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Legal capacity

Legal capacity is the ability to make legally binding declarations of intent with free will, for example to conclude contracts. The legal capacity is a special case of the capacity to act. The BGB differentiates between 3 levels of legal capacity: full legal capacity, limited legal capacity and legal incapacity.

Legal situation in Germany

The legal capacity is a special case of the capacity to act. The German regulations on legal capacity are only applied to Germans in Germany. Foreigners become legally competent in accordance with the legal system of their home country. This also applies if the legal capacity is expanded through marriage. If the foreigner is naturalized, however, once they have acquired legal capacity, they no longer lapse if they were not legally competent under German law.

In German law, a distinction is made, initially according to age, between legal incapacity, limited legal capacity and full legal capacity.

Children under 7 years


Minors who have not reached the age of 7 are incapable of contracting.

Anyone who is incapable of doing business does not have the legal power to make declarations of intent or to carry out legal transactions independently, for example to conclude or terminate contracts. He needs a legal representative.

According to German law, children under 7 years of age can only act as messengers in a legal transaction of any kind, so they only transmit a declaration of intent from their legal representative in everyday business. The latter can be the parents or a single parent or guardian.

Declarations of intent by others, such as terminations, must also be sent to the legal representative of the incapacitated person so that they become effective (Section 131 BGB).

Minors between 7 and 18 years of age

Limited competence

Minors between the ages of 7 and 18 have limited legal capacity (Section 106 BGB). Most legal transactions concluded with limited legal capacity are pending ineffective if they are not concluded with the consent of the legal representative (usually the parents). However, the parents can also agree to the legal transaction retrospectively, i. H. approve (§ 183, § 184 BGB).

If there is no prior consent (= consent, § 183 sentence 1 BGB), the transaction is either pending or finally ineffective:

  • A declaration of intent is pending ineffective if it was made without the consent of the legal representative, but the parents can still approve it (§ 108 BGB). A contract does not initially have any effect, but becomes effective retrospectively with the subsequent consent (= approval) by the legal representative (Section 184 (1) BGB).
  • A declaration of intent is finally ineffective if the legal representative refuses to approve it (Section 108 (1) BGB).
Advantageous legal transactions

Only in exceptional cases is the consent of the legal representative not required, especially in these cases

  • the achievement of a purely legal advantage (Section 107 BGB), such as the acceptance of certain donations,
  • in the case of declarations of intent that do not affect the minor's financial circumstances (so-called

neutral transactions, e.g. an order), as well as

  • for legal transactions that concern an employment relationship approved by the parents (§ 113 BGB).


BGH, decision of July 9th, 1980, V ZB 16/79; BGHZ 78, 28 = NJW 1981, 109 = DNotZ 1981, 111 = ZMR 1981, 54 = MDR 1981, 37 = JR 1981, 281 = WM 1980, 1193 = Rpfleger 1980, 463 = DB 1980, 2234:

In the case of a donation of residential property on the part of the legal representative to a minor over the age of seven, the question of whether the donation only brings the minor a legal advantage must be assessed from an overall view of the contract under the law of obligations and the contract in rem. If there are legal disadvantages associated with the transfer of the right in rem, even if the contract under the law of obligations only brings the minor a legal advantage, the legal representative is not authorized, for example, with regard to Section 181, last half-sentence of the BGB, to accept the To represent conveyance or to approve the conveyance declared by the minor himself.

BGH, decision of November 25, 2004, V ZB 13/04, BGHZ 161, 170 = NJW 2005, 415 = MDR 2005, 323 = DNotZ 2005, 549 = FamRZ 2005, 359 = FGPrax 2005, 56 = WM 2005, 144:

If the transfer in rem of a property to a minor is only legally advantageous when viewed in isolation, his declaration of abandonment does not require the consent of the legal representative or a supplementary guardian even if the underlying contractual obligation is associated with legal disadvantages. In this case, there is no need for an overall view of the legal obligation and the legal transaction in rem (different from BGHZ 78, 28). The transfer of property to a minor is only legally advantageous if it is encumbered with a land charge. For the encumbrance with a usufruct, this applies in any case if the usufructuary also has to bear the costs of extraordinary repairs and renewals as well as the extraordinary encumbrances on the property. The liability of the purchaser for the usual public charges of the property resulting from the transfer of ownership does not constitute a legal disadvantage within the meaning of Section 107 of the German Civil Code.

Pocket money transactions

Minors can continue to effectively enter into business that they effect with means that have been made available to them for this purpose or at their free disposal by the legal representative or, with his consent, by third parties ("pocket money paragraph"). In the case of hire purchase, this regulation means that the contract only becomes effective with the payment of the last installment, because only then is the contractually stipulated service fully effected.

