Legal capacity (Germany)

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Legal capacity is in the law , the legal entities by virtue of the Act conferred powers , bearer of rights and obligations to be. Legal subjects in this sense are natural and legal persons. While the BGB grants natural persons the legal capacity as given, the legal capacity of legal persons is based on recognition by the legal system (concept of creation of purpose).

The principle that all persons have legal capacity ( general legal capacity ) does not mean that everyone has every right. Some legal positions require special characteristics, such as age or gender , such as the age of majority ( special legal capacity ). In the legal transactions of the law of obligations , property and commercial law , everyone has access to legal institutions .

Although the legislator has created the pair of terms “legally capable” and “not legally capable” as mutually exclusive opposites, there is the form of partial legal capacity in between , which is understood as limited legal capacity for the Nasciturus , the commercial partnerships or the non-legal associations .


In order to create binding effect for substantive law , legal subjects are required as norm addressees . The legal relationships between legal subjects and between legal subjects and legal objects can only be regulated if the legal capacity of the legal subjects is ensured (rights and obligations).

The concept of legal capacity is not legally defined in the BGB . The legal capacity begins with the completion of the birth ( § 1 BGB), regardless of gender, nationality or origin. It can neither be canceled by contract , waiver or sovereign withdrawal . It ends with death ( Section 1922 (1) BGB). According to popular opinion, the termination of legal capacity occurs with the occurrence of brain death . After death , there is no longer any legal capacity, but a post-mortem right to personality .


A distinction must be made between the terms legal capacity and capacity to act . The ability to act is the ability to bring about legal consequences through one's own actions . The are affected by the ability to act therefore questions capacity according to § § 104 ff. BGB, the offense ability according to § § 827 f. BGB and the responsibility for the breach of liabilities (debtor responsibility) according to § 276 paragraph 1 sentence 2 BGB. Legal capacity does not necessarily result in the ability to act.

Is quite capable in litigation who are approved, § 50 Abs. 1 ZPO the party ability has. The party capacity largely correlates with the legal capacity, but is broader than this, because the unincorporated association (Section 50 (2) ZPO) and the political parties ( Section 3 Political Parties Act ) are capable of legal proceedings, but not legally competent.


Until the 19th century, civil death could be imposed as a punishment in Germany . It meant the complete loss of legal capacity. Already in Roman law it was a consequence of the loss of personal freedom in the event of imprisonment or as a secondary consequence in capital crimes ( Latin capitis deminutio maxima ). The person punished afterwards lived on physically, but legally his death was faked and he was thus eliminated as a natural person .

Before the Civil Code came into force in January 1900, there was still the monastery death . Pursuant to § 1199 XI ALR were monks and nuns within the meaning of civil law with taking of the vow as deceased. According to § 1200 XI ALR they lost their legal capacity and were therefore unable to acquire, own or dispose of property and other rights.

In the time of National Socialism there were efforts not to grant people legal capacity as individuals, but only as part of a community. So wrote Karl Larenz in 1935 in legal person and subjective law :

“Not as an individual, as a human being or as a bearer of an abstract, general reason, I have rights and duties and the possibility of shaping legal relationships, but as a member of a community that gives itself its form of life, the national community. Only as a being living in community, as a national is the individual a concrete personality. "

Levels of legal capacity

A distinction is made between full legal capacity , partial legal capacity and non- legal capacity .

Full legal capacity

Natural persons (only German citizens ) and legal persons generally have full legal capacity in Germany. Full legal capacity is the comprehensive property, established by legal norms, of being able to bear rights and obligations. According to this, every person has full legal capacity when their birth is complete ( § 1 BGB), including minors and those in care . All legal persons under private law have full legal capacity for the time of their existence, namely stock corporations (AG), limited partnership (KGaA), GmbH and the cooperative .

Even private companies have full legal capacity, because they are equipped with the ability "to acquire rights and incur liabilities" ( § 14 para. 2 BGB). This also includes open trading company (OHG) and limited partnership (KG), even if they are denied legal personality in Section 11 (2) No. 1 InsO. Both are given legal capacity by Section 124 (1) HGB . The European Economic Interest Grouping is also fully legal under this provision by virtue of a reference to the legal basis . The partnership has full legal capacity according to Section 7 (2 ) of the PartGG . Since January 2001, the legal capacity of the GbR external company has also been recognized.

The full legal capacity of corporations is based on special laws. For the stock corporation it results from Section 1 Paragraph 1 Clause 1 AktG, the KGaA from Section 278 AktG, the GmbH from Section 13 Paragraph 1 GmbH Act and the cooperative from Section 17 Paragraph 1 GenG . The club gained by § 21 BGB its legal capacity through entry in the Register of Associations , an economic association it receives by charter ( § 21 BGB). According to § 80 BGB, foundations require recognition by the competent authority.

In the case of legal persons under private law , the acquisition of legal capacity takes place through constitutive entry in the commercial register , register of associations or register of cooperatives . The legal capacity of a legal person ends with the completion of its liquidation .

