Legal capacity (Austria)

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The legal capacity in Austria is the ability to be self-bearer of rights and obligations. Every natural person , regardless of age and state of mind, has this quality . i.e. everyone is legally capable. For example, a two-month-old baby can also be an heir and thus have legal capacity. However, the legal capacity does not say anything about whether the legal person is able to become the bearer of rights and obligations through their own actions.


According to Austrian law , everyone has the ability to acquire rights under the conditions prescribed by the law . Every human being has innate rights that are already evident through reason. He is therefore to be regarded as a person. Permitted companies ( legal persons , the ABGB uses the broader term moral persons ) generally have the same rights as natural persons in relation to third parties.

For a foreigner , legal capacity is based on his personal statute . The foreigner, however, cannot be denied the innate rights, "which are already evident through reason," even if the foreigner's personal status provides otherwise.

To distinguish it from the legal capacity is the capacity that has the ability to justify themselves through their own legal declarations and commit.

Beginning of legal capacity

The unrestricted legal capacity begins with the completed birth . The completed natural or artificial separation of the child from the womb represents this point in time. Legal capacity occurs as soon as the child has given a sign of life, regardless of whether it is later viable or not. If it is disputed whether a live birth has occurred, in case of doubt it is assumed that a child was born alive. This legal presumption has effects on questions of inheritance law , among other things , because only a live-born child is inheritable . However, even the unborn child has limited legal capacity. Under the condition of the subsequent live birth, it is a legal subject insofar as this is to its advantage. Every birth has to be registered by the registry office and a birth certificate has to be issued.

End of legal capacity

Human legal capacity ends with death . This is entered in the death register of the registry office. Proof of death can be done in several ways:

  • Death certificate: For the death certificate, a coroner's examination and the issue of a death certificate (stating the cause of death, time of death) by the medical officer are necessary.
  • Court order: If a death certificate cannot be issued, a court order replaces the death certificate if the court is convinced of the death of a certain person. If there is evidence (e.g. witnesses or picture sequences) for the death, it can usually be issued without any problems. See under disappearance .

Individual evidence

  1. § 18 ABGB
  2. § 16 ABGB
  3. § 26 ABGB
  4. § 12 IPRG