A commercial practice (also Usance , [ yzãːs ] or [ u'zãːs ] French custom , German normal practice , [ uː'zanʦ ], English trade practice ) is located in the commercial front, if it is one at stores of merchants each other mandatory rule concerns which is based on a uniform, uniform and voluntary actual practice that has formed within a reasonable period of time for comparable business transactions and which is based on a uniform view of the participants. This definition, made by the Federal Court of Justice (BGH) in May 1984, also sets out the conditions under which commercial customs arise.
Before 1553, the words "custom, custom" ( Latin custom ) led to the Dutch loan word usantye for the bill of exchange, which Philipp Hainhofer adopted in 1610 in Germany as "custom". The "Uso change" was a change , the payment time of which is set according to "Uso" ( local custom ). In France , the word was adopted as French usance . It was only around this time in 1599 that the word commercial custom came up in Lower Austria . While "Uso" or "Usantz" solidified with bills of exchange, the commercial custom comprised the general customs of merchants.
In May 1861, the ADHGB adopted the “commercial use” in Art. 279 ADHGB: “In relation to the meaning and effect of actions and omissions, the customs and practices applicable in commercial transactions must be taken into account.” However, it was only applicable if its Validity was expressly intended by the parties. The Reichsoberhandelsgericht (ROHG) assumed in June 1872 that the law with “commercial customs” only meant “customary commercial law” and not also “actual commercial customs”. The Reichsgericht (RG) agreed to this in June 1899. According to this, every “ legal proposition developed through long practice ... ” was a commercial custom. As early as 1864, commercial usage and usage were used as synonyms when the lawyer Levin Goldschmidt pointed out that practice in commercial matters was required for usage.
The constitutional lawyer Paul Laband separated in 1873 in his essay "The Handelsusance" again between business use and Usance, after which the prototype of Usance is the business use, which existed in their permanent mutual commerce between two merchants. He distinguished the two from one another, because business use was restricted to a narrow group of people, while customary use encompassed the general public. For Max Weber in 1894, usage was a technical term for commercial usage. Commercial practice (Usance) was the special traffic custom of the commercial booth in 1934 . In 1937, Franz Schlegelberger and Wolfgang Hefermehl saw a difference between commercial custom and custom in the fact that the former is determined and established, but the latter is established as a business condition. But in 1965 Schlegelberger stated that the term Usance was often used synonymously for commercial usage and referred to a decision by the Federal Court of Justice. The commercial custom (commercial custom, usage) is not an objective right , but is regarded as the presumed will of the party.
The classification of commercial customs is made by jurisprudence . The sources of law are (written) law in the form of laws and ordinances and unwritten law, which occurs through constant practice in the form of customary law . Like written law, the latter leads to legally effective declarations of intent for those involved . While common law can even change written objective law (derogatory power of common law), this does not apply to common customs, which include commercial customs, and thus also not to commercial customs. A commercial usage can, however, become a legal norm and thus a source of law by becoming common law.
Apart from existing legal norms, commercial usage is a binding rule based on uniform, uniform and voluntary practice. An actual exercise only emerges over many years and must assert itself in trade. The merchants involved must agree to it and follow it voluntarily. The commercial custom applies only to business people, consumers are only subject to a common custom according to , BGB .
The central regulation of HGB for commercial customs requires that among merchants "in view of the meaning and effect of actions and omissions to take into account the customs and usages applicable in commercial transactions". The custom of trade is the custom of trade. The provision therefore also affects effects that actions and omissions can have without being a declaration of intent.
When applying commercial customs, the local, personal and factual requirements must be checked:
The first requirement for a custom to develop is actual practice. This does not have to extend to the entire national territory (such as the federal territory ), but can also be limited to a certain region (such as northern Germany ) or even only a certain place ( commercial law speaks of "local use"). The common, narrower (local) trade practice takes precedence over the supra-local trade practice in cases of doubt; such as the local traffic custom.
Commercial customs apply only among merchants. If a non-merchant is involved in the business, trade customs can still be applied if the non-merchant voluntarily submits to the customs. or the commercial practice is a common custom. A commercial custom can only develop within those commercial circles in which business of the type in question is common. In relation to a contractual partner who does not belong to this group of people, a custom that exists in the groups of people regularly involved will generally not be applicable. "Public circles" are, for example, certain industries such as furniture construction or interbank trading . The consent of the public involved is not to be denied simply because the commercial practice primarily serves the interests of one of the contracting parties . Foreign trade customs may also have to be taken into account. It is also possible for the contracting parties to exclude the validity of a commercial custom. Anyone who does not want to submit to commercial custom must expressly exclude it.
