Part I. Persons (by El. Poulou)

Chapter 1. Status of a Person

§1. Definition of a Person

24. A ‘person’ is the subject of rights and duties, legal relations and conditions

(e.g. nationality, domicile). Like other contemporary legislation, the AK recognizes

as persons human beings (Art. 34 AK) – also called natural persons – and legal

persons (Art. 61 AK).

I. Natural Persons

25. The term ‘natural person’ for humans has been criticized, as it implies that

nature confers the quality of a person to humans and not to the law. Nowadays,

however, it is understood that every human being, without any discrimination, is a

natural person, i.e. has legal capacity otherwise called personality. This principle is

harmonized with the Greek Constitution, which positively imposes on the state the

respect and protection of the human being’s worth (Art. 2(1)).

26. The ‘natural’ person’s personality begins with live birth and terminates

with death (Art. 35 AK).

An exception to the above rule that a human being’s personality begins with

delivery, is introduced by Article 36 of the Greek Civil Code. According to it, as far

as rights accrued to an embryo (nasciturus) are concerned, personality begins with

conception, on the condition that the child is born alive. With this regulation,

intolerable solutions that could result from the strict application of Article 35 AK

are excluded.

Though Article 36 of the Greek Civil Code is usually applied to hereditary

rights, its scope of application extends to all rights that an embryo could acquire.

For instance, reparation of moral prejudice (Art. 59 of the Greek Civil Code) or

compensation according to Article 928(2) of the Greek Civil Code in case of his

father’s killing, which took place before delivery.

Contemporary views seem to equate a fertilized in vitro ovum to an embryo. In

way the ovum should have the capacity to have human rights from the moment of

its fertilization, though implantation took place at a later stage.1 Strong oppositions

to this opinion are expressed in Greece and elsewhere.2

38 – Hellas Family and Succession Law – Suppl. 24 (October 2003)

1. Androulidakis, ‘Embryo in vitro – Rechtsnatur und Status, in Aufbruch nach Europa’, FS 75

Jahre Max-Planc Institut für Privatrecht, Mohr Siebeck 2001, pp. 797–810 (‘Der “Pro-Embryo”

ist ein zukünftige Rechtsperson, welche des Rechtsschutzes . . . . . bedarf ’ – p. 799); Davis v.

Davis 842 S. W2d 588 (597) (Tenn., 1992). From the Greek literature see A. Georgiadis,

General Principles, §9, Nos. 17, 18; I. Kriari ‘Die Verfassungsmässige Problematik des Klonens

in Griechenland’, RHDI 53 (2000) 591–612.

2. Kounougeri, ‘Biomedical progress and the beginning of human life as a civil law problem’,

RHDI (53) 2/2000, pp. 555–563 (‘since the fertilised ovum, when outside the human body, does

not contain individual human life, it may be legally characterised as a thing and at the same time

as an aspect of the donor’s personality’ – p. 563); Th. Papazissi, ‘De habeas corpus á habeas

mentem. Protection de l’ Embryon aprés les nouvelles Méthodes de la biotechnologie’, RHDI 53

(2000), pp. 565–590.

27. Death is the only end of a natural person. So-called political death has been

abolished by a decree of 1862.

The exact time of death is not defined by the AK and thus is judged by the

findings of medical science. Nowadays, contrary to the past, according to the prevailing

view, death occurs the moment when the function of the brain stops, even if

the functions of the heart and the respiratory system are supported artificially. But,

as it has been correctly pointed out, it is incompatible with human dignity (see Art.

2(2) of the Greek Constitution) to consider a clinically dead person, who is preserved

in life with artificial means, as juridically dead, too. However, L. 2737/1999

on transplants adopts cerebral death and provides for its safe diagnosis.1

Death, as well as birth, is mainly proven by certificates issued by the Registrar

(see infra Nos. 44 and 45).

Aiming to facilitate the proof of death, the AK establishes two reputable legal

presumptions. According to Article 39 of the Greek Civil Code, the death of a

person whose body has not been found is considered as proven if he disappeared

under conditions that render his death certain, e.g. explosion of an airplane while


If death is not certain but very probable, the provisions on absentia are applicable

(Arts. 40–50 AK).

