The German private international law relating to natural persons is governed by the principle of nationality. German law is, however, by way of exception made applicable in some cases with a view to protecting German traders, although the principle of nationality would result in the application of some foreign legal system.
Capacity to contract is governed by the law of nationality, see section 7 (1).
This general rule does not apply to the question of capacity to make a will, to commit a delict and to contract a marriage. In these respects the lex causae, i.e. the law applicable to the will, delict or marriage governs also the question whether there is capacity. Where the general rule applies, the lex contractus determines whether capacity is required. If the answer is in the affirmative the law of nationality applies.
EXAMPLE: A, a Nicaraguan youth, and B, a German, conclude an agreement to which according to 'the rules of German private international law English law applies as the lex contractus. English law requires that A must possess capacity to contract. Whether 'he possesses this capacity is a question to be decided by Nicaraguan law, unless the latter transmits the question to another legal system.
Under many Continental systems minors must be assisted by their guardians when concluding contracts. The requirements and effects of guardianship including the influence of guardianship on minor's contracts are governed by sections 19, 20, 23, EGBGB, not by article 7. If a foreigner transacts business in Germany without possessing full capacity, although he would possess full capacity under German law if he were a German, he is deemed to be fully capable of contracting. This principle does, however, not apply to arrangements relating to domestic relations or to succession or to immovable property outside Germany (article 7 (3), EGBGB).
EXAMPLE: A 22-year-old Ruritanian sells in Germany a grand piano and purchases from a German a plot of land in England. According to Ruritanian law, persons under the age of 25 are minors. The sale of the grand piano is valid, but the purchase of land is invalid.
Special rules on capacity to contract in respect of a bill of exchange were agreed by the Geneva Convention on the Unification of the law of bills of exchange, to which Germany, but not the United Kingdom, was a party.
These rules are incorporated in article 91 of the German Bill of Exchange Law of 21 June, 1933. They are identical with the...
SECTION VIII - Persons
|Author:||E. J. Cohn|
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