The capacity to contract is a fundamental right that empowers a person to participate in everyday life. To protect certain groups of people from legal transaction that overreach and overexerts them, there a laws in the BGB that limit or deny their contracting capacity. However, sometimes there are cases in which the deficiencies to contract seem to have more disadvantages than advantages for a person. That can be the case in surrogate businesses or if it is not practicable to get the consent of a parent. Especially when it comes to children who are acting anonymously in the internet, it will be challenging in the future for retailers to deal with them. For example, 1 on July 28 in 208, the AG Berlin-Mitte ruled in favour of a father whose daughter had bought a subscription for ringtones without his consent. In this case, the provider "Jamba" was left empty-handed.2 In the light of digitalisation it has become more and more usual to make subscription based contracts not only for hardware but for software as well. Software like photoshop or even office software can be licensed and subscription based. Since those kinds of contracts are not included in the pocket money section, it may become hard for retailers to directly contract with minors without asking for the consent of their parents that would have to reach them directly, which can be rather unpractical.
Table of Contents
1. Introduction
2. Capacity to contract
3. Deficiencies to contract
3.1. Incapacity to enter a contract
3.2. Limited capacity to enter a contract
3.3. Partial capacity to enter a contract
4. Conclusion
Objective and Research Focus
This assignment aims to examine the legal framework governing the capacity to enter into contracts within the German civil law system. It investigates the conditions under which individuals, specifically minors and those with mental disturbances, are legally empowered to perform legal transactions and the consequences of legal deficiencies in this context.
- Legal definitions and principles of contracting capacity under the BGB.
- Distinctions between full, limited, and partial capacity to enter into contracts.
- Challenges posed by digitalization and online transactions regarding age verification and parental consent.
- Protective legal mechanisms for individuals with limited legal capacity.
- Practical implications of contract law for businesses and minors in modern digital markets.
Excerpt from the Book
3.1. Incapacity to enter a contract
A person is incapable of contracting if they are not yet seven years old (§ 104 no. 1 BGB). Also incapable to contract is a person who is in a state of pathological mental disturbance, which prevents the free exercise of will, unless the state is a temporary one (§ 104 no. 2 BGB). People who are not in a permanent state of pathological mental disturbance, as in section 104 no. 2 BGB described, but have clear moments now and then are nonetheless considered as incapable of contracting. A declaration of intent that is given in a clear moment (lucidum invervallum) is valid. According to section 104 no. 2 BGB incapacity is given if the free exercise of will is not possible. This is not the case if a person is just easy to be influenced or unable to oversee the consequences.
If a temporary mental disturbance is present the person concerned cannot be seen as incapable of contracting by the terms of section 104 no. 2 BGB. But the declaration of intent that is made in a state of unconsciousness or temporary mental disturbance is void according to section 105 II BGB.
Chapter Summaries
1. Introduction: Outlines the significance of contracting capacity in everyday life and introduces the legal challenges posed by digitalization and internet transactions.
2. Capacity to contract: Explains the basic premise that every person is capable of entering a contract and introduces the protective layers established by the BGB.
3. Deficiencies to contract: Discusses the criteria and consequences for persons who lack full capacity, including those under seven years old or suffering from mental disturbances.
3.1. Incapacity to enter a contract: Details the specific legal conditions of total incapacity and the validity of declarations made during clear moments.
3.2. Limited capacity to enter a contract: Examines the legal status of minors and individuals under court-ordered consent reservation.
3.3. Partial capacity to enter a contract: Explores legal provisions that grant minors full capacity in specific business areas, such as authorized independent employment.
4. Conclusion: Summarizes the difficulties retailers face in verifying the capacity of their counterparties and the resulting impact on legal peace.
Keywords
Capacity to contract, German civil law, BGB, Minors, Legal transactions, Incapacity, Limited capacity, Partial capacity, Declaration of intent, Digitalization, Consent, Legal guardian, Mental disturbance, Contractual validity, Pocket money section
Frequently Asked Questions
What is the primary focus of this assignment?
The assignment explores the legal concept of the "capacity to enter into a contract" within the German Civil Code (BGB), specifically focusing on who is legally allowed to perform transactions and who requires protection due to limited or absent capacity.
What are the core topics covered in the work?
The central topics include the definitions of capacity, the legal implications for minors, the effects of mental disturbance on contract validity, and the specific exceptions for everyday transactions.
What is the central research question?
The work seeks to answer under which specific circumstances individuals are deemed capable of entering into a valid contract according to German civil law.
Which methodology is applied?
The assignment utilizes a legal analysis of the German Civil Code (BGB) and references relevant court rulings and legal commentary to explain the application of contract law.
What is addressed in the main body of the text?
The main body breaks down the different levels of contracting capacity (incapacity, limited capacity, and partial capacity) and examines the legal consequences, such as the voidance of contracts made by unauthorized individuals.
Which keywords define the work?
Key concepts include BGB, legal capacity, minors, declarations of intent, and parental consent, reflecting the focus on civil law protections in a digital context.
How does the digitalization of business impact contract law for minors?
The text notes that digitalization and anonymous online transactions make it difficult for retailers to verify a customer's age, often leading to potential legal conflicts when minors purchase content without parental consent.
What does the "pocket money section" (§ 110 BGB) allow?
It allows minors to enter into valid contracts for everyday transactions if they use funds provided to them for their free disposal, provided the content of the transaction is not considered unreasonable.
What happens if a contract is concluded by a person without legal capacity?
Generally, such declarations of intent are void, and the contract is not effective unless it falls under specific statutory exceptions like § 105a BGB for daily life transactions.
- Quote paper
- Patrick Schneider (Author), 2019, Capacity to enter into a contract in german civil law, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/464711
