THE MAJORITY

CONCEPT OF MAJORITY

General or civil majority or simply majority is the state of people who have
reached the age from which it is established as a rule that the person has full
negotiating capacity (does not require legal representation, assistance or
authorization), general (for all acts) and uniform (without establishing
distinctions between the different categories of people who have reached that
age). In our Law, anyone who has reached the age of 18 is of legal age,
regardless of their sex. (CCart 18)

Some authors speak of majorities or special majorities, which would be the

states of people who have reached the age from which it is established as a
rule that the person has capacity in a specific legal sphere.

GENERAL REGIME OF MAJORITY.

The legal regime of the generality of adults is characterized by two principles:

the free government of the person and the “presumption” of capacity.

I.-The free government of the person

The adult, in principle, is not under anyone's power and no one has
guardianship or correction powers over him. If in certain cases the consent of
another is required to carry out acts relating to him or her, it is only because
he or she has a legitimate interest in the act. That is, for example, the reason
why someone who wishes to adopt requires the consent of their spouse who
is not legally separated (LOPNA art 411).

II.-The “presumption” of capacity.

The law “presumes” that the adult is fully capable; but it is worth making some
observations in this regard.
 A. 1º In terms of legal capacity or enjoyment, this “presumption” is not
exclusive to adults since legal capacity or enjoyment is the rule, both
for adults and minors.

B. 2º In matters of criminal capacity, the stated principle is not directly

related to the division of people into adults or minors. The basic rules
regarding criminal capacity take into account the age of the agent,
which is 12 years or older, as established by the LOPNA, and the fact
of having proceeded with or without discernment. (CC arts. 188 and
1887).

C. 3ºOn the other hand, in business matters, the “presumption” of

capacity of adults reverses the basic rules applicable to non-
emancipated minors. In effect, the rule is that those of legal age have
full negotiating capacity (they can act alone without people to
represent, assist or authorize them), general (in principle, in all acts),
and uniform (in principle, without that there are differences between
those of legal age).

D. 4º The “presumption” of capacity of adults has certain exceptions:

A. As has been seen, the ward who has reached majority requires
assistance for the approval of the guardianship accounts.
B. The “presumption” does not reach certain categories of seniors:
incapable seniors.

INCAPATABLE SENIORS

They are those who, once they have reached the age of majority, do not have
the full, general, negotiating capacity to carry out acts in their civil life.
PROTECTION INCAPACITIES OF THE ELDERLY

The presumption of capacity that comes with majority does not reach all the
elderly; as we have said, some are declared incapable by way of exception.

. INABILITY TO PROTECT THE ELDERLY

A. When an adult is accidentally not in use of his or her mental faculties, the
remedy is to challenge the business carried out invoking the lack of consent.
B. When the person is habitually in a situation that does not justify recognition of
full, general and uniform negotiating capacity. In this case, the law provides
that once the situation is confirmed, the adult is incapacitated, to a greater or
lesser extent, depending on the case, and is subject to a regime of
incapacitated persons and even to the power of another person if necessary.

3.In extreme cases, the law provides for the interdiction of the subject, with
which he is subject to full, general and uniform incapacity. In these cases the
representation regime. This is the Guardianship of interdicts due to
intellectual defect, the government of the person interdicted is conferred on
the Guardian.
C. In less serious cases, the law provides for the disqualification of the subject,
which limits his or her negotiating capacity to a variable extent, depending on
the case. The corresponding regime is assistance, in the guardianship of the
disabled, the disabled person is not subject to anyone's Power

INCAPACITY OF SOCIAL DEFENSE OF ELDERLY

 A. For reasons of social defense and due to serving a prison
sentence, the law declares the convicted person interdicted for the
duration of the prison sentence.
B. The interdict due to a criminal conviction is subject to
guardianship and affected by full, general and uniform incapacity.
The person of the prisoner is not subject to power, but to the
penitentiary regime

INHALITATION AND INTERDICTION

DISABLEMENT

Disqualification consists of a limited deprivation of negotiating capacity due to

an intellectual defect that is not so serious as to give rise to the prohibition or
reason of prodigality.

EFFECTS GENERATED BY DISABILITY

A. The person is not deprived of free self-government but is subject to

a guardianship of the disabled (assistance regime).
B. His negotiating capacity is limited, he must be assisted by the
curator, and may carry out all those acts that are permitted.
C. In relation to the nullity of those acts celebrated by the unskilled
person, if they are celebrated without the assistance of the curator,
this will be vitiated by relative nullity which can be invoked only by:

(Art. 411 CCV)

- The Curator

- The disabled
- Your heirs or successors

You cannot make donations, except for donations due to marriage, (requires
the assistance of the curator). (Art. 147 CCV)

The incapacitated person can accept donations but if they are burdened or
under conditions, they require the consent of the curator.

