Abstract

In this paper, the issue of legal protection in contracts concluded by vulnerable but legally capable elderly is analysed from the perspective of Sen and Nussbaum’s capabilities approach. Although they cannot be considered a legal category in the strict sense of the term, the elderly are nevertheless a social group with homogeneous characteristics, which may result in hurdles when converting available resources into «functionings», such as participation in social life and self-respect. If, as Martha Nussbaum argues, with the increase of life expectancy most human beings will encounter periods of dependency in the course of their lives, we should rethink dependency from being a pathological and exceptional condition to a physiological and ordinary condition of the human experience. Protection should therefore be accomplished on the basis of this different perspective, through the enhancement of general preventive measures based on the principle of accountability on the part of companies and professionals and their coordination with contractual remedies that should not only be directed at invalidity or ineffectiveness, but, where possible, also at the correction and adjustment of contracts concluded by the elderly.