Die Mohr Siebeck Die Absolute Geschaftsunfahigkeit Auf Dem Prufstand: Eine Rechtsvergleichende Untersuchung Zu 104 Nr. 2, 105 Abs. 1 BGB

Under current German law, a person is either entirely capable or entirely incapable of conducting legal transactions. This absolute concept fails to reflect the diverse realities of cognitive capacity, particularly in cases of dementia. Silvia Deuring demonstrates that such rigidity leaves serious protection gaps: individuals who understand simple agreements but not complex contractual clauses fall outside the scope of § 104 No. 2 BGB (German Civil Code). Drawing on comparative perspectives from Austria and Switzerland, the author develops a relative concept of incapacity, where the decisive criterion is comprehension of the specific transaction rather than an abstract assessment of mental ability. This approach respects individual autonomy while ensuring necessary protection. Silvia Deuring also challenges the constitutional legitimacy of § 105 (1) BGB (German Civil Code), which renders all acts by incapacitated persons void. Such nullity neglects both the self-determination of affected persons and the legitimate expectations of others. The author advocates replacing it with a consent model that permits valid transactions with the approval of legal representatives. Finally, she argues - by analogy to § 829 BGB (German Civil Code) - that limited liability in exceptional cases could fairly balance autonomy with responsibility, ensuring justice for all parties involved.