Capacity to act (Switzerland)
In Swiss jurisprudence , capacity to act refers to the ability to establish rights and obligations through one's actions (Art. 12 of the Swiss Civil Code , ZGB). A precondition of the act, age (date of age ) and of sound mind to be (Art. 13 Civil Code).
The age of majority is anyone who has reached the age of 18 (Art. 14 ZGB). Any person who does not lack the ability to act reasonably due to their childhood ( minority ), mental handicap, mental disorder, intoxication or similar conditions (Art. 16 ZGB) is capable of judgment within the meaning of the Civil Code.
Persons capable of acting have the ability, in particular, to conduct legal transactions and to carry out acts similar to legal transactions . They are also process capable . By contrast, legal transactions by persons incapable of acting are fundamentally ineffective .
In Germany and Austria the corresponding ability as capacity referred.
People without the capacity to act are the actual or presumed inability to form a will with regard to a certain legal consequence. However, persons capable of judgment but incapable of acting (minors or under comprehensive assistance ) can, with the consent of their legal representative, enter into obligations or give up rights. Without this consent, they are able to obtain advantages that are free of charge, as well as minor matters of daily life. They are tort liable for damages (Art. 19 of the Civil Code), that are offense-capable .
Only an individual who can form his own will and is able to act in accordance with his own will is capable of making judgments and thus being able to act rationally. A person is unable to act reasonably because when they try to influence their will they usually cannot resist. The reason for this can according to Art. 16 ZGB of a biological (childhood) or physiological nature (mental handicap, mental disorder, intoxication or similar conditions such as unconsciousness or intoxication by alcohol or other drugs ).
The court may decide on the ability to make judgments on the basis of a medical assessment.
The ability to make judgments depends in each individual case on the nature and importance of the action in question. It is to be assessed in relation to a specific action and when it was carried out. The requirements to be met in each case for the formation of the will and the ability to act accordingly are assessed according to a typical approach based on a comparison with actions of a similar type and meaning (relativity of the ability to make judgments).
There is an actual presumption of judgment unless it is clearly absent, such as in the case of a toddler. In the case of young people between 12 and 16 years of age, judgment must be clarified on a case-by-case basis. Adolescents between 16 and 18 years of age are assumed to be able to make judgments.
The child and adult protection authority (KESB) can provide information about the ability of certain people to act in individual cases.
- Imhof: Natural persons and privacy protection Bern, without year
- Pro Infirmis : Judgment and Capacity to Act Website accessed on March 16, 2017
- Anne-Marie Dubler : Maturity. In: Historical Lexicon of Switzerland . November 26, 2009. Retrieved March 16, 2017 .
- First part: Personal law / First title: The natural persons / First section: The right of personality: Art. 12-19 ZGB
- judgments and to act website of the Lilli Association, accessed on March 16, 2017
- KESB should continue to provide information about contractual partners' ability to act Aargauer Zeitung, September 13, 2016