Commercial purchase

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A commercial purchase is a sales contract that is a commercial transaction for at least one of the parties involved . It is regulated in the second section of the fourth book of the Commercial Code (HGB) in Sections 373–382.

General

The object of the commercial purchase is the purchase of goods. However, the rules of commercial sales also apply to the exchange contract , as this is based on sales law. Section 381 of the German Commercial Code also stipulates that the provisions of commercial sales also apply to the purchase of securities and to contracts for work and services .

In principle, such contracts are processed in accordance with the provisions of the German Civil Code (BGB). However, the HGB contains some provisions that differ from the requirements of the BGB and that are tailored to commercial transactions: special provisions for default in acceptance (§§ 373–374 HGB), the purchase of destination (§ 375 HGB), the fixed trade purchase (§ 376 HGB) and the Obligation to complain (§§ 377–379 HGB). Section 380 of the German Commercial Code (HGB) stipulates that the mass of the packaging ( tare ) must not be included in the calculation of mass information in commercial transactions.

Default of acceptance (§§ 373–374 HGB)

Sections 373 and 374 of the HGB have been as follows since they came into force on January 1, 1900:

Section 373

(1) If the buyer is in default with the acceptance of the goods, the seller can deposit the goods in a public warehouse or in some other secure manner at the risk and expense of the buyer.

(2) He is also authorized to have the goods publicly auctioned after prior warning; If the goods have a stock exchange or market price, they can also, after prior warning, effect the sale from free hand by a publicly authorized agent or by a person authorized to auction publicly at the current price. If the goods are exposed to spoilage and imminent danger, the prior warning is not required; the same applies if the threat is impractical for other reasons.

(3) The self-help sale takes place for the account of the defaulting buyer.

(4) The seller and the buyer can bid at the public auction.

(5) In the case of a public auction, the seller must notify the buyer in advance of the time and place of the auction; He has to inform the buyer immediately of the completed sale for any type of sale. In the event of failure, he is obliged to pay damages. The notifications may be omitted if they are impractical.

Section 374 The provisions of Section 373 do not affect the powers to which the seller is entitled under the Civil Code if the buyer is in default of acceptance.

According to § 293 BGB , anyone who is a creditor of a service and does not accept it despite a proper offer from the debtor is in default of acceptance . According to Section 300 (2) of the German Civil Code (BGB), this means that the risk of loss of the goods passes to the obligee. This runs the risk that the object of sale will go under, but that he will still have to pay the purchase price for the goods. The seller can keep the goods and demand reimbursement of the associated costs from the obligee according to § 304 BGB. If the goods to the deposit is suitable, which applies to money, securities, other documents and valuables, he may even after § 372 deposit sentence 1 BGB at a suitable location or by § 383 by para. 3 BGB self-help sale at the place of performance recycle and deposit the proceeds for the debtor. This releases the seller from his obligation to perform.

According to Section 374 of the German Commercial Code (HGB), the buyer's rights also apply to commercial purchases. In addition, § 373 HGB provides for simplifications in favor of the seller for the situation of default of acceptance. According to Section 373 (1) of the German Commercial Code (HGB), the depositability extends to all movable objects. The circle of places where goods can be deposited is supplemented by publicly operated department stores . Unlike the deposit according to BGB law, the deposit according to § 373 HGB has no fulfillment effect .

The right to self-help sales is extended so that the seller can freely decide on the place and time of the sale. However, the buyer must be threatened with the self-help sale in advance. This must be done in such a way that the debtor has the opportunity to avert the self-help sale by accepting the goods. Furthermore, the seller does not have to have the item auctioned, but can also sell the goods himself. However, this assumes that the goods have a market price. The delivery claim expires as a result, instead the buyer can demand the proceeds from the seller.

Determined purchase / specification purchase (§ 375 HGB)

If the buyer is responsible for the more detailed determination ( specification ) of the item when purchasing a movable item, this is a specification purchase . Since its last change on January 1, 2002, Section 375 of the German Commercial Code has read as follows:

(1) If, when purchasing a movable item, the buyer reserves the right to determine the shape, size or similar conditions, the buyer is obliged to make the reserved provision.

(2) If the buyer is in default with the fulfillment of this obligation, the seller can make the determination instead of the buyer or demand damages instead of performance in accordance with §§ 280, 281 of the Civil Code or withdraw from the contract in accordance with § 323 BGB . In the former case, the seller must notify the buyer of the determination he has made and at the same time set him a reasonable deadline for making a different determination. If this is not done by the buyer within the period, the determination made by the seller is decisive.

