Trading business

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Under a commercial transaction is in the German Commercial the right action of a merchant or a trading company understood that with respect to a commercial enterprise stands.

Legal systematic classification and purpose

As a starting point, the provisions of general civil law apply to commercial transactions, in particular those of the German Civil Code (BGB). Some of the regulations are too unspecific for commercial transactions , which is why the legislature modified individual provisions of general civil law for commercial transactions with the fourth book of the Commercial Code (HGB). In particular, this concerns the waiver of the written form requirement in the guarantee law : The mandatory written form of § 766 BGB is waived, i.e. suspended, since the surety does not need the same degree of protection against financial risks in commercial transactions , regulated in § 350 HGB (freedom of form) . Further special regulations of the fourth book of the HGB concern interest , purchase in good faith , sales law and transport law .

Requirements of a trade

business

Commercial transactions are expressed in declarations of intent that lead to legal transactions , mere offers and actions similar to legal transactions , such as reminders . There is disagreement on the question of whether real files , such as the dispatch of goods, can constitute a commercial transaction. This is partly denied, partly affirmed. However, since real files are mostly related to legal or similar acts, there is often already a commercial transaction, so the dispute over the classification of real files is of little practical importance.

Merchant

Commercial transactions require the participation of at least one businessman within the meaning of Section 1 of the German Commercial Code (HGB), i.e. one who operates a commercial enterprise. Small businesses ( Section 2 HGB) and farmers ( Section 3 HGB) who are entered in the commercial register are treated equally. Furthermore, former traders who have not been deleted from the commercial register after ceasing their trading operations are considered merchants ( Section 5 HGB). In addition, according to Section 6 of the German Commercial Code ( HGB), trading companies such as the GmbH and KG have merchant status . Ultimately, by virtue of legal certainty, anyone who gives the appearance of being such is treated as a merchant .

Affiliation to a trade

After all, the business of the merchant must be related to the operation of his trade. This is the case if it promotes its preservation or making a profit. The case law interprets the term commercial transaction extensively. This also includes transactions that are unusual for the business of the merchant. Furthermore, Section 344 (1) of the German Commercial Code (HGB) assumes that, in the event of doubt, a legal transaction carried out by a merchant constitutes a commercial transaction to facilitate the presentation of evidence. Section 344 (2) HGB extends this assumption to include promissory notes signed by the merchant . These are deemed to have been signed in his trade, unless otherwise stated in the document.

Forms of commercial business

If the commercial transaction is only a commercial transaction for one party, it is a so-called unilateral commercial transaction ( Section 345 HGB). This is the case, for example, when a private person buys a car from a car dealer . Such a unilateral transaction is basically sufficient to apply the special provisions of the fourth book of the HGB. However, certain regulations require that a businessman be on both sides of the business. These trades are called bilateral trades. Such a business is, for example, when the car is bought by a bank from the car dealer for their own business operations.

Commercial Business Regulations

The fourth book begins with a section that contains numerous individual regulations for commercial transactions. These provisions mainly represent modifications of the provisions of the German Civil Code that are adapted to the needs of commercial transactions. Following individual commercial transactions are regulated: the commercial department , the commission business , the freight business , the freight forwarding and warehousing business .

General provisions, §§ 343–372 HGB

Legal basis

Section 346 of the German Commercial Code (HGB) stipulates that commercial customs must be taken into account among merchants. A commercial custom is understood to be a recognized custom of trade that is based on regular, voluntary and uniform practice in comparable business transactions. It is sufficient if such a custom exists in a certain place or within a certain industry. Foreign trade customs may also have to be taken into account. They apply immediately and therefore do not require any separate contractual involvement. Even taking notice is unnecessary. The standardized effect of commercial customs thereforefundamentallyforbids appeals due to errors due to ignorance of commercial customs. The regulation of Section 346 of the German Commercial Code (HGB) refers to mutual commercial transactions, but can extend to transactions involving a non-merchant, provided that the latter voluntarily submits to the customs. On the other hand, the contracting parties can exclude the application of a commercial custom within the scope of their business relationship. Commercial usage is taken into account in a contract by interpreting it in the light of usage. In addition, commercial customs can be used to close loopholes in the contract, and even supersede dispositive law. Examples of trade customs are the cross-sector trade clauses and, in the timber trade, the Tegernsee customs .

