Businessman (HGB)

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A merchant within the meaning of the German Commercial Code (HGB) is, according to Section 1 (1) HGB, anyone who operates a trade .

General

The term businessman is a purely specific legal term . “The HGB does not concern the businessman in the economic sense, but the businessman in the legal sense. A distinction is made between six types of merchant: Actual merchant according to Section 1 of the German Commercial Code, optional merchant according to Section 2 of the German Commercial Code, optional merchant according to Section 3 of the German Commercial Code, fictitious merchant according to Section 5 of the German Commercial Code, pseudo-merchant and formal merchant according to Section 6 of the German Commercial Code. "

“ Commercial law is the special private law of merchants.” It is predominantly standardized in the HGB. Merchants and non-merchants are also subject to the provisions of the German Civil Code (BGB). According to Art. 2 Para. 1 of the Introductory Act to the Commercial Code (EGHGB), the provisions of the BGB only apply in commercial matters insofar as nothing else is stipulated in the HGB or EGHGB. The provisions of the BGB therefore only apply in a subsidiary manner . Only a few provisions of the HGB are also applicable to non-traders.

The commercial law reform law (HRefG) of June 22, 1998, which is a law to revise commercial and company law and to amend other commercial and social regulations, modernized the concept of commercial law, liberalized and simplified company law and made the commercial register procedure more effective. As a result of the change in merchant and company law, the terms must-be merchant, intended merchant and minor merchant are no longer relevant. The term “Istkaufmann” replaces the previous definition of the “must-merchant”, and the meaning of the term “Kannkaufmann” has changed. The regulations on bogus traders , molded traders and trading companies remained unaffected.

Classification of merchants

"The HGB does not recognize a uniform type of businessman." That is why six types of businessman can be distinguished:

Actual merchant

According to Section 1 (1) of the German Commercial Code (HGB), anyone who operates a trade is a businessman. According to Section 1 (2) of the German Commercial Code (HGB), a commercial trade is any business operation , unless the type or scope of the company does not require a commercially set-up business.

The entrepreneur of such a company is automatically and directly considered a businessman. According to Section 29 of the German Commercial Code (HGB), the actual businessman is obliged to register the company for entry in the commercial register (HR). However, entry in the commercial register is not necessary in order to become a merchant, as it only has a declaratory and not a constitutive meaning.

Whether the size of the company / company requires a commercially organized business depends on various criteria, which are not strictly defined. This includes the type and scope of the trade and the overall consideration of these criteria. The business structure falls under the type of trade. This includes the qualitative criteria, such as B. The nature and variety of the shops that usually occur, the variety of products and services, the type of customer base, warehousing, participation in bills of exchange and check transactions. The scope of business operations is the size of the business. This includes the quantitative criteria, such as B. Working capital , sales volume, number of employees, number of operating sites and their size. Due to the unclear definition of the criteria, § 1 HGB formulates the requirement negatively, so that the burden of proof is reversed for the entrepreneur who operates a business and is not entered in the commercial register, i.e. he may have to demonstrate that he is not a businessman. There is thus a legal presumption for merchant status.

Can merchant according to § 2 HGB

Small businesses are not merchants under commercial law and are therefore not subject to the regulations of the HGB. But they can become a merchant, which means that the HGB applies to them. According to § 2 sentence 1 HGB, the small business owner is given the opportunity to have his company entered in the commercial register. There is no obligation for this, but a right to choose, to bring about the merchant status through the entry. The entry here has a constitutive effect on the status of a merchant. After the entry, the small business owner is called a can trader. According to Section 2 of the German Commercial Code (HGB), the can-do trader is to be regarded as a full trader.

Freelance merchant according to § 3 HGB

Anyone who runs an agricultural or forestry company and needs a business set up in a commercial manner can also voluntarily register in the commercial register. The entry has a constitutive effect here, so that the merchant status is established. According to Section 3 of the German Commercial Code (HGB), companies in the agricultural and forestry sectors are therefore also free traders.

Fictional merchant

The fictitious merchant, also called merchant by virtue of being entered in the commercial register or by virtue of the commercial register, is standardized in Section 5 of the German Commercial Code. According to this, a trader who is registered with his company in the commercial register is treated as a businessman, even if he does not operate a trade. This happens regardless of whether the trader operates a trade under his company and whether he was obliged or authorized to register in the commercial register.