Unilateral declarations of intent

Unilateral declarations of intent (for example, a termination) without previous Consent (= consent) given by the legal representative are always ineffective and cannot become effective even through approval. However, this does not apply if the declaration only brings legal advantages, such as the reminder, which, as a business-like act, is subject to the same rules. Another exception is partial legal capacity.

Special case

A special case exists if the contractual partner asks the legal representatives after the conclusion of the contract to declare their approval to him. In this case, any approval or refusal given up to that point becomes ineffective. The contract becomes (possibly again) retrospectively pending ineffective. If the legal representatives do not give their consent to the contract within two weeks, it will become definitively ineffective (Section 108 (2) BGB).

Partial legal capacity

The law itself does not know the concept of partial legal capacity, it was developed through jurisprudence and legal doctrine. In this respect, the minor is to be regarded as having full legal capacity for a specific area of ​​life.

The person with limited legal capacity to whom the legal representative has permitted the operation of a commercial transaction in accordance with Section 112 of the German Civil Code (BGB) is partially legally competent. However, this only applies to legal transactions that involve business operations. Declarations of intent by those with limited legal capacity are effective in this respect. However, the authorization to conduct the commercial transaction by the legal representative is only possible with the approval of the family court (Section 1645 BGB) or with a guardian of the Guardianship Court (Section 1823 BGB).

The authorization is also possible for service and employment relationships (including vocational training contracts (Section 113 BGB). Declarations of intent by the person concerned, which are aimed at entering into, dissolving or carrying out such a relationship, are then effective. If the legal representative is a guardian, he needs for the consent the guardianship court approval (§ 1822 No. 6, 7 BGB).

Adults aged 18 and over

Unlimited legal capacity

Since the BGB basically classifies all people as having full legal capacity, it does not specifically regulate the occurrence of full legal capacity, but their exceptions in §§ 104 ff. BGB. The unrestricted legal capacity is reached with the completion of the 18th year of life (majority, § 2 BGB). This also gives process capability (Section 52 ZPO).

Incapacity for work due to mental impairment

However, in addition to minors under seven years of age, persons (regardless of age) who are in a state of pathological disturbance of mental activity, which excludes the free determination of will and is by its nature not only temporary, are incapable of doing business. Declarations of intent by persons incapable of doing business are void, i.e. legally ineffective. The regulation can be found in § 104 No. 2 BGB.

If there is no legal representative, this will be appointed as a supervisor by the supervision court.

People with intellectual disabilities, certain mental illnesses and severe addictions are often unable to work:

According to the BGB, legal capacity is understood to mean the ability of natural persons to shape legal relationships in accordance with their own will and in full effect. The individual must be able to understand the consequences of his legal declaration (BGH NJW 1953, 1342; 1970, 1680).

The jurisprudence has defined the state of pathological disorder of mental activity that triggers the legal incapacity as follows: "The pathological disorder must exclude the free will formation. In addition to the ability of the mind, the freedom of the will is of particular importance. It depends on whether a free will Examination of the relevant points of view is possible. Conversely, one cannot speak of free will formation if the person concerned is subject to the influence of the will of others or if his will formation is determined by uncontrolled instincts and ideas (BayOlG NJW 1992, 2100). "

In principle, the incapacity is determined by an expert in the course of legal proceedings. The reports of experts are also subject to the free assessment of the evidence by the court, i.e. the court can deviate from the report in its decision, but it must justify its differing conviction and this reason must show that the differing assessment is not due to a lack of expertise is influenced (BGH NJW 1982, 2874). As a rule, however, the courts will follow the expert opinion or commission a new expert to be appointed.

Clinical pictures in which the jurisprudence has assumed incapacity for business:

The question of the incapacity to work in the case of drunkenness (alcoholism) often arises. In the case of alcoholism, there is a pathological disorder of mental activity within the meaning of Section 104 No. 2 BGB either if the addiction as such is a symptom of an existing mental illness or mental weakness or if the personality degradation caused by the addiction has reached the value of a mental illness or mental weakness . The term alcohol or drink addiction includes a hardly suppressible, instinctual, abnormal desire for alcohol, thus a lasting disruption of the will formation; but this does not mean in every case that a pathological disturbance of the mental activity is already present.

