{"id":179,"date":"2022-08-18T09:00:00","date_gmt":"2022-08-18T09:00:00","guid":{"rendered":"https:\/\/utuhukuk.com\/kisiler-hukuku-bakimindan-hak-ehliyeti-ve-fiil-ehliyeti-kavramlari\/"},"modified":"2026-10-01T14:07:43","modified_gmt":"2026-10-01T14:07:43","slug":"concepts-legal-capacity-capacity-act-law-persons","status":"publish","type":"post","link":"https:\/\/utuhukuk.com\/en\/kisiler-hukuku-bakimindan-hak-ehliyeti-ve-fiil-ehliyeti-kavramlari\/","title":{"rendered":"The Concepts of Legal Capacity and Capacity to Act in the Law of Persons"},"content":{"rendered":"<div class=\"pm\" data-utu-pm=\"1\">\n<p class=\"pm-giris\">One of the fundamental concepts of the law of persons, <strong>hak ve fiil ehliyeti<\/strong>, determines whether a person can hold rights and acquire rights and incur obligations through his or her own acts. In this article, we will first answer the question of what capacity is and then examine the types of capacity. The source of this article is the Turkish Civil Code No. 4721.<\/p>\n<aside class=\"pm-ozet\" aria-label=\"In brief\">\n<p class=\"pm-etiket\">In brief<\/p>\n<ul>\n<li>In law, the legal capacities and possibilities granted to persons are called capacity; there are two types of capacity: legal capacity and capacity to act.<\/li>\n<li>Legal capacity is the capacity to have rights and obligations; natural persons acquire it upon being born fully and alive, while specific conditions are required by law for legal entities.<\/li>\n<li>Capacity to act is a person's ability to acquire rights and assume obligations through their own acts; it covers legal transactions, liability for torts and capacity to sue.<\/li>\n<li>Under Article 10 of the TMK (Turkish Civil Code), capacity to act requires having the power of discernment, not being under guardianship and being of full age.<\/li>\n<\/ul>\n<\/aside>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Currency note<\/p>\n<p>This article was prepared in accordance with the legislation and practice in force on the date of its publication. The legislation in force may differ, particularly as regards the explanations concerning persons with limited capacity. You are advised to consult a lawyer on the current position.<\/p>\n<\/div>\n<details class=\"pm-ic\" open>\n<summary>Contents<\/summary>\n<ol>\n<li><a href=\"#ehliyet\">Ehliyet nedir?<\/a><\/li>\n<li><a href=\"#hak-ehliyeti\">Hak ehliyeti<\/a><\/li>\n<li><a href=\"#fiil-ehliyeti\">Capacity to act and its scope<\/a><\/li>\n<li><a href=\"#kosullar\">Conditions of capacity to act and categories of capacity<\/a><\/li>\n<li><a href=\"#ayirt-etme-gucu\">Capacity of discernment<\/a><\/li>\n<li><a href=\"#kisitlilik-halleri\">Grounds for restriction<\/a><\/li>\n<li><a href=\"#sss\">Frequently asked questions<\/a><\/li>\n<li><a href=\"#iletisim\">Consultation request<\/a><\/li>\n<\/ol>\n<\/details>\n<section id=\"ehliyet\">\n<h2>Ehliyet Nedir?<\/h2>\n<p class=\"pm-tanim\">For the legal abilities and possibilities granted to persons in law, <strong>ehliyet<\/strong> is the name given.<\/p>\n<p>In our law, there are two types of capacity. One is legal capacity and the other is capacity to act.<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Hak ehliyeti<\/p>\n<p>The capacity to enjoy civil rights and to bear obligations<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Fiil ehliyeti<\/p>\n<p>A person\u2019s ability to acquire rights and incur obligations as a result of his or her own acts<\/p>\n<\/div>\n<\/div>\n<\/section>\n<section id=\"hak-ehliyeti\">\n<h2>Hak Ehliyeti<\/h2>\n<blockquote class=\"pm-kanun\">\n<p><strong>Turkish Civil Code Article 8 &#8211;<\/strong> <em>&#8220;Every human being has legal capacity.<\/em><br \/>\n<em>Accordingly, all persons are equal, within the limits of the legal order, in their capacity to hold rights and obligations.&#8221;<\/em><\/p>\n<\/blockquote>\n<p>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.<\/p>\n<p>The conditions required for legal persons are, in brief, as follows:<\/p>\n<ul class=\"pm-liste\">\n<li>A group of persons or assets must be organised<\/li>\n<li>This organisation must be directed towards a permanent purpose<\/li>\n<li>This organisation must have been granted legal personality by the legal order<\/li>\n<\/ul>\n<\/section>\n<section id=\"fiil-ehliyeti\">\n<h2>Capacity to Act and Its Scope<\/h2>\n<blockquote class=\"pm-kanun\">\n<p><strong>Turkish Civil Code Article 9 &#8211;<\/strong> <em>&#8220;A person who has capacity to act may acquire rights and incur obligations through his or her own acts.