Legal capacity (Germany)

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Capacity is the ability transactions make independent fully effective.

Since the law basically regards all people as legally competent, it does not regulate the legal capacity in § § 104 ff. BGB , but the exceptional circumstances of legal incapacity and limited legal capacity. In the event of legal incapacity, the legally significant will is denied per se by § 105 BGB ( nullity effect ), in the case of limited legal capacity according to § 106 ff. BGB, the only partial legal validity serves to protect the own interests of the person worthy of protection.

The legal capacity is to be distinguished from the legal capacity , i.e. from the capacity to have rights and obligations.


The legal capacity in Germany usually depends on the age . According to § 104 BGB is incapacitated , who either the seventh year of life has not been completed or who are in a the free exercise of will exclusionary state morbid of mental activity disorder is not as long as the condition of its nature a transient is.

With the completion of the seventh year of life, i.e. with the 7th birthday, the limited legal capacity begins ( § 106 BGB). It is specified in Sections 107 to 113 of the German Civil Code.

According to Section 105a of the German Civil Code ( BGB), transactions to be carried out in the daily life of an adult who is incapable of doing business that are of low value are effective as soon as performance and consideration have been effected. This does not apply in the event of considerable danger to the person or the assets of the incapacitated person.

Unrestricted legal capacity arises upon reaching the age of majority , that is, upon reaching the age of 18 ( § 2 BGB).


Who is incompetent, does not have the legal power, declarations effectively deliver or self transactions to make, for example, contracts to close or terminate . Declarations of intent by persons incapable of doing business are void in accordance with Section 105 (1) BGB , i.e. legally ineffective.

An exception applies to business of everyday life, provided that these have been carried out by persons of legal age ( § 105a BGB). The contract will then be effective faked when performance and consideration have already been effected. A parallel regulation for persons in care with the reservation of consent is contained in Section 1903, Paragraph 3, Sentence 2 of the German Civil Code. Another exception applies to home contracts concluded by incapacitated persons. These are also considered to be effective if mutual services have already been provided ( Section 4 WBVG , previously Section 5 No. 12 Home Act ).

In order to do legal business beyond that, incapable of legal capacity need a legal representative . Declarations of intent by others such as B. Cancellations must to the legal representative of the incompetent to go , to take effect ( § 131 BGB). If the incapacitated person does not have a legal representative, the supervision court can appoint a supervisor ( § 1896 BGB).

The lack of marital capacity ( Section 1304 BGB) and testability ( Section 2229 Paragraph 4 BGB) are special cases of legal incapacity. Lack of legal capacity also leads to inability to litigate ( Section 51 , Section 52 ZPO or Section 9 FamFG , Section 71 Social Court Act and Section 62 VwGO ).

Children under 7 years

Individuals who are under 7 years of age, i.e. who have not yet had their 7th birthday ( Section 104 No. 1 BGB), are incapable of doing business .

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. The latter can be the parents , a single parent or a guardian .

Pathological disturbance of mental activity

Also incapable of doing business is anyone who is in a state of pathological disturbance of mental activity , which excludes the free determination of will and by its nature is not only temporary § 104 No. 2 BGB.

Conditions of pathological disturbance of mental activity include:

In order for the insanity or weakness to lead to incapacity to work, it must be a permanent condition. A drunk person is therefore legally competent. However, Section 105 (2) of the German Civil Code (BGB) intervenes with her, with the result that she cannot be legally bound while she is drunk.

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 limited legal capacity takes precedence. This means that concluded contracts are also ineffective if the contractual partner's incapacity was not recognizable. Whether in the end there actually was legal incapacity can only be determined in a binding legal process. For this purpose, expert reports on the health status of the person concerned are regularly obtained, including at a possible clear interval at the time the legal transaction is carried out. The burden of proof lies with the person who objects to legal incapacity.

Limited competence

Most legal transactions that are 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 the contractual partner asks the person entitled to consent to declare the approval, this can only be granted within 2 weeks, otherwise it is deemed to be refused ( Section 108 (2) BGB).

According to § 165 BGB, a minor with limited legal capacity can still be fully legally competent if he is authorized to do so by a legal representative . According to § 165 BGB, it can also be used for adults, e.g. B. for his parents, act as a fully competent representative .

Minors from 7 to 18 years of age ( § 106 BGB), i.e. between their 7th and 18th birthday, have limited legal capacity.

The rules on limited legal capacity also apply to adults under supervision , insofar as a reservation of consent ( Section 1903 BGB) has been ordered.

Legal transactions that are effective without consent

There are several exceptions to the principle that minors can only make effective declarations of intent with the consent of their legal representative: B. Declarations of intent that are only legally advantageous ( Section 107 BGB), such as the acceptance of certain donations , are also effective without consent .

Furthermore, minors with limited legal capacity can effectively enter into legal transactions which 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 ", § 110 ).

