What is involved in commercial law

Commercial law

Special private law for merchants. The provisions of civil law apply, which have been modified and supplemented for the special needs in economic life. The legal bases are the German Civil Code (BGB), the Commercial Code (HGB) and special laws. The scope of commercial law is based on merchant status. A merchant in the sense of the HGB is someone who operates a trade. Every commercial enterprise is considered to be a commercial enterprise, with the exception of small traders (§ 1 HGB). A trade is understood to be an independent, external and planned activity with the intention of making a profit. The liberal professions are not considered to be trades. In terms of type and scope, a small business does not require any commercial organization. Qualitative and quantitative criteria are used, e.g. the organization and size of the company, type of commercial activity and internationality, turnover and advertising. If the criteria are met, the merchant status arises by virtue of the law (is a merchant). Otherwise an entry can be made in the commercial register (can-businessman). The legal certificate of the commercial register speaks for the merchant status of the registered company, even if the legal requirements no longer exist (false merchant). The trading companies are merchants due to their legal form (form merchant). The HGB contains regulations on the commercial register, the company, commercial transactions and commercial partnerships (corporate law). In particular, forms of representation for merchants, such as the power of attorney and the power of attorney, are regulated. Commercial law also includes special forms of distribution. The rights of commercial agents, commission agents, commission agents, authorized dealers, franchisees and commercial brokers can be found directly or analogously in the HGB. Trade customs and trade clauses develop their effect among merchants even if they are not familiar with them. This includes the doctrine of the commercial letter of confirmation, the special commercial customs as well as national and international trade clauses. There are numerous special provisions for commercial transactions (specification and fixed clauses, etc.) and especially for commercial purchases. The commercial inspection and notification obligation is to be emphasized. The HGB also contains other types of contract under commercial law, such as the forwarding, warehouse and freight business.