Section 362, Paragraph 1, Clause 1 of the German Commercial Code (HGB) defines a special feature of contracts that include the provision of business for the contracting party among merchants. This can be the provision of services for someone else in their interest, such as the transport of goods or a trust or the sale of goods in the name of and for the account of the inquirer. In principle, it is necessary for the conclusion of a contract that the contracting parties involved make corresponding declarations of intent. The silence of a party therefore has no explanatory content. Section 362 of the German Commercial Code (HGB) makes an exception to this, in that it allows silence to suffice for the conclusion of the contract instead of a declaration by the recipient of the acceptance of the contract offer. This requires that the recipient of the application is a businessman. In addition, the application must be directed to the procurement of a business that is related by its nature to the commercial enterprise of the recipient. Furthermore, a longer business relationship must already exist between the applicant and the recipient. If these requirements are met, the contract is concluded as soon as the recipient of a contract offer does not immediately reject the same. The same effect occurs in accordance with Section 362 (1) sentence 2 of the German Commercial Code (HGB) if the merchant has offered the applicant in advance to conduct the business. Since the standard defines an immediate response to the contract offer as a duty, the silence can also result in a breach of duty and the person obliged to respond bears the risk of transmission. The silence cannot be ruled out on the basis of ignorance of the silence, since otherwise the purpose of the norm would be circumvented. This standard should not be confused with the commercial confirmation letter, which is very similar in its effect, but not limited to certain types of contract and not regulated by law.

Modifications under the law of obligations

Section 347 of the German Commercial Code supplements Section 276 (2) of the German Civil Code, whichdefines negligence . The latter standard describes negligence as neglecting the due care required in traffic. The commercial law provision takes the diligence of a prudent businessman as a yardstick for this assessment.

Section 348 of the German Commercial Code restricts judicial control of contractual penalties . § 343 BGB gives him the opportunity to reduce an inappropriately high contractual penalty to an appropriate level. This norm protects the debtor of such a penalty from being financially overwhelmed by it. The commercial law rule excludes this possibility if the person who owes the penalty is a merchant. This regulation is based on the consideration that the merchant can better assess the risk of a contractual penalty, so that he is less dependent on protection. Since contractual penalties are usuallyregulatedin terms and conditions and are therefore already subject to the terms and conditions control , the provision of § 348 HGB is of little practical importance.

Furthermore, the HGB contains several provisions on the guarantee regulated in the BGB . These modify the provisions of the BGB, which protect the guarantor to a high degree, in favor of the simplification of commercial transactions. Section 349 of the German Commercial Code (HGB) denies the commercial surety the recourse to the defense of the advance action regulated in Section 771 sentence 1 of the German Civil Code . This allows the surety to refuse performance to the creditor of the main debtor until the latter has tried to enforce his claim against his main debtor by way of foreclosure . This regulation expresses the subsidiarity of surety liability vis-à-vis the liability of the principal debtor. Section 349 of the HGB breaks this subsidiarity by allowing the creditor to adhere directly to the (usually more solvent) commercial guarantor. Section 350 of the German Commercial Code allows the surety to conclude the guarantee contract in a form-free manner. In principle, the conclusion of such a contract requires a written declaration from the surety in accordance with § 766 BGB. The purpose of this standard is to protect the surety from a hasty decision, since the surety is usually associated with a considerable liability risk. In the case of merchants, the legislature considers this protective function to be dispensable, so that it waives it. The formal requirements of the promise of debt ( § 780 BGB) and the acknowledgment of debt ( § 781 BGB) are also excluded .

Section 352 HGB increases thestatutory interest rate regulatedin Section 246 BGB from four to five percent. This regulation requires a bilateral trade. This increase applies to all claims in connection with a commercial transaction, including secondary claims such as contractual claims for damages . Section 353 of the German Commercial Code permits interest payments to be made. According to § 288 BGB, a creditor can demand interest from his debtor on the amount owed. This assumes that the debtor is in default , so this interest is called default interest . Maturity interest, on the other hand, does not require the debtor to default, but can berequestedfrom the date the debt is due .

