Trade clause

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Commercial clauses are standardized clauses in commercial transactions and in commercial transactions between merchants who use them to identify the content of the contract in more detail and with which commercial transactions associate certain ideas about their meaning and legal consequences .

General

Businesspeople often avoid cumbersome formulations and use numerous abbreviations. Trade is therefore regularly carried out according to standardized conditions and trade clauses. In individual cases, this can include complete sets of clauses such as B. general delivery and purchase conditions, sometimes only individual standardized trade clauses are used. However, the content of the related clauses is not always clear. Like all contractual agreements, trade clauses are subject to interpretation , unless the parties ' will can be determined. They are interpreted according to commercial usage, which can vary according to state , location and industry . It depends on the opinion of the public at the place of performance . They are to be interpreted uniformly in individual cases according to objective standards. Commercial clauses are part of commercial usage according to Section 346 of the German Commercial Code .

On the one hand, the meaning of trade clauses has become firmly entrenched in trade customs, on the other hand, it must be taken into account that trade clauses are also used with typical content when in doubt in typical transactions.

Typical trade terms

If the clause is provided with the addition "From ... (location)", the buyer may be obliged to perform in advance . “Ex warehouse net cash” means that the goods are only dispatched from the warehouse at the buyer's expense after payment. This also applies to " ex works " and "ex ship", the buyer must collect the goods from the seller. " Free domicile " means that the supplier bears all transport costs to the recipient location; however, this does not regulate the transfer of risk . "Cash" means the obligation to pay cash , which can also be met by means of monetary substitutes ( bank transfer , checks ) . "Net cash" on invoices means that payment must be made without any deductions such as cash discount or rebate . With “offer non-binding ” or “offer without commitment ” the seller indicates that the legally binding offer ( § 145 BGB ) is intended to be non-binding and the buyer is requested to submit an offer. Another example is the well-known Tel-Quel clause .

Not valid for consumers

The definition makes it clear that trade clauses only apply between merchants. If only one consumer is involved as a contractual partner, the consumer does not have to accept them against him, but can request a precise explanation of the abbreviations. These abbreviations are incomprehensible for the objective recipient horizon of a sensible consumer and are considered to be inappropriate disadvantage , which is ineffective according to Section 307 (1) BGB .

International

A legal concept originating from foreign law can also be decisive for the interpretation of a trade clause if the contract is subject to German law. The International Chamber of Commerce has been recording the trade terms widely used in international trade since 1923 and recording their meaning in the individual legal systems ( English Trade Terms ). The trade terms have become an international trade practice. This must be distinguished from the Incoterms of the International Chamber of Commerce, which, according to the prevailing opinion, become general terms and conditions if the clauses contained in the Incoterms are used and reference is made to the Incoterms at the same time. According to the prevailing German legal opinion, they are not trade clauses, but represent general terms and conditions. For the effect of trade clauses, it is particularly important that trade clauses - unlike trade practices - also apply if the contracting parties are not aware of them or have not expressly included them in the contract . They have a normative effect, so to speak. If Incoterms are used between companies , there is neither an inclusion control according to § 305 Paragraph 2 and 3 BGB nor a content control according to § § 308 , § 309 BGB.

Individual evidence

  1. a b Bernd Rohlfing, Commercial Law 1: Civil Law and Commercial Law , 2005, p. 257
  2. OLG Munich BB 1961, 669
  3. ^ Sabine Klamroth / Reinhard Walter, Legal Studies for Merchants , 1991, p. 95.
  4. ^ BGH, judgment of October 25, 1952, Az .: I ZR 48/52
  5. BGH BB 1972, 117
  6. Norbert Horn, Commentary HGB , Volume 4, 2005, comments before Section 343, marginal no. 73 ff., P. 98 ff.
  7. Gabler Wirtschaftslexikon , keyword: net cash , Gabler Verlag (editor)
  8. BGH NJW 1996, 919, 919 f.
  9. OLG Hamburg, VersR 1996, 229.
  10. See evidence from Baumbach / Hopt, HGB. Commentary , 34th edition, Munich 2010, § 346 HGB, Rn. 15th
  11. Baumbach / hop t, HGB. Commentary , 34th edition, Munich 2010, § 346 HGB, Rn. 7 and 16.
  12. Baumbach / hop t, HGB. Commentary , 34th edition, Munich 2010, § 346 HGB, Rn. 8th.