2. Person's Law Flashcards
(45 cards)
Personality rights
They are fundamental rights, and they comprise different manifestations of human dignity.
To be subject of rights and obligations
it is necessary to be a person.
Personality is acquired…
…at the time of birth.
Thus, a human being before birth does not have legal personality.
For an unborn person,
they are considered as born for all aspects that are favourable to them (e.g. receive donations, or receive property of things).
This was approved to protect the person conceived but not yet born (nasciturus), without actually recognising personality.
Civil/natural capacity is
the capacity to hold legal rights and obligations.
Nobody can be deprived of civil capacity.
Civil capacity starts and ends:
Starts with birth, and ends with death. Both have to be recorded in the Civil Registry.
Legal capacity: definition; when is it acquired
Capacity to manage and exercise the rights and obligations that the person holds.
Acquired at 18 years old. The person comes out of paternal power/tutorship.
A person with civil capacity but no legal capacity
They need a representative to act on their behalf in order for his actions to have civil effects.
This legal representative is appointed by law.
Minors:
They have civil capacity but no legal capacity.
Their representatives are their parents: paternal power.
A person with civil capacity can…
…enter into binding contracts or commit other legal acts.
Legal capacity is limited when
a person cannot undertake by themselves acts with legal effects.
e.g. some incapacitated persons.
These special cases have to be expressly stated and should be restrictively interpreted.
Special capacity is required
to perform some legal acts, because there are cases where it is considered that it is necessary to have a special ability to execute them.
e.g. to be 25 years old in order to adopt children.
Existence of prohibitions
Prohibition to carry out some acts by some specific persons who, in principle, would have the necessary capacity to execute them.
These prohibitions are set by law.
Reasoning: the person has special relation with the act to be performed, and therefore there is a conflict of interests.
Minors can give consent.
FALSE
They have to be represented by their parents in order to use their rights and to bind the minor’s patrimony.
Minors have no legal capacity
FALSE
They acquire their legal capacity gradually.
With times, manors can do things on their own (e.g. a 15 year old buys a pen).
Minors can validly contract in cases of little economic weight due to their characteristic are normal of their age, and are in accordance with the social usages.
TRUE
e.g. yes a pen, no an apartment.
The minors opinion is taken into account:
· Consent is necessary in order to enter into contracts that oblige the child to perform personal services.
· at 12 y/o, they give consent to be adopted.
at 16 y/o, they can administer the properties and goods that they have acquired through their work.
Definition emancipation
Means release from the power of control of somebody. They have the status of a person of full legal age.
The emancipated minor has the status of a person of full legal age.
TRUE, but with 2 exceptions:
a) They cannot borrow money.
b) They cannot encumber or sell immovable property, commercial, and industrial establishments, nor goods of an extraordinary value.
They cannot do these without the parental or the curator’s consent.
Emancipation can only be given to children of
16 y/o or older.
Emancipation status can be acquired through different ways:
a) Granted by parents.
It requires the minor’s consent in a public deed, or the authorisation of a judge.
b) Granted by a judge.
The child asks for it to the judge, and they will grant it if:
i) the parent exercising the paternal power remarries.
ii) the parents live apart.
iii) there is a cause that gravely hinders paternal power.
iv) minor is under tutorship. (if granted in this case, it is call legal age benefit).
c) Marriage.
Very exceptional, as only emancipated minors can marry. Thus, the only possibility of emancipation through marriage happens when the minor obtains from a judge an age dispensation to marry (from 14 y/o).
d) Independent economic life from parents.
The child has to be economically autonomous from the parents.
Definition incapacitation
Limitation or deprivation of a person’s legal capacity by a judge because the person is impaired by a mental or physical impossibility to understand the consequences of their acts.
A person can only be incapacitated if
they suffer from a persistent disease or deficiency of a physical or mental nature that impedes the person from governing themselves.
[mental illness/deficiency, physical illness/disability, advanced age, chronic use of drugs, or other anomalies].
The acts performed by an incapacitated person
are voidable. This means that they are initially valid, but can be declared void if timely challenged due to the lack of the necessary legal capacity.
