Commission business

from Wikipedia, the free encyclopedia

A commission business is a special form of purchase . It is characterized by the fact that a legal subject remains in the background despite its own interest in concluding a contract . It therefore instructs another legal entity to carry out the legal transaction on its own behalf. The identity of the person behind it is not revealed. This business therefore represents an indirect representation. The person who remains in the background is referred to as the principal and the person who carries out the business on their behalf is referred to as the commission agent. The commission business is regulated in the Commercial Code (HGB) in Sections 383–406 HGB.

Involved persons and objects of the contract

The principal, the commission agent and at least one third party are involved in the commission business:

According to the definition of Section 383 (1) HGB, a commission agent is anyone who commercially buys or sells goods or securities for the account of a third party in their own name. The former is a purchase commission, the latter a sales commission. However, the requirement of commercial action is not necessary for the application of the commission regulations, as Section 406 (1) sentence HGB extends the group of potential commission agents to include people for whom commission transactions are not carried out on a commercial basis (occasional commission agents).

A commission agent is a commission agent who is constantly entrusted with the sale of goods or securities, i.e. is in a permanent contractual relationship with the principal and is not involved in individual transactions. In principle, the commission agent is bound by instructions to the principal during the execution. However, if there is danger associated with the postponement, he may, as an exception, act without consultation according to § 665 sentence 2 BGB. He differs from the trading broker in that he not only mediates contracts, but concludes them himself. Unlike a commercial agent , the commission agent does not act on behalf of someone else, but becomes a party to the commission business himself.

The principal is the client of the commission agent who is not involved in carrying out the commission business in order to preserve his anonymity. Third parties are those with whom the commission agent concludes the commission business.

According to § 383 Paragraph 1 Clause 1 HGB, objects of sale are usually goods and securities. According to § 406 Paragraph 1 Clause 1 HGB, however, other contractual objects also trigger the legal consequences of the commission business. Such cases are called improper commission business.

Process of a commission business

The commission business is divided into three main sections: The conclusion of the commission business, the execution of the execution business and the handling of the legal relationship between the commission agent and the principal.

Completion of the commission business

First, the commission agent and the principal conclude a contract, the commission contract. The purchase or sale item and the commission of the commission agent are agreed here. In addition, the parties may make agreements on the price of the purchased item, the distribution of transport costs, the liability of the commission agent, a claim for reimbursement of expenses, the duration of the contract, the termination provisions or the commission agent's right of self-intervention. The commission business is an agency agreement ( Section 675 (1) BGB). Therefore, the law of this type of contract is applicable to commission business. In addition, the commission contract contains elements of work or service contracts, depending on the design .

The commission contract ends when the commission order is duly completed, by termination, revocation, bankruptcy or death.

Execution of the execution transaction

The commission agent then carries out the execution transaction. For this purpose, he concludes a purchase contract with a third party in his own name, but on behalf of a third party. Since the commission agent acts in his own name, it is not the principal but himself who becomes the contracting party. Therefore, the commission agent is entitled and obliged under the contract with the third party. If the third party violates a contractual obligation, the commission agent is initially entitled to a resulting claim for damages against the third party.

completion

Since the fruits of the legal transaction should go to the principal, the execution phase follows after the execution transaction. In the case of the purchase commission, the commission agent transfers ownership of the purchased item acquired through the transaction with the third party. With the sales commission, the commission agent transfers the commission goods to the third party. He obtained the necessary permission for this by authorization of the principals ( § 185 paragraph 1 BGB). Then comes the commission in accordance with § 384 paragraph 2 HGB the claim he has acquired against the third party, the principals from. From this point in time, the principal can enforce the claim against the third party in accordance with Section 392 (1) HGB.

Finally, the principal pays the agreed commission to the commission agent. In doing so, he can also demand reimbursement of necessary expenses associated with the management in accordance with Section 396 (2) of the German Commercial Code (HGB), unless these are already covered by the commission.

Rights and duties of the commission agent

right

The commission agent can demand payment of a commission from the principal in accordance with Section 396 (1) sentence 1 of the German Commercial Code (HGB). This requires the execution of the transaction between the commission agent and the third party. This is always the case if the third party pays the commission agent in accordance with the contract. According to Section 396, Paragraph 1, Clause 2 of the German Commercial Code (HGB), there is also an obligation to pay commission if the transaction is not carried out due to a circumstance that is attributable to the principal and the commission agent is otherwise not to blame for the failure of the execution of the contract. If there is another reason for the failure, there is no obligation to pay commission. According to the prevailing opinion, the right to commission is also excluded if there is a disruption in performance not in execution but in processing and the cause of this disruption is not the fault of the principal.