The standard represents a special form of the right to unilaterally determine the performance ( § 315 - § 319 BGB). In the case of a specific purchase, the parties agree on an object of purchase, the nature of which is still undetermined. The seller grants the buyer the right to determine the details of the purchase item at a later point. In addition to the payment of the purchase price, this right is a main obligation of the buyer.

If the buyer is in default with the determination , the seller is entitled according to § 375 paragraph 2 sentence 1 HGB to make the determination himself. According to sentence 2, in this case he notifies the buyer of his determination and gives him the last opportunity to make another determination. Instead of doing it himself, the seller can also combine the setting of a deadline with a claim for damages due to non-performance or threaten to withdraw from the contract. He can also demand compensation for damages caused by delay.

The determined purchase differs from the optional debt in that the buyer can choose from several items of performance even with the latter, but these are already determined in terms of their properties.

Fixed trade purchase (§ 376 HGB)

Since its entry into force on January 1, 1900, Section 376 of the HGB has read as follows:

(1) If it is stipulated that the performance of one part is to be carried out exactly at a fixed time or within a fixed period, the other part, if the service does not take place at the specified time or within the specified period, can be performed by the Withdraw the contract or, if the debtor is in default, demand compensation for non-fulfillment instead of fulfillment. He can only claim fulfillment if he indicates to the opponent immediately after the expiry of the time or the deadline that he insists on fulfillment.

(2) If compensation is requested due to non-performance and the goods have a stock exchange or market price, the difference between the purchase price and the stock exchange or market price at the time and place of the service owed can be claimed.

(3) The result of a sale or purchase made otherwise, if the goods have a stock exchange or market price, can only be used as the basis for the claim for compensation if the sale or purchase is effected immediately after the expiry of the stipulated performance period or performance period. The sale or purchase, if it does not take place in public auction, must be carried out by a broker who is publicly authorized to carry out such sales or purchases or a person authorized to conduct public auction at the current price.

(4) The provision of Section 373 (4) applies to the sale by public auction. The obligee must notify the debtor immediately of the sale or purchase; in the event of failure, he is obliged to pay damages.

The fixed trade purchase is a case of the relative fixed trade . This is a business in which the timely performance of the debtor is of particular importance to the other. If this service is delayed, there is usually no interest on the part of the obligee in receiving the goods. In contrast to the absolute firm deal , it is not the case that the goods become worthless for the debtor due to the late delivery. Therefore, if the deadline is missed, the contract remains in place for a relative firm deal. However, the obligee can withdraw from the contract and claim damages after he has unsuccessfully set the debtor a grace period for performance.

In the case of fixed-trade purchases, on the other hand, according to Section 376, Paragraph 1, Clause 2, the obligee's claim to performance expires after the deadline. The obligee can prevent this by informing the debtor immediately after missing the deadline that his interest in the purchased item continues. If the debtor fails to provide such notification, the obligee does not need to set a grace period, contrary to the rules of the German Civil Code, but can immediately assert secondary claims (withdrawal and compensation).

The amount of the claim for damages is calculated according to § 376 paragraph 2 HGB from the difference between the agreed purchase price and the stock exchange or market price of the goods. The amount of the specific price from the resale can only be used as a basis for the calculation of the damage if the debtor has the goods publicly auctioned off immediately after the deadline has expired or sold at the current price by a broker or by a person authorized to auction publicly. This regulation aims to protect the debtor against speculative transactions by the creditor.

Obligation to examine and complain (§§ 377–379 HGB)

Standard text

Section 378 of the German Commercial Code was repealed on January 1, 2002 by the Law of Obligations Modernization Act. Sections 377 and 379 of the German Commercial Code (HGB) have read as follows since they came into force on January 1, 1900:

Section 377

(1) If the purchase is a commercial transaction for both parties, the buyer must examine the goods immediately after delivery by the seller, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the seller immediately .

(2) If the buyer fails to notify us, the goods are deemed to have been approved, unless there is a defect that could not be identified during the examination.

(3) If such a defect appears later, notification must be made immediately after it is discovered; otherwise the goods shall be deemed approved even with regard to this defect.

(4) Timely dispatch of the notification is sufficient to preserve the buyer's rights.

(5) If the seller has fraudulently concealed the defect, he cannot invoke these regulations.

Section 379

(1) If the purchase is a commercial transaction for both parties, the buyer is obliged to take care of their temporary storage if he objects to the goods sent to him from another location.

(2) If the goods are exposed to spoilage and danger is imminent, they can sell them under observation of the provisions of Section 373.