The Greek Civil Code, contrary to the law previously in force, has introduced the

presumption of simultaneous death, if it cannot be proven that a person has survived

somebody else (Art. 38 AK).

1. See A. Barka-Adami, ‘The designation of death in Greek legislation and the obligation of its

medical certification’ in EllDni 37, 535.

II. Legal Persons

28. The law characterizes as subjects of rights and duties not only natural

persons, but legal persons too. This is a legislative selection aiming to the attainment

of targets, which cannot be satisfied by natural persons.

Article 61 of the AK lies down that a union of natural persons pursuing the

promotion of a purpose (association) or an entity of property devoted to a private

purpose (foundation) may be accorded legal personality, when the legal requirements

for their formation – which are recorded in law separately for each legal

person – are met.

27–28 Part I, Ch. 1, Status of a Person

Family and Succession Law – Suppl. 24 (October 2003) Hellas – 39

The Greek Civil Code recognizes the following legal persons:

– the association with legal capacity (Arts. 78–107 AK),

– the foundation with legal capacity (Arts. 108–121 AK),

– committees for collection (Arts. 122–126 AK).

29. The personality of a legal person terminates with its dissolution for any

reason provided by law (e.g. Arts. 103–106 AK for associations, 117–121 AK for

foundations, 124–125 for committees). Practical reasons, however, impose the continuation

of a legal person’s personality during the stage of liquidation. That is why

an explicit provision (Art. 72 AK) sets out that a legal person has limited capacity

during its liquidation, i.e. only for the needs of the liquidation.

Finally, it should be mentioned that, in correspondence with the legal fiction of

Article 36 of the AK, which recognizes limited legal capacity to the unborn child

(nasciturus), the provision of Article 114 of the AK stipulates that a foundation

established after its founder’s death, i.e. in case of a constitution of a foundation

mortis causa, the foundation is considered to exist at the moment of death of its

founder, so far as the estate which is dedicated to it by its founder is concerned.

§2. Capacity

I. General

30. Under Greek law, every human being, regardless of age, sex, religion etc.,

enjoys full legal capacity (or personality), i.e. the capacity of holding rights and

duties (Art. 34 AK). The law confers legal capacity also on legal persons (Art. 61

AK) and, with regard only to rights, to embryos during the period of gestation, on

the condition that they are born alive (Art. 36 AK).

Apart from general legal capacity, there are also special capacities, i.e. capacities

to being subject to specific legal relationships, e.g. of marriage, of being a merchant,


Contrary to general legal capacity, which cannot be restricted by the common

legislator, as it is protected by the Constitution (Arts. 2(1) and 5(1)), limitations

to the special capacities either by law or private will, are in principle valid, under

certain presuppositions. For example, a law (Art. 1356 AK) prohibits marriage

between close relatives.

31. As far as legal persons are concerned, their capacity does not extend, as it

is understood, to legal relations, which presuppose the qualities of a human being

(Art. 62 AK). Thus, a legal person cannot participate in any of the relations of

family law, e.g. be inherited or become an intestate successor. On the other hand,

legal persons have a right to their personality and especially to its elements, which

do not presuppose a natural person, e.g. name, honour, reputation, unhindered

development of their activities, etc. Their personality is thus protected by law in

case of an unlawful offence (Art. 57 AK, which refers to human beings but is

applied to juridical persons as well). According to an opinion, the juridical capacity

of a legal person is also defined by its aim, which is prescribed in the charter, i.e.

the entirety of rules regulating its formation and function.

Part I, Ch. 1, Status of a Person 29–31

40 – Hellas Family and Succession Law – Suppl. 24 (October 2003)

A legal person is not allowed to act beyond its purpose (ultra vires).1 As the law

imposes the recording of the charter in special books kept at the Court of the First

Instance or its publication in the government Gazette, third parties wishing to trade

with the legal person can have access to the charter (Arts. 78, 108, 122 AK).

1. Certain EU statutes, however, regarding categories of companies, e.g. limited liability companies

(Pr D No. 419/1986) lay down that even if an act lies outside the aims of a company, it

binds the latter unless the third party who entered into a transaction with it knew or should have

known that the company’s aim was exceeded. It is obvious that this regulation has strengthened

the security of transactions.