Section 354 (1) of the German Commercial Code grants a merchant a reasonable claim for remuneration if he renders an agency or a service for another. The BGB contains comparable regulations, for example in Section 612 Paragraph 1 or Section 632 Paragraph 1. However, these have more requirements than the commercial law standard. The norm is based on the legislative consideration that someone who has a service provided by a merchant can even less than a private person assume that he wants to act free of charge.

Section 354a (1) sentence 1 of the German Commercial Code permits the assignment of monetary claims that are subject to an assignment prohibition. § 399 Alternative 2 BGB gives the contracting parties the opportunity to agree on such a ban. This represents an exception to the regulation of Section 137 of the German Civil Code (BGB), whichdeclaresprohibitions on legal transactionsto be ineffective inorder to increase legal security . The provision of § 399 Alternative 2 BGB mediates between the interest in legal security and the protection of the debtor against a surprising change of creditor. Section 354a (1) sentence 1 of the German Commercial Code (HGB) deviates from Section 399 of the German Civil Code (BGB) in that it allows the assignment of claims despite an existing prohibition. With this standard, the legislature aimed to give merchants the opportunity toassignclaims to which they are entitled against third parties as security to lendersdespite conflicting prohibitions on disposal. This should simplify loan financing, especially for smaller companies. The assignment of the claim as a means of security was regularly opposed to assignment bans. The offense of § 354a HGB requires a mutual commercial transaction, in the context of which a monetary claim has arisen. If the prerequisites are met, a prohibition of assignment or an agreement that links the assignment (restriction agreement) between the claimant and his contractual partner has no effect with regard to this monetary claim, so that the owner can assign the claim to a financier, e.g. a bank. Section 354a (1) sentence 2 of the German Commercial Code (HGB) protects the debtor of the former claim holder affected by the assignment by allowing the former to pay his former creditor with the effect of discharging the debt.

§ 355 HGB regulates the current account . This is a form of service processing that serves to simplify payments within long-term business relationships. As a rule, each claim that arises in this business relationship would have to be processed individually. Those involved can reduce the effort involved by making a current account agreement. By virtue of this, mutual claims are netted with one another before their respective settlement. If one party then has a surplus, it can challenge it from the other party. The regulation of § 356 HGB is important in cases in which a claim that is offset in a current account was secured. Without the regulation, the claim would lapse through the netting, so that the security ordered for it would be irrelevant. However, this would mean that the practical value of the claim could be reduced due to a lack of security. Section 356 (1) of the German Commercial Code therefore provides that the creditor of the claim can be satisfied from the security if the offsetting results in a negative balance. Section 357 of the German Commercial Code permits the attachment of the interim balance so that the creditors of a party involved in the current account can access this claim by way of foreclosure.

The provisions mentioned in § 358 , § 359 , § 360 and § 361 of the German Commercial Code (HGB) contain various provisions regarding the performance modalities, such as the time of performance and the units of measurement relevant to the contract.

Securities law

The § 363 , § 364 and § 365 HGB contain provisions for securities law . . § 363 para 1 HGB by mentioning six gekorene order instruments : the commercial statement , the commercial commitment form , the bill of lading , the bill of lading , the warehouse receipt and transport insurance policy . Sections 364 and 365 HGB deal with the endorsement , a note on an order paper that is required for the transfer of the security.

Acquisition in good faith

Initial standard, Section 366 (1) HGB

The good faith acquisition of ownership of a thing is important if the one who has the thing is not entitled thereto. In principle, a right of disposal is required to transfer ownership of an item. The acquisition of the thing from the unauthorized person is therefore excluded if no special regulation applies. The protection of the owner of the thing comes into conflict with the expectations of other participants in legal transactions, who may trust that they are allowed to purchase an thing. Therefore, the legislature provides for the possibility that property can be acquired by unauthorized persons. A prerequisite for this, however, is good faith on the part of the purchaser with regard to the seller's position as owner. He must therefore consider the seller to be the owner of the thing.

