover, qualities required by law are often lacking, for the purpose of safeguarding both the personal interest of the one deprived of the right to act personally (the typical case being the lack of l. to juridical acts in minors) and the sometimes greater interest of the common good. Accordingly, when a subject possesses all the requirements of natural and positive law for defending his own interests and juridically manifesting his will, he is said to be authorized to perform juridical acts or transactions. Likewise, in procedural matters, when a subject possesses all the prerequisites necessary to bring an action, he is said to be authorized to bring it (active l.); when he also possesses those required to direct it against the defendant, he is said to be authorized to bring it against the defendant or alleged offender (passive l.).
In cases in which the subject is not authorized to act, natural or positive law determines who must act in his place; but he himself (the subject), even when authorized to act, may choose others to act in his stead (the typical case being that of the procurator). Leaving aside natural law, generally confirmed explicitly by positive laws (e.g., in the case of parental authority), there are two principal forms of persons authorized to perform the juridical acts of others: the representative and the substitute. Both may be found in substantive juridical transactions or acts and in procedural ones. They are entirely distinct figures; the representative, in fact, exercises or defends a right that is not only another’s but also in another’s name, whereas the substitute does indeed defend another’s right, but in his own name and by virtue of the action belonging to him personally. It is obvious, therefore, that the qualifications required for l. differ in the two cases.
Both in the CIC and in Italian legislation, there are various cases of lack of l. to act; generally, they are represented by circumstances of age, sex, mental illness, legitimacy of birth, physical or merely moral personality, citizenship or baptism, restrictive penalties, and so forth.
In any event, it should be noted especially that the l. to juridical acts must be considered to reside in the person who in fact, in the ways permitted by law, expresses his will both in legal transactions and in procedural acts, regardless of whether he himself is the holder of the right in question. For the l. of offspring, V. PROLE.