Given the diversity of the clinical picture of alcoholism, the form of addiction and its stage must first be determined from the diagnosis of the medical expert, whether, for example, according to the usual division of alcoholism into dipsomania, chronic alcoholism, delirium tremens, alcohol hallucinosis or Korsakow's disease (Saage-Göppinger , Deprivation of liberty and placement, 2nd edition, Part III, para. 108). In addition, the form and severity of alcoholism can also be presented according to the typology of alcoholism proposed by the World Health Organization (WHO), which differentiates between alpha, beta, gamma, delta and epsilon alcoholism (Langelüddecke-Bresser, Judicial Psychiatry, 4 . Ed., Part III The Civil Code, pp. 383f.). In this classification, only gamma and delta alcoholism is considered to be a disease. However, a blurring of the differences is possible as the personality deterioration progresses in the case of alcohol-related brain damage.

But even the mere diagnosis according to such schemes does not allow a certain conclusion with regard to the legal capacity. Only in the case of the diagnosis of "Korsakov's disease" must one regularly assume legal incapacity (BayOLG NJW 1990, 774). Symptoms of this syndrome are the simultaneous occurrence of memory disorders (especially short-term memory), disorientation and confabulations (made up stories) as signs of damage to the brain.

In addition to alcoholism, the incapacity to work can also be due to a traumatic brain injury, poisoning or a lack of oxygen supply to the brain. Furthermore, dementia can also lead to the assumption of incapacity. In the case of dementias, the primary degenerative and secondary dementias must be distinguished. While the primary forms can lead to legal incapacity if the severity is appropriate, secondary forms are treatable, i.e. generally regarded as reversible, and thus fall under Section 105 (2) BGB.

The majority of dementias, however, are formed by the primary forms, primary degenerative dementia of the Alzheimer's type, vascular dementia and a mixed form of the two. Vascular dementia is the result of many small or less large or strategically unfavorably localized cerebral infarctions or other vascular events (cereal hemorrhage, cereal circulatory disorder due to poor circulation - hypoperfusion). Criteria to be used when assessing free will formation are: the degree of impairment intellectual abilities, the restriction of practical life abilities as well as the personality change (OLG Düsseldorf FamRZ 1998, 1064). A reasonably closed chain of indicators is to be set up, which proves a corresponding course of the disease.

Section 104 No. 2 of the German Civil Code (BGB) can also be used in the case of debility, but generally only if the IQ (intelligence quotient) is lower than 60 (LG Düsseldorf VersR 1996, 1493). Debility or even slight oligophrenia is present with an intelligence quotient of 50-69. Those affected can, with good support, be only partially incapable of doing business and achieve a certain degree of independence in self-sufficiency and in simple, practical work. With an IQ of 35-49 one speaks of imbecility or moderate oligophrenia. Those affected only have a realistic way of thinking with little abstraction. In the severe (IQ of 20-34) and the most severe oligophrenia (IQ of under 20), the language skills are usually no longer sufficient for communication and those affected can understand basic instructions and formulate simple demands.

Ultimately, the individual case decides for each of the symptoms shown. A lump sum cannot be made in any case, as the person concerned must conclusively present and prove the illness leading to the incapacity to act in court. The above list should rather be seen as an example that should help to explain the formulation of the "state of pathological disruption of mental activity which excludes free will formation".

The legal incapacity is not always recognizable to outsiders. The law does not protect the good faith in the legal capacity of the business opponent, since the protection of a person who is not fully legal has priority. This means that concluded contracts are also ineffective if the contractual partner's incapacity was not recognizable. Whether in the end there was actually a legal incapacity can only be determined in a binding legal process. For this purpose, expert reports on the health status of the person concerned at the time of the legal transaction are regularly obtained, e.g. B. also from files of the supervisory court on the occasion of a supervisor appointment. The burden of proof lies with the person who objects to legal incapacity.


BGH, judgment of 05.12.1995 - XI ZR 70/95 (KG), NJW 1996, 918 = LM H. 4/1996 § 104 BGB No. 11 = MDR 1996, 348 = DB 1996, 518 = WM 1996, 104:

An exclusion of the free determination of the will exists if someone is unable to form a will free and unaffected by an existing mental disorder and to act according to correctly gained insights.

SozG Speyer, decision of 11.12.1998 - S 7 K 110/97; RDLH 1999, 81

Membership in a statutory health insurance can also be applied for retrospectively by the supervisor. The prerequisite is the legal incapacity of the person concerned for the point in time of the timely application.

Saarländisches OLG ruling of 3 March 2004 Az. 4 UH 754/03, 4 UH 754/03 - 139:

Since the legal capacity of an adult is the rule and its absence is the exception, the person who invokes legal incapacity bears the burden of proof. The opponent only has to prove the existence of a clear moment if a condition is established which is suitable to justify legal incapacity for the time the relevant declaration of intent is made (organic brain psychosyndrome).

