Capacity to act (Liechtenstein)

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The ability to act is the ability to trigger legal effects through one's own actions.

The capacity to act is a sub-case of the legal capacity .

Requirements and exceptions to the ability to act

According to Art. 11 Para. 1 PGR, every person who

  • capable of judgment and the
  • is of age

unless the law provides for an exception in individual cases.

Such exceptions can apply, for example, to a limited capacity to act (e.g. partial incapacitation) or to the capacity to testify . “ The ability to act is presumed unless it is obvious that it is lacking, for example in the case of children ” (Art 11 para. 2 PGR).

Incapable of acting persons

In principle, persons are incapable of acting (Art 16 PGR),

  • who are incapable of judgment or
  • who are minors or who are fully incapacitated.

The ability to act itself is concretized by the ability to make judgments (Liechtenstein, Switzerland) and a time frame is generally given by maturity.

Ability of the child to act

A child who is under parental custody (§ 144 ABGB ) has the same limited capacity to act as a patronized person (Art 22 Paragraph 1 PGR ). It can " neither dispose of nor commit itself in a legal transaction without the express or tacit consent of its legal representative " (Section 151 (1) ABGB). If a “ child enters into a legal transaction that is usually concluded by minors of his age and concerns a minor matter of daily life, then this legal transaction ”, even if the child has not reached the age of 14, “ becomes effective with the fulfillment of what concerns the child Obligations with retroactive legal effect ”(Section 151 Paragraph 3 ABGB).

“ The child's assets are liable for the obligations of the child regardless of parental property rights ” (Art 22 Para. 3 PGR).

Adolescent's ability to act

After reaching the age of 14 (adolescents), a minor child can, without the express or tacit consent of his legal representative, legally have access to things that have been given to him at free disposal and his income from his own acquisition and undertake to the extent that this is not the case Satisfaction of his or her life needs is endangered (§ 151 Abs. 2 ABGB).

A minor child who has reached the age of 14 (adolescent) can “ independently undertake to provide services by contract, with the exception of services based on an apprenticeship or other training contract. The legal representative of the child can prematurely terminate the legal relationship established by the contract for important reasons ”(§ 152 ABGB).

Judgment

In principle, any person who is capable of recognizing the motives and consequences of their behavior or who is able to act in accordance with a correct knowledge (Art 15 para. 1 PGR) is capable of judgment in the sense of private law. In contrast to the age of majority, the ability to make judgments is not dependent on an age limit. " Anyone who is incapable of judgment, subject to the legal exceptions and the provisions on the liability of third parties, cannot produce any legal effects through his behavior " (Art 17 PGR). " The judge has to determine in each individual case whether this ability to act reasonably is lacking in the named conditions " (Art 15 para. 2 PGR)

The ability to make judgments (Art 10 Para. 2 PGR) is sufficient for the deputy and no age is required.

Judgment in adolescents

" Minors who have reached the age of 14 or persons who are restricted to a limited degree are considered to be capable of judgment in case of doubt. They can only commit themselves through their actions or give up rights with the consent of their legal representatives ”(Art. 18 Para. 1 PGR). " Without this consent, however, even without the involvement of the legal representative, they are able to obtain advantages that are free of charge and, where the law does not provide for an exception, to exercise rights to which they are entitled for their personality " (Art 18 para. 2 PGR ). Section 151 (2) of the Austrian Civil Code (ABGB) stipulates that young people have limited ability to make judgments in certain areas of daily life (see above "Adolescents' ability to act", item 1.3).

Young people are liable for damages for unauthorized acts (Art 18 Para. 3 PGR).

Ability to make judgments with guardians

If a guardian is capable of judgment, he can enter into obligations or relinquish rights " as soon as the guardian has expressly or tacitly given his consent in advance or subsequently approves the transaction " (Art. 19 (1) PGR). The legal transaction is pending ineffective until the consent is given (Art 19 para. 2, 20 para. 1 PGR). The guardian who has been expressly or tacitly permitted to operate an occupation or trade independently, " can undertake all transactions that belong to the regular business and is liable with all of his or her assets, unless exceptions are provided or permitted " (Art 21 PGR) .