Partial legal capacity

However, there are gradual degrees of legal capacity. "If a person or an association of persons is only bearer of duties and rights according to one group of legal principles , but not otherwise," then there is partial legal capacity. The concept of partial legal capacity introduced by Hans Julius Wolff in 1933 means that someone has legal capacity with regard to certain legal sources, but not for other legal sources.

Foreigners are denied certain rights in Germany. This includes the right to vote for Germans according to Section 12 of the Federal Electoral Law and freedom of movement for Germans according to Article 11 (1) of the Basic Law. The right to vote and freedom of movement are not “everyone's rights” and are therefore only available to Germans. A vote is not foreigners who Residenzpflicht limits for asylum seekers and tolerated the residence one of the conditions imposed by the competent authority area. Therefore, foreigners are only partially legal.

There are also levels of legal capacity in associations of persons. The unregistered association is only partially legally competent because not all rights of the person are attributable to it. All legal entities under public law have only partial legal capacity because their legal capacity is limited to the performance of the public tasks assigned to them . This includes the institutions , corporations and foundations under public law .

The community of owners is in accordance with § 10 para. 6 WEG some legal capacity, as it can only in the context of the entire administration of the common property to third parties and apartment owners themselves acquire rights and assume obligations. It is therefore legally competent in the administration of the common property, otherwise not. Before the WEG reform in July 2007, only the individual apartment owners were legal subjects, today it is both.

The unborn child Nasciturus represents a special case ; according to the prevailing opinion , it is partially legally competent. Conversely , it can not be concluded from the principle set out in Section 1 of the German Civil Code that a person's legal capacity only begins with the completion of the birth that partial legal capacity is excluded. The birth in the legal sense begins with the opening labor and is completed with the complete exit of the womb from the mother's body, the detachment of the umbilical cord is not important. The fruit of the womb is assigned partial legal capacity, where the law endows it with rights. This applies in particular to the basic rights according to Article 2 of the Basic Law (especially the right to life , the right to physical integrity ) and the right of inheritance , because according to § 1923, Paragraph 2 of the German Civil Code, the embryo is considered to be born before the inheritance and according to § 1963 of the German Civil Code even become the mother's opponent . The nondum conceptus is an embryo that, in the legal sense, has not yet been created, i.e. not received, by implanting itself in the uterine mucous membrane. With him, the legal protection is further graduated, nevertheless he can be authorized by legal transactions of third parties ( § 331 Abs. 2 BGB).

Some associations of persons are not permanently granted legal capacity. If the number of members in the registered association drops to less than three people, the local court must withdraw its legal capacity in accordance with Section 73 BGB. This also applies to the cooperative in accordance with Section 80 (1) GenG if the number of members is less than three. If an ideal association pursues economic purposes, its legal capacity can be revoked ( Section 43 (2) BGB).

There is increasing discussion about equipping robots and other autonomous systems such as artificial intelligence with their own (partial) legal capacity. As early as 2017, the European Parliament asked the European Commission to create an “electronic personality” for autonomous robots. There are different justification approaches for this. Among other things, it is argued that artificial intelligences are increasingly making autonomous decisions; For example, networked industrial machines today place orders for goods from suppliers as standard without a natural person acting or even being aware of it.

Non-legal capacity

There is no legal capacity if someone cannot be a bearer of rights and obligations. These include a. the unincorporated association ( § 54 BGB), the GbR internal company (§ § 705  ff. BGB), the dependent non-legal foundation , the fractional community§ 741  ff. BGB), the estate of a deceased ( § 1958 BGB), Investment funds ( Section 92 Capital Investment Code ), the political parties without entry in the register of associations (normal case), trade unions , employers' associations , the silent partnership and the community of heirs . Investment funds are special assets made up of securities or similar trading objects and are therefore classified under civil law as unincorporated assets. With the exception of the CDU and the FDP, parties (at federal level ) are not entered in the register of associations and are therefore not legally competent in this sense; their legal status is governed by the Political Parties Act (PartG), which means that they are (at least) capable of participating in a party ( Section 3 PartG) in the legal sense . Trade unions and employers' associations are normally not legally competent, but they are always capable of collective bargaining and party participation ( Section 10 ArbGG ). The silent society is a pure internal society and does not appear as such in legal dealings. The community of heirs is not an independent legal entity capable of acting, but merely a jointly owned majority of persons who are assigned a special fund with the estate. The ARD ZDF Germany Radio Post Service (previously: GEZ) is an unincorporated public administration Community (see broadcast contribution treaty ).

Has the non-legal capacity of associations or funds means that not this, but only one individual or all shareholders as joint debtor liable or rights as a joint creditor can obtain ( § 54 BGB).


After Art. 7 para. 1 BGB the legal capacity and subject to legal capacity of a person to the right of the State to which the person belongs. In contrast to Germany, the partial legal capacity of unborn children is clearly regulated by law in Austria and Switzerland . In Austria, § 22 ABGB provides that in the case of rights of unborn children it is irrefutably presumed that they are considered to be born. The regulation in Switzerland is even more concise, where Article 31, Paragraph 2 of the Civil Code states: "Before birth, the child is legally competent, provided that it is born alive". The legal capacity of legal persons in all EU member states is determined by the law of their country of residence .