32. Legal capacity should be distinguished from related conceptions, such as

capacity to enter into juridical acts, to be accountable for torts, to sue or be sued,

etc. More specifically, in contrast to passive legal capacity, capacity to enter into

juridical acts is the active capacity of a person to produce legal effects by his own


Capacity to attempt juridical acts presupposes intellectual and spiritual maturity.

As all persons of the same age do not have the same maturity and all juridical acts

do not demand the same grade of maturity, capacity to conclude juridical acts

should be judged in each case according to the nature of the attempted act. This

flexible system, which is followed, for example, by the Swiss Civil Code, can affect

the security of the transactions. That is why the Greek legislator has preferred rigid

and stable criteria, such as the age of the person, despite the disadvantages of such

an impersonal solution.

II. Capacity

33. Persons, as far as their capacity to enter into juridical acts is concerned, are

distinguished to fully capable, incapable or of limited capacity, according to the

amended provisions of the AK by L. 2447/1996.

A. Full Capacity

34. All persons above the age of 18 have full capacity (Art. 127 AK), unless

they fall into one of the below mentioned cases of incapacity or limited capacity.

B. Incapacity

35. Incapable are:

– minors, below the age of 10 and those who are placed under full privative

judicial assistance (Art. 128 AK). The above categories are incapable of entering

into any juridical act;

– persons, whose declarations of will were made when they were not conscious of

their acts, e.g. by reason of drunkenness, high fever, intoxication, or while they

32–35 Part I, Ch. 1, Status of a Person

Family and Succession Law – Suppl. 24 (October 2003) Hellas – 41

were in a psychicological or mental disturbance limiting decisively the function

of their will (Art. 131(1) AK). The incapability of this category is temporal. It

refers only to those juridical acts of the person which are attempted under the

conditions of Article 131(1) of the AK. According to the view prevailing in

jurisdiction and among legal scholars, a declaration of will made by a person

incapable of entering into juridical acts is completely null.1 This means that

anyone having a legal interest, with the exception of the heirs of a person who

belongs in the categories cited in Article 131(1) of the AK, is entitled to invoke

nullity, which is taken into account ex officio by the Court.

The law does not protect the partner of an incapable person, even if he is in good

faith, i.e. he ignores without fault of his own the incapability of the person with

whom he enters into an agreement. But in the case of the temporary incapacity of

Article 131(1) of the AK, the incapable person may be liable for compensation for

the prejudice resulting from nullity if the latter cannot be otherwise covered (Art.

132 AK). See also Art. 171(2) AK, on the declaration of will made to a temporarily

incapable person.

C. Limited Capacity

36. The following have limited capacity to enter into juridical acts:

– minors above 10 years old, and

– persons placed under partial privative judicial assistance or under concurrent

judicial assistance.

Minors above the age of 10 are capable of attempting juridical acts from which

they can derive only a legal benefit (Art. 134 AK), e.g. donation or acquisition of

ownership over a movable. Minors above 14 may freely dispose of the revenues

from their personal work or of movable property or, according to an opinion, also

immovable property, that was given to them for use or for free disposal (Art. 135

AK). Minors above 15 are capable, with the general consent of the persons to

whom the care of the minor is entrusted, of concluding a contract of work as

employees (Art. 136 AK). Article 137 of the AK allows married minors to attempt

any juridical act necessary for the maintenance or improvement of their fortune, for

the confronting of the needs of their personal maintenance preservation and education,

as well as the current needs of their family. Juridical acts attempted under the

conditions of Articles 134–137 of the AK are valid. In the absence of these conditions,

juridical acts attempted by minors are void. According to Greek jurisdiction,

nullity of the acts of minors is absolute. It can be invoked by anyone having a legal

interest.2 The majority of the Greek legal authors, however, consider these acts as

relatively null, which means that only minors, their representatives and the minors’

successors can invoke such nullity.