" If the guardian has misled the other part into the erroneous assumption of his ability to act (judgment and maturity) , he is responsible for the damage caused in accordance with the provisions on unlawful acts " (Art 20 Para. 2 PGR).

Maturity

The maturity of natural persons occurs differently (with gradations) in different phases of life. Basically by exceeding a certain age limit, the legislature fakes that a natural person is able to carry certain rights and obligations in legal transactions. Other people from this age group can trust that this person has certain mental abilities to participate in legal traffic.

The age of majority is divided into civil law and criminal law age (see below, point 3.2).

The age of maturity is limited by the ability to make judgments, since in principle every adult has unlimited liability for his obligations with his entire assets, unless otherwise stipulated in the law or legal transaction (Art. 10 para. 3 PGR).

Legal age in civil law

Maturity in civil law basically means that every person is capable of acquiring rights under the conditions prescribed by the law (Section 18 of the Austrian Civil Code). Of the legal requirements for coming of age, the age limits are primarily important in practice. The legislator assumes that people from a certain age are able to participate in legal transactions and to be entitled, but above all to be obliged to do so.

Classification

Liechtenstein law divides natural persons into

  • Mature (from the age of 18) and
  • Minors (up to 18 years of age)

a. Some of the minors are also referred to as minors (in the sense of: not yet of age). There is no uniform terminology in the Liechtenstein laws.

Age limits

Those who are in possession of their full spiritual powers come of age when they reach the age of 18 (as well as at the age of majority ).

Art 12 PGR : " Of age is someone who has reached the age of 18. "

Minors up to the age of 14 are only entitled to a very limited extent to participate in legal transactions and can usually only justify themselves, but not commit themselves without the consent of the guardian. In case of doubt, they are considered incapable of judgment. Legal transactions with minors under the age of 14 are therefore pending ineffective in cases of doubt, unless the special provision of Section 151 (3) of the Austrian Civil Code (ABGB) applies (legal transactions about things that are usually concluded by minors of this age and only concern minor matters of everyday life).

" Minors who have reached the age of 14 or persons with limited incapacity are considered to be capable of judgment in case of doubt " (Art 18 Para. 1 PGR). The PGR describes minors from the age of 14 to 18 as “ minors capable of judgment ”.

Exceptions

The following are excluded:

  • in childhood (because minors) or
  • Responsible persons who, however, as a result of mental illness, mental weakness (originally incapacitated) or because of
  • Drunkenness or similar conditions (subsequently incapacitated).

no longer have the ability to reliably participate in legal traffic.

Fault capacity

Young people are liable for damages for unauthorized acts (Art 18 Para. 3 PGR). According to § 153 ABGB, this culpability only exists from the age of 14, unless § 1310 ABGB or Art 20 (2) PGR is applicable (pretense of ability to act).

If a person is harmed by another who “ does not have command of his mind ”, the judge can , taking into account the fact, “ whether the injuring party, notwithstanding he usually does not have command of his mind, is not at fault in the particular case ; or whether the injured party failed to defend himself in order to protect the injured party; or finally, with regard to the property of the injured and the injured; to recognize the whole replacement or at least a cheap part of it ”(§ 1310 ABGB).

However, the child's property is liable for the obligations of the child regardless of the parental property rights (Art 22 Para. 3 PGR).

Criminal responsibility

The criminal responsibility is based on the ability of the offender to recognize the existence of a prohibition norm, to see the injustice (ability to discreet) and to behave accordingly (ability to dispose). Therefore, minors, persons with pathological disorders of mental activity or mental weakness and under certain circumstances persons with impaired consciousness at the time of the act, are not punishable ( insanity ). For people who have reached the age of 14 but have not yet reached the age of 18 (young people - possibly up to the age of 21 - young adults), there are special provisions in criminal law due to the problems during the maturation process, which are also recognized in law and administrative criminal law.

