Capacity In Scots Law

Legal capacity is the ability of an individual to transact with others. It should be distinguished from consent, where the individual with capacity, agrees for another to commit an act involving the consenter, such as consent to sexual relations under the Sexual Offences (Scotland) Act 2009.

Rights Capacity

All persons, human and juristic, have rights capacity, ie: the ability to hold a right. This derives from the classification of the law of persons found in Roman law.

The word 'person' is usually taken to mean humans. However, in Scots law and in many other jurisdictions, the term is also used to describe corporate entities such as companies, or partnerships
Scottish Charitable Incorporate Organisation
(SCIO) or other bodies corporate established by law (such as a government agency or local authority).

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as "a group of persons bound together by agreement for a particular purpose."Stair Memorial Encyclopaedia citing Conservative and Unionist Central Office v Burrell'' ''9822 All ER 1'' at page 5', ''Associations and Clubs (Reissue)'', Ch 1, ''Nature and Classification, Laws of Scotland: Stair Memorial Encyclopedia (London: Lexisnexis UK, 1999),'' para 1. Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property '' jointly'' in trust rather than ownership of the land vesting in solely in the association itself.MacQueen, Hector L. et al, ''Gloag and Henderson: The Law of Scotland'' (W. Green, Fourteenth / general, Hector MacQueen, Lord Eassie. ed, 2017), para 47-01.

Transactional Capacity (Capacity to Contract)

Children

Children under the age of 16 years old do not have capacity to enter into a transaction. Instead the law provides that those with parental rights and responsibilities under th
Children (Scotland) Act 1995
Part I can act on a child's behalf. This means that parents or a legal guardian appointed by the courts can transact on a child's behalf. However children are still granted a range of exceptions under section 2 of the Age of Legal Capacity (Scotland) Act 1991 including:

# A person under the age of 16 years shall have legal capacity to enter into a transaction of a kind commonly entered into by persons of his age and circumstances, an on not unreasonable terms.
# A child over 12 years may make a will or testamentary writing.
# A child over 12 can consent to the making of an adoption order in relation to them.
# A child under 16 can consent to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. This also includes the storage of gametes and the donation of cells for research.
# A child under 16 shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so. A child over 12 shall be presumed to be of sufficient age and maturity to have such understanding. A child who has capacity to instruct a solicitor also has the right to sue or be sued in the Scottish courts.

Any other transaction a child enters into is void, this means that contract is void ''ab initio'' (Latin: from the beginning) from the moment the child enters into the contract. Where a parent or guardian enters into a prejudicial transaction

Prejudicial Transactions Remedy for Young Adults (16-18 years old)

A person under the age of 21 may apply to the Sheriff court or Court of Session to have any previous prejudicial transactions set aside where the transaction was made by the applicant between the ages of 16 to 18. A prejudicial transaction is that:

"(a)an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant"

An example of an application can be seen in ''X'' v ''British Broadcasting Corporation'', where the applicant was successful in obtaining an interim interdict (in other jurisdiction this is termed an interim injunction) based on her "real prospect of success" in her action against the BBC
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