1. AP 463/1983 NoV 32, 267.

2. AP 419/1971, NoV 19, 1118.

Part I, Ch. 1, Status of a Person 36

42 – Hellas Family and Succession Law – Suppl. 24 (October 2003)

37. As to the capacity of a legal person to attempt juridical acts, it could be said

that legal persons are fully capable for legal relations for which they have juridical

capacity. Thus, a legal person is bound by the juridical acts attempted by the

persons charged with the management of its affairs, on the condition that they have

acted within the limits of their authority (Art. 70 AK). As to a legal person’s

responsibility for acts or omissions attempted by its organs and generating liability

for compensation, the legal person may be liable, if there is adequate connection

between the act and the duties entrusted to the organ (Art. 71 AK).

III. Consent to Undergo Medical Treatment

38. Different rules apply where the person’s consent to undergo medical treatment

is concerned. In this case, legal capacity is not the decisive thing. A person

may validly consent to a medical treatment, if he is able to understand the importance,

the consequences and the side effects of the treatment or the medical act.

Depending on the nature of the medical act, consent might be assumed for minors

between 14 to 16 years old.

Likewise, a person under care or judicial assistance may have the necessary

understanding to consent to medical treatment himself. This issue is not regulated

by statute.

IV. Responsibility for Delict under Civil Law

39. The person’s capacity to be responsible under the law of tort is judged

according to Articles 915–918 of the AK. In order for a person to have a complete

responsibility under tort law, he has to be over 14 years of age. A person who is

above 10 years of age but below 14, is liable for the prejudice he has caused, unless

he has acted without discretion (Art. 917 AK). The same rule applies to deaf-mute


A person shall not be responsible under tort law if:

– he acted without being conscious of his acts (Art. 915(1) AK);

– he was deprived of the use of reason because of a mental illness (Art. 915(1)


– he has not completed 10 years of age (Art. 916 AK).

However, if, at the time the prejudice was caused, this person had put himself in

such a condition through the use of alcoholic beverages or other similar means, he

shall be liable for the prejudice, unless he had reached this condition without his

fault (Art. 915(2) AK).

On the other hand, a person incapable for delict, according to the provisions of

Articles 915 to 917 of the AK, who caused prejudice, may be sentenced to reasonable

compensation, if the prejudice cannot be covered by any other means (Art. 918


37–39 Part I, Ch. 1, Status of a Person

Family and Succession Law – Suppl. 24 (October 2003) Hellas – 43

V. Criminal Responsibility

40. Criminal responsibility is recognized mainly for adults, except in the case

of deaf-mutes, if it will be judged that this person was deprived of the use of reason

to understand the wrong of his acts (Art. 33 of the Penal Code), or if he was

deprived of the use of reason, because of a mental illness, to understand the wrong

of his acts (Art. 34 of the Penal Code). Furthermore, a child, i.e. a person from 7 to

12 years old (Art. 121 of the Penal Code), is not responsible under criminal law and

only reformatory or corrective measures can be applied (Art. 126(1) of the Penal

Code). Adolescents who are held responsible under criminal law are sent to reformatory

schools, according to the provisions of Articles 127 et seq. of the Penal


1. Arts. 121–126 of the Penal Code will be amended within 2003 (L. …./2003).

§3. Absentees

I. Institution of Absentia

41. The law has introduced the institution of absentia (Arts. 40–50 AK) in

order to regulate the legal relations of a missing person, mainly of his property and

marriage, thus eliminating any uncertainty as to other persons’ interests. This purpose

cannot be achieved by the institution of the judicial assistance of another’s

affairs (Arts. 1689 et seq. AK), which mainly aims to protect the missing person’s


Thus, according to Article 40 of the AK, ‘if the death of a person is very

probable, because he disappeared while he was in danger of life or because he is

absent for a long time without any news, the Court may declare him an absentee, at

the request of anyone whose rights depend on the death of the missing person’. The

persons who have the right to seek the judicial declaration of a person to absentia,

are for example his heirs, spouse, the beneficiary of a compensation of insurance,

but not his creditors, as their rights do not depend on the missing person’s death.

They can ask for the declaration of absentia one year after the time of danger or at

least five years after the latest news regarding this person was received (Art. 41


The relative petition is judged by the Court of the last domicile or residence of

the missing person or by the Court of the capital of the country, under the procedures

described in Articles 42–45 AK and 783–785 CCPr.