DISABILITY CLASSES

A. JUDICIAL DISABILITY: (Art. 409 CCV)

It is the one pronounced by the judge, through a sentence that declares the
subject unfit for having an intellectual defect that is not so serious as to give
rise to the prohibition.

The incapacitated person affected by these events will not be able to fully
realize the rights attributed to them by majority.

What are the causes of judicial incapacity?

-Weakness of understanding, (a state that is not so serious as to give rise to

the interdiction).

- Prodigality (means spending one's fortune on unjustified and

disproportionate expenses).

B. LEGAL DISABILITY

It is the one that affects people determined by law without the need for any
judicial pronouncement.

Who is disqualified by law?

(Art. 737 CPC)

- The deaf and mute

- Those blind from birth

- Those who were blinded during childhood (0 to 12 years), from the moment
they reach adulthood.

Effects of judicial disqualification

1. Disqualification does not deprive the person of government.

2. In terms of capacity, the effects of judicial disqualification are variable:
those disqualified do not have a uniform capacity, since our legislator
has established a flexible regime that allows the judge to adjust the
incapacity to the needs of the specific case.

According to the traditional interpretation of the law (CC art. 409), all
disqualified persons are incapable of carrying out, without the
assistance of a curator, the series of acts indicated by law: (being in
court, entering into transactions, giving and taking loans, receiving
credits, alienating or encumbering assets, granting releases and
perform any other act that exceeds simple administration), but the
Judge may extend this inability if the circumstances warrant it, up to
not allowing acts of simple administration without the intervention of a
curator. Thus, it is traditionally considered that incapacitation by
judicial disqualification may consist of requiring assistance.

A. For acts that exceed simple administration

B. For acts of disposition and simple administration. There is no
shortage of those who consider that the Judge has more flexible
powers, being able in the first case to limit himself to
 incapacitating for all or certain acts of disposition and in the
second, incapacitating for all or certain acts of simple
administration.

In any case, the assistance and approval of the curator is necessary in

addition to the approval of the judge for the validity of the marriage
capitulation and the donations made on the occasion of the marriage by the
disqualified person and even by the person who is being followed. the
disqualification trial to which a curator must be appointed for such purposes if
applicable (CC art. 147).

Unlike what happens with interdiction, there is no rule that allows the acts
prior to disqualification to be challenged, except for what is stated about
marriage agreements and donations made to the other spouse on the
occasion of marriage.

Finally, these special rules regarding donations and inheritances must be

taken into account:

A. The disqualified person cannot make donations except in the case of

donations to the other spouse due to marriage (CC art. 1,435. 146 and
147) or according to the doctrine of manual or remunerative donations;
but you can dispose of it by will (CC art 837)
B. Regarding the acceptance of donations, the disqualified person, like
the emancipated minor, only requires the consent of the curator for the
donation to be subject to charge or condition (CC art. 1.442).
C. Disqualified persons cannot accept inheritances except with the
consent of their curator and with the benefit of inventory, but if the
curator opposes the acceptance, the disqualified person may request
the judge to authorize him/her to accept with said benefit (CC art 999)
 Qualification

The judge, based on the circumstances of the case, may declare the legally
disqualified person capable of managing his or her business. In this matter,
the provisions for the revocation of judicial disqualification will be applied by
analogy.

The interdiction

It constitutes the state of a person who has been declared incapable of the
acts of civil life due to suffering from a serious intellectual defect or by virtue
of a criminal conviction, depriving him of the management and administration
of his assets.

The prohibition can be of two kinds:

 Judicial interdiction

It is the prohibition resulting from a serious habitual intellectual defect. Its

name derives from the fact that the intervention of the Judge is necessary to
pronounce it. Determines an inability to protect.

Causes of judicial interdiction:

A. The alteration of mental faculties must be total, a serious intellectual

defect.
B. That such an effect will be habitual, dementia can leave intervals of
lucidity and justify, therefore, the interdiction, it must be a state of
madness.
C. The prohibition only applies to adults and emancipated minors.

Effects of judicial interdiction:

A. The interdicted person is deprived of his negotiating capacity, therefore

he will be subject to full, general and uniform negotiating incapacity for
 the purposes of his protection and will be subject to the protection of
interdicted due to intellectual defect.
B. As a consequence of the guardianship regime, the person between
said loses the free government of his person.
C. Regarding the legal acts carried out by the interdict, the moment in
which they occur must be determined. If they are acts produced before
the interdiction, they may be annulled, if it is not proven that the cause
of the interdiction existed at the time of the celebration of said acts or
simply the nature of the contract.

 Legal interdiction

It is the interdiction resulting from a prison sentence. Its name derives from
the fact that when the sentence is imposed, without the need for any other
requirement, the prisoner is interdicted by virtue of the law. Determines an
incapacity for social defense.

