Lucidum intervallum

from Wikipedia, the free encyclopedia

The term Lucidum intervallum ( lat. Light moment ) describes a moment in which a person is in full possession of his mental powers despite an underlying disturbance of consciousness . This term is used with different meanings in law and medicine .

Jurisprudence

The clear interval was discussed for the first time by Roman lawyers, although it was already disputed in ancient times whether clear intervals should be legally relevant. From Roman law it was adopted by common law and thus made its way into modern jurisprudence.

Germany

In jurisprudence, a temporary interruption of a pathological state of mind that causes the incapacity to act , testamentary or legal incapacity is usually referred to as a light interval .

In this respect, it constitutes an exception to § 104 No. 2 BGB , § 2229 Paragraph 4 BGB and § 52 ZPO . Although someone is incapable of doing business, attestation or litigation, he could exceptionally carry out the corresponding legal transactions or procedural acts in such an interval operate effectively. However , it is controversial whether the declarations of intent made during such a moment are legally effective.

For the effectiveness of the legal wording of § 104 No. 2 BGB, according to which legal incapacity exists only if the agent is in a state of pathological disorder of mental activity that acutely excludes free will formation, as well as the idea of private autonomy , according to which the individual can pursue his private interests as much as possible should be able to regulate independently. Against the effectiveness, it is argued that the legislature deliberately did not include the figure of the clear interval in the civil code and that it only serves to prematurely assume legal capacity without sufficiently ascertaining the facts . The Munich Higher Regional Court considers clear intervals for certain diseases to be practically impossible, which Mathias Schmoeckel criticized in turn: According to the BGB, the disease is not relevant in the medical sense, rather the ability to form a will is important. Only the medical findings are permanent, while the ability to form a will depends on the daily form and can be restored through medication. That is why the court's decision was methodologically flawed, also because the court had exceeded its competence and its judgment amounted to a call to deny justice .

A Lucidum intervallum must be proven by the party that invokes it. If the effectiveness of a will according to § 2229 BGB is under discussion, a corresponding expert opinion must be drawn up by a neurologist or psychiatrist who has clinical experience in the field of geriatric psychiatry . If a testator has already died when the report was written, the report is a so-called file report, which is based only on the information and statements contained in the existing documents (e.g. doctor's letters, care reports, etc.) . In the case of a properly drawn up public will, the notary has to note his perceptions regarding the capacity to make a will according to § 28 BeurkG . In this note, however, there is only an indication that is not suitable, especially not without a collection of evidence about its occurrence, to invalidate justified doubts about the testability due to specific circumstances.

Austria

Jurisprudence speaks of a Lucidum intervallum when an adult who is generally incapable of doing business is temporarily in his senses. The cause of such incapacity is usually mental illness . Since it always depends on the legal capacity with regard to a specific transaction and on recognizing the meaning of the related legal transactions, the person concerned has unlimited legal capacity during a Lucidum intervallum.

This does not apply if an incapacitated person is under guardianship . For legal transactions in the state of the Lucidum intervallum (short-term full insight), he requires the approval of the administrator.

A Lucidum intervallum is not to be equated with partial legal incapacity , since partial legal incapacity are not in principle excluded from legal transactions. Because partial business incapacity only means the inability to recognize the scope of a particular business.

medicine

Synonyms are free interval (meaning: symptom-free period), light interval , light moment , light moment , lucid interval , intervalum lucidum , intervala lucida (singular or plural ), intermission (literally: what is in between) or obsolete dilucidum intervallum (literally: clear space , clear pause ; meaning: consciousness- clear period).

psychiatry

Previously the term was used to describe a seemingly symptom-free interval of patients with mental illness . Today one would speak of symptoms that have subsided or have been remitted ; if necessary, symptoms can continue to be determined with an appropriate examination.

Traumatology

In neurology, the term is used to describe a phase in an epidural hematoma in which, after initially briefly unconscious, the patient can wake up for a period of up to several hours (free or lucid interval) before an increasing secondary clouding of consciousness occurs.

literature

  • W. Rasch , R. Bayerl: The myth of the lucid interval. On the assessment of the testability , in: Lebensversicherungsmedizin 37 (1985), pp. 2-8.
  • C. Cording: The assessment of testamentary (in) ability , in: Advances in Neurology and Psychiatry 2004, pp. 147–159

Web links

Individual evidence

  1. ↑ Steffen M. Jauß: Lucidum Intervallum , critical quarterly journal for legislation and jurisprudence , 2016, p. 338
  2. ↑ Palandt / Ellenberger , § 104 No. 4, as well as Palandt / Weidlich, § 2229 marginal no. 10
  3. ↑ Staudinger / Knothe , Section 104, no. 13
  4. ↑ Steffen M. Jauß, in: Critical quarterly journal for legislation and jurisprudence, 2016, p. 339 f.
  5. ↑ MüKo / Baldus , Section 105, no. 5.
  6. ↑ cf. OLG Munich, decision of July 1, 2013 - Az. 31 Wx 266/12
  7. ↑ Mathias Schmoeckel, The business and testability of dementia patients, NJW 2016, 437.
  8. ^ Mathias Schmoeckel, The business and testability of dementia patients, NJW 2016, 437 f.
  9. ↑ lucidum intervallum / light moment lexexact.de, glossary
  10. ↑ BayObLG, NJW-RR 90, 1419
  11. ↑ BayObLG, decision of August 17, 2004 - l Z BR 53/04
  12. ↑ Christian Rabl : Civil Law - General Part / Legal Subjects and Legal Objects University of Vienna, no year, p. 27
  13. ↑ OGH December 21, 2009, 8 Ob 125 / 09d, EF-Z 2010/49, 79
  14. ^ Roche Lexicon Medicine , Urban & Fischer , 5th edition, Munich and Jena 2003, ISBN 3-437-15156-8 , p. 937
  15. ^ Roche Lexikon Medizin , Urban & Fischer , 5th edition, Munich and Jena 2003, ISBN 3-437-15156-8 , p. 938
  16. ^ Günter Thiele (ed.): Handlexikon der Medizin , Urban & Schwarzenberg , Volume FK, Munich, Vienna, Baltimore without year, p. 1210
  17. ↑ Otto Dornblüth : Dictionary of Clinical Artistic Expressions , Verlag von Veit & Comp., Leipzig 1894, = 1st edition of the Pschyrembel (Medical Dictionary) , p. 62: "The quiet interim with periodic mental illnesses" (already out of date at that time)
  18. ^ Günter Thiele (ed.): Handlexikon der Medizin Urban & Schwarzenberg , Munich, Vienna, Baltimore without year, Volume FK, p. 1210
  19. ↑ Lexicon Psychiatry, Psychotherapy, Medical Psychology
  20. ↑ Matthias Sitzer (Ed.): Neurological Emergency and Intensive Care Medicine , p. 87