The Concepts of Legal Capacity and Capacity to Act in the Law of Persons

Ehliyet Nedir?

For the legal abilities and possibilities granted to persons in law, ehliyet is the name given.

In our law, there are two types of capacity. One is legal capacity and the other is capacity to act.

Hak Ehliyeti

Turkish Civil Code Article 8 – “Every human being has legal capacity.
Accordingly, all persons are equal, within the limits of the legal order, in their capacity to hold rights and obligations.”

The first type of capacity is legal capacity. Legal capacity is, in short, the capacity to enjoy civil rights and to be subject to obligations. Legal capacity arises upon the acquisition of personality. For natural persons, personality is acquired directly on condition of being born alive and fully formed. Naturally, every natural person born alive and fully formed has legal capacity. The position is different for legal persons. Legal persons are entities, other than natural persons, that have the status of a person. For legal persons to have legal capacity and be regarded as persons, the law requires certain conditions to be met. These conditions are as follows: a group of persons or a body of assets must be organised, this organisation must be directed towards a permanent purpose, and the legal order must recognise this organisation as having the status of a legal person.

The conditions required for legal persons are, in brief, as follows:

• A group of persons or assets must be organised
• This organisation must be directed towards a permanent purpose
• This organisation must have been granted legal personality by the legal order

Capacity to Act and Its Scope

Turkish Civil Code Article 9 – “A person who has capacity to act may acquire rights and incur obligations through his or her own acts.”

Capacity to act refers to a person’s ability to acquire certain rights and incur obligations through acts performed by that person in accordance with their own will. We can examine capacity to act under three headings. These are:

1. Capacity to enter into legal transactions – contracts
2. Capacity to be held liable for torts
3. Capacity to sue and be sued

Capacity to perform legal transactions is a person’s ability, as a manifestation of his or her own will, to make himself or herself a right holder and to incur obligations by carrying out a legal transaction.

Capacity to be held liable for torts means that a person can be held liable for torts committed against another person. The concept of a tort may be explained as unlawful acts causing damage to a person or to their property.

Capacity to sue and be sued is the capacity of a person to bring an action alone or through an attorney, or to pursue an action as defendant, and also to perform procedural acts under procedural law. The point to note here is that capacity to sue and be sued must not be confused with capacity to be a party. Whereas capacity to be a party is acquired when a person is born alive and fully formed, capacity to sue and be sued requires the person to have capacity to act.

Conditions for Having Capacity to Act

Turkish Civil Code Article 10 – “Every adult person who has the capacity to discern and is not under restriction has capacity to act.”

As can be understood from the statutory provision, for a person to have capacity to act,

1. They must have the power of discernment
2. They must not be under a restriction of legal capacity
3. They must have attained majority

must satisfy these conditions. Where a person fails to meet one or more of these conditions, the legal position must be analysed separately in each case. We can examine these legal positions in four groups:

We consider it useful also to mention briefly the circumstances that remove the power of discernment and those that require restriction of legal capacity.

The Concept of Capacity of Discernment

Turkish Civil Code Article 13- “Every person who is not deprived of the ability to act rationally by reason of young age, mental illness, mental deficiency, intoxication or similar causes has the capacity to discern within the meaning of this Law.“

Capacity of discernment is a person’s ability to understand the causes and consequences of the acts and wishes they carry out, to perceive their scope and effects, and to act accordingly.

As mentioned above, persons who lack the capacity of discernment do not have capacity to act, that is, they are fully incapacitated, and they also lack the capacities that make up capacity to act, again mentioned above: the capacity to perform legal transactions, the capacity to sue and be sued, and the capacity to be liable for their torts.

Circumstances That Eliminate the Capacity of Discernment

Although the circumstances that remove the power of discernment are not expressly listed in the Law, we can infer the situations in which a person lacks the power of discernment by interpreting Article 13 of the Law a contrario. These are:

• Minority of Age
• Mental Illness
• Mental Deficiency
• Intoxication
• Benzer sebepler

These are grouped under five headings.

Grounds for Restriction

Restriction is the limitation by court decision of the capacity to act of an adult person, for the purpose of protecting that person, on the grounds and under the conditions provided for by law.

Turkish Civil Code No. 4721 sets out the grounds for restriction as follows: 1- mental illness or mental deficiency (Art. 405), 2- prodigality, alcohol or drug addiction, an immoral way of life or mismanagement of assets (Art. 406), 3- a custodial sentence (Art. 407), 4- restriction upon request (Art. 408).