Section 1 of the Age of Legal Capacity (Scotland) Act 1991 explains who has legal capacity.
The core rule in Section 1
- Under 16: no general legal capacity to enter into any transaction or contract (subject to the specific exceptions found in Section 2).
- Age 16 or over: full legal capacity to enter into any transaction.
What counts as a โtransactionโ? The Act defines this very broadly (s.9): anything with legal effect, including unilateral acts, e.g., giving a gift, making a will, giving legally-effective consent, bringing/defending civil proceedings, acting as trustee/arbiter, and even witnessing a deed. This breadth matters when judging whether a young personโs act is legally binding.
The act does not change safeguards.
Section 1 deliberately does not:
- Affect transactions made before the Act commenced.
- Give capacity where thereโs another legal disability (e.g., adult incapacity) unrelated to age.
- Change delict (civil wrong) or criminal responsibility rules.
- Override statutes that set a specific age limit for a particular purpose (e.g., licensing, marriage, firearms).
- Stop under-16s from receiving or holding property/rights (itโs about capacity to transact, not to own).
- Disturb court practices that protect children, including:
- Allowing civil proceedings in a childโs name where no legal representative can act or thereโs a conflict;
- Appointment of a curator ad litem for under-16s;
- (Historic) appointment of a curator bonis;
- Under-16s exercising parental responsibilities and rights (PRRs) in relation to their own child.
A note on curator bonis (historic term)
It is no longer competent to appoint a curator bonis following the Adults with Incapacity (Scotland) Act 2000; courts appoint guardians instead. (The Judicial Factors (Scotland) Act 2025 also abolishes any remaining power to appoint a curator bonis.) The reference in Section 1(3)(f)(iv) is therefore historical.
Cross-references to PRRs
Section 1(3)(g) ties to PRRs under the Children (Scotland) Act 1995, confirming that a parent under 16 can still exercise PRRs for their own child.
Cleanup of old common-law rules (Sections 1(4)โ(5))
- Any inconsistent pre-1991 rules about minors/pupils cease to have effect.
- The old doctrine of reduction for minority and lesion (setting aside a young personโs contract due to disadvantage) no longer applies.
How Section 1 fits with the rest of the 1991 Act
- Section 2 โ Exceptions for under-16s: sensible carve-outs (e.g., everyday age-typical purchases on reasonable terms; making a will from 12+; medical/dental consent where the child understands). These are statutory exceptions to the Section 1 rule.
- Section 3 โ Safety net for 16โ17s: a court can set aside โprejudicial transactionsโ entered into between 16 and 18 if they cause (or risk) substantial prejudice. Applications may be made until age 21.
Commencement: The Act (including Section 1) has applied since 25 September 1991 (two months after Royal Assent on 25 July 1991).
Practical examples
- 15-year-old signs a 24-month mobile contract. Generally not binding (no capacity), unless it genuinely falls within the โeveryday, reasonable termsโ exception (often it wonโt). A parent/guardian should contract instead.
- 13-year-old wants to make a will. Permitted (Section 2 exception) if they understand what theyโre doing.
- 15-year-old consenting to dental surgery. Potentially valid if the clinician judges they understand the nature and possible consequences.
- 17-year-old took out a high-interest loan online. May be challengeable as a prejudicial transaction under Section 3, depending on facts.
Quick reference for professionals
- Baseline: 16+ = full transactional capacity; under 16 = no general capacity.
- Transaction scope: very broad; includes unilateral acts, giving consent, litigating, acting as trustee, witnessing.
- Court safeguards: curator ad litem remains; curator bonis now replaced by guardianship pathways.
- Under-16 parents: may exercise PRRs for their child.
FAQs (Scotland)
What is โlegal capacityโ under Section 1?
Itโs the legal ability to do acts with legal effect (contracts, consents, litigation, etc.). Full capacity begins at 16 (subject to specific statutory exceptions for under-16s in Section 2).
Does Section 1 change criminal responsibility?
No. Section 1(3) explicitly preserves criminal responsibility rules.
Can an under-16 own property?
Yes. Section 1 doesnโt stop children holding or receiving rights/property; it restricts their capacity to transact.
If a 16โ17 year-old enters a bad deal, can it be undone?
Possibly. Section 3 lets the court set aside prejudicial transactions made between 16 and 18, on application before age 21.
How XK Family Law Solicitors can help
As Aberdeen-based family law solicitors, we explain capacity and PRRs in real-world contextsโschool, health, contracts, online purchases, and court processesโand act swiftly where a young personโs transaction needs challenged or protective steps are needed (e.g., curator ad litem/guardianship routes). Get in touch for tailored advice.
Ready to discuss your case?
Email: info@xksolicitors.co.uk
Our articles are not legal advice. We accept no responsibility for use of this information.