Karlsruhe Higher Regional Court of December 2nd, 2008; 1 U 207/08:

The business partner bears the risk of legal incapacity. If it emerges in the process that the principal was incapable of doing business, the business partner bears all costs - including those of the expert. In addition, the business partner must also pay default interest for the time in which he did not know that the principal was incapable of doing business. Press release on this

Partial incapacity

In case law, partial legal incapacity - related to a specific area - is generally recognized. It is present when a mental disorder relates to a specific area in which the person concerned z. B. Has developed delusions, but otherwise can act "normal" in business life. So BGH, WM 1984, 1063; BayObLG, BayObLGZ 1986, 214, as well as decision of November 24th, 1988 - BReg. 3 Z 149/88, NJW 1989, 1678 = NJW-RR 1989, 839 (Ls.) = MDR 1989, 352 = FamRZ 1989, 664.

Relative legal capacity

In contrast, legal doctrine rejected a "relative legal capacity", which refers to the fact that legal transactions can be differently difficult (e.g. minor cash purchase versus property purchase) and simpler legal transactions otherwise incapable of doing business can be understandable. However, there is no partial, relative legal incapacity only with regard to particularly difficult or complex life circumstances (BGH NJW 1970, 1680, 1681; BayObLG NJW 1989, 1678, 1679). However, with Section 105a of the German Civil Code (BGB) added on August 1, 2002, "simple" everyday transactions have now been declared effective. The rejection of the doctrine of relative legal capacity also affects social law: LSG North Rhine-Westphalia, decision of 29.11.2011 - L 18 R 37/06.

Business of everyday life

According to the aforementioned § 105a BGB, certain legal transactions that were made by incapable of business are also to be regarded as legally effective. These are everyday business with low-value resources, provided that performance and consideration have been given. Installment purchases are therefore not included. Such a legal transaction must not endanger the financial situation of the incapacitated person. A parallel regulation for those with the reservation of consent is contained in Section 1903, Paragraph 3, Sentence 2 of the German Civil Code.

See the separate article under: Everyday business.

Conclusion of home and workshop contracts

Special feature: since August 1st, 2002, home contracts concluded by those unable to work are to be regarded as legally effective if services have already been provided (Section 5 No. 12 of the Home Act, Section 4 (2) WBVG).

In the new Housing and Care Contract Act (WBVG), which regulates the contractual basis anew, since the home law will otherwise be replaced by state provisions, a new legal structure has been made in Section 4 (2) for the conclusion of a contract by incapacitated persons, which is pending ineffectiveness for them Introduces the type of contract and expressly relies on later approval by a supervisor or an authorized representative.

The wording of the law:

(2) If the consumer was incapable of contract when the contract was concluded, the validity of the contract depends on the approval of an authorized representative or supervisor. Section 108 (2) of the German Civil Code shall apply accordingly. With regard to an already effected service and its counter-service, the contract is deemed to have been effectively concluded. As long as the contract has not been effectively concluded, the entrepreneur can only declare the contractual relationship to be dissolved for good cause; §§ 12 and 13 paragraphs 2 and 4 are to be applied accordingly.

Contracts with workshops for disabled people are affected by a similar regulation. It can be found in Section 138 (5) and (6) of Book IX of the Social Code. They are:

(5) If a disabled person of legal age has been admitted to the work area of ​​a recognized workshop for disabled people within the meaning of Section 136 in accordance with Paragraph 1 and if he was incapable of doing business at this point in time, the workshop contract concluded by him applies with regard to an already performed service and its Consideration, insofar as these are in an appropriate relationship to one another, as effective.

(6) If the disabled person of legal age was incapable of doing business when a workshop contract was concluded, the owner of a workshop can only declare the workshop relationship to be terminated under the conditions under which an effective contract can be terminated by the owner of a workshop.

Comparable regulations

Regulations that are also based on the legal capacity can be found in many laws. In the BGB itself there is the ability to marry (§ 1304 BGB) and the inability to testify (§ 2229 Paragraph 4 BGB). These are sub-areas of the legal capacity. In the area of ​​litigation, people are incapable of litigation who are legally incapable (Section 51, Section 52 Code of Civil Procedure, ZPO). In the case of damaging events, people who are unable to recognize the consequences and scope of their actions due to illness are incapable of tort (Section 827 of the German Civil Code). In criminal law there is the incapacity and the limited liability (§ 20, § 21 Criminal Code).

binding statement

Whether an adult (regardless of whether he has a supervisor or not) is legally incapable of doing so in accordance with Section 104 No. 2 BGB can only be bindingly decided in a legal dispute by a judge in the event of a dispute. Corresponding statements in a medical expert report or a certificate can therefore only serve as an indication.


