ABSTRACT
A legal norm may determine human behavior not only as content of a duty or a right, but also in other ways. An example is the sanction which by a legal norm is made the consequence of certain conditions. To order or execute the sanction is obviously not a “right” of the law-applying organ; the organ may, however, be obligated to order or execute the sanction; but this is not necessarily so. It is obligated only if another legal norm stipulates this obligation by providing for a sanction against the organ which does not order or execute the sanction stipulated by the first norm. Human behavior which is qualified neither as a duty nor as a right occurs also among the conditions of a sanction. Let us consider as an example the legal norm which obligates a debtor to return a loan to his creditor. Schematically, this norm may be formulated thus: If two individuals make a loan contract, if the debtor does not return the loan in due time, and if the creditor brings a suit against the debtor, then the court has to order a certain sanction against the debtor. The making of the contract is an act which does not form the content either of a duty or a right of the two parties. They are not legally obliged, nor have they a legal right, to make the contract; they get legal rights and duties through the contract, after the contract is made. But they are legally capable of making a contract. Nor does there exist either a duty or a right to commit a delict. But there is a legal capacity to commit delicts. The organ has no legal right to order the sanction and it may not even be obliged to do so. But it is legally capable of ordering the sanction. When a norm qualifies the act of a certain individual as a legal condition or a legal consequence, this means that only that individual is “capable” of performing or omitting to perform that act; only he is “competent” (the term used in its broadest sense). Only if this capable or competent individual performs or omits performing the act does that act or omission occur which according to the norm is a legal condition or a legal consequence.
