Academic journal article Contemporary Readings in Law and Social Justice

A Critical Assessment of the Incapacities of Exercise and Their Sanctions

Academic journal article Contemporary Readings in Law and Social Justice

A Critical Assessment of the Incapacities of Exercise and Their Sanctions

Article excerpt

1.Introductory Considerations

The concept of incapacity has a large acceptation that can cover more situations. As the sphere of incapacities uses own notions and distinctions, some authors speak about a general theory of incapacities.

Very generally, by incapacity we understand somebody's condition that has been lacked by law of the use or exercise of certain rights1. It is a legal inaptitude provided by law in a determined case. Our Organic Law at article53 par.(1) stipulates that: "The exercise of some rights or some liberties may be restricted only by law and only if it is necessary, according to the case, for: the defense of national security, of order and of health or of public ethics, of the citizens' rights and liberties; the development of the penal instruction, the prevention of the consequences of a natural calamity, of a disaster or of an extreme catastrophe."

Neither the Civil Code nor any other laws have established a special part for the incapacities; that is why being largely established it was necessary that the doctrine and the jurisprudence to build a so-called "law of incapacities."

On the other side, frequently the law of incapacities comes into collision with the security of the civil circuit and that is why it must be established a difficult equilibrium between the protection of the weak and the security of trade.

There is a lasting relation between personality and ability; both of them allow the legal activity. A plenary personality implies a complete capacity and vice versa: there where there is not a personality it could not exist capacity. Then, the general incapacity of using means the absence of personality2. There is, certainly, a difference between personality and capacity: "it is not enough you exist; you must also be able to take action that means just capacity. The disabled person is that who lives without the power to act completely by himself."

For a longer time the subject of incapacities is not more contained only in civil law, but it has extensions in (the) family law, (the) labor law, (the constitutional law) that irrigate all the other branches of law.

The subject of the incapacities of civil law has a direct connection with (the) goods law, with (the) legal obligations, with (the) successions etc. As it was often said, the 1864 Civil Code concerned more with the protection of patrimony than that of the disabled persons. But it could be kept in mind that incapacities keep the closest statements with the persons' law and the family law; but firstly with the persons' law because by incapacity it is disturbed even the person, his personality is diminished (certainly not in all cases).

As it has been shown in the doctrine, it must not be considered like incapacities of use some enclosing or limits that perform in other branches of law, for example, in (the) constitutional law, (the) administrative law, (the) labor law etc.

On the other side, incapacity cannot be mingled with the inalienability because this one refers to a good or a right that cannot be transferred by acts between living persons3, at the same time, neither with the unavailability that is a measure of suspension of the right of disposition concerning some goods, in order to maintain these ones in that respective person's inheritance; more generally, we shall not put the sign of equality between the incapacities (or one of them) and the limits of the law of property. At the same time, we must not confuse the incapacities of the civil law with those of the labor law, labor incapacities (partial, temporary or permanent ones). In this way, according to article 2572 Civil Code, the capacity of the physical person is governed by her national law, at the same time, the beginning and the ceasing of the legal personality too (article 2573 Civil Code).4

2.The Exceptional Feature of the Incapacities

This extremely important character is stated by the law that establishes that no one can be limited in his own capacity of use but in the cases and conditions stipulated by law [article 29 par. …

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