Restrictions on Active Legal Capacity

• Author: Paul Varul, Anu Avi, Triin Kivisild
• Pages: 99-107

Paul Varul, Anu Avi, Triin Kivisild

Restrictions on Active Legal Capacity

1. Introduction

In connection with the strengthening and enlargement of the European Union, the development of EU law and its harmonisation with the national law of the member states becomes increasingly important and topical. Harmonised regulation is particularly necessary in areas relevant to communication between persons from different states. Contract law, for which many model laws have been drafted¹ and which also has a central role in the European Civil Code currently being prepared, has been in the foreground for good reason. In relation to contract law, consumer protection law has been the focus of European Union law, so as to ensure the equal and fair treatment of consumers. Estonia's new civil law was drafted in great consideration of these developments in European law, particularly as regards the General Part of the Civil Code Act² (GPCCA) and the Law of Obligations Act³ (LOA), which entered into force on 1 July 2002. The active legal capacity of natural persons is an area to which adequate attention has not yet been paid from the standpoint of harmonisation of the law of the various EU member states. In connection with the principle of free movement of persons, capital, goods, and services in the EU, more attention should be paid to the issues concerning the active legal capacity of natural persons and ways to harmonise the relevant regulation. In particular, this concerns protection of the rights of persons with restricted active legal capacity, but it also relates to protection of the rights of any party who enters into a transaction with such a person. Major development has occurred in Estonia in this area. The GPCCA effective since 1 July 2002 replaced the former GPCCA, which entered into force on 1 September 1994⁴ (referred to below as the former GPCCA), whereas one of the main changes introduced in the new act of Parliament, which is a supplemented version of the former GPCCA, is the amended regulation of the active legal capacity of natural persons.

The purpose of this article is to analyse regulation concerning the restricted active legal capacity of natural persons in Estonia, based on the major legal amendments of 2002; the article also compares the Estonian law in this area with that of other European Union states and makes proposals for harmonisation of the regulation within the European Union. The relevant regulation of any particular state cannot be analysed in greater detail in this article. Therefore, the examples of particular states are discussed only insofar as necessary for general conclusions. The legal systems compared are: the Germanic family of law, the Roman family of law and common law, as well as Scandinavian law. The aim of the authors is to develop discussion in this area, which could contribute to the prospective harmonisation of regulation related to restricted active legal capacity in the European Union.

2. Persons with restricted active legal capacity and persons without active legal capacity

2.1. Bases for definition of active legal capacity

The concept of active legal capacity pertains to the ability to carry out transactions. GPCCA § 8 (1) provides the following definition of active legal capacity: 'Active legal capacity of a natural person is the capacity to enter independently into valid transactions'. As a transaction is an act of will, it is important that a person understand what he or she is doing and what the consequences of the act are. The ability to understand the meaning of one's actions depends on the mental status of the person, his or her intellectual capacity. It is therefore important for a person who enters into a transaction to have reached a certain minimum level of intelligence and mental maturity⁵.Thewilful act of a person who has reached such a level is recognised by the legal order, and the person is regarded as having active legal capacity. Primarily, the establishment of active legal capacity serves the purpose of protecting mentally immature or undeveloped persons. Mental maturity mainly correlates with age. The generally recognised rule in all the legal systems considered in this article is the prescription of a certain age at which the person acquires full active legal capacity. All people acquire active legal capacity by virtue of age, although their individual capacity to conduct transactions is different. There is also a generally recognised exception to this general rule -- persons who are mentally inadequate for certain transactions, particularly due to mental illness or mental disability, and who are permanently in such a state, do not have full active legal capacity. There are thus two generally recognised reasons for a person not having full active legal capacity: minority and a permanent mental disorder. Persons with full active legal capacity and persons without full active legal capacity can thus be distinguished in terms of active legal capacity. The latter in turn may be divided into persons without active legal capacity and persons with restricted active legal capacity, depending on the legal system.

2.2. Restrictions on active legal capacity due to age

As mentioned above, the active legal capacity of a person is related to the achievement of a certain physical and mental maturity. An adult person has active legal capacity. There are differences between the various legal systems considered here only as to the age from which a person is considered adult and having active legal capacity. According to GPCCA § 8 (2), this age is 18 years. This seems to be the most common age, as the same has been established in Germany (BGB § 2), France (Code Civil art. 388), Italy (CodiceCivile art. 2), and the Netherlands (BW art. 1:234), as well as Sweden, Finland, and Denmark⁶. However, there are other age limits; for example, in Austria, adulthood is deemed to start at 19 years of age (ABGB § 21), and it starts at 20 years of age (ZGB art. 14) in Switzerland. However, the general trend has been a lowering of the age limit in countries where it has been over 18 years. For example, the age of majority was lowered from 21 to 18 years of age in England in the course of the family law reform (Family Law Reform Act, 1969). The English Law Commission has recommended lowering it even further, to 16 years, but the proposal was declined on the recommendation of experts⁷.

Until the end of 1974, a person acquired full active legal capacity in Germany at the age of 21. It has been opined that the limit of 18 is too low for some transactions, such as purchasing expensive but quickly consumed things with a hire purchase obligation of several years or providing surety for a large amount of money⁸. There is a general minimum limit for adulthood. It is clear that 18-year-olds and older persons differ in intellectual capacity. Other grounds for the voidness and cancellation of transactions offer certain protection, but differentiation by age for performance of different kinds of transactions by those older than 18 would not be justified, as the basis in such a case would more appropriately be the criterion of individual development.

Setting of the age of majority is largely a legal policy issue. Based on the limit established in most European countries, it would be reasonable to consider the age of 18 as the beginning of adulthood and acquisition of active legal capacity in the EU states.

While in a majority of the countries considered a minor has restricted active legal capacity until adulthood, minors have no active legal capacity in states belonging to the Germanic family of law. In Germany (BGB § 104 (1)) and Austria (ABGB § 865), a child has no active legal capacity until the age of seven. In Greece (Civil Code § 128), the age is 10. Also, in Estonia, according to § 11 of the former GPCCA, a child did not have active legal capacity until the age of seven; the provisions was amended with effect from 2002, and according to GPCCA § 8 (2), persons who are under 18 years of age have restricted active legal capacity. The amendment was based on the conclusion that drawing a line for an age limit under which a minor has no active legal capacity whatsoever is arbitrary and subjective; neither is there any special practical need for such a limit. Whether a child has no active legal capacity or restricted active legal capacity is irrelevant at a very young age. If a child has a restricted active legal capacity from birth, this does not damage his or her rights; the interests of a child who has no active legal capacity are no better protected. The protection of a minor with restricted active legal capacity should be sufficient also for children under the age of seven -- as a rule, such a child may conduct transactions with the consent of his or her lawful representative, while the legal representative may carry out transactions on behalf of the minor. Rather, there is a danger that for example, a 12-year-old boy who is capable of conducting a transaction damages himself more by the transaction than does a six-year-old, who is not capable of carrying out any serious transactions anyway. Similar protection would suffice in both cases. The problem is not so much that children under seven should be protected more but that supplementary active legal capacity should be given by way of exceptions to older minors who...