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 โ€œtransactionโ€? 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 personโ€™s 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 thereโ€™s 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 (itโ€™s about capacity to transact, not to own).
  • Disturb court practices that protect children, including:
    • Allowing civil proceedings in a childโ€™s name where no legal representative can act or thereโ€™s 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 personโ€™s 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 16โ€“17s: a court can set aside โ€œprejudicial 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 โ€œeveryday, reasonable termsโ€ exception (often it wonโ€™t). A parent/guardian should contract instead.
  • 13-year-old wants to make a will. Permitted (Section 2 exception) if they understand what theyโ€™re 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 โ€œlegal capacityโ€ under Section 1?
Itโ€™s 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 doesnโ€™t stop children holding or receiving rights/property; it restricts their capacity to transact.

If a 16โ€“17 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 contextsโ€”school, health, contracts, online purchases, and court processesโ€”and act swiftly where a young personโ€™s transaction needs challenged or protective steps are needed (e.g., curator ad litem/guardianship routes). Get in touch for tailored advice.

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