Term clarification: Second (legal context)
The term Second is rarely explicitly defined in German legal language, but does receive relevant interpretation in connection with various areas of law – especially with regard to the secondary actions of a participant. In legal discourse, “Second” is mainly considered in situations where support actions in legal transactions, proceedings, or other legally relevant situations play a role. This article provides a comprehensive examination of the use, meaning, and the legal aspects and consequences that may arise in connection with the term Second.
Use and meaning of the term Second in law
General meaning
In German usage, ‘Second’ describes a person who holds a supporting function for another person. Originally borrowed from the French ‘second’ (meaning ‘second’, ‘helper’), the term is primarily known in a historical context—for example, as a companion at duels. Transferred to modern law, the Second can take on a supportive role in factual or legal matters.
Second as assistant in the legal sense
Legally, a Second may be assigned various roles, particularly in the area of general assistance (§ 27 StGB – German Criminal Code) and as an aide in civil or criminal law.
Aspects of criminal law
In criminal law, the term Second can become relevant in the context of aiding and abetting. This refers to persons who contribute to a crime through supporting actions, without necessarily being the main perpetrator. According to § 27 para. 1 StGB, an accomplice is anyone who intentionally assists another in the intentional commission of an unlawful act. The classic role of the ‘Second’ at a duel, for example, is therefore often evaluated in criminal law as aiding and abetting bodily harm or even manslaughter.
Aspects of civil law
In civil law, the Second appears as a supporting person rather infrequently, but may play a role, for example, in the notarization of legal transactions or in cases of representation. In these cases, it is decisive whether and to what extent the Second acts independently in a legal transaction or merely as a messenger.
Historical origin and current legal status
Second in duels
The classic figure of the Second traces back to dueling. The Second’s task was to support their principal before, during, and after the duel. This included both organizational and mediatory duties. Historically, the Second was not only a witness, but also attempted to mediate between the parties in conflict.
Criminal legal assessment of historical duels and Seconds
Duels are now qualified as criminal offenses under current law. Participation as a Second in a duel in Germany is punishable under §§ 211 ff. StGB, at least if this constitutes assistance to bodily harm, killing, or another crime. The law provides no justification for taking part in a duel or for supportive actions as a Second.
Legal responsibility and liability of a Second
Criminal liability
Persons who participate in a crime as a Second may be held liable as an accomplice. To impose criminal liability, double intent is required: knowledge of the principal offense and the will to assist. Sentencing is carried out according to § 27 para. 2 StGB.
Civil liability
In the event of civil damages caused by supporting acts (for example, as a witness or messenger in unlawful conduct), liability may also arise. In particular, §§ 823 ff. BGB must be observed here.
Distinction from co-perpetration
A Second is legally distinguished from a co-perpetrator. A co-perpetrator participates in the overall event as an equal, whereas a Second only carries out support actions—and not their own principal acts as defined by the crime.
Second in other legal contexts
Second in procedural law
In procedural law, the term is rarely used explicitly, but it is applied analogously, for example, when a person assists a party in pursuing legal action by offering advice or organizational help, without being a party or authorized representative themselves. This role is particularly legally relevant with regard to safeguarding procedural rights and the limits of permissible involvement.
Professional law aspects
Acting as a Second in professional or legal disputes can have professional law implications. For example, persons not authorized to practice a certain profession must be considered in light of the Legal Services Act (RDG), which governs the permissibility of extrajudicial legal services.
International comparison
While the role of the Second in Germany and Austria has become largely obsolete since the end of dueling, sporadic cultural and legal remnants persist in other countries (particularly in common law jurisdictions). In international law, the term is generally not used.
Summary
The term Second has no specific normative significance in German law, but does receive legal assessment particularly within the framework of supporting activities (aiding and abetting, assistance). Historically, the term comes from dueling; legally, the activity as a Second is problematic in various respects depending on the situation and the type of supported action, and may have criminal or civil consequences. The exact assessment depends on the individual case, especially the degree of involvement, the type of principal act supported, and the subjective motives of the Second. Further cultural or legal meanings of Second barely exist in today’s legal system; classification within the current legal norms is decisive.