The entry in the commercial register creates a fiction of merchant status. This is where the term "fictitious merchant" comes from. There is a need for protection in legal transactions, as merchants are interested in a quick transaction for reasons of cost and therefore a review of the merchant status of the business partner should be avoided. Therefore, for reasons of legal certainty and the protection of legitimate expectations, it is necessary that legal subjects who are actually not at all are treated like business people.

Bogus merchant

A false merchant is someone who creates or entertains the appearance of being a merchant through his behavior. Compared to a bona fide third party who let his behavior be determined by this appearance, he must allow himself to be treated as a businessman and thus also accept the corresponding disadvantages.

A bogus merchant is liable to third parties in good faith like such. With regard to liability , but not accounting , he must allow himself to be treated like a businessman.

The bogus merchant is not regulated by law, but is based on the doctrine of legal certificates resulting from the requirements of good faith ( § 242 BGB) . The analogous application of § 5 HGB i. V. m. According to Section 242 of the German Civil Code, the bogus merchant is regarded as a businessman and is subject to the provisions of the German Commercial Code.

Mold merchant

Some private law subjects can be classified as merchants due to their legal form and are referred to as form merchants. According to Section 6 (1) of the German Commercial Code (HGB), the regulations applicable to merchants can also be used for trading companies. It follows that trading companies and certain legal entities are to be treated as merchants.

The open trading company (OHG) and the limited partnership (KG) are counted among the trading companies. These partnerships are standardized in the HGB itself. In the case of partnerships, it is fundamentally necessary to check whether a commercial trade is operated according to § 1 HGB. If this or an entry of the OHG or KG is available in the commercial register, they are viewed as a trading company.

In addition, the form merchants by virtue of legal norms include the stock corporation (AG) ( § 3 AktG), the European stock corporation SE (Art. 3 SE-VO), the limited liability company (GmbH) ( § 13 GmbHG), the partnership limited by shares ( KGaA) ( § 278 AktG), the registered cooperative (eG) ( § 17 GenG), the European cooperative (SCE) (Art. 1 SCE-VO) and the European economic interest grouping under German law (EWIV) ( § 1 EWIVG) . This means that these companies are counted among the merchants regardless of the type and scope of their activity, but only because of their legal form. The entry of the company in the trade or cooperative register , which has a constitutive meaning, is, however, required, as this is the only way in which the company comes into being as a legal person.

In addition, Section 6 (2) of the German Commercial Code (HGB) stipulates that the " association " is a merchant by virtue of the law and is subject to the characteristics of a merchant and is therefore only counted as a merchant due to its legal form. This also applies if he does not meet the requirements specified in Section 1 (2) HGB.

The following table gives an overview of the types of merchants:

Types of merchant according to the HGB
Actual merchant Salesman Mold merchant Fiktivkaufmann and
sham Kaufmann
§ 1 § 2 § 3 § 6 § 5
Requirements:

1. Trade
2. Trade
3. Operate = self, not: employees


"Actual merchant" because he is a business man by law


Obligation to register in the HReg. = § 29


Entry has a declaratory
(= legal)
effect

Requirements:

1. Commercial enterprise
2. No commercial enterprise according to
§ 1 II
3. Entry in the HReg .:
Trade is then considered to be a commercial enterprise


Eligibility but no obligation to register in the HReg. according to § 2, p. 2.


Registration has a constitutive
(= legal)
effect

Operation of agriculture and forestry

→ no application of § 1 II


Eligibility but no obligation to register in the HReg.


Registration has a constitutive effect

Merchants by law due to the legal form


Obligation to register


Registration has a constitutive effect with regard to the formation of the company

Fictitious merchant § 5

Entrepreneur whose company is listed in HReg. is registered, counts as Kfm. i. S. d. HGB


Registration has a constitutive effect

Translucent Kaufmann
Without Registration in Hreg. Appear as a business man, without being a business man

Importance of the merchant status

If a person involved in the legal relationship has the status of a merchant, the commercial law standards apply. This grants access to commercial law. Thus, the term “merchant” is of central importance for all commercial law. Therefore, the principle also applies: Without a businessman, there is no commercial law. In some cases, however, the commercial law standards require that all parties involved are business people in order to be applicable.