It is common among merchants to sell goods not as the owner, but only as the person entitled to dispose of them. That the seller is not the owner is therefore often known to the buyer or at least imposed on him. If the acquirer knows about the lack of ownership of the seller or can easily recognize it, the acquisition is excluded according to § 932 Abs. 1 BGB. In the commercial area, acquisition of good faith would therefore often be ruled out. In order to increase the protection of commercial transactions, Section 366 (1) of the German Commercial Code (HGB) lowers the requirements for good faith on the part of the buyer: Instead of believing in the seller's property, good faith in the seller's right of disposal is sufficient.

For the commercial law regulation to be applicable, the seller must be a businessman. It is controversial whether the appearance of the merchant position (false merchant) is sufficient for this. Sometimes this is answered in the affirmative with the argument that the bogus merchant should be treated comprehensively as a merchant. The objection is that this figure aims to protect the person who is doing legal transactions with the bogus merchant. The disadvantages of the legal certificate should therefore affect the false merchant. With Section 366 of the German Commercial Code, however, it is not the bogus merchant but the uninvolved owner who is at the disadvantage, which would be unjust.

Since the standard is based on the acquisition of good faith of the BGB, it also requires the existence of a condition of good faith of § 932, § 933 or § 934 BGB: an agreement and a transfer or assignment of a claim for surrender. Their constituent feature of good faith with regard to the ownership position is dispensable. Furthermore, the acquisition of good faith may not be excluded by the exception regulation of § 935 Paragraph 1 BGB or a legal restriction on disposal (e.g. § 81 of the Insolvency Code ). Finally, the acquirer must be in good faith with regard to the disposition of the seller.

According to its wording, the standard only helps over the lack of power of disposal. This makes it necessary for the seller to appear in his own name. He reflects on the other hand before, deputies to be, the good faith of the acquirer can relate most to the power of representation, as the seller discloses that he is acting for another, that does not have itself. The lack of the power of representation is not overcome by Section 366 (1) HGB, so that a purchase in good faith is ruled out. The prevailing view regards this result as unsatisfactory, as it makes little difference for the buyer whether a person acts as a commission agent (acting in his own name) or as an authorized signatory (acting in the name of someone else). Therefore, it applies the standard analogously to cases of lack of power of representation.

Acquisition free of encumbrances in good faith, Section 366 (2) HGB

Section 366 (2) of the German Commercial Code (HGB) ties in with the purchase in good faith from the merchant and regulates the case in which the item to be acquired is encumbered with a third party right. For example, the usufruct , the lien and the expectant right come into consideration. If the acquirer knows about this right, but if he considers the seller to be authorized to dispose of the thing despite this right, he acquires the thing free of the third party's right. This standard is based on Section 936 (1) of the German Civil Code (BGB), which provides for the purchase of an item in good faith, free of encumbrances, if the purchaser assumes that there is no encumbrance.

Reversal of the burden of proof regarding good faith, § 367 HGB

Section 367 of the German Commercial Code makes it difficult to acquire in good faith if the object of purchase is in bearer form . These are securities, the holder of which can exercise the evidenced right. According to Section 935 (2) of the German Civil Code (BGB), such papers and money can be acquired in good faith even if the previous owner involuntarily lost his immediate property, for example through theft. This regulation is an exception to the principle of § 935 Paragraph 1 BGB, which excludes the purchase in good faith in such cases in order to protect the owner. The reason for the exception for money and bearer securities is the great interest of the public in the circulation of these items. Section 367 (1) sentence 1 of the German Commercial Code (HGB) protects the interests of the owner by faking the purchaser's bad faith: According to the provisions of the German Civil Code, the previous owner must prove the purchaser's bad faith in the process. The commercial law standard reverses the burden of proof so that the purchaser has to prove his good faith in court.

Acquisition of a lien in good faith, Section 366 (3) HGB

Section 366 (3) of the German Commercial Code enables selected liens to be acquired in good faith that arise by virtue of the law: the lien of the commission agent, the carrier, the carrier, the freight forwarder and the warehouse keeper. Although the BGB in § 1207 BGB also allows the acquisition of a lien in good faith, this only applies to contractual liens. An analogous application of the standard to legal liens is rejected by the prevailing opinion with reference to the wording of the relevant § 1257 BGB. The purpose of the commercial law regulation is to protect the commercial lien holders, as they should be able to trust that the goods of which they have acquired possession will serve as security in an emergency.

