(CAPACITY TO HAVE RIGHTS AND CAPACITY TO ACT).
In judging of the various conditions and qualities (Zustande)
of a person, whereby the capacity for rights and the
capacity to act are determined, a pure and simple application
of that local law to which the person himself belongs by his
domicile, is the only possible course (§ 359).
This principle, it is true, has not remained uncontradicted (a).
But the number of its supporters is so overwhelming, that it
may, notwithstanding, be described as an almost universal
opinion ; it has even been confirmed by a universal consuetudinary law in Germany (b). This, too, is the proper signification of personal statutes, to which notion so much importance
was attached in former times (§ 361, No. 1).
It would be a mistake, however, to estimate this accord as
very complete ; it is in great measure only apparent. The
following distinction was very early attempted, and has lately been asserted with great emphasis (c). We are to distinguish
between the mere abstract existence of the legal qualities of a
fierson and the legal effects of these qualities ; that is to say,
the rights and limitations of the person arising out of them.
The qualities themselves must be judged according to the local
law of the domicile ; but the legal consequences not according
to it, but according to another local law.
What law ? Of
this we have to speak afterwards. The advocates of this distinction, therefore, restrict to the abstract qualities or conditions
themselves the generally received opinion, and the universal
consuetudinary law depending on it.
The meaning of this distinction will become clear from the
following instances : —Among the qualities themselves are those
of the ward, the pupil, the minor, the prodigal; also of females,
of the married woman, of legitimate or illegitimate children,
etc. The question, therefore, whether any one is under age
or not,—that is to say, what is the limit of minority,—is to be
decided according to the law of the domicile. On the other
hand, the rights and restrictions of the minor are among the
juridical effects, and are therefore, by this doctrine, not to be
judged according to the law of the domicile.1
At all times, however, many writers have made no such
distinction, but have determined the legal effects, as well as
the qualities themselves, solely according to the law of the
person's domicile (d). And in accordance with them, I too
must altogether reject this distinction. I maintain it to be
arbitrary and illogical ; for any real ground for drawing such
a line is entirely wanting. If we look into the matter closely,
we find no other difference than this, that many personal
qualities or states are known by specific names, while others
are not. But this accidental and indifferent circumstance can
afford no reason for applying to them different territorial laws.
We call him major who possesses the fullest capacity to
act, attainable by age. It is therefore only a name for certain
legal effects, for the negation of previous limitations of capacity.
So we call him a minor who does not yet possess that full
capacity. It is a name for the negation of the condition of
perfect capacity. If a law lays down, in regard to minority
itself, certain degrees of capacity, without affixing to them
specific names, no ground can be discovered why these degrees
of capacity, just as much as the commencement of complete
capacity, should not be judged by the law of the domicile.
assertion will become still more evident by the following example :
—The defenders of that distinction admit that a Frenchman
twenty-one years old must be regarded as major and of full
capacity in Prussia, where twenty-four years—and likewise in
the countries of the Roman law, where twenty-five years—are
the terms of full age; for by article 488 of the French code,
he has received the rank of majeur, and has accordingly an
essential quality to which the law of the domicile is to be
applied. But the same code allows to minors, partly at sixteen,
partly at fifteen and eighteen, years of age, certain more limited
powers, without constituting them a special class with a specific
name (c). This is therefore, according to that theory, no
essential quality, but merely a legal effect,—a specially con
stituted restriction of the person ; and the law of the domicile
does not apply to it.
It is therefore my opinion, that every one is to be judged
as to his personal status always by the law of his domicile, whether the judgment is at home or abroad, and whether the
personal quality itself, or its legal effects, be the object of the