Monograph Series · Third series › Part I Framing the claim and access to court › III-02 · First edition
The Subjects of Litigation: Capacity to Be a Party, Litigation Capacity, and Power of Representation
Can the holder of a right act validly as a party to the proceedings?
Volume contents
Abstract
This volume asks whether the holder of a right can act validly as a party to the proceedings. The capacity to become a party, the capacity to litigate on one's own, and the authority to represent another are distinct thresholds, and the effects of cure and ratification must also be distinguished. The path to relief opens where capacity to be a party, litigation capacity, and power of representation are present or a statutory cure or ratification has been completed, and closes where a defect in the required capacity or power of representation remains so that the relevant procedural act cannot be treated as valid. The six sections address, in turn, the subject and the capacity to act, the name of the association, the acts of persons with limited capacity, the opportunity to cure defects, the temporal effect of ratification, and the end point of the identity of the subject. The strongest counterargument is as follows. Subdividing defects may exclude curable cases too early. Internal organizational approval systems and the management of informal contacts are not addressed in this volume.
Synthetic case
The whole volume follows this invented case. It is not a real matter, and its facts are not legal findings.
Representative B of Association A filed suit in the association's name, but no materials evidencing B's appointment were submitted.
6 sections and their questions
- 01The Subject and the Capacity to Act
Are the capacity to become a party and the capacity to perform procedural acts the same?
22 min - 02The Name of the Association
Can an association that is not a corporation also litigate in its own name?
21 min - 03Acts of Persons with Limited Capacity
When may a person with limited capacity perform procedural acts directly?
19 min - 04The Opportunity to Cure Defects
Does a defect in the power of representation immediately mean the end of relief?
19 min - 05The Temporal Effect of Ratification
What effect does ratification after cure give to the prior acts?
19 min - 06The End Point of the Identity of the Subject
How is the cure of a defect distinguished from a change of party?
21 min