Unilateral declarations of intent

Unilateral declarations of intent (for example a termination) that are declared without the prior consent (= consent ) of the legal representative are always ineffective and cannot become effective with 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.

Partial legal capacity

The law itself does not know the concept of partial legal capacity, it was developed through case law and legal doctrine. 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 independent operation of a commercial transaction in accordance with Section 112 of the German Civil Code is legally competent . However, this only applies to legal transactions that involve business operations . Declarations of intent by the limited legal capacity are effective in this respect. However, the legal representative's authorization to conduct the commercial business independently is only possible with the approval of the family court .

(The parents ( § 1645 BGB) or the guardian ( § 1823 BGB) should not start a new business in the name of the child without the approval of the family court.)

The authorization is also possible for service and employment relationships (this does not apply to vocational training relationships , as these are not service or employment relationships) ( Section 113 BGB). Declarations of intent by the person concerned, which are aimed at entering into, dissolving or implementing such a relationship, are then effective. If the legal representative is a guardian, he needs the approval of the family court for the consent ( Section 1822 No. 7 BGB).

In areas of public law, a partial legal capacity (there called capacity to act ) has been introduced for minors from a certain age . In the area of social law, minors are able to act from the age of 15 ( Section 36 SGB ​​I ).

Unlimited legal capacity

Since the BGB basically regards every natural person as having full legal capacity, it does not expressly regulate the prerequisites for unrestricted legal capacity, but only the exceptions, i.e. when a person is legally incapable ( § 104 , § 106 BGB). The unrestricted legal capacity begins in reverse to § 106 BGB of the age of majority , that means with completion of the 18th year of life ( § 2 BGB). This also gives process capability ( Section 51 ZPO).

Special cases of legal capacity

Partial incapacity

In the case law, the partial - related to a specific area - legal incapacity is generally recognized. It occurs when a mental disorder relates to a specific area in which the person affected, e.g. B. Has developed delusions, but otherwise can act "normal" in business life.

Relative legal capacity

On the other hand, legal doctrine rejected a “relative legal capacity”, which refers to the fact that legal transactions can be of different difficulty (e.g. minor cash purchase versus property purchase) and simpler legal transactions otherwise incapable of doing business can be understood.

International private law

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 ( Art. 7 EGBGB ). 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 (unrestricted) legal capacity.

Overview of the age groups

German age definitions up to 30th birthday
term 0 1 2 3 4th 5 6th 7th 8th 9 10 11 12 13 14th 15th 16 17th 18th 19th 20th 21st 22nd 23 24 25th 26th 27 28 29
infant Yes No
small child part Yes part part No
childhood No early middle late No
child Yes part part No
student No Yes part No
teenager No Yes No
Teenager No Yes part No
Youth ( UN ) No part Yes part part No
Youth ( shell ) No Yes No
Age of consent Yes part part No
Minor Yes No
Child benefit Yes part part once No
young person part Yes part part No
teenager No Yes No
young adult No Yes No
of legal age No Yes
criminal responsibility No formerly part Yes Yes
legally competent No part part part part Yes
FSK / USK 0 6th 12 16 18th

See also


  • Wolfgang Enderlein: Incapacity and reservation of consent. In: JR 1998, p. 485.
  • Peter Finger: marriage of incapacitated persons. In: StAZ 1996, p. 225.
  • Elmar Habermeyer, Henning Saß: Incapacity or invalidity of a declaration of intent and their position on the provisions of the care law. In: Der Nervenarzt 5/2002, p. 478.
  • Andreas Jurgeleit: The legally incapable supervised person subject to the reservation of consent. In: Rpfleger 1995, p. 282.
  • Judith Knieper: Business of incapacitated persons. Nomos, Baden-Baden 1999. ISBN 3-7890-6227-8 .
  • Hans Rausch, Jens Rausch: Caring for legally competent people against their will? In: NJW . 1992, p. 274.
  • Michael Schwimann: The institution of legal capacity . (Viennese legal studies). Manz, 1965. ISBN 3-214-06902-0 .
  • Michael Spring: Legal capacity and right to dispose of property. ISBN 3-503-06025-1 .
  • Konrad Stolz, Johannes Warmbrunn: When is the will "free"? In: BtPrax . 2006, p. 167.
  • Walter Zimmermann : New partial legal capacity for legally incompetent supervised persons. In: BtPrax. 2003, p. 26.

Web links

Individual evidence

  1. narrow exception: § 105a BGB.
  2. Jürgen Müller, Göran Hajak: Determination of will between law and psychiatry . ISBN 978-3-540-28050-7 , pp. 46 .
  3. In the state of Bavaria , vocational school is compulsory up to the age of 21; see BayEUG , Art. 39 .
  4. Child benefit is currently granted for disabled children in Germany without any age limit.