LEGITIMATION FOR LEGAL ACTS. - Legitimation for juridical acts or transactions (the terms act or juridical transaction are used interchangeably both in the CIC and in the Italian Civil Code) consists in the quality of the subject (one of the principal elements of the juridical transaction itself) of being able validly to manifest, and with effect, his own will, either directly and personally or through another person chosen by him directly or indirectly (and therefore not through a choice made solely by force of law), with respect to a determinate juridical situation.
This legitimation, which amounts to the adequacy of the subject himself considered in the formal sense (that is, invested not only with juridical or legal capacity but also with the capacity to act [v. CAPACITY]) with respect 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 concrete fact it is the same person who, invested with juridical capacity, acts directly in his own name, with his own means and in his own interest, also having the capacity, that is, the legitimation to act. Legitimation for juridical acts, therefore, in itself refers exclusively to the capacity to act; it can be attributed to the same subject who has juridical capacity, or be delegated by him (or by others on his behalf by force of law) to a representative, or be granted to a substitute. There is, moreover, a legitimation for juridical acts that may be called transactional (corresponding to the capacity to perform acts and juridical transactions both inter vivos and mortis causa), and one that may be called procedural (the capacity to stand in judgment both as plaintiff and as defendant, and both in one's own interest and in that of another).
Although every person is by natural right the subject of various and true rights, it is clear that not all can exercise these rights or assert them personally; and this not only by positive law but also by natural law. The requisites, in fact, indispensable for one to be legitimated to do so, are often lacking for reasons that are themselves natural (as, for example, in one who has not reached a sufficient use of reason, or has lost it subsequently or has it only at intervals), there being lacking the possibility, so to speak, of physically manifesting one's own will; moreover, qualities are often also lacking that the law requires for the purpose of safeguarding both the personal interest of the one who is deprived of the right to act personally (a typical case being the lack of legitimation for juridical acts in minors), and the interest, at times greater, of the common good. Accordingly, when a subject has all the requisites of natural law and of positive law to defend his own interests and juridically to manifest his own will, he is said to be legitimated for juridical acts or transactions. Also in procedural matters, when the subject is invested with all the presuppositions necessary 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 be able to direct it against the defendant, he is said to be legitimated to bring it against the defendant or presumed offender (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 he is legitimated to act, may choose others to act in his place (a typical case being that of the procurator). Setting aside natural law, which is generally explicitly confirmed by positive laws (for example, in the case of the parental authority of parents), there can be two principal figures of those legitimated for the juridical acts of others, namely the representative and the substitute. Both the one and the other can be found in substantive juridical transactions or acts and in procedural ones. They are completely distinct figures; the representative in fact exercises or defends a right not only of another but also in the name of another, whereas the substitute defends a right of another but in his own name and by virtue of the action that belongs to him himself. And it is obvious that the qualities required for legitimation differ in the one and in the other.
Both in the CIC and in Italian legislation there are various cases of defect of legitimation to act; generally they are represented by circumstances of age, of sex, of mental infirmity, of legitimacy of birth, of physical or merely moral personality, of citizenship or of baptism, of restrictive penalties, etc.
In any case, it is to be noted particularly that legitimation for juridical acts must be considered in the one who in fact, in the ways admitted by law, expresses his will, both in juridical transactions and in procedural acts, whether or not he himself is the holder of the right in question. For the legitimation of offspring, v. OFFSPRING.