Commercial Law (Germany)
Merchants in Germany and around the world are subject to a special law that regulates parts of their business activities. These sub-areas are codified in special laws such as the Commercial Code (HGB) and its subsidiary laws such as the check law ( SchG ) and bill of exchange law ( WG ). In a broad sense, the norms of company law , securities , banking , capital market and stock exchange law also belong to commercial law.
According to the HGB, the validity of commercial law depends on the merchant status of at least one of the legal subjects involved (so-called “subjective system”; cf. , HGB). Contrary to what the name suggests, today's commercial law applies not only to merchants who do business, but also to craft , industry , primary production and the group of service providers outside of the professions (such as gastronomy , taxi companies , cinemas ).
In May 1861 the General German Commercial Code (ADHGB) of the states of the German Confederation was enacted as a Reich law to codify the commercial law of all countries in the newly created German Reich . The new HGB came into force at the same time as the German Civil Code (BGB) on January 1, 1900.
The most important source of law is the commercial code. Commercial law, as the “ special private law of merchants”, is not self-contained alongside civil law , but complements and modifies its provisions, in particular those of the civil code . Compared to the Commercial Code, this is therefore only applied in a subsidiary manner according to Para. 1 EGHGB . Further commercial law provisions can be found in the Code of Civil Procedure ( Paragraph 2, Paragraph 1, ZPO) and in the Stock Exchange Act ( BörsG). A great importance beside the common law (such as the doctrine of sham Kaufmann , the commercial letters of confirmation ) and the commercial custom ( HGB).
In addition, the law on the procedure in family matters and in matters of voluntary jurisdiction ( FamFG for short ) is relevant in register matters .
Business term and property
The commercial code begins with the term merchant. The merchant status triggers numerous duties and privileges for merchants. Which includes:
- a high degree of private autonomy ; For example, contractual penalties may not be reduced in accordance with German Civil Code ( German Commercial Code), guarantees , promises of debt and acknowledgment of debt are not subject to any formal requirements ( freedom of form ; HGB)
- the principle of remuneration (even without special agreement; HGB)
- the speedy processing of legal transactions, e.g. through the requirement of immediate notification of defects ( German Commercial Code)
- the increased protection of traffic and trust, for example through the publicity protection of the commercial register ( , HGB) and the protection of good faith in the authority of the disposer ( HGB).
Concept of trade
According to the traditional view of the highest court rulings and legal doctrine, a (commercial) trade is any permitted, independent, externally recognizable activity that is carried out according to plan, for a certain period and for the purpose of making a profit and is not a " free profession ".
In the more recent literature, however, the characteristic of making a profit is questioned and denied by the now prevailing opinion on the grounds that this should be regarded as purely internal. The company is free to decide whether it wants to make a profit or not.
Commercial sales and business intermediaries
The commercial agent
According to Paragraph 1, Clause 1 of the German Commercial Code (HGB), “a commercial agent is an independent trader who is constantly entrusted with mediating or concluding business on behalf of another entrepreneur (entrepreneur)." As a trader according to (1) of the German Commercial Code (HGB), he is a merchant if the requirements of (2) HGB are met or he is entered in the commercial register in accordance with HGB. Its activity consists in the mediation of business for the entrepreneur and in the conclusion of deals on behalf of the entrepreneur. The commercial agency contract is an agency contract with a service character in with (1) in conjunction with ff. BGB.
The authorized dealer
An authorized dealer is someone who, as an independent trader, is constantly entrusted with selling the products of another entrepreneur in his own name and for his own account and promoting their sales in a similar way to a commercial agent or commission agent . According to the BGH (BGHZ 29, 83, 88 et seq.), He is a compensation analogous to HGB if
- There is a legal relationship between him and the manufacturer or supplier that is not limited to mere buyer-seller relationships, but is integrated into the sales organization of his supplier in such a way that he has to perform tasks comparable to the commercial agent to a considerable extent and
- he is obliged to make the advantage of the customer base immediately and easily usable for the manufacturer when leaving the sales organization. The prevailing view in the literature, on the other hand, allows the actual possibility of using the customer base to be sufficient.
The current account
The current account is one of the practically most important and, at the same time, dogmatically most difficult areas of all commercial law, which even led Isaac Abraham Levy to qualify it as a "mystical ingredient". The most important application of this simplification of payment transactions is the bank current account. It is legally defined in German Commercial Code (HGB) and effects the mutual offsetting of claims after the end of the accounting period. There are four different contracts:
- the current account agreement
- the determination of the surplus
- the business contract.
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