Thursday, July 29, 2021

Insane and infirm persons

The third Chapter under Title II, Book I of the Civil Code is entitled “Insane Persons and Infirm Persons”.  

The provisions under this chapter (i.e. - Articles 339 to 379) classify insane and infirm persons into two groups, namely those who are not interdicted and those whose interdiction is pronounced by court.  The latter, i.e.-judicial interdiction is discussed in the next section (No. 9).  

      Insanity that is not notorious 

According to Article 339/1, an insane person is one: 

- who cannot understand the importance of his actions 

- as a result of being insufficiently developed (i.e.- retarded development, mental disease or senility).   

 

The two cumulative elements in the definition of insanity pertain primarily to the mental condition of the person, and secondly to his inability to understand the importance of his actions. 

 

In appropriate cases, persons who are feeble-minded, alcoholics, persons who are habitually intoxicated and prodigals shall be entitled to the protection given to insane persons (339/2).  An interpretation a fortiori seems to enable us consider that habitual intoxication can accommodate drug addicts although they are not expressly included owing to the non-existence of the problem as an issue of public concern when the Civil Code was enacted in 1960.  

 

Juridical acts performed by an insane person are not invalidated on mere grounds of insanity unless the insanity is notorious (347/1, 341, 342).  Yet, the insane person can invoke defects in consent (1696-1710) on account of his insanity (347/2). This remedy can be invoked only by the insane person himself and not by his heirs or his creditors (348).   

 

There are two exceptions (Art. 349) where heirs or creditors may invoke defects in consent on account of insanity, namely: 

a) where the terms of the contract clearly reveal insanity (349/1), or, 

b) where the judicial interdiction of the person has been demanded. 

The English version of Article 349/1 is not as clear as the official Amharic version that reads “... የውል Aድራጊው የAEምሮ ጉድለት ከተደረገው የውል ቃል የሚታወቅ Eንደሆነ (በቁጥር 348) የተደነገገው ደንብ ተፈፃሚ Aይሆንም”.   

 

Notorious insanity and apparent infirmity 

 

Legal protection is given to a person whose insanity is notorious (publicly known) or whose infirmity is evident (343}. 

 

a) Definition of notorious insanity 

(341) A person is notoriously insane where: 

- he is an inmate of a hospital or an institution for insane persons or nursing home by reason of his mental condition (339) - for the period for which he remains an inmate. 

 

The three cumulative elements of the definition are being an inmate, the mental condition of the person and the duration of the legal protection.  

 

In rural communities of less than two thousand inhabitants the insanity of a person shall be deemed notorious, where his family or those with whom he lives watch over him and restrict his liberty of movement due to his mental condition (342).  The figure two thousand is merely meant to indicate communities where the inhabitants have a relatively closer relationship that enables them to know the mental condition of an insane person (346/2) who lives in their commune or in an adjacent commune. 

 

However, the Amharic version of Article 342 reads “… ከሁለት ሺህ የማያንስ … (i.e.- in rural communities of not less than two thousand inhabitants)”.  This is obviously a mistranslation, because unlike the English version it requires two thousand or more inhabitants. 

 

b) Apparent infirmity 

The Civil Code defines infirmity under Article 340, according to which, an infirm is deaf-mute, blind, etc. who as a result of his condition can’t take care of himself or administer his property.  This definition embodies two cumulative elements, namely, the physical condition of the person and the resultant inability to take care of oneself or administer property.   

 

Infirm persons are given legal protection only where they “invoke in their favour the provisions of the law which afford protection to those who are insane” (340).  In other words, an infirm person is not availed with the protection unless he demands for it. 

 

The Civil Code doesn’t list situations where an infirmity may be considered   apparent.  The court may thus take notice of the apparent visibility of the infirmity or receive medical evidence.  

 

c) Juridical acts of notoriously insane and apparently infirm persons 

Juridical acts performed by a notoriously insane (343/1) or apparently infirm (343/2) person may be invalidated upon the request of that person, his representatives or his heirs.  Their acts are subject to invalidation (344) on mere ground of notorious insanity or apparent infirmity.  

 

Parties who had in good faith concluded contracts with notoriously insane or apparently infirm persons are entitled to damages caused by the invalidation (345, 346).  Moreover, the notoriously insane person is extra-contractually liable (2027-2161) and is bound by obligations resulting from unlawful enrichment (2162-2178) as though they were of a sound mind (350). 

 

 Unless otherwise provided by law, Article 2030/3 requires assessment of fault on the basis of good usage or reasonable standards of good conduct for the purpose of extra-contractual liability without regard to the age or mental condition of the person concerned.   

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