&#8221;<\/em><\/p>\n<\/blockquote>\n<p>Capacity to act refers to a person\u2019s 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:<\/p>\n<ol class=\"pm-sirali\">\n<li>Capacity to enter into legal transactions &#8211; contracts<\/li>\n<li>Capacity to be held liable for torts<\/li>\n<li>Capacity to sue and be sued<\/li>\n<\/ol>\n<p>Capacity to perform legal transactions is a person\u2019s 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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Taraf ehliyeti<\/p>\n<p>It is acquired upon the person being born alive and fully formed.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Capacity to sue and be sued<\/p>\n<p>The person must have capacity to act.<\/p>\n<\/div>\n<\/div>\n<\/section>\n<section id=\"kosullar\">\n<h2>Conditions for Having Capacity to Act<\/h2>\n<blockquote class=\"pm-kanun\">\n<p><strong>Turkish Civil Code Article 10 &#8211;<\/strong> <em>&#8220;Every adult person who has the capacity to discern and is not under restriction has capacity to act.&#8221;<\/em><\/p>\n<\/blockquote>\n<p>As can be understood from the statutory provision, for a person to have capacity to act,<\/p>\n<ol class=\"pm-sirali\">\n<li>They must have the power of discernment<\/li>\n<li>They must not be under a restriction of legal capacity<\/li>\n<li>They must have attained majority<\/li>\n<\/ol>\n<p>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:<\/p>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Tam ehliyetli<\/p>\n<p>Persons with full capacity are those who satisfy all of the conditions listed above; that is, an adult who has the capacity of discernment and is not subject to any restriction. Persons with full capacity have the capacity to perform all kinds of legal transactions and are also liable for their torts.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Persons with limited incapacity<\/p>\n<p>Persons with limited incapacity are those who do not satisfy the condition of not being under restriction or of being of age among the conditions listed above; this is the legal position of persons under restriction and minors. For the legal transactions of persons with limited incapacity to be valid, the consent of their legal representative is required: for restricted persons, their guardian; for minors, their parent or parents or, failing that, their guardian.<\/p>\n<\/div>\n<\/div>\n<div class=\"pm-ikili\">\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Tam ehliyetsiz<\/p>\n<p>Persons with full incapacity are those who lack the power of discernment. Since persons with full incapacity lack the power of discernment, they consequently also lack capacity to act.<\/p>\n<\/div>\n<div class=\"pm-kart\">\n<p class=\"pm-etiket\">Person with limited capacity<\/p>\n<p>These are persons who, although as a rule they have capacity to act, are restricted from performing certain legal transactions specified by law on their own. Persons to whom a legal adviser has been appointed fall into this group. Married persons are also regarded in legal doctrine as persons with limited capacity owing to the transactions relating to the family home and suretyship agreements that are subject to the spouse\u2019s consent.<\/p>\n<p>Indeed, under Article 194 of the Turkish Civil Code, the express consent of the other spouse is required for the transfer of the family home, the restriction of rights over it, or the termination of a lease agreement relating to that home. Under Article 584 of the Turkish Code of Obligations, save for statutory exceptions, for a married person to become a surety the other spouse must give written consent before or at the latest at the time the agreement is concluded. Accordingly, these restrictions arising from marriage do not cover all legal transactions of the spouses; they apply only to certain transactions provided for by law.<\/p>\n<\/div>\n<\/div>\n<p>We consider it useful also to mention briefly the circumstances that remove the power of discernment and those that require restriction of legal capacity.<\/p>\n<\/section>\n<section id=\"ayirt-etme-gucu\">\n<h2>The Concept of Capacity of Discernment<\/h2>\n<blockquote class=\"pm-kanun\">\n<p><strong>Turkish Civil Code Article 13-<\/strong> <em>&#8220;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.<\/em><em>&#8220;<\/em><\/p>\n<\/blockquote>\n<p class=\"pm-tanim\"><strong>Capacity of discernment<\/strong> is a person\u2019s 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.