Higher Regional Court of Bamberg, notification decision v. 01/12/2018 - 8 U 175/17

  1. Doubts within the meaning of Section 529, Paragraph 1, No. 1 of the Code of Civil Procedure exist if, from the point of view required for the court of appeal, there is a certain - not necessarily predominant - probability that the first-instance determination will not be valid in the event that evidence is taken, i.e. it will be Reveals incorrectness (BGH BeckRS 2014, 14141).
  2. A pathological disorder within the meaning of Section 104 No. 2 BGB must exclude the free determination of will so that the person concerned is no longer able to make his decision dependent on reasonable considerations (BGH BeckRS 1984, 31071102).
  3. In the case of an adult, legal capacity is to be assumed as the rule and its absence is the exception; whoever invokes legal incapacity has to prove their prerequisites.

Higher Regional Court Brandenburg, judgment of 23.07.2020, 5 U 158/19

  1. Proof of legal incapacity at a certain point in time in the past (here: notary appointment as part of the notarization of a donation agreement) must be provided by means of a "backward forecast".
  2. The assertion of legal incapacity is to be clarified by obtaining a medical expert opinion, in the context of which the statements of witnesses, but also the findings of an opinion for the supervisory court can be used as connecting facts for an assessment.
  3. According to Section 144 (1) sentence 1 ZPO, the regional court is not obliged to obtain an expert opinion ex officio; the order is at the discretion of the dutiful. It is primarily up to the party charged with evidence to decide for itself which evidence is offered.
  4. Since the legal capacity is the rule, the person who invokes the full burden of presentation and proof is responsible for the existence of the legal incapacity.

OLG Munich, decision of April 30, 2020 - 13 W 463/20

Basically, the person who invokes the incapacity to do so must demonstrate and prove it. This is different, however, if the legal incapacity is proven or undisputed. Then the person who invokes the validity of a legal transaction as a result of a clear moment must explain and prove it.

BGH, decision of July 29, 2020 - XII ZB 106/20

  1. If the ineffectiveness of a health care proxy cannot be positively determined, the effective authorization remains (following the Senate resolution of February 3, 2016 - XII ZB 425/14 - FamRZ 2016, 701).
  2. The question of whether the person concerned was legally incapable of doing business at the time the power of attorney was granted according to § 104 No. 2 BGB has to be clarified ex officio by the court according to § 26 FamFG. According to § 104 No. 2 BGB, the incapacity is not a medical finding, but a legal term, the prerequisites of which the court has to determine with a critical assessment of the expert's report.

Effects on contracts

Contracts (unless the exceptions mentioned above exist) that were concluded with incapacitated persons are void. The BGB does not protect the good faith in the legal capacity of the contract partner, but grants the protection of the legally incapable or limited legal capacity priority over legal transactions. It would be conceivable that the other "contract" partner could claim for unjust enrichment in accordance with §§ 812 I 1 Case 1, 818 II BGB. Goods or money received would have to be returned. This can be a problem if the incapacitated person no longer owns the object of the void contract, e.g. because it has been lost, stolen or used up. He is no longer enriched, a return according to § 818 Abs. 3 BGB is then excluded. The balance theory is also not applicable to the detriment of incapacitated persons (BGH BGHZ 126, 105 = NJW 1994, 2021 = NJW-RR 1994, 1075 = FamRZ 1994, 953).

This also applies to so-called black journeys. The incapacitated person obtained the transport service without any legal reason. He would have to pay compensation for this service, which cannot be surrendered, in accordance with Section 818 (2) of the German Civil Code (BGB). However, he did not save any other expenses, and G is no longer enriched according to § 818 Paragraph 3 BGB. For the stricter liability for enrichment according to §§ 818 Abs. 4, 819 Abs. 1 BGB, it depends on the knowledge of the legal representative (e.g. the supervisor according to § 1902 BGB) of the circumstances giving rise to liability and not those of the incapacitated.

The following decisions under the law of minors also apply to incapacitated persons: If an effective transport contract between a minor who uses a regular bus without a valid ticket and the transport company has not come about due to the minor's parents' lack of approval, the transport company can do so in its tariff provisions at »Schwarzfahrten «Do not require the minor to charge the intended increased transport fee. The minor only has to pay compensation in the amount of the usual transport fee for the route concerned (AG Jena NJW-RR 2001, 1469; AG Bergheim NJW-RR 2000, 202; AG Wolfsburg NJW-RR 1990, 1142; AG Wuppertal, judgment of 08.04 .2009, 35 C 376/08, with reservation of consent).

