Abstract
The paper is based on the assumption that legal capacity of a juristic person is closely linked to the theoretical perception of the legal conduct of a juristic person in terms of its ability to perform legal transactions. Indeed, the performance of legal transactions by juristic persons can be conceived, in theory, either based on legal fiction (concerning conduct of a juristic person), or based on the organic theory of juristic person.
Consequently, the present paper analyses both aforementioned theories, as well as the consequences of their strict application. If taken literally, the organic theory would mean that every individual serving as the governing body of a juristic person would be required by law to suffer from schizophrenia.
The law would command that the "Self" of such an individual be split in two, because while acting as a body of a juristic person, the individual does not use his "own reason and will", but rather serves as a mere medium through which the reason and will of the juristic person are expressed. Nonetheless, such a line of interpretation would render the existence of any conflict between the interests of a juristic person and those of an individual acting as its body impossible.
Given that conflicts do indeed often arise between the interests of a juristic person, as the principal, and those of its governing body, as its representative, the theory of legal fiction appears to be more fitting since, under that theory, the will of a specific individual is only "considered" the reason and will of the relevant juristic person, without claiming that these are the actual will and reason of the juristic person "in reality". This also explains why a juristic person, unlike an individual, cannot really enjoy legal capacity in the proper sense of the word (as a persona sui juris).
Indeed, the reason and will of a juristic person are in fact always simultaneously attributed to a distinct individual, who certainly is not devoid of his own legal personality (personhood) merely on the grounds of being the governing body of a juristic person. Accordingly, the reason and will of a juristic person will always represent "someone else's reason and will" as they will always come from "someone else".
From this viewpoint, a juristic person cannot enjoy legal capacity stricto sensu, and can merely be considered to "have" such capacity.