Commercial customs must be part of commercial transactions . For some commercial transactions, the HGB expressly recognizes (local) commercial customs, for example in HGB ( sales assistant ), , and HGB ( commercial broker ), (1) HGB (commercial transactions), (1) HGB ( commercial purchase ), Paragraph 2 HGB and HGB ( commission agent ) and Paragraph 1 No. 1 HGB ( carrier ). Compulsory law cannot be changed by commercial customs, but dispositive law can, "provided the purpose of the law does not exclude a conflicting commercial usage". Commercial customs serve to typify rules of interpretation and behavioral expectations and therefore have a normative effect, i.e. even without the knowledge or willingness of the parties to submit. If there is a commercial custom, this has the consequence that it has become part of the agreement between the merchants even without any particular reference. Trade clauses automatically become part of the contract because they are part of trade customs. If contracts between merchants need to be interpreted , traffic custom must always be taken into account. What is to be qualified as a commercial practice can be determined by an expert opinion of the chambers of industry and commerce .
The most important national trade customs include the cross-sector trade clauses such as the “ ex works ” agreement . Also the stock exchange usages , which are either based on a uniform, voluntary and permanent actual practice in stock exchange trading or exist as fixed stock exchange conditions and serve the processing of stock exchange transactions, are commercial practice. Other national trade customs in the timber trade are the Tegernsee customs . The legal nature of the principles of proper accounting (GoB) is controversial. GoB that is not in the law can be customary law, less established GoB belong to the commercial customs or simply to the common understanding.
Incoterms such as “ Free on board ” are an internationally standardized and recognized commercial practice; they serve as voluntary rules for the interpretation of customary contractual formulas in international trade in goods and have been published by the Paris International Chamber of Commerce since 1936 . In the case of commodities , in the international grain trade, for example, the customs of the Grain and Feed Trade Association are mainly used, and in the trade in oil seeds, the rules of the Federation of Oils, Seeds and Fats Associations, which also originate from the English legal system . In German trade, the standard conditions for grain and oilseeds prevail in the German grain trade , in Switzerland the practices of the Swiss grain exchange in Lucerne and in Austria the practices of the exchange for agricultural products in Vienna . Although there is no commercial code in Switzerland, commercial customs are defined as “commercial usage” in Art. 124 Paragraph 3 and Art. 429 Paragraph 2 OR and as “business practice” in Art. 184 Paragraph 2, Art. 189 Paragraph 1 , Art. 201 and Art. 211 Para. 2 OR. They are also recognized in case law. In November 1965, the Swiss Federal Supreme Court ruled that commercial customs were not objective law and that they were not simply part of the content of the contract, but that the parties are obligated if they submit to them through mutual declarations of intent, be it expressly or tacitly.
According to Art. 9 Para. 2 UN Sales Convention , in the absence of any other agreement, the contracting parties tacitly referred to customs in their contract or when it was concluded that they knew or should have known and which in international trade the parties to contracts of this type in are well known in the relevant line of business and are regularly observed by them.
The general terms and conditions (GTC) are not part of the commercial customs, because they are typical parts of the contract that only become part of the contract by express agreement ( inclusion ). If general terms and conditions have now become a commercial practice due to constant practice, the question of including them in a contract is superfluous. However, this does not apply to consumers because they cannot be the norm addressees of commercial customs. The General German Forwarding Conditions are also valid as general terms and conditions and are therefore not a commercial practice.
- BGH, judgment of May 2, 1984, Az .: VIII ZR 38/83, full text .
- Matthias Hoep: Hamburger Handelsbücher , 1553, p. 173.
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- ROHG, judgment of June 28, 1872, Az. Rep. 241/72.
- ROHG, judgment of December 17, 1872, Az. 798/72.
- RG, judgment of June 23, 1899, Az. Rep. VIa 98/99.
- Levin Goldschmidt : Handbuch des Handelsrechts , Volume 1, Part 1, 1864, p. 231 ff.
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- BGH, judgment of December 1, 1965, Az. VIII ZR 271/63, full text .
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- Detlev Joost: § 346 , Rn. 18, in: Carsten Ebenroth / Karlheinz Boujong / Detlev Joost / Lutz Strohn-Müller (eds.), Commercial Code , Volume 2, §§ 343–475h, 3rd edition, 2015
- Franz Schlegelberger / Ernst Gessler: Commentary on the Commercial Code in the version in force since October 1, 1937 , 1965, p. 1518.
- RG JW 1938, 859.
- Detlev Joost: § 346 , Rn. 31, in: Carsten Ebenroth / Karlheinz Boujong / Detlev Joost / Lutz Strohn-Müller (eds.), Commercial Code , Volume 2, §§ 343–475h, 3rd edition, 2015
- BGH, judgment of May 20, 1952, Az. I ZR 140/51, full text = BGHZ 6, 127, 135.
- BGH, judgment of November 14, 1951, Az. II ZR 41/51, full text .
- BGH, judgment December 1, 1965, Az. VIII ZR 271/63, full text .
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- Regulations for business dealings on the stock exchange for agricultural products in Vienna (usages) - Part B: Special regulations for trading in individual goods
- BGE 91 II 356, 359
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