Right to the established and exercised commercial enterprise

from Wikipedia, the free encyclopedia

The right to the established and exercised commercial enterprise is another absolute right developed by German case law within the framework of Section 823 (1) BGB . It includes everything that, in its entirety, makes up the economic value of a company. This includes, for example: inventory, appearance, area of ​​activity and customer base.

Interference with the law

In contrast to the other absolute rights , it is a so-called framework right. The illegality of a violation of this right must be positively determined on the basis of a comprehensive weighing of interests and interests. In addition, the intervention must be related to the company. These restrictions are necessary to limit the very wide scope of application. The illegality is particularly given if the behavior that caused the damage as such violates the principles of social consideration. The company is related if there is a direct interference in the company’s sphere of activity, which is specifically directed against the company organism or the entrepreneurial freedom of decision and not just against rights or legal interests that can be resolved by the company.

It is also necessary that the intervention goes beyond mere nuisance or social disability. Furthermore, the right to the established and exercised commercial enterprise as a framework law is always to be examined as a subsidiary , i.e. subordinate, if no other violation of another absolute right comes into consideration.

Recognized groups of cases of interference with the law on the established and exercised commercial enterprise are:

  • unjustified warnings of property rights;
  • Boycott of shops;
  • damaging value judgments or uttering detrimental true facts .
  • unsolicited sending of an e-mail with advertising

In the opinion of the Federal Court of Justice and the Federal Administrative Court , Article 14 of the Basic Law also covers the right to the established and exercised commercial enterprise. The Federal Constitutional Court has so far explicitly left this question open.

Individual evidence

  1. ↑ Hartwig Sprau, in Palandt , 75th edition 2016, § 823, Rn. 133.
  2. ↑ Hartwig Sprau, in Palandt , 75th edition 2016, § 823, Rn. 25th
  3. ↑ Hartwig Sprau, in Palandt , 75th edition 2016, § 823, Rn. 135.
  4. ^ BGH NJW 1985, 1620.
  5. ^ BGH, decision of May 20, 2009 - I ZR 218/07
  6. ↑ BGHZ 111, 349, 356.
  7. ↑ BVerwGE 81, 49, 54.
  8. ↑ BVerfG NJW 2005, 589, 590.