When notarizing a declaration of intent by a notary, the notary must make determinations about the legal capacity of the parties involved (Section 11 of the Notarization Act). If there are any doubts about the legal capacity, the notary should note this in the deed. Ultimately, a notarial statement is not binding in the event of legal disputes, but it is helpful.

OLG Stuttgart, decision of April 22, 1985 - 8 W 68/85, MDR 1985, 848 = NJW-RR 1986, 243:

If an apartment owner is incapable of contracting at the time of the calling and holding of an apartment owners meeting, this circumstance does not justify the nullity of a resolution passed at this meeting.

KG Berlin, judgment of March 13, 1998, 17 U 9667/97, ​​DStR 1998, 1401 = JurionRS 1998, 30855 = NJW 1998, 2911 = VersR 1999, 1026:

If the nullity of the loan contract is based on the incapacity of the person acting without a legal representative, the borrower is not barred from invoking the loss of enrichment against the lender's repayment claim; the stricter liability of 819 I BGB does not apply.

LG Nürnberg-Fürth, decision of December 22, 2011, 12 T 7607/11:

If the notary is instructed in the context of the notarization of a power of attorney to issue the proxy with a further copy of the document only upon written instruction from the principal, he may not disregard this solely because the principal has meanwhile been permanently incapable of doing business.

LG Freiburg i.Br., judgment of 05.07.2012, 3 S 48/12:

The persistent violation of the smoking ban stipulated in a home contract can be a reason for termination within the meaning of Section 12 (1) sentence 3 number 3 WBVG, even if the home resident has limited control and insight.

Jurisprudence on unjust enrichment

BGH, judgment of January 17, 2003, V ZR 235/02, NJW 2003, 3271 = MDR 2003, 570 = FamRZ 2003, 513 (Ls.) = WM 2003, 1488:

  1. If an incapacitated person relies on the loss of enrichment, he bears the burden of presentation and proof of the circumstances justifying the loss of enrichment, not unlike a legally competent person.
  2. The consumption of money to meet the general needs of life can lead to the loss of enrichment; The prerequisite, however, is that the money received has been used entirely for the needs of life and is not still available in the property in any other form, for example through the formation of savings, through acquisitions or also through the repayment of debts.

Jurisprudence on the effectiveness of a power of attorney

OLG Hamm, decision of May 7th, 2009, 15 Wx 316/08, OLGR Hamm 2009, 653 = FamRZ 2009, 2035 (LS) = DNotZ 2010, 61 = FGPrax 2009, 215 = NJW-RR 2010, 799:

Doubts about the legal capacity of the person concerned at the time of issuing a power of attorney must be investigated by the court by means of an official investigation (Section 26 FamFG). If an expert report that has been obtained and assumed that the person concerned is incapable of doing business turns out to be incomplete if it is critically assessed, the court must take additional measures to clarify the facts. The precedence of the power of attorney (§ 1896 Abs. 2 S. 2 BGB) must not be overridden by the fact that the court already draws the final conclusion from an incomplete report that doubts about the effectiveness of the power of attorney could not be dispelled, so that an appointment of a supervisor is necessary be.

Munich Higher Regional Court, decision of June 5, 2009, 33 Wx 278/08, BtPrax 2009, 240 = FGPrax 2009, 221 = NJW-RR 2009, 1599 = OLGR Munich 2009, 656 = MittBayNot 2009, 382:

If the incapacity of the person concerned was not already established with certainty at the time of the notarization, a diagnosed advanced dementia does not preclude an earlier notarized health care proxy. If the person concerned has consciously and freely resolved to authorize a confidant, a partial legal capacity related to this can be affirmed even if minor cognitive deficits that cannot be excluded give rise to concerns about the effectiveness of other declarations of intent.

Munich Higher Regional Court, decision of November 4, 2009, 33 Wx 285/09, FGPrax 2010, 29 = FamRZ 2010, 756 = BtPrax 2010, 36 = RdLH 2010, 33:

If, at the time of granting a health care proxy for the social environment of the principal, including his family doctor, no mental impairment can be identified, the retrospective diagnosis of incapacity by an expert who examines the person concerned for the first time more than four months since the authorization was granted is subject to strict requirements. A "gradually progressive dementia illness" after admission to a psychiatric clinic due to acute confusion and disorientation does not in itself allow sufficient conclusions to be drawn about the condition at the time the power of attorney was granted.

