In commercial law, it is particularly important to capture the status of a merchant and the commercial trade as precisely as possible, since these terms have significant legal consequences . If a legal entity ( natural person or legal person ) fulfills the requirements of these terms, it is subject to the strict requirements of commercial law. Anyone who commercially buys or sells goods or securities for the account of someone else in their own name as part of a trade ( (1) HGB ) automatically submits to the regulations on commission agents ( ff. HGB). If a merchant conducts business that is part of the operation of his trade, then according to HGB there are business transactions . Legal transactions of a merchant (all types of contracts ) are considered to be part of the operation of his trade in accordance with (1) HGB. Business errands in the context of a commercial trade trigger a statutory right to commission according to (1) HGB .
Authorized representatives and authorized signatories may only carry out their business and legal acts in the context of a commercial trade, whereby the authorized representative is limited to the commercial trade of its owner ( (1) HGB). According to (1 ) AktG , members of the management board of a stock corporation may not operate their own commercial business without the consent of the supervisory board ( non-competition ).
For a long time, German commercial law included so-called basic trading, but these were abolished in July 1998.
- Acquisition and resale of movable items (goods) or securities, regardless of whether the goods are resold unchanged or after processing or processing ( manufacturing industry , tradesmen such as bakers , butchers , innkeepers , pharmacists );
- Processing ;
- Insurance ;
- Credit institutions ;
- Goods transport and travel carriage , carrier or towage contractor ;
- Commission agents , freight forwarders and warehouse keepers ;
- Commercial agents or brokers ;
- Publishers as well as book or art dealers ;
- Printing works , provided that the trade is not operated as a craft.
Companies that pursued an identical corporate purpose were irrefutably considered to be a trade under this provision.
The reform that has been in force since July 1998 eliminated the historical distinction between typical merchandise trade and the service industry and crafts in favor of a uniform application of the HGB; In particular, the modern trade in services is included from the outset (and not only under the requirements of Section 2 HGB). Since then, every trader has been a businessman in the sense of the HGB.
According to company entered in the commercial register is regarded as a commercial trade, even if it is only a small trade ( optional merchant ). In HGB it is excluded for the fictitious merchant that those registered in the commercial register can claim that they would not operate a commercial trade. After that, the registered person irrefutably operates a trade, from which indirectly the merchant status follows. The entry of a small business in the commercial register makes the small business irrefutably a trade and a merchant. If it were not registered, it would not be a trade or a merchant.German Commercial Code (HGB), every commercial
If there is a trade , it can also be assumed to be a trade and thus a merchant. The commercial term is not defined in the HGB, but the case law understands it to be an externally recognizable ( external effect as a market participant ), long-term , independent and permitted activity in the economic field, which is associated with the intention to make a profit and is not a free profession . Every trader is automatically a merchant regardless of the business he is running.
The - unregistered - small businesses whose type or scope does not require a commercially established business operation (Section 1 (2) HGB), agriculture and forestry ( (1) HGB) and partnership ( (1) sentence 2 PartGG ). The type ( e.g. the diversity of the business purpose , the business relationships or the complexity of the business transactions ) and the scope ( turnover level or number of employees ) are prerequisites for the trade, so that the small trade falls below these minimum sizes and does not belong to the trade. The case law assumes an annual turnover of more than 250,000 euros from a commercial enterprise. The BGH demands an overall assessment of the circumstances of the individual company , taking into account in particular the number of employees and the type of activity, turnover, capital, the variety of services provided in the company and the business relationships or the use of credit .
Commercial business operations
Commercial law defines a commercial business operation as a commercial operation. This exists when trading books are kept in accordance with the provisions of Section annual financial statements are prepared. A commercial business operation also requires a minimum of precautions to ensure reliable processing of business. This includes in particular if there are facilities to achieve order and clarity ( bookkeeping , storage ). Own business premises do not have to be available if the previous requirements are met.ff. HGB and
The term commercial trade is to be distinguished from that of the commercial enterprise . A trading company is also a trading company, but the purpose of a trading company (as opposed to a production company ) is to buy almost exclusively products (so-called trading goods ) from other companies (i.e. trading companies or manufacturing companies) and to sell these products on at a profit. All trade is considered a trading company.
- Dieter Brüggemann, in: Großkommentar HGB. November 1982, p. 58 ff.
- BT-Drucksache 13/8444 from August 29, 1997, draft of a law for the new regulation of the merchant and company law and for the change of other commercial and company law regulations
- Werner Russ, in: Heidelberger Commentary on the HGB. 2007, p. 62
- Werner Russ, in: Heidelberger Commentary on the HGB , 2007, p. 75
- RGZ 33, 321, 324; 63, 32, 33; 84, 382, 386
- OLG Dresden, judgment of April 26, 2001, Az .: 7 U 301/01, NJW-RR 2002, 33, 33
- BGH, judgment of April 28, 1960, BB 1960, 1067
- BGH WM 1960, 935, 935
- OLG Dresden, judgment of April 26, 2001, Az .: 7 U 301/01