A distinction is made between four basic duties, which still exist, even if the merchant enters into private law relationships with another legal entity. The first basic commercial obligation is the registration obligation. The HGB often requires the registration of certain facts in the register or the submission of certain documents. Another basic obligation is company management, which is standardized in the company regulations of the HGB and the relevant special laws. The requirements for the content design of the company result from these. Business letter disclosure is the next basic duty, which requires minimum information on business letters in order to provide information about the legal situation of the merchant. This also applies to electronic business transactions . The last basic obligation is the basic accounting obligation, which states that the businessman is subject to the accounting obligation according to § 238 HGB. However, sole proprietorships according to Section 241a of the German Commercial Code (HGB) are excluded if they do not have more than EUR 600,000 in sales and EUR 60,000 in net income on the closing dates of two consecutive financial years . The basic obligation of accounting serves to document and protect creditors through the self-control of the merchant.

Furthermore, the fourth book of the HGB with the heading “Commercial Transactions”, which includes Sections 343 to 475h HGB, regulates the individual legal transactions carried out by a merchant. Due to the ordering factor for trade and business transactions, trade practice is of great importance and only applies to merchants. "According to § 346 HGB is to be taken between merchants on those applicable in trade habits and customs into consideration." Commercial practices thus provide commercial traffic morality is and different from the common law .

Loss of merchant status

The status of a merchant expires in the case of actual merchants when the business enterprise is closed and not when it is deleted from the commercial register. If business continues, incapacity and the opening of insolvency proceedings do not constitute grounds for termination.

A non-professional trader, on the other hand, loses the status of a trader upon deletion from the commercial register, even if this was wrongly done.

Remarks

  1. ↑ §§ without a designation on this overview are those of the HGB!