BGH, judgment of April 21, 2015 - XI ZR 234/14:

Payment by the bank to a person for whom a supervisor has been appointed and for whom a reservation of consent has been arranged for the area of ​​asset management has no fulfillment effect.A contractual claim for damages by the bank against the supervised person due to the failure to communicate the reservation of consent or the withdrawal of the money without the consent of the supervisor is ruled out for lack of a breach of duty within the meaning of Section 280 (1) BGB. The supervised person was not obliged to inform the bank about the existing supervision or the ordered reservation of consent without being asked. As a custodian who is subject to the reservation of consent, he is to be treated by law as a person with limited legal capacity in this context as well. Such a person is not liable due to negligence in contract negotiations if he withholds his minority. Due to the lack of good faith protection with regard to the legal capacity, there is basically no obligation to inform the contractual partner about the lack of legal capacity without being asked

Effects on deliveries and statutes of limitations

It is not possible to effectively serve and announce to incapacitated persons. This results in civil law from § 131 BGB, in procedural law from § 170 ZPO and in administrative law from § 6 Administrative Delivery Act. However, the Federal Court of Justice has confirmed its case law, according to which the delivery of an enforcement order to a party incapable of litigation - not recognizable from the title to be served - sets the objection period in motion (judgment of the Federal Court of Justice of March 19, 2008, XIII ZR 68/07), confirmed again by judgment of the BGH of January 15, 2014 - VIII ZR 100/13.

If an incapacitated person is without a legal representative, no statute of limitations also applies, regardless of whether he has the claim or the claim is directed against him, Section 210 of the German Civil Code (BGB). The limitation period can only end when legal capacity is re-established or a legal representative is appointed, in particular a supervisor with a suitable scope of duties, here usually asset management (usually 6 months after the lack of representation ceases to exist]].

OLG Schleswig, judgment of April 28, 2016, 5 U 36/15, FamRZ 2016, 1972

  1. The bank can only fulfill information obligations in accordance with Section 676b (2) sentence 2 of the German Civil Code (BGB) towards incapacitated persons by sending the relevant information within the meaning of Section 131 (1) BGB to the legal representative. The associated lack of legal certainty in legal transactions with undetected legal incapacities corresponds to the fundamental value decision of the legislature in favor of the interests of the participants in legal transactions, who are typically weaker due to personal characteristics.
  2. The objection of depletion of a legally incapable person is not precluded by the fact that a claim for reimbursement against the account-holding bank due to negligent failure to meet the deadline of Section 676b (2) sentence 1 of the German Civil Code (BGB) is excluded.

Incapacity to act also in the case of warnings

The landlord's right to cease and desist due to use of the rented property in breach of contract against the tenant only exists after a prior warning has been given to the tenant. If the tenant is incapable of doing business and the landlord sues before the supervisor becomes aware of the warning, the landlord must bear the legal costs. This emerges from a decision of the Federal Court of Justice (BGH, decision of April 17, 2007, VIII ZB 93/06; NJW 2007, 2180 = MDR 2007, 1066 = IMR 2007, 248 = NZM 2007, 481).

In the case, the landlord sent a warning to his legally incapable tenant and asked her to remove a parabolic antenna attached to the balcony parapet. Before the supervisor learned of the letter, the landlord sued the tenant for removal. The tenant removed the parabolic antenna. The parties then unanimously declared the litigation ended and argued over who should bear the costs of the litigation.

The Federal Court of Justice ruled that the landlord had to bear the costs because the lawsuit was unfounded. The landlord had not issued a valid warning to the tenant prior to filing a lawsuit, because according to Section 541 of the German Civil Code (injunctive relief in the event of use contrary to the contract), a warning was a prerequisite for the landlord to claim removal from the tenant. The warning personally directed to the tenant was ineffective due to the defendant's incapacity, since the provisions on legal transactions were to be applied accordingly to a warning as a legally binding declaration of intent that must be received.

Also to be observed in employment contracts

Employers and employees must be legally competent when the employment contract is concluded. However, both employers and employees do not have to sign the employment contract in person; they can be represented by a representative. In this respect, the provisions of §§ 164 ff. BGB apply. The concluded employment contract works for and against the person represented if the representative acts on behalf of the person represented and if he has power of representation.

If an employee who is incapable of contract actually enters service or work, his wage claims are to be processed according to the principle of the factual employment relationship.

