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universul juridic magazin
Revista Română de Drept Privat

Overview about the incapacities in the civil law

The full exercise of rights and the capacity of their exercise represents one of the bases of the civil law. The lawmaker intended to promote this principle by consecrating Chapter I of Title II of Book I of the Civil Code to the civil capacity of the individual. However, the rules in the capacity matter shall not limit to this chapter, since, in the entire Code, there is a series of very important provisions, which directly concern the person whose legal capacity is diminished. The person is essentially a legal entity as he/she has the capacity to enjoy any rights. The legal incapacity, no matter its nature and width, represents a kind of mitigation, of diminution of the legal personality justified by the fact that certain persons do not have the means to act in an efficient and full way. It is appropriate that law reply to these challenges and this reply has to come from law. Therefore, incapacity emerges from law and we considered, taking into consideration the important consequences that it produces, that a more thorough study is needed for this institution. Without pretending to have depleted the whole area of incapacities, this study, as the heading also shows, proposes to highlight the essential questions that this matter requires (notion, area, categories of incapacities, notions adjacent to the concept of incapacity, protection mechanisms and sanction of incapacities). Our endeavor, which may seem a little bit too theoretical, is not devoid of interest, as it contributes to discern the essential features of the incapacity and therefore, allows a better understanding of the legal effects it produces.