Protecting the Elderly in German and French Tort and Consumer Law

Summary

Demographic changes pose a challenge not only for the classic private law subjects relating to elderly persons, such as custodianship law and maintenance law, but for the whole of private law. It is to be critically analysed whether the existing legal rules suit the needs of the elderly. With the growing number of elderly people, the relevance of this topic increases.

SPECIAL RULES FOR ELDERLY PEOPLE

Simone de Beauvoir stated in her 1970 book The coming of age :

The civil code doesn‘t differentiate between a centenarian and quadragenarian. The lawyers assume that, apart from pathological cases, elderly people bear the same criminal responsibility as the young ones. Practically, they are not treated as an own category […]. In all these areas, they are considered equal to younger adults.

In 2020, this is still predominantly true: the civil codes of Belgium, Germany and the Netherlands, to name a few, hardly contain any special rules relating to elderly people. The situation is completely different in regard to children: children are protected by many special rules in these codes.

THE GERMAN CIVIL CODE

The German Civil Code (BGB) aptly illustrates these findings: § § 104 no. 1 and 106 – 113 BGB concern the capacity of minors to contract; § § 1303 and 1304 BGB their capacity to marry; § § 2229, 2247 s. 4 and 2275 BGB their capacity to bequeath; and § 828 BGB their tort liability. § 1629a BGB contains a liability limitation for obligations created during the time of minority. § 723 s. 1 sentence 3 no. 2 BGB grants an extraordinary right of termination to the partner of a private partnership who has reached the age of 18.

This list of provisions which specifically address the younger could be extended considerably.