Right of retention

The Commercial Code contains a special right of retention for merchants in Section 369 (1) sentence 1 of the German Commercial Code . Compared to the general right of retention in Section 273 of the German Civil Code (BGB), this is subject to fewer requirements and allows the merchant to independently utilize the subject of the contract.

The commercial right of retention requires a mutual commercial transaction. Instead of a merchant, however, a bogus merchant can also be involved. Furthermore, the merchant who wants to assert the right of retention must be the owner of a due claim against the other. This requirement must result from a contract between the two of them. The item to be withheld must be a pledgeable movable item or a security. Furthermore, the item must be owned by the contractual partner. Furthermore, the creditor must have acquired possession of the thing with the will of his debtor.

If the prerequisites for the commercial right of retention are met, the obligee can refuse to surrender the goods to the debtor until the latter pays his debt. In addition, Section 371 (1) sentence 1 of the German Commercial Code (HGB) gives the obligee the right to sell the thing himself and to keep the resulting proceeds in the amount of his own claim. The realization takes place according to § 371 Abs. 1 S. 1 HGB like the realization of a pledged item. Section 371 (3) of the German Commercial Code (HGB) makes this exploitation more difficult, however, by requiring an enforcement title . Furthermore, the right of retention according to § 51 No. 3 of the Insolvency Code grants a right to separate satisfaction . Finally, the right of retention represents a right of possession within the meaning of Section 986 BGB.

According to Section 369 (2) HGB, the right of retention also applies to third parties to whom the debtor has assigned the goods. In such a case, section 372 (1) of the German Commercial Code (HGB) also gives the obligee the opportunity to successfully sue the debtor for tolerance of satisfaction if he is not aware of the change of ownership. Section 372 (2) of the German Commercial Code (HGB) contains an extension of the legal force : A judgment against the debtor to tolerate the satisfaction of the retained item is also effective against the new owner of the item if the creditor was not aware of the change in ownership when the pending litigation occurred .

Commercial purchase, §§ 373–382 HGB

A commercial purchase is a sales contract for an item that is a commercial transaction for at least one of the parties involved. The rules of commercial sales also apply to the exchange contract , as this is based on sales law. Section 381 of the German Commercial Code also stipulates that the provisions of commercial sales apply to the purchase of securities and to contracts for work and services .

In principle, such contracts are processed according to the provisions of the German Civil Code. However, the HGB contains some provisions that differ from the provisions of the BGB and that are tailored to commercial transactions: § 373 HGB and § 374 HGB expand the debtor's options if the creditor is in default of acceptance . In such cases, the debtor can deposit the goods in a suitable place. He may also auction them and deposit the proceeds with the creditor. The intended purchase regulated in Section 375 of the German Commercial Code (HGB) represents a purchase contract, the object of which is an item, the exact properties of which are only determined after the contract has been concluded. Section 376 of the German Commercial Code (HGB) regulates a special, relative fixed deal, the fixed sale. In § 377 and § 379 HGB the commercial duty of notice is regulated, which prevents a merchant, the warranty rights if a defect complaint too late.

Commission business, §§ 383–406 HGB

A commission business is a special form of purchase. It is characterized by the fact that a person who is referred to as a principal does not want to identify himself as a contracting party despite his or her own interest in concluding a contract. For this reason, she instructs another person, the so-called commission agent, to conclude the purchase contract in her own name but according to the instructions of the principal. The commission agent does not reveal the identity of the person behind the scenes. The commission business is particularly important in the art, antiques and wine trade as well as in the securities trade.

Freight business, §§ 407–452d HGB

The freight business is regulated in the fourth section of the fourth book of the German Commercial Code (HGB) and represents a special case of the contract for work and services regulated in the German Civil Code (BGB) . Through it, a party, called the carrier , undertakes to transport cargo and deliver it to a recipient.

Forwarding business, §§ 453–466 HGB

The subject of the forwarding business regulated in the fifth section of the book on commercial transactions is the organization of the transport of goods. While the freight business is limited to carrying out the transport of goods, one of the tasks of the freight forwarder is to plan the logistics of the transport of goods. This includes, for example, the selection and commissioning of the entrepreneur who is to carry out the transport. The freight forwarder therefore usually acts as an intermediary between the sender of the goods to be transported and the carrier. So that the freight forwarding business represents a sub-case of the civil law agency agreement represents.

