Judgement and capacity to act

The capacity to judge is defined and regulated by law in Art. 16 of the Swiss Civil Code. Any person who can act rationally in a particular situation has the capacity to judge. On the one hand, this means the ability to comprehend the consequences of one’s actions, and on the other hand, it is the ability to act in light of newly obtained insight. If a person does not possess these abilities, they do not have the capacity to judge and it is not possible to give legal effect to their actions. If a person lacking the capability to judge has concluded a legal transaction, it is invalid. It may also have to be reversed. Whether a person is capable of judgement must always be assessed with regard to the specific legal transaction. It is therefore possible for a person to have the capacity to judge in the context of certain proceedings, but not in regard to others.

The capacity to act is regulated in Art. 13 and in Art. 17 of the Swiss Civil Code. The capacity to act is understood to mean the ability to bring rights and obligations into being through one’s own actions. In Switzerland, a person is capable of acting if they have reached the age of 18 and have the capacity to judge. A person is incapable of acting if they are a minor, incapable of judging or are under comprehensive guardianship.

If a person is capable of judgment but incapable of acting in a particular situation, the person can in principle only act on their obligation or rights with the consent of a legal representative. This is the principle, but there are three exceptions. First, it is possible to obtain beneficial assets without the consent of the legal representation. The prerequisite, however, is that these are gratuitous and examples are gifts and legacies. Secondly, it is possible to perform activities relating to daily life without the consent of the legal representative. The prerequisite here is that these must be minor, a classic example of which is grocery shopping. Thirdly, one is entitled to execute rights of a highly personal nature without the consent of the legal representative.

In all other cases, the consent of the legal representative is required. Consent may be given in advance, either expressly or tacitly. However, it is also possible for the legal representative to approve the legal action retrospectively, after it has been concluded. If the legal representative refuses to consent to the legal transaction that has already been completed, the parties to the contract may, as far as possible, claim back the services provided. However, the liability of the person lacking capacity is limited insofar as the benefit has either already been claimed or enrichment is still possible for the recipient at the time of recovery.

Our attorneys in St. Gallen, Zurich and Frauenfeld are happy to advise on legal proceddings concerning persons with limitations on their capacity to judge or act.