Web links

Individual evidence

  1. ↑ Rainer Wörlen / Axel Kokemoor : commercial law with company law. 11th edition. Munich 2012, Rn. 7th
  2. ^ Hans Brox / Martin Henssler: Commercial law. 21st edition. Munich 2011, Rn. 1.
  3. ↑ Hans Brox / Wolf-Dietrich Walker: General part of the BGB. 37th edition. Munich 2013, Rn. 14th
  4. ↑ Helmut Köhler: BGB general part. 36th edition. Munich 2012, p. 7, Rn. 8-10.
  5. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, p. 21.
  6. ^ Peter Bülow: Commercial Law. 6th edition. Heidelberg / Munich / Landsberg / Frechen / Hamburg 2009, Rn. 23.
  7. ↑ Federal Law Gazette (BGBl.) I, 1474
  8. ↑ Gunther Bokelmann: The right of companies and business names. 5th edition. Freiburg / Berlin 2000, Rn. 72a.
  9. ↑ also in the following: Peter Bülow: Handelsrecht. 6th edition. Heidelberg / Munich / Landsberg / Frechen / Hamburg 2009, Rn. 13-16.
  10. ↑ Hartmut Oetker: Commercial Law. 6th edition. Berlin / Heidelberg 2010, Rn. 5.
  11. ↑ Eugen Klunzinger: Grundzüge des Handelsrechts , 14th edition, Munich 2011, p. 46.
  12. ↑ Rainer Wörlen, Axel Kokemoor: commercial law with company law. 11th edition. Munich 2012, Rn. 7th
  13. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, pp. 23, 24.
  14. ^ Hans Brox, Martin Henssler: Commercial law. 21st edition. Munich 2011, Rn. 42.
  15. ^ Günther H. Roth, Marc-Philippe Weller: Commercial and company law. 8th edition. Munich 2013, Rn. 96, 97.
  16. ^ Georg Bitter, Florian Schumacher: Commercial law with UN sales law. Munich 2011, p. 4, Rn. 11.
  17. ↑ also in the following: Christoph Ann, Ronny Hauck, Eva I. Obergfell: Wirtschaftsprivatrecht compact. Munich 2012, p. 122.
  18. ↑ also in the following: Günther H. Roth, Marc-Philippe Weller: Commercial and company law. 8th edition. Munich 2013, Rn. 96-98.
  19. ↑ also in the following: Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and corporate law. 11th edition. Bielefeld 2013, pp. 28, 29.
  20. ↑ also in the following: Anja Steinbeck: Handelsrecht. 2nd Edition. Baden-Baden 2011, p. 44, Rn. 7th
  21. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, p. 29.
  22. ^ Anja Steinbeck: Commercial Law. 2nd Edition. Baden-Baden 2011, p. 45, Rn. 8th.
  23. ↑ Hartmut Oetker: Commercial Law. 6th edition. Berlin / Heidelberg 2010, p. 29, Rn. 47.
  24. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, p. 30.
  25. ^ Peter Kindler: Basic course in commercial and corporate law. 6th edition. Munich 2012, p. 36, Rn. 79.
  26. ^ Artur Teichmann: Commercial law. 3. Edition. Baden-Baden 2013, marginal no. 93.
  27. ↑ also in the following: Rainer Wörlen, Axel Kokemoor: Commercial law with company law. 11th edition. Munich 2012, Rn. 26th
  28. ^ Artur Teichmann: Commercial law. 3. Edition. Baden-Baden 2013, marginal no. 238, 239.
  29. ↑ Rainer Wörlen, Axel Kokemoor: commercial law with company law. 11th edition. Munich 2012, Rn. 26th
  30. ↑ taken from: Christoph Ann, Ronny Hauck, Eva I. Obergfell: Commercial Private Law compact. Munich 2012, p. 125.
  31. ↑ also in the following: Rainer Wörlen, Axel Kokemoor: Commercial law with company law. 11th edition. Munich 2012, Rn. 27; Christoph Ann, Ronny Hauck, Eva I. Obergfell: Compact private business law. Munich 2012, p. 125; Hans Brox, Martin Henssler: Commercial Law. 21st edition. Munich 2011, Rn. 63-69.
  32. ^ Georg Bitter, Florian Schumacher: Commercial law with UN sales law. Munich 2011, p. 10, Rn. 22; Christoph Ann, Ronny Hauck, Eva I. Obergfell: Compact private business law. Munich 2012, p. 125.
  33. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, p. 32.
  34. ↑ also in the following: Georg Bitter, Florian Schumacher: Commercial law with UN sales law. Munich 2011, p. 9, Rn. 17th
  35. ↑ also in the following: Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and corporate law. 11th edition. Bielefeld 2013, p. 31.
  36. ↑ also in the following: Georg Bitter, Florian Schumacher: Commercial law with UN sales law. Munich 2011, p. 9, Rn. 17th
  37. ↑ also in the following: Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and corporate law. 11th edition. Bielefeld 2013, p. 31.
  38. ^ Georg Bitter, Florian Schumacher: Commercial law with UN sales law. Munich 2011, p. 9, Rn. 19th
  39. ^ Artur Teichmann: Commercial law. 3. Edition. Baden-Baden 2013, marginal no. 283, 285.
  40. ↑ Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and company law. 11th edition. Bielefeld 2013, p. 31.
  41. ^ Modified taken from: Rainer Wörlen, Axel Kokemoor: Commercial law with company law. 11th edition. Munich 2012, p. 15, Rn. 31.
  42. ↑ Christoph Ann, Ronny Hauck, Eva I. Obergfell: Commercial private law compact. Munich 2012, p. 119.
  43. ^ Hans Brox, Martin Henssler: Commercial law. 21st edition. Munich 2011, Rn. 24.
  44. ↑ also in the following: Christoph Ann, Ronny Hauck, Eva I. Obergfell: Wirtschaftsprivatrecht compact. Munich 2012, p. 119.
  45. ↑ also in the following: Peter Kindler: Basic course in commercial and company law. 6th edition. Munich 2012, p. 15, Rn. 2.
  46. ↑ Beck -tex, HGB Handelsgesetzbuch, 55th edition, Munich 2013, pp. XI, XII.
  47. ^ Eugen Klunzinger: Fundamentals of commercial law. 14th edition. Munich 2011, p. 25.
  48. ↑ Literally taken from: Klaus Spangemacher, Reimar Zimmermann, Petra Zimmermann-Hübner: Commercial and corporate law. 11th edition. Bielefeld 2013, p. 68.
  49. ↑ Rainer Wörlen, Axel Kokemoor: commercial law with company law. 11th edition. Munich 2012, Rn. 249.
  50. ↑ also in the following: Hans Brox, Martin Henssler: Handelsrecht. 21st edition. Munich 2011, Rn. 43, 46a.