COMMITMENT ACCORDING TO PORTUGUESE LAW
II. The Legal statute of the person legally decla- decla-red incompetent: of the interdict in particular
The person legally declared incompetent is still a holder of its fundamental rights, namely the right to life, to physical and mental integrity and the right to self‑determination and freedom.
Regardless of the rights and duties that someone has, or is responsible for, or potentially might be, the truth is that personality is a quality or a condi‑
tion of Man — of his own and intrinsic human dignity —, being the concept of legal capacity that the system recognizes, that gives him the ability to be the holder of a, more or less, restricted circle of legal relations (2). Recognizing that all men have equal legal personality has no link to the verification or absence of the natural capability of wanting or acting. The absence of someone’s de facto capacity reverberates, essentially, on the effects of the legal
(2) Carlos Mota Pinto, Teoria Geral do Direito Civil, 4.ª Edição por António Pinto Monteiro e Paulo Mota Pinto (Coimbra: Coimbra Editora, 2005), p. 194.
Coimbra Editora ® Lex Medicinae, N.º Especial (2014) — p. 131‑151
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capacity of acting and in the right of the person’s self‑determination within legal capacity (3).
The universal recognition of legal personality, as an innate and transcendent quality of the human being is not, thus, subject of any doubts. In the words of Carlos Mota Pinto: “the individual’s personality is therefore a legal quality or a status where human dignity lies directly — and not only a mask with which some actors move around in the socio‑legal life’s stage” (4).
To talk about legal personality is to talk about an innate quality that belongs to every human person as is; it is equivalent to a supra‑positive legal principle, fundamental in the Portuguese legal system: the recognition of the human person.
Every human being is an end in itself, being this one of the basic principles of our Democratic Rule of Law (Article 1 of the Portuguese Constitution).
Undelayability, nonexpropriability, unavailability and illimitability integrate the essence of the human personality (5) (6).
Through a judicial sentence that institutes a legal incapacity, a care based legal relationship is established, anchored on the existence of a situa‑
tion of vulnerability and dependence, in which a certain a person finds itself, which carries the risk
(3) Manuel de Andrade, Teoria Geral da Relação Jurídica (Sujeitos e Objecto), Vol. I (Coimbra: Almedina, 1997), p. 34.
(4) Carlos Mota Pinto, Teoria Geral do Direito Civil, 4.ª Edição por António Pinto Monteiro e Paulo Mota Pinto (Coimbra: Coimbra Editora, 2005), p. 100.
(5) Castanheira Neves, “Justiça e Direito”, in Digesta: Escritos acerca do Direito, do Pensamento Jurídico, da sua Metodologia e Outros, Vol. I (Coimbra:
Coimbra Editora, 1995, p. 278.
(6) Orlando de Carvalho, Os direitos do Homem no Direito Civil (Coimbra: Vértice, 1973), pp. 20‑23; from the same author, Teoria Geral do Direito Civil (Coimbra: Centelha, 1981), p. 160.
of non‑governance of his interests as well as the risk of his instrumentalization by others or even by the State itself. Therefore, to talk about the fitness and qualities of being the bearer of rights and duties is not enough when a person, due to its recognized and imposed dignity, has the competence to assure the full materialization, in its juridical sphere, of the subjective dimension of a certain highly personal right to act in a free, individual and responsible manner. The impossibility of self‑determination means that the person does not have, at that given moment, the necessary natural quality to assert his right, to make use of his legal rights, but by imposi‑
tion of the principle of human dignity the protec‑
tion of the objective dimension of his fundamental rights remains untouched. Hence, the legal order has to ensure legal mechanisms for the reintegra‑
tion of the person as a full subject within the legal system.
We can now say that the concept of legal capacity and the capacity to negotiate, according to the traditional sense, are useless as far as the incompetent’s exercising of personal rights is con‑
cerned. These highly personal rights correspond to the affirmation of freedom, in more specific terms, to self‑determination. To these rights, the attempt to dissociate the legal capacity from the capacity to act turns out to be pure fiction. The issue ends up subsuming to the availability of protected legal rights by personal rights and its due juridical construc‑
tion, that is, the affirmation of the right of freedom acknowledged to the person. As an example, we can look at the required assumptions for affiliation capacity, matrimonial capacity, testamentary capacity and consent capacity (for instance, the provision of
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informed consent for medical care), as well as for the exercise of parental responsibilities.
