Chapter 5 : Legal Capacity

Question 1

Deeply describe the ability to bear rights and duties as a passive ability. Include
the type of person,non-dependence factor and where it stems from

Answer 1

1) Natural and juristic persons have legal capacity on the bases that as legal subjects
they can be bearers of rights and duties.

2)This is a passive capacity, and it stems
from their respective personality and is not dependent upon their:

2.1) Age
2.2) Status

Question 2

Active capacity on the basis of juristic act.
Not all persons have the capacity to act in order to:

Answer 2

1) Create

2) Alter

3) Destroy

Question 3

This is an active capacity, and it is dependent on the persons:

Answer 3

1) Status

2) Age (infans → no capacity to perform a juristic act.)

3) Mental competence

Question 4

Contractual capacity

Answer 4

1) Refers to the competence of creating rights and duties by concluding a contract
with another person/s.

2) Contract is the conclusion of a bi/multilateral juristic act.

3) Capacity to contract is one aspect of the wider capacity to perform juristic acts

Question 5

Natural persons

Answer 5

Have passive legal capacity however their status may differ depending on their
attributes for example age and circumstances.

Question 6

Natural persons can be classified
into three groups.

Answer 6

1) Persons without contractual capacity.

2) Persons with a limited contractual capacity.

3) Persons with full contractual capacity

Question 7

Persons without contractual capacity

Answer 7

1) A person whose mental faculties are so undeveloped or impaired that they cannot
appreciate the nature and consequences of their acts are entirely without contractual capacity

Question 8

List 3 examples of natural persons without contractual capacity

Answer 8

1) Infants

2) People who are mentally ill

3) People who are severely under the influence of alcohol or drugs

Question 9

Describe what this is and if the minor had full contractual capacity

Answer 9

1) In some cases, a minor is considered ‘emancipated’, meaning they can act independently in certain transactions with the express or tacit consent of their guardian.

2) However, this does not grant the minor full contractual capacity for all actions

Question 10

Note the cases in which a minor may conclude a contract without assistance.
Give an example

Answer 10

1) A minor can conclude a contract without guardian assistance if the contract
only grants rights and no duties.

2) For example acceptance of a donation.

3) There are also statutory exceptions where guardian assistance is not required

Question 11

When the P/G refuses how can the minor obtain consent?

Answer 11

1) Even if a contract is concluded with the assistance of a guardian, the minor
can escape liability if the contract was prejudicial to them at the time of
conclusion.

1.2) The court can set aside the contract and order restitution of
both parties to their pre-contract positions.

2) Upon attaining majority, the minor can choose to repudiate or ratify any
contract concluded during minority without the necessary guardian
assistance.

2.2) If the minor acted without the necessary assistance or consent,
the contract cannot be enforced against the minor but can be enforced
against the other party.

3) Under the Consumer Protection Act, a transaction with an unemancipated
minor is voidable at the minor’s election, unless it was made or ratified with
the consent of a responsible adult or the minor upon attaining majority.

Question 12

Contracts concluded without assistance

Answer 12

Voidable

Question 13

1) HC (the upper guardian) can consent if the P/G refuses.

HC can also set aside consent
Minors bound by the consent but contract can be set aside if proven that the
contract is prejudicial to the minor.

Answer 13

1) Remedies for minor contract →
Restitutio in integrum

2) Return parties to position that they were in before contracting. This can be done
even if the P/G assisted, if contract was prejudicial to minor.

3) However this will be denied of the minor pretended to be a major at the conclusion
of the contract

Question 14

Insolvency does not by default destroy your ability to have contractual capacity,
when does insolvency start to limit your contractual capacity

Answer 14

1) Only once a court has granted an order of insolvency placing the person’s estate under
sequestration is his/her capacity limited

2) During sequestration, the insolvent person may still validly enter into contracts provided that that person does not purport to dispose of any assets of the insolvent estate

Question 14

Describe how the Matrimonial property Act limits the right of contracting in certain
circumstance:

Answer 14

1) Selling or pledging household furniture, or donating any asset of the
joint estate,

2) Withdrawing money from the other spouses bank account, or selling shares
or investments

3) Selling or encumbering immovable property or binding oneself as surety

Question 15

Prodigal

Answer 15

1) A prodigal is a person with normal mental ability who irresponsibly squanders their assets, threatening to reduce themselves and dependents to poverty.

2) A court can declare such a
person a prodigal, limiting their contractual capacity to that of a minor.

Question 16

Curatorship:

Answer 16

1) The administration of a prodigal’s estate is placed under a curator.

2) The curator’s assistance and consent are required for any contract that imposes obligations on the prodigal.

Question 17

Curatorship for Disabled or Ill Persons:

Answer 17

1) Persons unable to manage their
own affairs due to reasons like disability or illness may be placed under curatorship by a court order.

Question 18

Person with full contractual capacity

Answer 18

1) Subject to various statutory provisions, such as person who is guilty of fraud, being disqualified from being appointed as a company director

Question 19

The State and its various organs have contractual capacity

Answer 19

1) State cannot contract out of its powers and responsibilities.

2) The State’s ability to contract freely is limited owing to various regulations,
most notably tender procedures