According to Section 396 (2) of the German Commercial Code (HGB), the commission agent can request the principal to reimburse the expenses that he had to undertake to carry out the business. This regularly includes transport and travel costs. In the case of the purchase commission, this also includes the purchase price that the commission agent had to pay to the third party. If the commission agent has not yet paid the third party, he can demand that the principal pay off the debt to the third party.

Section 397 sentence 1 HGB grants the commission agent a lien on the commissioned goods. This is intended to improve the risky position due to his advance payment. This is tied to ownership, so it only exists as long as the commissioner exercises physical control over the commissioned goods. The lien is only important for the sales commission, since the buying commission agent acquires ownership of the commissioned item. A lien of the owner on his own property (owner lien) isnot possibleaccording to § 1256 paragraph 1 sentence 1 BGB. Therefore, Section 398 of the German Commercial Code (HGB)providesthe commission agent with a right to satisfaction. If the principal does not meet his obligations to the commission agent, the latter can utilize the commissioned goods and satisfy himself with the proceeds. Section 399 of the German Commercial Code (HGB) extends the possibility of satisfaction on claims of the principal against the third party.

§ 400 - § 405 HGB regulate the right of the commission agent to enter the business himself. According to Section 400 (1) of the German Commercial Code (HGB), this is possible if the commissioned goods are goods that have a stock exchange or market price or are securities. In the case of the sales commission, the commission agent himself acts as the buyer, in the case of the purchase commission he acts as the seller.

Duties

According to Section 384 (1) of the German Commercial Code (HGB), the commission agent is obliged to carry out the business with the third party with the care of a prudent businessman in the interests of the principal. This means in particular that he must endeavor to obtain a contract that is as advantageous as possible for the principal. Under certain circumstances, he is also obliged to provide advice and to provide information. Section 384 (2) of the German Commercial Code obliges the commission agent to inform the principal about the status of the business with the third party. In addition, after the transaction has been carried out, he must surrender to the principal what he has obtained from the agency.

In addition, the commission agent is bound by instructions from the principal. If he acts unauthorized and culpably in breach of instructions, he is obliged to pay damages to the principal in accordance with Section 385 (1) HGB . In addition, the principal does not need to allow the transaction to apply to his own account if he deviates from his instructions. This applies regardless of whether the commission agent culpably acted in breach of instructions. Rejection is excluded if the deviation is minor and the principal's interest is hardly affected. This does not result from the wording of the German Commercial Code (HGB), instead it is derived from the principle of good faith ( § 242 BGB). Rejection is also inadmissible if the commission agent offers to compensate for the principal's disadvantages. In accordance with Section 385 (2) of the German Commercial Code (HGB), acts contrary to instructions may exceptionally be authorized if the commission agent may assume that the deviation would be in the interests of the principal. This can be the case, for example, if the principal has given his instructions based on incorrect information.

If the commission agent disregards a price agreement to the detriment of the principal, the commission agent can only reject the transaction in accordance with Section 386 (1) of the German Commercial Code if he notifies the third party immediately. The commission agent can prevent this according to § 386 paragraph 2 sentence 1 HGB by offering the principal to compensate the price difference between the price requested by the principal and the actual price.

The sales commission agent is also obliged to ensure the fault-free condition of the commissioned goods. Section 388 (1) of the German Commercial Code obliges him to safeguard the principal's rights in the event of defects. This happens, for example, by complaining about the defect if the third party is a merchant, since the principal to whom the goods are to be transferred would otherwise not be able to assert any warranty rights.

Protection of the principal

Since it is not the principal but the commission agent who becomes the contracting party of the third party, the claims from the execution transaction against the third party are initially due to the commission agent. Therefore, the commission agent could freely dispose of them until the claims are assigned to the principal. The fact that he is not allowed to do this under the law of obligations is irrelevant because of the principle of separation . In addition, there is a risk that the commissioner's creditors will access the claims. To counter these dangers, Section 392 (2) of the German Commercial Code (HGB) stipulates that the claim against the commissioner's creditors acquired in the execution transaction and not yet assigned to the principal is regarded as a claim of the principal. Disposals of the commission agent about the claim to anyone other than the principal become relatively ineffective , so that the principal can continue to demand the assignment of the claim itself. In some cases, it is argued that this protection under Section 392 (2) of the German Commercial Code (HGB ) must also apply analogously to the subject of the claim, i.e. the object of purchase or the selling price. However, this is predominantly rejected because the principal can protect himself in other ways, for example through an anticipated transfer of ownership from the commission agent to the principal ( anticipated constitution of ownership ). Thus there is no regulatory loophole necessary for an analogy.