Causes of legal interdiction:

A. Any person sentenced to imprisonment is subject to legal interdiction

during the term of this sentence.
B. Legal interdiction is an accessory penalty that necessarily follows
imprisonment and cannot be imposed separately from it (C.Pen., art.
23, heading).

Effects of legal interdiction:

A. The prisoner is subject to the government of the person of the

guardian, but his person is subject to the penitentiary regime of the
prison establishment determined by the state, as established in
article 408: "The interdict due to criminal conviction is subject to
 guardianship, the which will be governed by the provisions of this
chapter, insofar as they are applicable."
B. The prisoner is left capable of carrying out strictly personal acts that
could not be carried out by representatives (getting married,
granting a will, recognizing children).
C. He is deprived of the exercise of parental authority over his non-
emancipated minor children.
D. During the sentence, he loses the right to dispose of his assets
through inter vivos acts and manage them.
E. In matters of copyright, the interdict can, through the agent, carry
out any legal act related to the work created by him and exercise in
court the actions derived from this legal act.

Guardianship of Interdicts due to Mental Defect

The protection of the interdict due to intellectual defect is governed by the

provisions relating to the ordinary guardianship of minors, insofar as these
are applicable to it (CC art. 397) except for special provisions of the law.

Special rules for the protection of interdicts due to intellectual defect

 Regarding the denunciation of the position of guardian. The

denunciation of the position of the guardian in the protection of the
interdict due to intellectual defect has its own rules:

 The spouse or, when he or she is unable to do so, the father and
mother, will agree with the approval of the judge, which of them will
exercise guardianship of the interdict (CC art. 398). The Code does
not provide for what happens when the father and mother do not reach
the corresponding agreement or when only one of the parents can
exercise guardianship because the filiation is not legally established
with respect to the child or when the other parent has died and is
 incapable of the charge or has excused himself from it. In our opinion,
if there is no agreement, the designation of the parent who must
exercise guardianship corresponds to the Judge and if only one of the
parents can exercise it, the position corresponds to him.

 In the absence of a spouse, father and mother or when they are

incapacitated, guardianship corresponds to the person whom the
father and mother have appointed guardian by will or by public deed
preventing the interdiction of the child (CC art. 399)

 In the absence of the aforementioned persons or when all of them are

disabled, the Judge will appoint establishments for non-emancipated
minors (CC art. 399)

 Regarding the exercise of the position of guardian, the law provides

that the spouse, father or mother do not need discernment to exercise
the position of guardian nor are they required to provide security (CC
art. 400). In the same provision, it is established that these people will
not be required to present annual account statements, but,
inconsistently with what is established in the ordinary guardianship of
minors, the law does not extend such provisions to grandparents.

 Regarding the functions of the guardian, it is established that the first

obligation of the guardian will be to ensure that the interdict acquires
or recovers its capacity, that to this end the products of its assets must
be applied mainly (CC art. 401) the Judge with knowledge of the facts,
who will decide whether the interdict should be cared for at home or in
another place, but will not intervene in it when the author is the father
or mother of the incapacitated person (CC art. 401)
 Regarding the obligatory nature of the position of guardian, the law
provides that no one will be obliged to continue as guardian of the
interdicted person for more than ten years, with the exception of
spouses, ascendants or descendants. This provision is due to the
consideration that the protection of the interdict is of indefinite
duration.

 Regarding the relative cessation of the guardian in his position, the

reform of 82 establishes that "if the guardianship of the divorced
interdict was exercised by his spouse", once the sentence declaring
the divorce has been executed, the guardian will be appointed (to
appoint him) in accordance with articles 398 and 399 (CC art. 187 in
connection with art. 186). This means that the legislator of '82, except
in exceptional cases, keeps the interdicted defendant for divorce
under the guardianship of his counterpart for the entire duration of the
trial, which is evidently not sensible. The appropriate solution under
the rule of the Code of 42 and which should have been maintained,
was to apply to the case mutatis mutandi the rules of guardianship of
minors according to which they are incapable of being guardians, pro-
guardians or members of the Guardianship Council, among others.

Revocation of Interdiction for Mental Defect

Since the defect on which the prohibition is based can cease, the law has
provided for the revocation of the prohibition, which, once firm, causes it
to cease with all its defects.

1st Active legitimacy

The interdiction can be revoked at the request of the same people who
can promote the interdiction or ex officio. (CPC art. 739).
 2nd Origin

The revocation proceeds when it is proven that the cause that gave rise to
the interdiction has ceased. (DC art. 407)

3rd Procedure

The Judge opens an evidentiary articulation for the period determined and
his decision will be consulted with the Superior (CPC art. 739)

State Guardianship

Guardianship is controlled by the State in a similar way to how parental

authority is controlled. The minor protection bodies are the minor advisors,
the National Minority Service and the Judge.