The age of criminal responsibility in Liechtenstein is reached at the age of 14 (§ 5 Youth Courts Act (JGG)). Minors (0 to 14 years of age) who commit an act threatened with punishment are not liable to prosecution (Section 5 (1) JGG). A young person (14 to 18 years of age) who commits an act threatened with punishment is not liable to prosecution (Section 5 (2) JGG) if

  • for certain reasons he is not yet mature enough to see the wrongdoing of the act or to act according to this opinion,
  • he commits an offense before the age of sixteen, he is not at fault and the application of youth criminal law is not required for special reasons in order to deter the young person from criminal acts, or
  • the requirements of Section 42 of the Criminal Code (the offense is not punishable) are met.

The right to order educational measures within the meaning of Section 3 JGG is reserved (Section 5 (3) JGG).

International private law

The provisions of Liechtenstein civil law on legal capacity to act are only applied to Liechtenstein citizens. The legal capacity of a natural person to act is assessed according to their respective personal status (usually citizenship) (Art. 12 Paragraph 1 PILA).

" Once you have acquired Liechtenstein citizenship, you do not lose the age of majority " (Art. 23 Para. 2 PGR).

literature

Sources and References

  1. ↑ Art. 10 para. 1 PGR : " Anyone who is capable of acting has the ability to establish, change, revoke or transfer private law rights and obligations through his or her actions or omissions ." See for further details in detail: Antonius Opilio , Working Commentary on Liechtenstein property law , Volume II, Art 501 SR, EDITION EUROPA Verlag, 2010.
  2. ↑ The capacity to testify is the ability to make binding, testamentary dispositions over one's property after one's own death through one's actions. In Liechtenstein, as in Austria, there is no testability for persons under the age of 14. For people between 14 and 18 years of age, there are certain formal requirements. See § 569 ABGB .
  3. ↑ In Austria and Germany is the ability to act, among others, in the capacity (ability to relate transactions) and tortious divided (liability for wrongful acts). The amalgamation of legal capacity and criminal capacity in one legal institution, the capacity to make judgments, largely follows the original Roman legal solution, in which there was also no precise separation.
  4. ↑ § 153 ABGB: " If a minor child cannot be attributed fault earlier (§ 1310), it becomes, subject to Article 20, Paragraph 2 PGR, at the age of 14 according to the provisions of the compensation law ."
  5. ↑ In Roman law, maturity was originally linked to sexual maturity. Fixed age limits were later recognized for reaching the age of majority: 14 years for male children, 12 years for female children
  6. ↑ § 13 SchlA Zif 1 PGR: " As far as the procedural law speaks of an adult or minor, in the first case a person of legal age is to be understood, in the second case a person who has not yet reached the age of majority. "
  7. ↑ According to Opilio , Working Commentary on FL Property Law, Art 501, Rz 2, this designation is a " Contradictio in adiecto " ( Oxymoron ), since, according to Art 16 PGR, minors are said to be incapable of acting at the same time.
  8. ↑ § 270 ABGB : “ A person of legal age who is incapable of dealing with his own affairs as a result of mental illness or mental weakness and who needs constant care to protect himself or to avert danger to the safety of others is to be requested by the court or by Officially incapacitated . "§ 272 ABGB:" A person of legal age who is not incapable of taking care of his affairs, but because of insanity or mental weakness to take care of his affairs properly, for their protection or to avert dangers to the safety of others permanently in need of care is to be incapacitated by the court on application or ex officio to a limited extent . "
  9. ↑ § 273 ABGB: “ A person of legal age who, through wasting, drinking or other addictions, a vicious lifestyle or the way of managing their assets, exposes themselves or their family to the danger of an emergency or impoverishment can also be incapacitated on request constantly requires care to protect them or to avert dangers to the safety of others. ”See § 568 ABGB: (Declaration of prodigality)“ A judicially declared spendthrift can only dispose of half of his wealth through last will; the other half goes to the legal heirs . "
  10. ↑ Youth Courts Act (JGG) of May 20, 1987, LGBl 39/1988
  11. ↑ Law of September 19, 1996 on private international law (IPRG), LGBl 194/1996.