Civil Law: Book of General Provisions Flashcards
What is the Principle of Private Autonomy in German Civil Law?
It allows free development of personality through freedom of contract, company, possession, and ownership.
What are the elements of Freedom of Contract (Vertragsfreiheit)?
- Freedom to decide if and with whom to contract.
- Freedom to establish the content of a contract (with limitations).
Who are considered natural and legal persons under German law?
- Natural persons: Human beings.
- Legal persons: Corporations like GmbH, AG, SE, and partnerships with specific rights.
What defines the legal capacity of natural persons (§ 1 BGB)?
- Provides persons to become owners of property or to have claims against other persons
- Begins at birth and ends at death; cannot be stripped.
What is the legal capacity of partnerships?
not considered as legal persons but to have the capacity to have rights and duties by means of specific provisions
Who is deemed incapable of contracting under § 104 BGB? And what is the Void declaration
- Persons younger than 7 years.
- Persons in a state of pathological mental disturbance.
=> Void declaration: According to § 105 I BGB, any declaration of intent by someone who is incapable of contracting is void.
Under what conditions can minors (7–18) enter contracts (§§ 106–113 BGB)?
- Contract must provide a legal advantage (§ 107 BGB).
- Must have consent from legal representatives unless covered under § 110 BGB (Pocket Money Provision).
What is a declaration of will and which types exists?
Expression of will that is aimed to achieve legal consequences (Legal transaction)
⇒ by an explicit (spoken or written words) or implicit way (action or behaviour indicating intent)
Types:
* Unilateral: Requires one party (e.g., a will).
* Bilateral/Multilateral: Requires multiple parties (e.g., contracts).
What are the requirements for a valid declaration of will?
- Desire to act (Handlungswille).
- Awareness of legal significance (Erklärungsbewusstsein).
- Intent to enter a specific legal transaction (Geschäftswille).
What are the limitations on Freedom of Contract under BGB?
Freedom of contract allows parties to freely determine their agreements
- Legal Capacity (§§ 106 BGB et seq.): Minors and others with limited capacity require consent for contracts unless minor or routine.
- Illegality (§ 134 BGB): Contracts violating statutory prohibitions (e.g., involving illegal activities) are void.
- Immorality (§ 138 BGB): Contracts contrary to good morals (e.g., exploitative or corrupt agreements) are void.
- General Terms and Conditions (§§ 305 BGB et seq.): Unfair clauses in standard terms are invalid.
- Mandatory Consumer Rights (§§ 312 BGB et seq.): Consumer protections like withdrawal rights and seller obligations cannot be waived
What is the difference between the principles of Separation and Abstraction?
- Separation: Obligation and disposition transactions are distinct.
- Abstraction: Validity of one does not affect the other.
When is an offer effective under German law?
When it reaches the recipient and contains essential terms to form a contract.
Condition for Agreement: Two corresponding declarations of intent (offer + acceptance) lead to a valid contract.
What is “invitatio ad offerendum”?
An invitation to make an offer, not legally binding (e.g., advertisements).
How is a declaration of will effective for absent parties (§ 130 BGB)?
Upon delivery to the recipient’s sphere of control and reasonable access.
What are the requirements for valid agency (§ 164 I BGB)?
- Declaration of intent by the agent.
- Explicit action in the principal’s name.
- Proper authorization (Vollmacht).