1. The Commercial Code of Commercial Law is the special private law of merchants. The Commercial Code (HGB) therefore contains special regulations for certain processes that supersede the regulations of the German Civil Code (BGB). The legislature is tending to push back the scope of the HGB more and more and to regulate the legal issues that arise in the BGB. The concept of entrepreneur in the BGB (§ 14 BGB) is only partially identical to the concept of merchant in the HGB, as the former also includes people who do a freelance activity and small businesses not entered in the commercial register who do not fall under the concept of merchants in the HGB.
2. The merchant The merchant term is the central term in commercial law, as this term is used to decide whether the HGB applies or not. The HGB knows on the one hand merchants who, due to the nature and scope of their trade, are automatically merchants within the meaning of the HGB, and on the other hand merchants who only receive this status when they are entered in the commercial register. A distinction is therefore made between the following types of merchants: (a) Actual merchant: If someone runs a business that requires a business set up in a commercial manner, the operator of this business is a merchant by law. (b) Can-do trader: Small traders can register as traders in the commercial register and acquire the property of being a trader with the entry. (c) Merchant in form: Certain forms of company (GmbH, AG, KGaA, e.G. and EWIV) are merchants when they are entered in the commercial register solely because of their legal form, regardless of the type and scope of their business operations. (d) Fictitious and pseudo-merchant: A fictitious merchant is a person whose company is (wrongly) entered in the commercial register and who operates a business that is not, however, a commercial trade. This person is not a businessman, but is treated like a businessman. A false merchant is a person who appears as a merchant, although he is neither registered in the commercial register nor is a merchant by law. Due to the legal certificate she has set, she is treated like a businessman towards third parties in good faith.
3. Farmers and foresters as well as small businesses Excluded from the scope of Section 1 (1) HGB are, on the one hand, agricultural and forestry businesses according to Section 3 (1) HGB. On the other hand, according to Section 1 (2) of the German Commercial Code, small businesses are excluded from the concept of trade and thus from the concept of merchant. According to Section 1 (2) of the German Commercial Code (HGB), a commercial enterprise is only a commercial enterprise if the type or scope of the enterprise requires a commercially set-up business. When a company requires a commercially set-up business in terms of its type or scope, it cannot be specified in general terms. Criteria are, for example: the nature and diversity of the business contacts that occur, business assets, number of employees. The main criteria are turnover and the need for commercial bookkeeping. If the annual turnover is more than EUR 250,000, one can - provided the other circumstances do not speak against it - affirm the requirement of a commercial enterprise.
4. Special rules for commercial transactions The legislature assumes that merchants in legal transactions are less in need of protection than consumers. That is why there are a number of special regulations for commercial transactions: (a) In many areas of commercial transactions, special customs have emerged that must be taken into account when interpreting commercial contracts in accordance with Section 346 of the German Commercial Code (HGB). The best-known commercial custom is the definition of the content of an orally concluded contract by means of a commercial letter of confirmation. (b) Occasionally, contracts contain provisions that whenever one party behaves in a certain way, that party must pay the other a contractual penalty. In the case of contracts between private individuals, this contractual penalty can be reduced by a court judgment if it is disproportionately high (Section 343 (1) sentence 1 BGB). This option is not granted to the merchant according to Section 348 of the German Commercial Code (HGB), as it is assumed that he will be able to assess the effects of such a contractual penalty clause when the contract is concluded. (c) There are other special features with the guarantee. This is regulated in §§ 765 ff. BGB. According to § 771 BGB, the surety can refuse to satisfy the obligee as long as the obligee has not attempted foreclosure against the main debtor without success (so-called defense of the advance action). According to Section 349 of the German Commercial Code, the merchant is not entitled to this right. There are similar special provisions for the form of a guarantee. According to the BGB, the guarantee contract must be concluded in writing (Section 766 sentence 1 BGB). This written form is not a requirement of effectiveness in commercial law (§ 350 HGB). (d) Another peculiarity in commercial law is the amount of statutory interest. According to § 246 BGB, the statutory interest rate is 4%. In the case of mutual commercial transactions, the legislature grants 5% interest (Section 352, Paragraph 1, Clause 1 of the German Commercial Code), since it is assumed that money in the hands of a merchant brings higher earnings than in the hands of a non-merchant. However, this interest rate does not apply to default interest. The amount of the default interest is regulated in § 288 BGB. According to this, the interest rate depends on whether both contracting parties are entrepreneurs or whether at least one consumer is involved in the contract. There is also a special regulation in commercial law for the beginning of the obligation to pay interest. According to the BGB, interest is only due on a monetary debt during the delay (Section 288 (1) sentence 1 BGB). Default generally requires a reminder (Section 286 (1) BGB). It only occurs automatically 30 days after the due date and receipt of an invoice or an equivalent payment schedule (Section 286 (3) sentence 1 BGB). In commercial law, on the other hand, the obligation to pay interest begins earlier, namely when the claim is due (Section 353 HGB). (e) A special feature of commercial law that has no equivalent in the BGB is the current account. The current account requires an agreement between two parties, at least one of whom must be a businessman. Through the current account agreement, mutual claims are offset and a balance is formed at a certain point in time (Section 355 of the German Commercial Code). (f) An important peculiarity in commercial purchases is the inspection and notification obligation. If there is a defect within the meaning of § 434 BGB, § 377 HGB applies to mutual commercial transactions. This provision assigns the buyer an inspection and notification obligation. The buyer must examine the goods immediately after delivery by the seller, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the seller immediately. If the goods were economically devalued by an examination, there is an obligation to examine at least random samples. Immediately means the same in the HGB as in the legal definition of Section 121, Paragraph 1, Clause 1 of the German Civil Code: “without culpable hesitation”. How much time a buyer has to examine and complain depends on the individual case. In the case of fruit, the notification of defects must be made on the day following the delivery of the goods; in the case of more complex and complicated items, the notification period can be up to seven weeks in individual cases. The seller must be able to determine the type and scope of the defects from the complaint so that he can examine the complaints and possibly secure evidence. An effective notification of defects is therefore only given if the type and scope of the defects are described at least in general terms. If the buyer does not complain in time, the delivered goods are deemed to have been approved in accordance with Section 377 (2) HGB. The buyer can therefore neither withdraw from the purchase contract nor demand improvement of the goods or a reduction in the purchase price. The seller, on the other hand, retains his rights under the contract; he can therefore demand the full purchase price despite the delivery of inferior goods.
5. The company According to § 17 HGB, the company of a businessman is the name under which he conducts his business and gives his signature. The company is only the trade name and not the company itself. The merchant can be a personal company (e.g. Michael Müller GmbH), a factual company (e.g. German-French business consultancy GmbH), a mixed company (e.g. Udo Impatient Express Deliveries GmbH) or an imaginary name ( e.g. Blaugeist GmbH). However, he must observe the principles of company differentiation and company truth.
6. The auxiliary persons of the businessman The HGB contains regulations on the powers of the employees of the businessman. It provides information on the legal status of the authorized signatory (§ 49 HGB), the authorized agents (§ 54 HGB) and the employees in shops or open warehouses (§ 56 HGB). Furthermore, the HGB contains provisions on independent auxiliary persons of the merchant, namely the commercial agent (§ 84 HGB), the commercial broker (§ 93 HGB) and the commission agent (§ 383 HGB). The legal status of the authorized dealer and the franchisee is not regulated in the HGB; However, the case law applies the provisions on commercial agents in the HGB accordingly to these persons. In addition, the HGB regulates the rights and obligations of the carrier (§ 407 HGB), the freight forwarder (§ 453 HGB) and the warehouse keeper (§ 467 HGB). Notes · For the related areas of knowledge, see labor law, commercial legal protection, insolvency law, antitrust law, sales law, loan collateral (surety, retention of title, guarantee, land charge, mortgage, lien, assumption of debt, assignment by way of security), trademark law, product liability, competition law, foreclosure. For corporate law and the various company or legal forms, see, among others, Aktiengesellschaft, German, Aktiengesellschaft, Kleine, European company law (Europa AG, European cooperative, etc.), cooperative, German, company forms, Austrian (Aktiengesellschaft, Österreichische, GmbH, Austrian etc.) .), GmbH, German and many other company or legal forms.

Literature: Baumbach, A., Hopt, K.J .: Commercial Code, Commentary, 32nd edition, Munich 2006; Ebenroth, C.T., Boujong, K., Jost, D .: HGB, Commentary, Volume 1 and 2, Munich 2001, Update Volume, Munich 2003; Gruber, J .: Commercial Law - Quickly Captured, 5th Edition, Berlin and Heidelberg 2006; Koller, I., Roth, W.-H., Morek, W .: HGB, Commentary, 5th edition, Munich 2005. Internet addresses: (Collection of laws) www.gesetze-im-Internet.de/Bundesrecht; (Judgments of the Federal Court of Justice) www.bundesgerichtshof.de

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