Commercial Law (Germany)

Commercial law is a special private law that encompasses the entirety of all legal norms for merchants .

General

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. § 345 , § 343 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 ).

history

→ Main article : History of commercial law

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.

Legal sources

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 Art. 2 Para. 1 EGHGB . Further commercial law provisions can be found in the Code of Civil Procedure ( Section 29 Paragraph 2, Section 38 Paragraph 1, Section 1031 ZPO) and in the Stock Exchange Act ( Section 52 BörsG). A great importance beside the common law (such as the doctrine of sham Kaufmann , the commercial letters of confirmation ) and the commercial custom ( § 346 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 .

Trading booth

Business term and property

→ Main article : Kaufmann (HGB)

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 Section 343 of the German Civil Code ( Section 348 of the German Commercial Code), guarantees , promises of debt and acknowledgment of debt are not subject to any formal requirements ( freedom of form ; Section 350 HGB)
• the principle of remuneration (even without special agreement; § 354 HGB)
• the speedy processing of legal transactions, e.g. through the requirement of immediate notification of defects ( Section 377 of the German Commercial Code)
• the increased protection of traffic and trust, for example through the publicity protection of the commercial register ( § 5 , § 15 HGB) and the protection of good faith in the authority of the disposer ( § 366 HGB).

Concept of trade

→ Main article : Commercial

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 ".

→ Main article : Intention to make a profit

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 register

→ Main article : Commercial register (Germany)

Information on essential facts of the merchants and the companies is entered in the commercial register.

Commercial sales and business intermediaries

The commercial agent

→ Main article : Commercial agent

According to Section 84, 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 Section 84 (1) of the German Commercial Code (HGB), he is a merchant if the requirements of Section 1 (2) HGB are met or he is entered in the commercial register in accordance with Section 2 of the 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 accordance with Section 675 (1) in conjunction with Section 611 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 entitled to a compensation claim analogous to § 89b HGB if

1. 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
2. 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.

Commercial transactions

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 Section 355 of the German Commercial Code (HGB) and effects the mutual offsetting of claims after the end of the accounting period. There are four different contracts:

1. the current account agreement
2. offsetting
3. the determination of the surplus
4. the business contract.

literature

Textbooks

• Claus-Wilhelm Canaris : Commercial Law. 24th edition, CH Beck, Munich 2006, ISBN 978-3-406-52867-5 .
• Karsten Schmidt : Commercial Law. 5th edition, Heymanns, 1999, ISBN 978-3-452-24232-7 .
• Dieter Krimphove: Commercial law with the main features of bill of exchange and check law. With audio version and interactive cases. W. Kohlhammer, Stuttgart 2010, ISBN 978-3-17-021281-7 .
• Tobias Lettl : Commercial Law. 2nd edition, CH Beck, Munich 2011, ISBN 978-3-406-61491-0 .
• Hans Brox , Martin Henssler : Commercial Law. 21st edition, CH Beck, Munich 2011, ISBN 978-3-406-62496-4 .
• Günther Roth, Marc-Philippe Weller : Commercial and company law. 7th edition, Vahlen, Munich 2010, ISBN 978-3-8006-3774-4 .
• Peter Jung : Commercial Law. 11th edition, CH Beck, Munich 2016, ISBN 978-3-406-69531-5 .
• Axel Kokemoor , Rainer Wörlen : Commercial law. With corporate law. 11th edition, Vahlen, Munich 2012, ISBN 978-3-8006-3972-4 .
• Eugen Klunzinger : Basics of commercial law. 14th edition, Vahlen, Munich 2011, ISBN 978-3-8006-3805-5 .
• Georg Bitter , Florian Schumacher: Commercial Law. Vahlen, Munich 2011, ISBN 978-3-8006-4206-9 .

Case books

• Karl-Heinz Fezer : Exam course in commercial law. 5th edition, CF Müller, Heidelberg 2009, ISBN 978-3-8114-9733-7 .
• Tobias Lettl: Cases on commercial law. CH Beck, Munich 2007, ISBN 978-3-406-56400-0 .
• Wolfram Timm , Torsten Schöne: Cases on commercial and company law. Volume I. 7th edition, CH Beck, Munich 2010, ISBN 978-3-406-60465-2 .
• Wolfram Timm, Torsten Schöne: Cases on commercial and company law. Volume II. 7th edition, CH Beck, Munich 2010, ISBN 978-3-406-60475-1 .

Comments

• Karsten Schmidt : Munich Commentary on the Commercial Code. 2nd edition, CH Beck, Munich 2009, ISBN 978-3-406-52627-5 .
• Oliver Haag, Joachim Löffler: Practical commentary on commercial law. 2nd edition, ZAP, Münster 2013, ISBN 978-3-89655-703-2 .

Magazines

• Journal for all commercial law and business law ISSN  0044-2437

Web links

• Text of the Commercial Code
• Commercial Code (HGB) with full text search

Individual evidence

1. ↑ Rainer Wörlen , Commercial and Corporate Law , 2012, margin no. 4, p. 2.
2. ↑ u. a. the AktG, GmbHG, GenG.
3. ↑ Rainer Wörlen, Commercial and Corporate Law , 2012, margin no. 4, p. 2.
4. ↑ Wolfgang Hefermehl , Commercial Code , 2014, introduction I. 1.
5. ↑ Rainer Wörlen, Commercial and Corporate Law , 2012, Item 1, p. 1
6. ↑ Rainer Wörlen, Commercial and Corporate Law , 2012, margin no. 10, p. 6
7. ↑ Klaus Spangemacher, Commercial and Corporate Law , 2008, p. 24.
8. ^ Claus-Wilhelm Canaris : Commercial Law - A Study Book . CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 17 I Rn. 4th