A de facto employment relationship exists when an employment contract between employer and employee has been concluded and is actually being executed, but then turns out to be void or is effectively challenged. In order to protect the employee, the actual employment relationship is treated like an effective employment contract. The employee is therefore to be paid the remuneration for the period of employment that would have to be paid under the void employment contract. In this respect, he is entitled to all rights from the employment contract; on the other hand, the obligations do not affect him because he cannot effectively commit himself due to the lack of legal capacity.

A termination cannot be effective against declared to an employee incapable of contract, so the LAG Rhineland-Palatinate, judgment of 08.05.2009, 6 Sa 55/09:

Section 131 of the German Civil Code requires that the declaration of intent, which is required to be received, be submitted to the incapacitated person, but that access occurs to the legal representative. This is to be understood as meaning that the declaration is made with the aim of making it effective for the legal representative; the declaring party, when submitting the declaration to the incapacitated person, also has the will to address the declaration to the legal representative (cf.Staudinger-Dilcher, Commentary on the Civil Code, General Part, Book 1, Rz. 3, as well as APS - Right of termination, 3rd edition, D, 36, 69, 70; a. A. Reichhold, jurisPK - BGB, 4th edition 2008, § 131, margin number 6). It follows from this that the mere chance acquaintance with the existence of a termination by the supervisor in the context of his supervisory function could not justify an effective access to a declaration towards incapacitated persons (cf. also BGH decision of April 13, 1989, V ZR 145/88, with further references) .

Effects of care

The appointment of a supervisor does not affect an existing legal capacity. Before 1992 it was different. If you were incapacitated at the time because of mental illness, you were considered incapable of doing business. Persons incapacitated for other reasons (mental weakness, drunkenness, drug addiction and waste) were considered to have limited legal capacity. This came to an end with the entry into force of the Care Act in 1992.

In the case of an incapacitated person, the care order still has effects. If there was previously a suspension of expiry (§ 210 BGB), this ends with the legally effective appointment of a supervisor (§ 287 FamFG). If legal proceedings were interrupted due to incapacity to process (Section 241 ZPO), it must be continued after the supervisor has been appointed.

Likewise, supervisors are only allowed to carry out certain activities if the supervised person is legally incapable of doing so. Important examples are:

In most of the above examples, the supervision court is responsible for checking whether legal incapacity exists, since most legal acts are subject to the supervision court approval. When applying for ID cards and passports, the passport authority is obliged to check the requirements, including the legal incapacity of the person represented.

Supervisor can act legally effective alongside the supervisor

Since the supervision of the legal capacity allows competing actions of the supervisor and the supervised, there can be problems in legal transactions.

According to Section 1902 of the German Civil Code (BGB), the supervisor represents the person being looked after within his or her area of ​​responsibility in and out of court. He therefore has the position of a legal representative. Declarations made by the supervisor within his or her area of ​​responsibility are therefore legally effective in any case to third parties and are directly obliged to the supervised persons. For example, the home contract concluded by the caregiver obliges the carer to bear the home costs (Section 164 BGB).

However, the legal representation of the guardian (unlike in the earlier guardianship law) does not suppress the person's ability to act in civil law; This means that the supervised person can also effectively carry out legal transactions within the supervisor's area of ​​responsibility. Thus, competing declarations can be made, both of which are initially valid.

This only does not apply if the person being cared for is legally incapable of doing so within the meaning of Section 104 (2) of the German Civil Code (so-called natural incapacity), i.e. if they are in a state of mind that precludes the free determination of their will. This also does not apply if a reservation of consent has been arranged for the task.

In court proceedings as well as in representation before authorities, however, § 53 ZPO generally rules out competing actions.

Impact on Criminal Law

Incapacity does not have to go hand in hand with criminal liability (§ 20 StGB). An example from case law:

BGH, decision of July 31, 2002, 1 StR 224/02:

Financial loss in the case of fraudulent intent (Section 263 StGB) giving up the appointment of someone under care.

The defendant's appeal against the judgment of the Traunstein Regional Court of October 10, 2001 is rejected as unfounded, as the review of the judgment on the basis of the justification for revision did not reveal any legal error to the detriment of the defendant (Section 349 (2) of the Code of Criminal Procedure). The complainant bears the costs of the appeal.

In addition, the Senate notes:

  1. Contrary to the view of the appeal, the defendant's fraudulent orders also resulted in financial loss within the meaning of Section 263 of the Criminal Code.
  2. It is true that the contracts concluded between the defendant under care at the time of the offense and the suppliers are ineffective. However, the aggrieved companies have given the defendant the possession of the ordered items and provided the ordered services without having received anything in return. The assets of the companies concerned are damaged by the value of these services.

See also