§ 377 describes the obligation of the buyer, the goods after delivery , check immediately for defects and, if present, to reprimand them. If he fails to do this, the goods are deemed to have been approved, which means that he can lose his warranty rights . The purpose of this standard is, on the one hand, to support the rapid processing of transactions that is inherent in commercial law, and, on the other hand, to protect the seller from lack of evidence.

requirements

Mutual commercial purchase

The obligation only exists in the case of bilateral trade purchases. This means that both contractual partners have merchant status. If a contractual partner is not a merchant, Section 377 of the German Commercial Code (HGB) does not apply. There is an exception for people who appear to be a merchant . The relevant point in time at which the merchant status must be present is the conclusion of the contract.

Delivery of the goods

Furthermore, the goods must have been delivered. This is the case if the goods have come into the control of the buyer or an auxiliary person engaged by him in such a way that he can examine them for defects. In the case of an obligation to collect , this is done by handing over the purchased item to the buyer. Accordingly, in the case of mail order purchases , the goods are deemed to have been delivered when the transporter delivers the goods to the buyer. However, it is also sufficient if the latter makes the goods available at the intended delivery location, since the purchaser's possession of the item depends solely on his cooperation. The same applies to an obligation to deliver : If the buyer refuses to accept the item, it is still deemed to have been delivered. If the buyer sells the goods to a third party before he has taken possession of them himself, the obligation to notify remains with him. The delivery in such direct sales made by the transport of goods to the ultimate buyer. The first buyer therefore bears the risk that his buyer may discover the defect but not notify the seller of it. The same applies to the direct transfer of an item by a commercial buyer as part of a leasing contract .

The expiry of the notice period begins from the time of delivery. The delivery must essentially be complete, so that the start of the notice period can be delayed if, for example, the manual required for using the purchased item is missing. When purchasing software , the term delivery was sometimes broadly defined and only accepted after a test run or an extensive test phase had been carried out. Such an extension of the period within which the buyer can complain, however, contradicts the purpose of § 377 HGB, which is why the prevailing view today assesses the delivery of software according to general criteria.

Defect of the goods

After all, the purchased item must be defective . The assessment of the defectiveness of the item is based on general sales law provisions. According to § 434 BGB, a defect is to be understood as a deviation of the actual condition of the item from its target condition. According to Section 434 (3) BGB, the delivery of a wrong item (an aliud ) also represents such a defect. This also applies if the item delivered is a completely different item than the one expected by the buyer. The earlier differentiation between incorrect deliveries that could be approved and incorrect deliveries that could not be approved in Section 378 of the German Commercial Code (HGB) was repealed with effect from January 1, 2002 as part of the modernization of the law of obligations .

It is controversial whether the obligation to notify a defect is limited to material defects or also includes defects of title . The objection to a restriction is that the legislature wanted to bring about equal treatment of material and legal defects in the reform of the law of obligations.

No timely complaint

After delivery, the buyer has to examine the goods. The procedure and duration of a proper investigation are based on Section 377 (1) of the German Commercial Code (HGB) on what is possible in the normal course of business. The scope of the inspection obligation therefore depends in particular on the goods delivered. In the case of a large number of purchased items, for example, a random examination is sufficient. In the case of branded goods, the test standard can be lower due to a lower probability of errors.

The period within which a defect must be reported depends on whether there is an open or a hidden defect . An open deficiency can already be discovered during a proper inspection. In the case of such defects, the notice period is usually a few days. The situation is different with hidden defects. Since these are only discovered after a considerable amount of testing, the expiry of the notice period does not begin until the defect is discovered. The complaint is not formal. According to Section 377 (4) of the German Commercial Code (HGB), the sending of the notice of defects is effective within the deadline.

No exclusion of the obligation to complain

Section 377 of the German Commercial Code (HGB) is optional , the buyer can therefore waive the standard in his favor. If this is done under general conditions , the particular subject clause , however, the content control to § 307 BGB. This standard prohibits deviating from the essential basic ideas of the standard. A complete exclusion of the obligation to give notice of defects by the buyer is therefore not permitted. However, the seller may not inappropriately tighten the requirements for the complaint.

According to Section 377 (5) of the German Commercial Code (HGB), the obligation to give notice of defects does not apply if the seller has fraudulently deceived the buyer about the existence of a defect . There is fraudulent misrepresentation if the seller either knows about the existence of a defect or considers the existence of a defect to be possible and fails to point it out.

Legal consequences

If the buyer properly complains about a defect, he may assert warranty rights in this regard . After this has happened, he is obliged according to § 379 HGB to keep the goods until the seller tries to repair them. The latter regulation aims to save transport costs , therefore this regulation only applies to distance purchases, i.e. to purchases whose parties are based at different trading venues. If the complaint is not made, the goods are deemed to have been approved so that the buyer is barred from the warranty rights.