<\/p>\n<p>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.<\/p>\n<h3>Circumstances That Eliminate the Capacity of Discernment<\/h3>\n<p>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:<\/p>\n<ul class=\"pm-cipler\" aria-label=\"Ay\u0131rt etme g\u00fcc\u00fcn\u00fc ortadan kald\u0131ran haller\">\n<li>Minority of Age<\/li>\n<li>Mental Illness<\/li>\n<li>Mental Deficiency<\/li>\n<li>Intoxication<\/li>\n<li>Benzer sebepler<\/li>\n<\/ul>\n<p>These are grouped under five headings.<\/p>\n<\/section>\n<section id=\"kisitlilik-halleri\">\n<h2>Grounds for Restriction<\/h2>\n<p class=\"pm-tanim\"><strong>Restriction<\/strong> 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.<\/p>\n<p>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).<\/p>\n<\/section>\n<p class=\"pm-dipnot\">Related legislation: <a href=\"https:\/\/www.mevzuat.gov.tr\/mevzuat?MevzuatNo=4721&amp;MevzuatTur=1&amp;MevzuatTertip=5\" target=\"_blank\" rel=\"noopener\">Turkish Civil Code No. 4721<\/a> (mevzuat.gov.tr)<\/p>\n<section id=\"sss\" class=\"pm-sss\">\n<h2>Legal Capacity and Capacity to Act: Frequently Asked Questions<\/h2>\n<details open>\n<summary>What is the difference between legal capacity and capacity to act?<\/summary>\n<div>\n<p>Legal capacity is the capacity to enjoy civil rights and to have obligations. Capacity to act is the ability to acquire rights and assume obligations as a result of acts performed by the person's own will.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>When is legal capacity acquired?<\/summary>\n<div>\n<p>Legal capacity arises with the acquisition of personality. Natural persons acquire personality on condition of being born fully and alive. For legal entities, a community of persons or assets must be organised for a permanent purpose and the status of legal entity must be recognised by the legal order.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>What are the conditions for having capacity to act?<\/summary>\n<div>\n<p>Under Article 10 of the TMK, every person of full age who has the power of discernment and is not under guardianship has capacity to act. In other words, the person must have the power of discernment, must not be under guardianship and must be of full age.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>Is capacity to sue the same as capacity to be a party?<\/summary>\n<div>\n<p>No. According to the article, capacity to be a party is acquired when a person is born fully and alive, whereas capacity to sue requires the person to have capacity to act.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>What is the power of discernment?<\/summary>\n<div>\n<p>Under Article 13 of the TMK, everyone who is not deprived of the ability to act rationally by reason of young age, mental illness, mental weakness, intoxication or similar causes has the power of discernment. Persons lacking the power of discernment have no capacity to act.<\/p>\n<\/div>\n<\/details>\n<\/section>\n<section id=\"iletisim\" class=\"pm-form-kap\">\n<div class=\"pm-form-sol\">\n<p class=\"pm-etiket\">Consultation request<\/p>\n<h2>Do you have a question about legal capacity and capacity to act?<\/h2>\n<p>As UTU Hukuk Dan\u0131\u015fmanl\u0131k, we provide legal representation and advisory services in various areas of law.<\/p>\n<p>Fill in the form and we will call you. 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The source for this article is the Turkish\u2026<\/p>","protected":false},"author":1,"featured_media":370,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"elementor_canvas","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[],"class_list":["post-179","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-genel-hukuk"],"_links":{"self":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/179","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=179"}],"version-history":[{"count":5,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/179\/revisions"}],"predecessor-version":[{"id":645,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/posts\/179\/revisions\/645"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/media\/370"}],"wp:attachment":[{"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=179"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=179"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/utuhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=179"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}