Warehouse business, §§ 467-475h HGB

The storage business is a form of the custody contract regulated in the BGB , through which a warehouse keeper undertakes, in return for a fee, to take care of a storable item and to store it in a suitable location. The storage business is of great importance when goods have to be temporarily stored between individual stages of transport and recovery, which is often the case in international trade.

literature

Individual evidence

  1. ↑ Klaus Hopt: § 343 , Rn. 1. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 . Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 25 marginal no. 3.
  2. ↑ Tobias Lettl: Commercial Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71737-6 , § 9 Rn. 7. Hans Brox, Martin Henssler: Commercial law: with the basics of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 281.
  3. ↑ Detlev Joost: § 343 , Rn. 14. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  4. ↑ Klaus Hopt: § 343 , Rn. 2. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 . Hans Brox, Martin Henssler: Commercial law: with the basics of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 282.
  5. ^ Hans Brox, Martin Henssler: Commercial law: with basic principles of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 283.
  6. ^ BGH, judgment of May 5, 1960, II ZR 128/58 = Neue Juristische Wochenschrift 1960, p. 1853.
  7. ↑ Klaus Hopt: § 343 , Rn. 3. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  8. ^ BGH, judgment of March 20, 1997, IX ZR 83/96 = Neue Juristische Wochenschrift 1997, p. 1779.
  9. ↑ RGZ 130, 235 .
  10. ↑ Detlev Joost: § 343 , Rn. 2. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  11. ↑ Detlev Joost: § 344 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  12. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 32 Rn. 1.
  13. ↑ BGH, judgment of November 25, 1993, VII ZR 17/93 = Neue Juristische Wochenschrift 1994, p. 660. BGH, judgment of May 11, 2001, V ZR 492/99 = Neue Juristische Wochenschrift 2001, p. 2465.
  14. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 26 marginal no. 2.
  15. ↑ Detlev Joost: § 346 , Rn. 31. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  16. ↑ Detlev Joost: § 346 , Rn. 11. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  17. ↑ Klaus Hopt: § 346 , Rn. 8-9. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  18. ↑ Wulf-Henning Roth: § 346 , Rn. 17. In: Ingo Koller, Peter Kindler, Wulf-Henning Roth, Klaus-Dieter Drüen (eds.): Commercial Code: Commentary . 9th edition. CH Beck, Munich 2019, ISBN 978-3-406-71268-5 .
  19. ↑ Detlev Joost: § 346 , Rn. 18. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  20. ↑ BGHZ 6, 127 .
  21. ↑ Detlev Joost: § 346 , Rn. 20. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  22. ↑ Detlev Joost: § 346 , Rn. 21. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  23. ↑ Detlev Joost: § 346 , Rn. 22. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  24. ↑ Federal Court of Justice: VIII ZR 271/63 . In: Neue Juristische Wochenschrift 1966, p. 502.
  25. ^ Bernd Rohlfing: Commercial Law 1: Civil Law and Commercial Law . 2005, ISBN 978-3-409-12638-0 , pp. 257 .
  26. ^ Regional Court of Cologne : 11 S 93/87 . In: Betriebs-Berater 1988, p. 1139.
  27. ↑ Hartmut Oetker: Commercial Law . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58141-4 , § 7 Rn. 26th
  28. ↑ Klaus Hopt: § 362 , Rn. 4. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  29. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 26 marginal no. 24.
  30. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 26 marginal no. 11. Christoph Schärtl: The commercial confirmation letter . In: Legal Education 2007, p. 567.
  31. ↑ Detlev Joost: § 347 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  32. ↑ Peter Gottwald: § 343 , Rn. 1. In: Wolfgang Krüger (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 2: §§ 241-432 . CH Beck, Munich 2016, ISBN 978-3-406-66540-0 .
  33. ↑ Detlev Joost: § 348 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  34. ↑ Klaus Hopt: § 348 , Rn. 6. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 . Detlev Joost: § 348 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  35. ↑ Waltraud Hakenberg: § 350 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  36. ↑ Ansgar Staudinger: § 771 , Rn. 1. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Civil Code: Hand Commentary . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  37. ^ Mathias Habersack: § 766 , Rn. 1. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