Section 377 of the German Commercial Code does not affect claims due to the violation of secondary obligations that are not related to the defectiveness of the item. This includes, for example, the violation of an obligation to provide information. Tort claims are also not affected by the commercial law .

literature

  • Claus Wagner: §§ 373-382 . 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: §§ 373-382 . 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 .
  • Barbara Grunewald: §§ 373-382 . 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 .
  • Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 .

Individual evidence

  1. ↑ Reiner Schulze: Before §§ 372-386 , Rn. 1. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Civil Code: Hand Commentary . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  2. ↑ Claus Wagner: §§ 373, 374 , Rn. 2. 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 .
  3. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 32 marginal no. 3.
  4. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 32 marginal no. 5.
  5. ↑ Claus Wagner: § 375 , Rn. 1. 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 .
  6. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 33 Rn. 1.
  7. ^ Claus-Wilhelm Canaris: Commercial Law . 24th edition. CH Beck, Munich 2006, ISBN 978-3-406-52867-5 , § 31, Rn. 19th
  8. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 33 Rn. 3.
  9. ^ Christian Grüneberg: § 262 , Rn. 1. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  10. ↑ Claus Wagner: § 376 , Rn. 7. 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 .
  11. ↑ Claus Wagner: § 376 , Rn. 10. 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 .
  12. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 33 Rn. 4th
  13. ↑ Claus Wagner: § 377 , Rn. 1. 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 .
  14. ↑ Decisions of the Federal Court of Justice in Civil Matters, Volume 93, p. 346.
  15. ↑ Claus Wagner: § 377 , Rn. 3. 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 .
  16. ↑ Claus Wagner: § 377 , Rn. 8. 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 .
  17. ↑ Claus Wagner: § 377 , Rn. 9. 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 .
  18. ↑ Klaus Hopt: § 377 , Rn. 5. 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. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 35 marginal no. 3.
  20. ↑ Klaus Hopt: § 377 , Rn. 7. 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 .
  21. ↑ Klaus Hopt: § 377 , Rn. 8. 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 .
  22. ↑ Klaus Hopt: § 377 , Rn. 11. 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 .
  23. ↑ Federal Court of Justice: I ZR 62/53 . In: Neue Juristische Wochenschrift 1954, p. 1841.
  24. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 35 marginal no. 22nd
  25. ↑ Decisions of the Federal Court of Justice in Civil Matters, Volume 110, p. 130.
  26. ↑ Klaus Hopt: §§ 377 , Rn. 5. 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 .
  27. ↑ Federal Court of Justice: VIII ZR 165/91 . In: Neue Juristische Wochenschrift , 1993, p. 461.
  28. ↑ Cologne Higher Regional Court : 4 U 34/97 . in: Neue Juristische Wochenschrift, Jurisprudence Report 1999, p. 1287.
  29. ↑ Düsseldorf Higher Regional Court : 17 U 27/87 . in: Journal for Commercial and Banking Law 1989, p. 459.
  30. ↑ Federal Court of Justice: VIII ZR 299/98 . In: Journal for Commercial and Banking Law 2000, p. 485.
  31. ↑ Claus Wagner: § 377 , Rn. 13a. 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 .
  32. ^ Walter Weidenkaff: § 434 , Rn. 6. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  33. ↑ Claus Wagner: § 377 , Rn. 11. 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 .
  34. ↑ Barbara Grunewald: § 377 , Rn. 12. 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 .
  35. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 35 marginal no. 6th
  36. ↑ Barbara Grunewald: § 377 , Rn. 34. 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 .
  37. ↑ Lutz Strohn: § 377 , Rn. 47. In: Carsten Ebenroth, Karlheinz Boujong, Detlev Joost, Lutz Strohn-Müller (eds.): Commercial Code . 3. Edition. tape 2 : §§ 343-475h. Beck, Munich 2015, ISBN 978-3-8006-4497-1 .
  38. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 35 marginal no. 18th
  39. ↑ Federal Court of Justice: VIII ZR 149/90 . Neue Juristische Wochenschrift 1991, p. 2633.
  40. ↑ Decisions of the Federal Court of Justice in Civil Matters, Volume 115, p. 326.
  41. ↑ Claus Wagner: § 377 , Rn. 23. 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 .
  42. ↑ Claus Wagner: § 377 , Rn. 4. 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 .
  43. ↑ Decisions of the Federal Court of Justice in Civil Matters, Volume 101, p. 341.
  44. ↑ Decisions of the Federal Court of Justice in Civil Matters, Volume 105, p. 337.