Juridical capacity is the capacity of being
part of a legal relationship, that is, to enjoy
rights and to be burdened by duties.
 Art. 1 of the Civil Code states that juridical
capacity is attributed to the human being
from the moment of birth and it lasts until
the moment of the person’s death.
 The law can set forth special juridical
incapacities for single legal relationships
(people can enter most labour contracts
only when they are 15 years old and
couples younger than 16 cannot marry).

The capacity to act (art. 2 c.c.) is the
capacity to manage and dispose of
rights, through contracts and other
juridical acts labeled “negozi giuridici”
under Italian Law (such as marriage, last
wills, contracts, etc.).
 “Negozi
giuridici”
according
to
traditional doctrine are defined as
“declarations of will to which the law
attaches effects consistent with the will
expressed”.
 According to a more modern view,
“negozi giuridici” are rather seen like
acts of self-regulation of private interests.

The purpose of the category is to build
up a general discipline for the main
“juridical acts” (as to the capacity to
act, the interpretation, the conditions the
parties can introduce in the act, its
invalidity, etc.).
 Nevertheless, its importance is mainly
theoretical and serves, above all,
didactical purposes.
 Therefore, its “use” will be very low during
the following classes.

The capacity to act is acquired when a
person becomes 18 years old: before this
age all juridical acts are carried out by one
or both parents, who exercise the so-called
“responsabilità genitoriale” (see art. 315 ff.
c.c.).
 If parents cannot exercise this power,
minors are represented by a tutor
appointed by the Court.
 Parents or tutors are legal representatives of
the minor: They can make in the name of
the minor all acts of ordinary administration,
while acts of extraordinary administration
must be authorized by the Court.

The dominant view classifies as acts of
extraordinary administration those that
imply a transfer of assets and not their
simple management.
 Art. 320, Paragraph 3, c.c. lists (among
the former) sale contracts, lease
contracts lasting more than 9 years,
loans
made
to
borrow
money,
mortgages given in favor of third parties,
acceptances of inheritance and of gifts,
settlements of disputes.




The capacity to act can be partially
attributed to a minor who is 16 or 17 years
old, when he or she marries, becoming a
“minore emancipato” (see art. 392 ff. c.c.).
An emancipated minor can carry out all acts
of ordinary administration alone, while the
acts of extraordinary administration require
the participation of his curator (the spouse if
18 years old, otherwise a person appointed
by the Court, if possible one the parents).
Acts of extraordinary administration must be
also authorized by the Court (as for other
minors).
The capacity to act can be totally
paralyzed in the interest of the person
who becomes unable to manage her
assets with the deprivation procedure
(“interdizione”).
 This situation occurs when a person is
severely impaired on an habitual basis in
her mental ability to make decisions (art.
414 ff. c.c.).
 The person deprived of her capacity to
act is represented by a tutor appointed
by the Court.


The capacity to act can be partially
paralyzed with the disability procedure
(“inabilitazione”), when the person:
a)suffers from a mental impairment not so
severe as the ones leading to deprivation;
b)abuses of alcohol or drugs;
c)is very prodigal and then creates a risk of
serious economic losses to herself or her
family;
d)has been deaf of blind since her birth or a
young age, and has not been sufficiently
trained to overcome the impairment.
The tutor totally substitutes himself in the
expression of the will of the person (as
happens in the case of the minor of age).
 The curator only assists the disabled person
for the acts going beyond the ordinary
administration (as happens in the case of
the emancipated minor).
 In these cases too, the acts of extraordinary
administration must be authorized by the
Court.
 (But see art. 427, Para 1, for exceptions to
the said rules, enacted under the influence
of the “support administration” procedure).

The Law no. 6/2004 introduced into the
Civil Code the support administration
procedure
(“amministrazione
di
sostegno”).
 This new
procedure is for cases of
impairment or physical or mental
handicaps hindering the person in the
management of her assets (see art. 404
ff. c.c.).
 Support’s Administration is much more
flexible than the deprivation and the
disability procedures.

First, deprivation and disability are applied
or revoked through a judgment issued at
the end of a full and formal lawsuit, while
support administration is left to a simple
decree of the Court that can easily be
enacted and modified.
 Second, the decree states for which
specific acts the participation of the
administrator is necessary and is therefore
much more flexible (and adaptable).
 Third, the administrator is appointed for a
limited period of time after which there is a
new assessment of the situation.

The violation of the said rules brings about
the voidability of the juridical act at stake
(usually, but not necessarily, a contract).
 Therefore, its effects can be removed by an
action brought by the person who takes
care of the interests of the incapable
person, by the latter when the cause of
incapability has been ceased or by her
heirs or her beneficiaries.
 Nevertheless, art. 1426 c.c. sets forth an
exception for the minor of age who has
entered a contract simulating to be of age.

All the cases listed so far are about legal
incapacity to act, as they are permanent
limitations of that capacity.
 What if a minor is mature enough to
manage his interests or a person deprived
of her capacity to act has a moment of
clearness of mind?
 What if a person of age and not deprived
of her capacity is not capable of
understanding the consequences of her
actions and to carry out them voluntarily?

In the last case there is only a natural
incapacity to act, which leads to the
voidability of:
a) contracts,
whether
they
seriously
damage the author of the act and the
counterpart is in bad faith (art. 428 c.c.);
b) unilateral acts inter vivos having an
economic
content
whether
they
seriously damage the author of the act
(art. 428 c.c.);
c) juridical acts other than the ones under
b) and c) when expressly stated by the
law (see art 120 for marriage, art. 591 for
last wills acts and art. 775 for gifts).