A different situation occurs as far as the equally personal rights are concerned, whose content and legal goods result directly from the human condi‑
tion, without the need of self‑determination by the man, in order to affirm them and get legal recogni‑
tion.
The restriction of a person’s rights requires spe‑
cial considerations and pondering judgments, that is, the conducting of proportionality tests in order to safeguard the respect for formal law restrictions. We can say that the expanding force of human essence, either in its static or dynamic aspect, requires legal recognition of the person’s natural, concrete and circumstantial capacity to act: he can act personal and autonomously, except if there’s a strict legal restriction by judicial ruling.
The verification of a person’s incapacity means that “the legal acts that matter to the incompetent will not cease to be practiced due to the fact that he cannot do it himself or just by him. His capacity of exercising his rights will not be left unpracticed because of that.” (7). However, more than capacity of rights, we should claim that the protection of legal interests, in particular the incompetent’s personal ones, will continue being assured through the impo‑
sition of its protection and promotion which come from the objective sphere of his fundamental rights.
The mentally ill patient, or anyone with a men‑
tal illness and weakness of spirit, besides its natural
(7) Manuel de Andrade, Teoria Geral da Relação Jurídica (Sujeitos e Objecto), Vol. I (Coimbra: Almedina, 1997), p. 33.
incompetence for self‑determination, does not stop being a person with its full dignity and value.
Indeed, we can recognize the idea of self‑determi‑
nation that comes from his human condition. It is due to the human dignity principle, consecrated on Article 1 of the Portuguese Constitution, that the protection and recognition of a full, universal and equal human personality is demanded. The axi‑
ological dimension that transcends human essence, regardless of the existence of a de facto competence for the person to be self‑determined, prevents its objectification. Thus, for every human being should be ensured the competence to define and shape his own life, reserving for himself, even in legal incapac‑
ity, the potential for realization of a full personality, which the State must ensure and guarantee, due to the objective dimension of fundamental rights.
Since the object of our work is confined to the assessment of the limits of the powers of the legal guardian, we will only address the scope of the incapacity of the interdict stated from Article 138 forth of the Portuguese Civil Code (from here forth it will be designated CC).
Concerning the interdicts, Article 139 (CC) states that they are equivalent to minors. The appar‑
ent simplicity with which the legislator determines the incapacity of interdict adults, brings forth some perplexities due to the impossibility of absolute equivalence between the scope of the incapacity by interdiction and by nonage.
In contrast with minors, its usual to say that what is at stake in interdiction is a fixed incapa‑
bility, once it does not give the judge the ability to shape or adequate the incapacity’s scope to the incompetent person’s qualities, except in regards to
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the appreciation of the circumstances and require‑
ments of Article 138 (CC), in order to decide about an eventual judicial decree of interdiction. Therefore it is said that the incapacity by interdiction is rigid and legally pre‑determined, generically affecting the interdict’s capacity to act.
Despite this difference, Article 139 (CC) equates the interdict to the minor, once, in either case, general incapacities to act are at stake, applying to the first one “with the necessary adjustments, the provisions that regulate the incapacity by nonage and fix the means to suppress the parental power”. It results ex vi from this Article the implementation of Articles 123 forth and 1921 forth of the CC, with the due adjustments.
Being set before the characteristics of both incapacities, we believe that the interdiction — a rigid incapacity and, at first hand, immutable, which comes from a full absence of capacity of the interdict to manage his interests —, as opposed to nonage — which is based on the gradual process of maturity to the upcoming full age —, which presents itself as a tendentiously broader incapacity (8). We refer to is as tending due to evolving nature that char‑
acterizes nonage: in the first years of life there will be an overlap between the scope of the incapacity of minors and that of the interdicts, while at the final stage of nonage (between the age of 16 and 18 years of age) the range of the incapacity is reduced to its minimum, while that of the interdict remains unaltered.
(8) Manuel de Andrade, Teoria geral da Relação Jurídica (Facto Jurídico, em especial Negócio Jurídico), 7.ª Reimpressão (Coimbra: Almedina, 1992), pp.
