Raisin theory

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The raisin theory is a term coined by the Federal Supreme Court for the selective use of only the legally advantageous interpretation of legal provisions (“picking raisins”) in a legal conflict . It is commonly represented by the BGH. This justifies this with the fact that Section 15 (1) HGB does not apply in favor of a person required to register. The opposite view argues with the treatment of the norm as a legitimate expectation norm and thus comes to the opposite result.

The raisin theory is rarely used positively, for example in labor law as well as in commercial and corporate law . However, it plays a major role in commercial and company law, so that the raisin theory is only discussed in the following on the basis of this area of ​​law.

Occurrence

The raisin theory is directly related to Section 15 (1) HGB . This provision aims to protect the legal transactions of traders by restricting the rights of those who do not fulfill their obligations. For this purpose, the HGB contains facts that are subject to registration, such as Section 31 Paragraph 1, Section 53 Paragraph 1 Clause 1 and Paragraph 2, Section 143 Paragraph 1 Clause 1 and Paragraph 2 HGB. If the person concerned fails to register, Section 15 (1) of the German Commercial Code (HGB) applies. A third party, usually a creditor of the merchant, cannot counter the fact that has not been entered, i.e. he cannot invoke it.

example 1

K and V are shareholders of KV OHG . Since their business is flourishing and the two of them are easily overwhelmed, they decide to bring their friend F on board. Since they do not grant the F a shareholder status from the start, they decide to give the F power of attorney . The granting of power of attorney is entered in the commercial register in accordance with Section 53 Paragraph 1 Clause 1 of the German Commercial Code. In his capacity as authorized signatory, F concludes contracts for the company. After F's incorrect purchases, K and V withdraw the power of procuration from F. Due to significant business activities, the deletion is not entered. The disappointed F then wants to damage society. In an electronics store, he signed a purchase agreement with E on behalf of the OHG for five new laptops worth a total of € 5,000. E now demands payment of the purchase price from K. Rightly?

In this example you can see the meaning of Section 15 (1) HGB. At the time of the conclusion of the contract between F and E, F was actually no longer an authorized signatory of the KV OHG. Since K failed to enter the withdrawal of power of attorney in accordance with Section 53 (2) HGB in the commercial register, he cannot invoke the withdrawal of power of attorney against E. E can therefore trust that F is an authorized signatory, since the expiry of the power of attorney has not been entered in the commercial register (so-called negative publicity of Section 15 (1) HGB) and trust in the commercial register's silence is protected. The purchase contract has thus come about. Insofar as there are no indications for the loss of the claim or its enforceability, K must pay the purchase price of € 5,000.

Example 2

The K & Co. OHG runs a car salon. K and O are shareholders of the OHG, but according to the articles of association they are only jointly authorized to represent the OHG externally ( Section 125 (2) HGB). This is also entered in the commercial register. However, if one of the two should leave the OHG, the other is automatically authorized to represent the company alone. K concludes a sales contract with car dealer A for two vehicles in the name of the OHG. O has already left the company. O had not had the resignation entered in the commercial register in accordance with Section 143 (2) HGB. A takes action against O personally. He asks O personally to pay the purchase price for the two vehicles. This results from § 15 HGB.

This is where the raisin theory comes into play. A strict distinction must be made between the fictitious legal situation and the actual one. In fact, O has already left the OHG, so that he no longer has to take responsibility for the obligations of the OHG that were established after his departure. The fictitious situation, on the other hand, means that O continues to be a partner in the OHG, as the departure of O has not been entered in the commercial register. The creditor A thus has a right to choose whether he wants to accept the fictitious or the actual situation against him. The Raisin Theory deals with the problem of whether, in the present case, A can refer to the fictitious and another time to the actual situation with regard to the same fact (i.e. whether O is still a partner or not). Because for A the following problem arises: If he accepts the actual situation against himself, he cannot demand anything from O, since he had already left the OHG. If he chooses the fictitious location, A has the problem that K alone was not authorized to represent, because according to the fictitious situation, O would still be a partner and, according to the commercial register, K and O were only allowed to represent the OHG jointly, so that the purchase contract between the OHG and A, would be ineffective due to the lack of power of representation of K.

The Federal Court of Justice developed the so-called raisin theory to solve this problem. In the present case, this gives A the opportunity to focus on the actual situation in the context of the conclusion of the purchase contract, with the consequence that K was solely authorized to represent the company at the time of the conclusion of the purchase contract, since O has resigned, and according to the facts of the case, K represents the OHG alone could. Regarding the use of O as a partner in the OHG, A can choose the fictitious location of the commercial register. After that, O is still a partner, since he missed the event according to § 143 Paragraph 2 HGB.

Origin of name

Because A can choose the more favorable position in each case, he chooses the raisins. The picking of the raisins is supposed to represent the reference to the favorable situation in each case.

criticism

However, this theory is heavily criticized in teaching. She sees the application of the Raisin Theory as a violation of § 242 BGB, since the creditor's appeal to different legal situations represents contradicting behavior. The Federal Court of Justice, on the other hand, justifies the application of the Raisin Theory with the fact that Section 15 (1) of the German Commercial Code (HGB) must never be applied in favor of those who have violated their obligation to enter or remove entries from the commercial register. Although the behavior of the obligee could constitute a violation of § 242 BGB, the obligee was worthy of protection, because due to the breach of duty by the businessman, who had left the OHG, this violation would occur at all. The (necessary) violation by the obligee of Section 242 of the German Civil Code (BGB) is due to the merchant's breach of duty and, so to speak, attributable to it. Therefore the breach of duty on the part of the merchant should in no way lead to his discharge. Thus, according to this case law, A could personally claim O (in the example above).

literature

Web links

Wiktionary: pick your cherry on the cake  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Maria Lohse: An introduction to § 15 HGB and its problems July 5, 2013
  2. ^ BGH, judgment of December 1, 1975 - Az .: II ZR 62/75