  38. ↑ BGHZ 121, 1 .
  39. ↑ Karsten Schmidt: Commercial Law: Business Law I . 6th edition. Carl Heymanns Verlag, Cologne 2014, ISBN 978-3-452-27796-1 , § 18 III 3 d. Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 27 Rn. 11.
  40. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 27 Rn. 11.
  41. ↑ Peter Kindler: § 354 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  42. ↑ BGHZ 40, 156 .
  43. ^ Christian Armbrüster: § 137 , Rn. 1. In: Franz Säcker (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 1 : §§ 1–240, ProstG, AGG. CH Beck, Munich 2015, ISBN 978-3-406-66540-0 .
  44. ^ Günther Roth, Eva-Maria Kieninger: § 399 , Rn. 3. In: Wolfgang Krüger (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 2: §§ 241-432 . CH Beck, Munich 2016, ISBN 978-3-406-66540-0 .
  45. ↑ Eberhard Wagner: § 354a , Rn. 1-2. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 . Klaus Hopt: § 354a , Rn. 1. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 . Tobias Lettl: The effectiveness of the assignment of a monetary claim despite the effective prohibition of assignment according to § 354a HGB . In: Juristische Schulung 2010, p. 109 (110).
  46. ↑ Eberhard Wagner: § 354a , Rn. 6. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  47. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 27 Rn. 32.
  48. ↑ a b Stefan Grundmann: § 356 , Rn. 1-2. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  49. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 27 Rn. 9.
  50. ^ Hans Brox, Martin Henssler: Commercial law: with basic principles of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 529
  51. ↑ Hans Schulte-Nölke: § 932 , Rn. 11. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  52. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 28 marginal no. 1. Peter Kindler, David Paulus: Honest Acquisition - Fundamentals and Principles . In: Juristische Schulung 2013, p. 490 (492).
  53. ^ Claus-Wilhelm Canaris: The trust liability in German private law . CH Beck, Munich 1971, ISBN 978-3-406-02906-6 , p. 92 .
  54. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 28 marginal no. 4th
  55. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 28 marginal no. 17. Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 34 Rn. 44.
  56. ↑ Klaus Hopt: § 366 , Rn. 5. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 . Hans Brox, Martin Henssler: Commercial law: with the basics of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 313.
  57. ↑ Jürgen Oechsler: § 935 , Rn. 1. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 6 : §§ 854–1296, WEG, ErbbauRG. CH Beck, Munich 2013, ISBN 978-3-406-61466-8 .
  58. ↑ Jürgen Oechsler: § 935 , Rn. 14. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 6 : §§ 854–1296, WEG, ErbbauRG. CH Beck, Munich 2013, ISBN 978-3-406-61466-8 .
  59. ↑ Tobias Lettl: § 367 , Rn. 1. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  60. ↑ BGHZ 6, 125 (127).
  61. ↑ Peter Bassenge: § 1257 , Rn. 2. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 . Hans Schulte-Nölke: § 1257 , Rn. 8. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  62. ↑ Tobias Lettl: § 366 , Rn. 23. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  63. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 34 Rn. 47.
  64. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 34 Rn. 48.
  65. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 34 Rn. 49.
  66. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 23.
  67. ↑ Hartmut Oetker: Commercial Law . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58141-4 , § 7 Rn. 105.
  68. ^ Michael Martinek, Franz-Jörg Semler, Eckhard Flohr (eds.): Handbuch des Vertriebsrechts . 4th edition. CH Beck, Munich 2013, ISBN 978-3-406-64261-6 , § 31, Rn. 2. Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 10.
  69. ↑ Alessandro Bellardita: Specialist Lawyer: Introduction to Transport and Forwarding Law . In: Juristische Schulung 2006, p. 136 (138).
  70. ↑ Axel Rinkler: § 453 , Rn. 4. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  71. ↑ Hanno Merkt: § 467 , Rn. 1-4. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
This version was added to the list of articles worth reading on February 21, 2017 .