82‑83.
The acquisition of a progressive autonomy leads to the fact that a power or personal and financial emancipation can be declared, and consequently the recognition of a legal capacity to act, when the minor has powers of discernment; on the other hand, the interdiction results from an inverse judg‑
ment, because an incapacity of self‑administration of the interdict’s interests is noted, without the foreseeing of any personal empowerment. There is a negative prognosis judgment about the interdict’s capacity, which is embedded in a constitutive deci‑
sion which verifies a lingering state of incompetence and, because of that, tendentiously permanent of the person’s incapacity to manage his interests.
Therefore, we can say that directing Article 123 of the CC to the interdict, ex vi Article 139 of the CC, is only possible, basically, as far as the second part of the Article is concerned, because there will only be a few special norms which, recognizing the competence and autonomy of the minor to act within legal transactions could be considered appli‑
cable to the interdict, by presupposing his status as a judgment of absolute incompetence to manage his personal and financial interests. This statement intends to highlight the subsidiary nature of the interdiction as a legal measure set to protect the person, to be assumed as a last resort mechanism.
Hence, it cannot be accepted that a person can be declared interdicted when he has a minimal and residual natural ability of discernment to deal with occasional and day‑to‑day life issues. For these cases the appropriate and proportional measure will be the inabilitation adapted to the person’s specific interests.
However, traditionally, it is assumed that Articles 123 to 128 of the CC and especially Article 128 can
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be applied to interdicts (9). The way we see it, it will be hard to admit a subsidiary enforcement of this last norm, due to the nature of interdiction as a last resort (which corresponds to an idea of subsidiarity), which comes from the absolute absence of capability and fitness of the interdict to self‑administrate his personal and financial interests, and it will be hardly compatible with the true existence of exceptions to the general incapacity to act, due to the lack of his natural capacity, for instance, to celebrate contracts that are inherent to the day‑to‑day routine (10). Nev‑
ertheless, we can always admit a possible relevance in mobilizing those norms for the situations in which a person that carries an enduring mental disorder has moments of lucidity.
The scope of Article 127 of the CC, with respect to the interdicts, implies a necessary case assessment of the situation set forth in its three points of the article, in order to determine its appli‑
cability. However, given the condition which is an assumption of the interdiction, the only provision that is considered to be relevant is that of subsection b) of paragraph 1 of Article 127 of the CC. This subsection states that the minor’s everyday life legal transactions will be considered valid if, within the reach of his natural ability, he will only entail costs or provisions of goods of minor importance.
(9) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1.º a 761.º), Vol. I (Coimbra: Coimbra Editora, 1987), p. 148; Heinrich Ewald Hörster, A Parte Geral do Código Civil Português — Teoria Geral do Direito Civil (Coimbra: Coimbra Editora, 1992), pp. 340‑341; Luís A. Carvalho Fernandes, Teoria Geral Do Direito Civil, Introdução, Pressupostos da Relação Jurídica, 3.ª Edição Revista e Actualizada, Vol. I (Lisboa: Universidade Católica, 2001), p. 332.
(10) António Pais de Sousa e Carlos Frias de Oliveira Matias, Da Incapacidade Jurídica dos Menores, Interditos e Inabilitados, 2.ª Edição (Coimbra:
Almedina, 1983), p. 241.
The natural capacity of the person is not at stake here, but his legal recognition (being clear that the capacity to act is not necessarily the natural de facto capacity). The law demands, because of that, two criteria to legally recognize the natural de facto capacity of the incompetent person: acts of ordinary and usual transactions (everyday life transactions), which entail a reduced risk to the financial interests of the incompetent. Therefore, reference should be made to an individual assessment either in gauging the natural capacity of the person, or in the deter‑
mination of what are everyday life transactions and financial risks. Thus, it must be in favor of the rec‑
ognition of self‑determination to the incompetent, correcting the tendentiously absolute and castrating effect of the legal freedom to act of the interdicted person. The legal capacity to self‑determine the scope of his financial interests is not recognized to the interdict, suffering the transactions celebrated by him of an annulability vice (Article 148 of the CC), regardless of the verification of the capacity to dis‑
cern at the date of the transaction. The interdiction status puts the person in a defined juridical situation as far as his financial sphere is concerned, even if the de facto negotiating capacity is not assessed consider‑
ing the date of the act or of the legal transaction (11). The main consequence of interdiction is to achieve the validity of legal acts without considering the general rules about the absence or defects of will and de facto capacity.
