Tuesday, July 27, 2021

Capacity to exercise rights and duties


General principles 


a) Capacity is the rule and incapacity the exception  

Article 192 provides that “Every physical person is capable of performing all acts of civil life unless he is declared incapable by the law”.  In other words, everyone has the capacity to exercise the rights he holds unless he is within the group of persons whom the law declares incapable of performing juridical acts on their own, i.e.- without being represented by a guardian or a tutor. 


b) Capacity is presumed unless proved otherwise  

A person’s capacity to exercise juridical acts is presumed (196/1), and anyone who invokes the issue of incapacity bears the burden of proof (196/2).  In our day-to-day transaction we don’t usually consider the condition of “capacity” in every interpersonal relationship and upon each juridical act unless it is apparent as in the case of most minors.  Capacity is thus presumed unless proved otherwise. 


c) The deprivation in the exercise of rights is not absolute 

It must be noted that the words “unless he is declared incapable by the law” under Article 192 do not denote absolute incapacity or total disability to perform any act of civil life.  Juridical acts (i.e. - acts that entail legal consequences) are merely a very small fraction of the large multitude of acts of civil life in a person’s day-to-day activities, relationships and endeavours. Despite a person’s incapacity to perform juridical acts, the exercise of his rights and performance of his duties remain unaffected in most domains of civil life, other than juridical acts that require prudent and rational decision.  Of course, the incapacitated person is not deprived of holding these rights; but instead, he is merely required to exercise them through a guardian or tutor.  In short, the capacity to exercise rights is lessened under certain circumstances; and the entitlement to these rights is not completely deprived. 


d) The prohibition of renunciation and voluntary restriction of rights 

The exercise of rights cannot be renounced (195/1).  And, a voluntary limitation in the exercise (enjoyment) of rights is void “unless it is justified by lawful interest” (195/2).   The phrase “legitimate interest” in Article 9/2 is replaced by “lawful interest” in Article 195/2.  Yet the word “lawful” is as vague as “legitimate” unless we resort to the Amharic version that reads “ስለማህበራዊ ጥቅም ሕጋዊ ተገቢነት” (lawful and legitimate in view of social interest); or even more so, to the French draft that uses the words “law and public order”. 

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