Natural will and free will: a study on private law

Abstract

The concept of “will” is fundamental to Private Law, as it integrates the definition of private autonomy (Privatautonomie). The German Civil Code brings a series of provisions that are related to acts based on the will of the individuals, while also distinguishing the concepts of “free will” (freier Wille) and “natural will” (natürlicher Wille). In this sense, this paper analyzes the distinction between these two concepts through an analysis of the provisions established under the German Civil Code, as well as based on philosophical and legal interpretations. The paper advocates that ‘natural will’ has been particularly relevant in the field of juristic acts related to property law and guardianship. On the other hand, the concept of ‘free will’ has had a greater development on the legal system, as it is composed of a cognitive element (ability to discern) and a volitional element (ability to command or control). It is a concept particularly relevant for matters involving legal capacity, capacity to consent and to be held liable under tort law.