For purposes of legal liability towards the acts put into practice, a person is considered incompe‑
(11) Werner Flume, Allgemeiner Teil des Bürgerlichen Rechts: Das Rechtsge‑
schäft, 3. Auflage, Vol. 2, n.º 1 (Berlin: Springer, 1979), pp. 183‑184.
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tent as far as the negotiating effects are concerned due to the annulment of the legal transaction. When we consider the personal sphere, we cannot recognize any general and automatic effects in the (in)capacity to act of the interdict. The personal nature and, in some cases, the highly personal nature of some rights and obligations, depends on the human nature and condition, on the real and actual verification of the person’s incompetence to be self‑determined. The interdiction does not imply a general incapacity to act, nor a specific incapacity, due to the fact that the unavailable personal dimension of the essence of human dignity that stands out, imposes the recognition of incapacity when we are before actual fact incapacity. It is not constitutionally permissible to provide a status that constrains, without express statutory provision, the expression of human essence in the exercise of someone’s personal and highly personal rights and obligations (12).
The provision of someone’s personal integrity and his personality rights depends on the distinct notion of a strict negotiating capacity to act, regulated in Articles 123 and 127 of the CC. The requirements of safety and protection of the legal trade will be much lower when the interests in question are of a personal sphere. In this lies the need to safeguard the essential and intrinsic value of human nature — the person’s dignity and the right to fully develop his personality.
Any restriction must result as a natural and declara‑
tive consequence of the de facto incapacity and of the protection against the instrumentalization of the person, their objectification.
(12) Gaspare Lisella, Interdizione “giudiziale” e tutela della persona: Gli effetti dell’incapacità legale (Napoli: Edizione Scientifiche Italiane, 1984), pp. 106‑107.
The constituent sentence of an interdiction only modifies the status of the interdict for protection needs, safeguarding for himself spaces of autonomy in acts of everyday life and of little value. The extent of the incapacity to act, despite its gen‑
eral nature, is limited to the financial dimension, being the presumption of Article 123 of the CC reversed ex vi Article 139 of the CC. The outcome of the constitutive sentence of the interdiction is the judicial evidence of a certain natural incapac‑
ity, but we cannot draw general effects from it, concerning the exercise of rights of personality that are maintained to the interdict’s monopoly of self‑
determination. The capacity to consent, inherent to the exercise of personal rights, presents itself with distinct qualities and characteristics from the strict negotiating capacity to act.
The evaluation of the capacity to act, in its premises and effects, is different according to the nature of the acts to be undertaken. Hans Lauter differentiates the premises of contractual and per‑
sonal capacity, in the judgment of finality and cer‑
tainty to the contractual capacity. The capacity to act will be situational, according to the verification of some flexible assumptions (13).
To understand the concept of the capacity to act in contract terms, as extensive to the whole human dimension of the juridical acting, represents an arbitrary treatment of the competencies and human qualities to freely exercise freedom and self‑
determination.
(13) Hans Lauter, “Assessment and Evaluation of Competence to Con‑
sent”, em Informed Consent in Psychiatry (European Perspectives of Ethics, Law and Clinical Practice) (Baden‑Baden: Nomos, 1996), p. 313.
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The capacity to self‑determine interests as well as the personal sphere results from the concrete and contemporary situation of decision‑making and act‑
ing. Human dignity prevents someone from being denied a full exercise of his highly personal legal rights, through a sentence, if he has full capacity to be self‑determined. Any attempt to instrumentalize an individual for legal certainty reasons is prohibited, whenever the legal interests in question relate to the exercise and implementation of legal personality.
Besides the person’s legal status, the capacity to act by himself is recognized to everyone as far as his personality rights are concerned, if at the time of the action the person has qualities and intellectual and voli‑
tional competencies to be responsibly self‑determined.