It is not clear from the law whether the regulation of Section 392 (2) HGB also applies to third parties. This is supported by the fact that the third party is also a creditor of the commission agent. However, it would be problematic here that the third party could not offset his claim against the commission agent and could not make use of his right of retention , since the claim against him is considered a claim of the principal. His position vis-à-vis the commission agent would therefore have deteriorated due to the agreement between the principal and the commission agent. Therefore, according to the prevailing view, the standard is not applicable to the third party. Something else is partially represented when it comes to a claim of the third party that is not related to the execution transaction. In such cases, the third party is no more worthy of protection than others. However, the prevailing view rejects the application of the standard even with such inconnex requirements. This is supported by the fact that the third party could have set off against the commission agent according to § 406 BGB if the latter had already assigned the claim to the principal in advance. This must apply even more if the claim is still due to the commission agent.

If there is a disruption in performance by the third party, for example non-performance or poor performance , only the commission agent as the third party’s contractual partner is entitled to the following claims for damages. However, this usually lacks damage, as his claim to payment of the commission against the principal remains unaffected by the disruption in performance. This unsatisfactory result is corrected by the third party damage liquidation : the commission agent asserts the damage to the principal and returns the resulting replacement to the principal.

Benefits and added value

Advantage of the commission agent compared to a self- sale , in which he would sell previously purchased goods in his own name for his own account: The commission agent does not need any funds to start his activity. This means that there is no need for any bridging financing. If there is no sale, he can return the goods to the principal. The business is low-risk for the commission agent.

Advantage for the principal compared to a normal sales contract: The principal can, if it suits him, stay in the background without the buyer of the goods or the security knowing his name. In particular, however, he benefits from the existing market access, market knowledge and the professionalism of the commission agent and the resulting expansion of his sales network.

In addition to handling the actual transaction, the added value of the commission agent also includes establishing contact with potential buyers. This can happen in person or by announcement (such as exhibiting the commissioned goods in the shop window).

Today's importance of the commission business

Commission business has lost its practical importance due to the growing number of commercial agents, franchisees and dealers. In the development of the commission business, new forms of distribution have emerged which take up the idea of ​​commission. These include, for example, discount markets, remaining stock markets or comparable online shops.

However, it still plays a role in the art, antiques and wine trade, and especially in the securities trade. In the latter case, the sale or acquisition of financial instruments for a third party (customer) is carried out by the bank as a commission agent in its own name for the account of a third party. Other areas of application of the commission are the sale of cinema, theater or concert tickets by travel agencies , the sale of a used vehicle by a used car dealer for a commission, and film rental. Another use case is the publishing of a literary work on behalf of the publisher for the account of the author and not, as usual, of the publisher himself. A business that is commonly referred to as purchase on commission in the beverage industry (a concert organizer takes truck loads of beverages "Commission" and the remaining stocks are returned to the beverage manufacturer (such as a brewery) after the event, and does not represent a commission business in the sense of §§ 383-406 HGB, but a conditional business. A conditional transaction is only a special form of a sales contract, to which, however, individual provisions of the commission business can apply, such as B. the specification of general protection obligations in §§ 388 ff.

See also

literature

  • Karsten Schmidt: Commercial Law: Business Law I . 6th edition. Carl Heymanns Verlag, Cologne 2014, ISBN 978-3-452-27796-1 .
  • Hans Brox, Martin Henssler: Commercial law: with the basics of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 .
  • Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 .
  • Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 .
  • Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 .
  • Wulf-Henning Roth: §§ 383-406. In: Ingo Koller, Peter Kindler, Wulf-Henning Roth, Klaus-Dieter Drüen (Ed.): Commercial Code: Commentary . 9th edition. CH Beck, Munich 2019, ISBN 978-3-406-71268-5 .
  • Franz Houses: §§ 383-406. In: Barbara Grunewald (Ed.): Munich Commentary on the Commercial Code . 4th edition. tape 5 : Commercial transactions: §§ 343-406. CH Beck, Munich 2018, ISBN 978-3-406-67705-2 .
  • Tobias Lenz: §§ 383-406. In: Volker Röhricht, Friedrich Graf von Westphalen (Hrsg.): Commercial Code: Commentary on trading status, trading companies, commercial transactions and special commercial contracts . 3. Edition. Otto Schmidt, Cologne 2008, ISBN 978-3-504-45513-2 .
  • Klaus Hopt: §§ 383 -406. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .

Web links

Individual evidence

  1. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 2.
  2. ^ Michael Martinek, Franz-Jörg Semler, Eckhard Flohr (eds.): Handbuch des Vertriebsrechts . 4th edition. CH Beck, Munich 2013, ISBN 978-3-406-64261-6 , § 10, Rn. 3.
  3. ^ Wulf-Henning Roth: § 385. Rn. 3. In: Ingo Koller, Peter Kindler, Wulf-Henning Roth, Klaus-Dieter Drüen (eds.): Commercial Code: Commentary . 9th edition. CH Beck, Munich 2019, ISBN 978-3-406-71268-5 .
  4. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 8th.
  5. ^ A b Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 4th
  6. ^ Michael Martinek, Franz-Jörg Semler, Eckhard Flohr (eds.): Handbuch des Vertriebsrechts . 4th edition. CH Beck, Munich 2013, ISBN 978-3-406-64261-6 , § 31, Rn. 65.
  7. Klaus Hopt: § 383. Rn. 6. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  8. ^ Franz Hauser: § 383, Rn. 105-113. In: Barbara Grunewald (Ed.): Munich Commentary on the Commercial Code . 4th edition. tape 5 : Commercial transactions: §§ 343-406. CH Beck, Munich 2018, ISBN 978-3-406-67705-2 .
  9. ^ Michael Martinek, Franz-Jörg Semler, Eckhard Flohr (eds.): Handbuch des Vertriebsrechts . 4th edition. CH Beck, Munich 2013, ISBN 978-3-406-64261-6 , § 31, Rn. 66.
  10. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 12.
  11. ^ A b Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 42.
  12. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 18th
  13. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 20th
  14. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 22nd
  15. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 39 Rn. 5.
  16. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 40 Rn. 5.
  17. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 31, Rn. 63.
  18. a b Klaus Hopt: § 385. Rn. 4. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  19. ^ Wulf-Henning Roth: § 385. Rn. 5. In: Ingo Koller, Peter Kindler, Wulf-Henning Roth, Klaus-Dieter Drüen (eds.): Commercial Code: Commentary . 9th edition. CH Beck, Munich 2019, ISBN 978-3-406-71268-5 .
  20. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 36 marginal no. 25th
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  22. Decisions of the Reichsgericht in Civil Matters , Volume 121, p. 178.
  23. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 78.
  24. Karsten Schmidt: Commercial Law: Business Law I . 6th edition. Carl Heymanns Verlag, Cologne 2014, ISBN 978-3-452-27796-1 , § 31 VI 4c.
  25. Decisions of the Reichsgericht in Civil Matters, Volume 32, p. 39.
  26. Federal Court of Justice: VI ZR 215/66. In: New legal weekly. 1969, p. 276.
  27. ^ Hans Brox, Martin Henssler: Commercial law: with basic principles of securities law . 22nd edition. CH Beck, Munich 2016, ISBN 978-3-406-67473-0 , Rn. 445.
  28. Klaus Hopt: § 392. Rn. 12. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  29. Tobias Lenz: § 383. Rn. 31. In: Volker Röhricht, Friedrich Graf von Westphalen (Hrsg.): Commercial Code: Commentary on commercial status, commercial companies, commercial transactions and special commercial contracts . 3. Edition. Otto Schmidt, Cologne 2008, ISBN 978-3-504-45513-2 .
  30. ^ A. Teichmann: Commercial law. 3. Edition. Nomos, 2013, § 8.Rn. 1147.
  31. ^ A. Teichmann: Commercial law. 3. Edition. Nomos, 2013, § 8.Rn. 1148.
  32. ^ Franz Hauser: § 383, Rn. 11. In: Barbara Grunewald (Ed.): Munich Commentary on the Commercial Code . 4th edition. tape 5 : Commercial transactions: §§ 343-406. CH Beck, Munich 2018, ISBN 978-3-406-67705-2 .
  33. ^ Peter Jung: Commercial Law . 12th edition. CH Beck, Munich 2020, ISBN 978-3-406-72406-0 , § 39 Rn. 1.
  34. ^ Michael Martinek, Franz-Jörg Semler, Eckhard Flohr (eds.): Handbuch des Vertriebsrechts . 4th edition. CH Beck, Munich 2013, ISBN 978-3-406-64261-6 , § 31, Rn. 2.
  35. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 10.
  36. H. Oetker (Ed.): Commentary on the Commercial Code. 3. Edition. CH Beck Munich 2013, Section 383 marginal number 23.
  37. Federal Court of Justice : XI ZR 239/01. In: New legal weekly . Jurisprudence Report 2002, p. 1344.
  38. C.-W. Canaris, W. Schilling, P. Ulmer (Hrsg.): Handelsgesetzbuch Großkommentar. 5th edition. de Gruyter 2013, Section 383 marginal number 77.
  39. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 30, Rn. 10.
  40. Federal Court of Justice: VIII ZR 339/79. In: New legal weekly. 1981, p. 388.
  41. K. Schmidt (Ed.): Munich Commentary on the Commercial Code Volume 5. 3rd edition. Verlag CH Beck Munich 2013, § 406 marginal number 15.
  42. C.-W. Canaris, W. Schilling, P. Ulmer (Hrsg.): Handelsgesetzbuch Großkommentar. 5th edition. de Gruyter 2013, Section 383 marginal number 75.
  43. a b C.-W. Canaris, W. Schilling, P. Ulmer (Hrsg.): Handelsgesetzbuch Großkommentar. 5th edition. de Gruyter 2013, § 383 marginal number 76 ff.