Minor advisor. The minor advisor is a lawyer whose competence is the

judicial defense of the interests of the minor, by virtue of which he is a
legitimate and essential party in all trials where the minor intervenes, under
penalty of nullity of the procedures where they do not act.

However, this nullity can be corrected by the subsequent intervention of the

advisor in the trial, through ratification of what was done.

National Minority Service. It was created by law 20.1l1. It is a decentralized

organization, dependent on the Ministry of Social Action. Its most important
functions are:

A. Provide an adequate educational regime for the minor.

B. Exercise the "minority police."
C. Provide the judges with the collaboration that is required.
D. Advise national authorities and provincial governments on
matters of their responsibility.
 E. Carry out all necessary steps before the courts for the protection
of the minor.
F. Arrange for the assistance, admission or transfer of the minor to
the appropriate establishments, according to their needs.
G. Take care of orphaned minors or those abandoned by parents
or guardians, placing them in establishments where they can be
educated or offered a trade or profession that provides them
with a means of living.
H. The Service will have necessary representation before all official
organizations in order to control and qualify radio and television
shows as well as prevent them and make them stop.

Judge. The judge plays a predominant role in the State's supervisory activity.
You must make impartial decisions. In his role, he must take into account the
moral and material interests of the minor, that is, the physical and moral need
and integrity of the minor. The judge imposes sanctions on all those who
have minors in their care. In the case of parents, it can take away their
exercise of parental authority, as well as apply financial and custodial
sanctions. In the case of guardians, the sanctions also have the same nature.

The Board of Trustees.

The art. 310 Civil Code states: "If the authority of one of the parents is lost or
one of them is suspended in its exercise, the other will continue to exercise it.

Failing that, and in the absence of legal guardianship by a suitable blood

relative in the order of exclusive degree, the minors will remain under the
Board of Trustees of the National or Provincial State.
Patronage consists of the care of the person and property of the minor. It is
exercised by the Pupil Ministry or another state body, by virtue of the powers
that the law confers on them.

Among the functions of the Board of Trustees we can point out the following:
demand support from the father of a minor, deduct actions that correspond to
guardians or curators if they do not do so, oppose the appointment of a
guardian or curator, request their appointment, oppose the celebration of
marriage in case of knowledge of marital impediments, etc.

In Comparative Law, the supervision of the guardian's function can be carried

out through private or state organizations. The private body par excellence is
the Family Council where the members of the minor's family control the
actions of the guardian with respect to the minor. It is maintained in France,
Belgium, Switzerland, etc.

But, in general, the trend of contemporary legislation is for supervision to be

carried out by state bodies, fundamentally through the creation of Special
Courts for minors.
 Bolivarian Republic of Venezuela

Ministry of education for popular power

Santa Maria College

law School

School of International Studies

Second Semester Section C

Chair: Civil Law

 THE MAJORITY

Teacher: Members:
Marco Antonio Padron Amanda Herrera
CI 19,966,478.
Ziudy Luck
CI 22,390,997.
Adrianelk Molina
CI 25,224,720.
Ricardo Ramirez
CI 20,674,073.
Arianny Zambrano
CI 23,635,781.

Caracas, June 2012

Introduction

The following work aims to explain about majority, interdiction,

disqualification and enablement, it is necessary to carry out research on the
basic concepts of the topic.

Subsequently, we will analyze the concept of majority, incapable

adults, interdiction and disqualification, guardianship due to mental defect
among other points, in order to know a little about the subject, and obtain an
idea and knowledge regarding it.

Next, we will show various articles of the Venezuelan civil code, and
other laws of our State in order to understand and analyze more about the
topic.

Finally, we hope that it is an investigation that readers will appreciate.

 Conclusion

First of all, it is necessary to begin by giving the opinion from the point
of view of the members about the topic. “We can conclude that this topic
teaches us the differences when measures such as interdiction, whether legal
or judicial, disqualification, etc. are applied. And also the role played by a
tutor.”

Next, it is considered that majority is when we take into account the

specific age of a person indicated by the law, in order to attribute to him,
through legal presumption, the fullness of his capacity to act, at the same
time ceasing the subjection to another person.

To conclude the issue, it is important to point out that the legal

consequences of not knowing about the issue lead to the fact that
guardianship cannot be exercised well, or knowing the differences between
interdiction, disqualification, among other points.
 Bibliography

 Múñales of law
Andres Bello Catholic University
UCAB-Polar Foundation Publications Fund

 Tenth revised and updated edition

Civil Law people
José Luis Aguilar Gorrondona

 Civil Law I Editors Vadell brothers Francisco Hung Vaillant