Marketability in the strict sense means the ability of things or rights , subject of rights in rem and dispositions to be. Often the term marketability is understood in a broader sense, so that every provision that facilitates trading in an item - even if only in fact - serves to increase its marketability.
The compound “marketability” contains the term “traffic” as a defining word , which means right-hand traffic or commercial traffic . A thing is therefore marketable if it can participate in legal or commercial transactions. Marketability only refers to the restriction or improvement of the tradability of a thing itself, not to the powers of its owner or the regulations of the underlying legal transaction.
On the other hand, things are generally regarded as unmarketable if by their nature cannot be owned by someone else, such as the air in the atmosphere, free flowing water and the like. Res extra commercium and common goods are therefore absolutely unmarketable .
Movable items , including above all fungible items such as money , foreign exchange and sorts, have the highest marketability . They belong to the class of bearer securities , the transferability of which is unrestricted. This also applies to securities that are bearer securities such as bonds or stocks . The marketability is in order papers and registered securities lower, however, because a mere transfer does not meet the transfer of ownership. Transferability is therefore an essential aspect of marketability.
Objects that are used for a transport transaction must be marketable. According to this judgment of the Federal Court of Justice, transport is the legal transfer of property. The law makes them marketable, among other things, by enabling the acquisition by those who can reasonably conclude from certain, legally precisely delimited circumstances that the legal object to be acquired belongs to the seller .
Marketability in individual legal areas
For goods and marketable products , their marketability only begins when they are placed on the market. This also applies to cash . Products or services are marketable if they meet the legal requirements and properties with regard to production , import and handling safety. The marketability of a thing is therefore the prerequisite for trading in it.
The marketability of drugs only begins with their approval in accordance with (1) AMG . According to (1) AMG, the granting, extension, withdrawal, revocation, suspension and expiry of a license must be published in the Federal Gazette . This means that it must be publicly known that a medicinal product is marketable and if it has lost its marketability, even if only temporarily. The publication gives pharmacists who dispense drugs to the end consumer or doctors who prescribe them the opportunity to react to changes in the approval.
In accounting law, marketability is understood to mean the suitability of an asset to be specifically independently transferable. This is the case when it is sold or surrendered for use . The concept of marketability is borrowed from the static balance sheet. The marketability can be temporarily suspended due to a legal ban on sale .
The marketability of claims is limited or can be restricted by § BGB and BGB. According to § 399 BGB, a claim cannot be assigned if the performance to someone other than the original creditor cannot be made without changing its content ( highly personal right ) or if the assignment is excluded by an agreement with the debtor due to a prohibition of assignment . In § 400 BGB those claims are referred to as non-transferable, which exempt from attachment are. These regulations make the claims concerned unmarketable.
Real estate law
Land or leasehold rights are more marketable if they have neither mortgage liens nor other encumbrances . In this way, the freedom from encumbrances in the land purchase agreement increases the marketability of land. The marketability of the property liens is also important, because according to (2) BGB, a claim for which a security mortgage exists is not suitable for providing security . The marketability is graduated for mortgage , land charge and security land charge.
The marketability of a food depends on whether it complies with the applicable regulations; disadvantageous deviations from consumer expectations are normally permitted to a certain extent if they are adequately identified (see (1) and (2) of the Food and Commodities). Food is only marketable if it complies with the principles of the German Food Code ( (1) LFGB ). According to Article 14 (1) of Regulation (EC) No. 178/2002 , unsafe food may not be placed on the market, so it is not marketable. Fat glaze containing cocoa, for example, is always unmarketable. In addition, there are other horizontal (product-specific) ordinances such as the Beer Ordinance , Cheese Ordinance and the Milk Product Ordinance , which regulate certain foods in a binding manner.
The product liability of the manufacturer begins according to para. 2 ProdHaftG only when he put the product into circulation. For a product to be marketable, the following criteria must be met, among others:
- It is marketed legally, contraband and stolen goods are not marketable;
- it is designed in such a way that it does not pose any unexpected danger during storage and transport ;
- it must be sufficiently safe to use. This includes protection against expected misuse or incorrect operation .
- It complies with the legal requirements, with import the import regulations.
- It is brought onto the market in compliance with the requirements stipulated for this product group - if any.
Marketability plays an important role in criminal law , since the owner of non-marketable goods usually has to answer for tax evasion . In tobacco without tax stamp also is seizure and subsequent destruction after the evidence provided, also comes at a commercial import of stolen goods or contraband often skimming off profits to fruition. In the simplest case, non-marketable goods must be left behind at customs .
"Foreign" is a thing in criminal law in property crimes if it is marketable, that is, can be owned by someone at all, is not ownerless and is not the sole property of the perpetrator. This judgment assumes that illegally acquired drugs can be the subject of a property offense under criminal law. Criminal law seeks to withdraw the marketability of narcotics and the money used in narcotics transactions by forbidding almost any handling of them as a criminal offense ( et seq. BtMG , (1) and (2 ) StGB ).
An inadmissible commercial act within the meaning of UWG is given if false information is given or the false impression is given that a product or service is marketable ( ) ). A product or service is not marketable if it cannot be legally sold. This is the case if either the seller is not authorized to sell the product ( e.g. prescription drugs at the kiosk ), the buyer does not meet the requirements to purchase the product ( e.g. spirits to minors ) or the product itself is not the subject of a commercial transaction with consumer participation (e.g. selling drugs).(3)
The following conditions are particularly possible:
- Prescription Requirement (Medicines);
- Delivery is only permitted in certain quantities (many chemicals ) and / or only marketable in the appropriate dilution (e.g. hydrogen peroxide ).
- Trade is only permitted after specified post-treatment ( odorization of flammable gases, denaturation of alcohol, addition of bitter substances in pesticides).
- Age-related sales restrictions - usually derived from the Youth Protection Act (alcohol, tobacco products, certain media products).
- Delivery only to certain groups of people with evidence of appropriate qualifications and a corresponding justified need (explosives, firearms, chemicals).
- Time restrictions for trade (for fireworks final sale only on the last three working days of the calendar year).
- Proof of special care during transport ( dangerous goods ordinance ).
- Evidence of specially protected storage. Protection applies in two directions: On the one hand, people and the environment are to be protected from dangerous effects (e.g. toxins, chemicals, explosives, fuels), and on the other hand, the product must be protected against unauthorized access to a special degree (explosives , Narcotics, some medicines).
- Trade only with special permission (weapons that fall under the War Weapons Control Act).
Marketability is one of the essential prerequisites for the functioning of the economy, because economically relevant transactions can only take place through trade , purchase , exchange or transfer of the right of use . In order not to hinder this economic activity, the inability to move is a statutory exception.
- Amalie Weidner, Kulturgüter als res extra commercium in international property law , 2001, p. 9
- Wolfgang Ruß, in: Leipziger Comment StGB , 11th edition, 2006, § 242 marginal note 8
- BGH NJW 2007, 3204
- Peter Bülow, Law of Credit Securities , 2012, p. 1991
- Erwin Deutsch / Hans-Dieter Lippert (eds.), Commentary on the Medicines Act (AMG) , 2007, p. 298
- Wolfgang Freericks, Accounting ability and accounting obligation in commercial and tax balance sheet , 1976, p. 141 ff.
- BFH, judgment of July 5, 1957, Az .: III 187/55, BStBl. 1957 III, 295
- BGH, judgment of January 19, 1979, Az .: I ZR 152/76
- BGH, decision of September 20, 2005, Az .: 3 StR 295/05 = NJW 2006, 72
- Stefan Schmidtke, Unfair business actions during and after the conclusion of a contract , 2011, p. 181