The notion of a person. Legal capacity of the person. Full legal capacity of the person.

Limited legal capacity of the person. The influence of age on legal capacity. Damage to
civil honor and dignity and its influence on legal capacity.
Introductory concepts
In ancient Rome, the human being could not, as in our day, be recognized as a person, be a subject
of law. The natural person is the man, viewed individually, as the holder of civil rights and obligations.
Persona, in translation from Latin, means - face or theatrical mask. The connection with this term follows
that people were presented in the given case not as such, but by that typical social role that public order at
the time assigned to certain categories of people to give them the opportunity to participate in legal
relations (as a subject of law).
To be the persona, a human had to have the caput (capacity). In order to dispose of caput, he had
to have three statutes (status – civil status):
– status libertatis - the person had to be free, not to be a slave;
– status civitatis - the person had to be a roman citizen, and not a foreigner;
– status familiae - the person had to be head of a family, not to be under someone's power (alieni iuris).
The person could not have this status if he was not sui iuris (independent).
The category of persona is a personal one, inalienable by a human being. The Romans knew
certain exceptions to this rule. For example, the slave could represent his master by borrowing his
persona. This began to be practiced in connection with the flowering of the economy. The master often
had to be in several places at the same time, because of this it was allowed to represent the slave master.
The sabinians stated in this respect that the slave was given the persona of the master in the part where he
expressed this desire.
Legal capacity
The word caput denoted the ability, personality of a particular human being. Slaves could not have
caput, given that Roman law arose and existed as a system of Slave Law. With capacity, only free persons
were recognized. They had legal capacity depending on the social category to which they belonged,
ethnic origin, etc.
Caput represents the general possibility of the person to have rights and obligations.
Ability, in general, can be defined as the predisposition of the person to have rights and to assume
obligations.
One way of the person's ability, in the contemporary sense, represents commercium - the right to
conclude legal acts of civil law.
The capacity was exteriorized in the Capacity also included elements of public
private sector, also through: law:
- ius connubium - the right to covenant a - ius suffragii - right to choose;
marriage valid under civil law;
- ius honorum - right to be elected; right
- testamenti factio - right to leave will and to run for civil or public office.
receive an inheritance on the basis of a will.
Capacity is generally available to both individuals and legal entities.
Emergence and termination of legal capacity
 The general rule in the Romans was that personality, and especially capacity (caput), appears with
birth and disappears with the death of the person. Nevertheless, as an exception, it can occur in two cases:
- infans conceptes when the father of a child conceived but not yet born, one dies, then the inheritance
goes to the members of the family, including the child;
Anyway, there were some conditions for the child to be considered capable:
- to be born alive for at least a moment (towards the end of the Republic, born was considered the infant
who was detached from his mother naturally or artificially (surgically) - execto ventre or exciso utero);
- not to be monstrum, to possess the face of man - portentum.
As mentioned, for a certain period of time it was necessary to prove that the child is alive.
According to the theory shared by the sabinians, it was enough for the child to give any sign of life, and
according to the one shared by the proculians, the child had to shout, or if the child was born dead, it was
considered that he did not exist in general.
- hereditas iacens, which refers to the fact that inheritance can’t exist without a holder, that is why the
slaves, for example, could conclude legal acts in the interests of the capacity of deceased master - ex
persona defuncti.
Legal capacity
full limited
of law in fact
Freedom, Roman citizenship, Specific age, normal mental  Capitis diminutio
status of pater familias state, male sex maxima – as a result of
the loss of freedom, all
the constituent elements
of personality were lost
through imprisonment,
slavery, etc.
 Capitis diminutio media
– as a result of the loss of
citizenship the person
became latin or
peregrine. It was carried
out in two ways:
voluntarily, by passing
from one status to
another (citizen became
Latin Colonial to receive
free lot of land for
processing) and forcibly
- in the case of marriage
with a female peregrine.
 Capitis diminutio
minima – as a result of
the loss of some familiar
rights. But this could
also appear as an
enlargement of the
person's legal capacity,
for example the
transition from the status
of aliens iuris to the
 status of sui iuris. That
is, capitis diminutio
minima can be perceived
as the termination of one
status and the emergence
of another.

Obtaining legal capacity in Roman private law was closely related to the age of the person, and
was dependent on this condition. For this reason people were divided into two categories - minors
(impuberes) and majors (puberes). The minors, in turn, were divided into:
- infans – a child under 7 years. He lacked the capacity in fact and, respectively, was represented by the
guardian;
- infantia maior - Roman private law recognized their capacity in fact, but it was restricted, allowing them
to covenant legal acts that improve the material condition of the child, but not those that oblige him to
something or cause him harm. Age for this category varies: for girls - from 7 to 12 years; for boys - from
7 to 14 years.
- puberes minors - representatives of the male and female sex, from 12-14 years to 25 years. This
category of persons was protected by Lex Plaetoria, which provided as a sanction a fine applied to the
person who deceived a person in the category concerned, by favoring the conclusion with and for the last
time of an unfavorable legal act.
Roman private law knew limitations of the person's legal capacity by affecting civil dignity
(honor), such as:
 Intestibilitas - the impossibility of being a witness to the commission of various legal acts and to
attract other persons to be witnesses to their own legal acts. In other words, the person was
isolated from society in the sense of ius commercii, or, by these actions he endangered the entire
social order in the roman state, because the vast majority of civil legal acts at that time took the
verbal form, and their proof could be made exclusively by those witnesses participating in its
conclusion.
 Ignomia (shame) - limitation of legal capacity on moral grounds. In principle, this was the
evoulation of intestibilitas in the classical era.
 Infamia (loss of dignity) - amoral actions as a result of which the person lost esteem in society.
For instance, when the person simultaneously enters into two or more engagements or marriages,
or violates the rules related to the mourning period after the death of the spouse.
Infamia mediata (mediated) Infamia immediata (direct)
A form of infamy, which appeared as a Appeared when the person practices vile pursuits
consequence for certain illegal actions (theft, such as acting, as in the case of gladiators, to the
fraud, conviction on certain civil cases based on woman who was married until the expiration of
bonae fides (iudicium tutalae - establishment of one year after the dissolution of the previous
guardianship, mandati -mandate contract, depositi marriage, etc.
-deposit contract), sale of assets at auction as a
consequence of insolvency - bonorum venditio,
etc