References and sources
Criminal Code (StGB), especially §§ 25-27 Civil Code (BGB), especially §§ 823-826 Legal Services Act (RDG) Historical sources on dueling
* Specialist literature on aiding and abetting in criminal law
Frequently asked questions
What legal framework applies to second-hand sales between private individuals?
When selling second-hand goods between private individuals in Germany, the provisions of the Civil Code (BGB), especially the law on sales contracts (§§ 433 ff. BGB), generally apply. Unlike commercial sellers, private sellers can largely exclude liability for defects, which is usually done by including an appropriate clause (“Sold as seen” or “No guarantee, no returns”) in the contract. Without such an exclusion, however, a private seller is also liable for defects for two years. Important exceptions apply in cases of fraudulent concealment, i.e. when defects known to the seller are concealed or misrepresented. In this case, the buyer may demand withdrawal, reduction of the purchase price or damages. Transactions between private individuals are generally not subject to VAT, as they are considered occasional sales with no intent to make a profit. Nevertheless, there may be exceptions if sales are made regularly and to a significant extent.
Are there special legal regulations for second-hand businesses on the internet?
When buying second-hand goods online, special legal provisions apply, especially if the seller is acting commercially. Under German law, consumers have a 14-day right of withdrawal (§ 355 BGB) in distance selling—that is, for sales over the internet—which, however, applies only to sales by commercial sellers. Private sellers do not have to grant this right of withdrawal. In addition, commercial vendors are obliged to provide information about essential product characteristics, prices, shipping costs, and the contracting party, to comply with the transparency requirements of e-commerce law. Delivery times must be specified and, in the case of defects, the seller is generally liable for two years. Platforms like eBay offer sample forms and require sellers to provide clear information.
What obligations do second-hand dealers have regarding product safety?
Second-hand dealers are subject to the obligations of product safety laws, especially the Product Safety Act (ProdSG). They are obliged to offer only those products that do not endanger the safety and health of users when used normally or as expected. This means, for example, that electrical devices must be checked for safety before being sold and defective products must not be sold. Additional special regulations apply to certain product groups such as toys, electrical devices, or vehicles, for example under the Toy Safety Directive or the Electrical Equipment Ordinance (ElektroG). If a damage results from an unsafe product, the dealer may be held liable.
What about warranty when buying used goods?
When purchasing used goods, the statutory warranty period can generally be reduced to one year (§ 475 para. 2 BGB), provided the seller is a business and the buyer is a consumer. With a private sale, the warranty can be completely excluded within the limits of the law. If exclusion is not agreed, a two-year warranty period also applies here. If defects are known and disclosed, the seller can rely on the exclusion, but not in cases of concealed defects. The buyer must prove that a defect already existed at the time of purchase, with a reversal of the burden of proof in favor of the buyer during the first six months if the seller is a business.
What tax aspects must be considered when selling second-hand goods?
Second-hand sellers are differentiated as follows with regard to taxation: Private occasional sales are tax-free, as long as there is no intent to make a profit and items sold come from personal assets. However, if trading is done regularly and on a larger scale (e.g., through ongoing offers on online platforms), the tax office may classify it as a commercial activity, resulting in VAT and possibly income tax obligations. Commercial sellers are also subject to VAT; for used goods, they can apply margin taxation under § 25a UStG to reduce the tax burden. For particularly valuable individual items (such as antiques), additional special tax provisions may apply.
May copyrighted designs be resold with second-hand textiles and furniture?
The resale of copyrighted works such as furniture, accessories, or clothing is generally permitted due to the so-called exhaustion principle (§ 17 para. 2 UrhG). When a work is first lawfully placed on the EU market, the rights holder loses the right to prohibit further distribution. However, there are restrictions regarding adaptations or reproductions: if second-hand goods are altered in a way that creates new copyright-relevant works (e.g., through upcycling with creative interventions), this may, in certain circumstances, require the copyright holder’s permission.
What data protection obligations apply to second-hand platforms?
Operators of second-hand platforms must comply with the General Data Protection Regulation (GDPR). They are obliged to inform users comprehensively and transparently about how their personal data are processed (information obligations, Art. 13 GDPR). Measures must also be taken to ensure data security, records of processing activities must be kept, and, if necessary, a data protection officer must be appointed. Customers have the right to access, correction, erasure, and restriction of the processing of their data. Violations of data protection regulations can result in significant fines.
