Legitimation to Perform Juridical Acts
Legitimation to perform juridical acts or juridical transactions (the terms *atto* or *negozio giuridico* are used interchangeably in both the Code of Canon Law and the Italian Civil Code) consists in the quality of the subject (one of the principal elements of the juridical transaction itself) to be able validly to manifest, and with effect, his own will, either directly and personally or through another person chosen by him directly or indirectly (not therefore by a choice made solely by force of law) with respect to a determined juridical situation.
This legitimation, which is equivalent to the formal adequacy of the subject (that is, clothed not only with juridical capacity or right but also with the capacity to act [V. CAPACITY]) in relation to the other party interested in the juridical transaction, does not necessarily coincide with legitimation in the substantive sense (capacity of right or juridical capacity), although ordinarily in concreto it is the same person who, clothed with juridical capacity, acts directly in his own name, with his own means and in his own interest, having also the capacity, that is, the legitimation to act. Legitimation to perform juridical acts therefore, in itself, refers exclusively to the capacity to act; it may be attributed to the same subject who has juridical capacity, or be entrusted by him (or by others on his behalf by force of law) to a representative, or be granted to a substitute. There is then a legitimation to perform juridical acts which may be called *negocial* (corresponding to the capacity to perform juridical acts and transactions both *inter vivos* and *mortis causa*), and one which may be called *processual* (capacity to appear in judgment both as plaintiff and as defendant, and in one’s own as well as in another’s interest).
Although every person is by natural law the subject of various and true rights, it is clear that not all can exercise these rights or make them effective personally; and this not only by positive law but also by natural law. The requisites, in fact, indispensable for one to be so legitimated, often are lacking for causes themselves natural (as, for example, in one who has not attained sufficient use of reason, or has lost it subsequently or has it only intermittently), lacking the possibility, so to speak, fixed of manifesting a personal will; moreover, qualities which the law requires for the purpose of safeguarding both the interest of the one deprived of the right to act personally (typical case the lack of legitimation to perform juridical acts in minors) and, at times, the greater interest of the common good, often are lacking. Therefore, when a subject has all the requisites of natural and positive law to defend his own interests and juridically manifest his own will, he is said to be legitimated to perform juridical acts or juridical transactions. Also in procedural matters, when the subject is clothed with all the necessary presuppositions to be able to bring an action, he is said to be legitimated to bring it (active legitimation); when he also has those required to direct it against the defendant, he is said to be legitimated to bring it against the defendant or presumed guilty (passive legitimation).
In cases in which the subject is not legitimated to act, natural or positive law determines who must act in his stead; but he himself (the subject), even when legitimated to act, may choose others to act in his stead (typical case that of the attorney). Apart from natural law, generally explicitly confirmed by positive laws (e.g., in the case of parental authority of parents), there may be two principal figures of those legitimated to perform juridical acts for others, namely the representative and the substitute. Both may
1077 LEGITIMATION TO PERFORM JURIDICAL ACTS – LEGITIMACY 1078
be found in juridical acts or transactions substantive and in those procedural. They are completely distinct figures; the representative in fact exercises or defends a right which is not only another’s but also in another’s name, the substitute on the other hand defends or exercises another’s right but in his own name and by virtue of the action which belongs to him. And it is obvious that different are the qualities required for legitimation in the one and in the other.
Both in the Code of Canon Law and in Italian legislation there are various cases of lack of legitimation to act; generally they are represented by circumstances of age, sex, mental infirmity, legitimacy of birth, physical or only moral personality, citizenship or baptism, restrictive penalties, etc.
It must be noted in particular, however, that legitimation to perform juridical acts must be considered in one who in fact, in the ways admitted by law, expresses, both in juridical transactions and in procedural acts, his will, whether or not he himself is the titular of the right in question. For the legitimation of offspring, V. OFFSPRING.