The application of foreign law can be significant when it comes to assessing the legal capacity of newborns. Many legal systems do not allow the discharge of the womb from the womb to be sufficient, but require the newborn to be viable for a certain period of time, for example in France and Spain . The handling of foreign regulations by German courts and authorities, which already grant legal capacity to a corpse, is controversial. The prevailing opinion qualifies Art. 7 EGBGB in such a way that “person” in the sense of this provision only includes born people. According to this opinion, the hereditary ability of the womb or its ability to receive gifts among the living is to be judged according to the law of inheritance or gift law , which is to be applied to the person who inherits or who gives.

See also


  • Reinhard Damm: Personal law. Classic and modern of the legal entity . In: Archives for civilist practice (AcP) . 202. Vol. 2002, pp. 840-879 (2nd part of volume).
  • Heinz Hausheer / Regina E. Aebi-Müller: The personal law of the Swiss civil code . Stämpfli, Bern 1999, ISBN 3-7272-1501-1 .
  • Stefan Klingbeil: The concept of legal person . In: Archives for civilist practice (AcP). 217. Vol. 2017, pp. 848-885 (2nd part).
  • Matthias Lehmann : The concept of legal capacity . In: Archives for civilist practice (AcP) . 207. Vol. 2007, pp. 225-255 (1st part of volume).
  • Dieter Reuter: Legal capacity and legal personality. Legal theoretical and legal practical comments on a major topic . In: Archives for civilist practice (AcP) . 207. Vol. 2007, pp. 673-717 (2nd part of volume).

Web links

Individual evidence

  1. Reinhard Bork , General Part of the Civil Code , 4th Edition 2016, Rn. 154; Hans Brox / Wolf-Dietrich Walker , General Part of the BGB , 31st edition 2017, Rn. 703; Stefan Klingbeil, The concept of legal person , in: AcP 217 (2017), p. 848 (859); Matthias Lehmann , The concept of legal capacity , in: AcP 207 (2007), p. 225 (226 ff.).
  2. Series of publications by the Evangelical Settlement Works in Germany V. (Ed.), Apartment Ownership , 2002, p. 2
  3. Series of publications by the Evangelical Settlement Works in Germany V. (Ed.), Apartment Ownership , 2002, p. 2
  4. See § 3 TPG ; OLG Frankfurt / Main, judgment of July 11, 1997, Az .: 20 W 254/95, in: NJW 1997, 3099 = FamRZ 1998, 190 = Rpfleger 1997, 478
  5. Dieter Medicus, General Part of the BGB , 2010, § 63 Rn. 1041, p. 427 f.
  6. Richard Zöller / Max Vollkommer, ZPO, 21st edition 1999, § 50 Rn. 1
  7. ^ Karl Larenz, legal entity and subjective law. On the change in the basic legal concepts , 1935, p. 21
  8. Hartmut Maurer , General Administrative Law , 1980, § 21 Rn. 5
  9. BGH, judgment of January 29, 2001, Az .: II ZR 331/00
  10. ^ Hans J. Wolff, Otto Bachof, Rolf Stober: Administrative law. Volume I, 1998, § 32 Rn. 7th
  11. ^ A b Dieter Schwab, Martin Löhnig: Introduction to civil law . 2010, p. 65 ( limited preview in Google Book search).
  12. Rudolf Stürzer, Michael Koch, Georg Hopfensperger, Melanie Sterns-Kolbeck, Detlef Sterns, Claudia Finsterlin: Praxishandbuch Wohnungseigentum . 2016, p. 241 ( limited preview in Google Book search).
  13. ^ Otto Palandt , Jürgen Ellenberger : Comment BGB. 73rd edition, 2014, § 1 marginal no. 7th
  14. Michael E. Zeising: The Nasciturus in civil proceedings . 2004, p. 18 ( limited preview in Google Book search).
  15. ^ Georg Borges: Legal framework for autonomous systems . In: NJW 2018 . S. 977 ff .
  16. ^ Fritz-Ulli Pieper, Mareike Gehrmann: Artificial Intelligence - Who is Liable? (PDF) In: LEGAL REVOLUTIONary. September 12, 2019, accessed January 13, 2020 .
  17. Carolin Kemper: AI in right-hand traffic - will we sue ePersons soon? (PDF) In: LEGAL REVOLUTIONary. October 2, 2019, accessed February 13, 2020 .
  18. Horst Günter, Business Administration: Lexicon for Study and Practice , 2004, p. 318
  19. ^ BGH, decision of October 17, 2006, Az .: VIII ZB 94/05
  20. ECJ, Case T-390/94 (Schröder) Slg 1997, II-501
  21. Art. 725, 906 French Civil Code ; Art. 30 Spanish Código Civil ; Art. 41 Philippine Cc.
  22. § 1 I 1 lit. c No. 5, Christian von Bahr, International Private Law , Volume Two.