The commercial register is the public register of all commercial companies. Various legal processes in a company must be entered in the commercial register. However, errors can also occur in the entries. These errors are known in particular when entering and executing a procura. But then the question arises as to how such errors in the registration in the commercial register are to be assessed. This problem concerns the publicity of the commercial register. How this is treated is explained below.

The commercial register serves the security of trade by disclosing the most important legal relationships of merchants. Accordingly, unlike the land register, the commercial register is accessible to everyone without proof of interest. At the same time, however, the commercial register also benefits the merchant himself, because he can save himself the corresponding notification to his business partner by entering it.

In principle, a fact is only registered if there is a corresponding request. A fact to be registered is referred to when a merchant is legally obliged to register a fact for registration. These facts to be registered include, for example, the registration of the company (§ 29 HGB), the granting and expiry of a procura (§ 53 (1), (3) HGB), the appointment and removal of a GmbH Managing Director (§ 39 (1) GmbHG) or the exclusion of a shareholder from the representation (§ 125 (1) HGB).

If the person obliged to file does not comply with the application, the Registry Court may require him to do so by threatening and imposing a penalty payment. In principle, however, it cannot simply carry out the registration independently. However, there is an exception, for example, for the opening of insolvency proceedings according to § 32 HGB. Consequently, the reality and the commercial register may deviate from one another and the commercial register may be subject to errors in this respect. Then the question arises as to what applies. This is clarified by § 15 HGB, which regulates the publicity of the commercial register.

The publication of the commercial register is divided into three paragraphs. § 15 (1) HGB regulates the case that a correct fact is not registered and made public, so-called negative publicity of the commercial register. Consequently, paragraph 1 does not protect confidence in the completeness of the commercial register, but does not protect confidence in the correctness of the commercial register. The latter concerns paragraph 3. Accordingly, it regulates the case that an incorrect fact is made public.

The person obliged to register, but who did not do so, cannot oppose the fact not registered or not made public to the third party. Accordingly, this is an objection exclusion. However, the third party also has the opportunity not to invoke § 15 (1) HGB. Then he can assert his rights according to the actual substantive legal situation. The third party therefore has the right to vote.

The legal consequence refers in wording only to the specific fact subject to registration. In addition, only those facts which are covered by the information function of the register are affected, i.e. about which the register also wishes to inform.

However, it is controversial whether the third party can also rely on a combination of the true and apparent legal situation for different prerequisites of a basis of claim. Thus, the third party wants to achieve the best legal situation for him. The BGH has permitted this with reference to the wording and the protective purpose of § 15 (1) HGB. There is no untrustworthy or contradictory conduct as long as the change, which the third party invokes despite the lack of publicity, can also result from a process other than the one not disclosed.

The positive publicity of the commercial register according to § 15 (3) HGB has the consequence that the third party can invoke the incorrectly disclosed fact. However, he can also assert the actual legal situation. He therefore has the right to vote. For example, if a person has been incorrectly registered as a co-partner, a third party may invoke this registration or also assert the actual legal situation according to which the third party is not a co-partner.

4.1.1. Problem: Constitutive and declaratory facts

In order for the legal consequences of § 15 (1) HGB to intervene, there must first be a fact that was true at the time of the transaction from which the third party derives rights. This must have been subject to registration and not just registerable.

A distinction is regularly made between such facts subject to registration that have declaratory or constitutive effect. Part of the literature does not apply § 15 (1) HGB to constitutively effective entry. These are facts which must be recorded and made public in order for them to be valid. Declaratory, on the other hand, are those facts in which the change in law must not have been made public for its validity. However, the overwhelming view assumes that the publication of the commercial register also applies to constitutive facts. The first reason for this is that the law has no restrictions. In addition, a third party can also rely on the publicity of the commercial register with regard to constitutive entries. Accordingly, publicity of the commercial register is also required in such cases. Consequently, § 15 (1) HGB must also apply to constitutively acting facts.

4.1.2 Problem: primary facts and secondary facts

Sometimes there are voices calling for a limitation of the commercial register's publicity to secondary facts. These are such facts that change or cancel a primary fact, such as the revocation of the Procura. Primary facts are those facts that establish a legal situation or status, such as the establishment of a company or the granting of a procuracy. The secondary facts are therefore a change, whereas the primary facts give rise to a legal situation. The argument put forward also rejects the limitation to secondary facts. In addition, the historical legislature also wanted to include primary facts. The clear will of the legislator therefore opposes a teleological reduction. Furthermore, such a teleological reduction would also be contrary to EU law.

It is also particularly controversial whether a third party can rely on the lack of registration and publication even if the pre-registration was already missing. These cases are called secondary inaccuracy.

The decisive factor in this question is what traffic protection is linked to. If only the trust in the correctness of the commercial register is protected, the secondary inaccuracy does not fall under the publicity of the commercial register and the third party cannot claim protection for himself. If, on the other hand, the traffic is protected in the event of any incompleteness of the register, § 15 (1) HGB also covers cases of missing pre-entry. On the other hand, however, it could speak that in such cases the legal appearance in the commercial register is missing, since this is objectively correct. However, the third party may have otherwise become aware of the fact that has not been registered. This knowledge can also be worthy of protection. In addition, the wording is also comprehensive with regard to secondary inaccuracy. § 15 (1) HGB abstractly protects confidence in the completeness of the register and the announcements. Therefore, the cases of secondary inaccuracy must also be included as soon as the other conditions are met.

The fact must be entered in matters of those who might otherwise refer to this fact. This is primarily the company owner, i.e. the individual merchant or the company. In the case of partnerships, this may also be the shareholder himself.

The fact may not have been registered or registered, but not yet published within the meaning of § 10 HGB. This therefore covers cases in which the fact has not been registered or made public, those in which only the publication has not yet been made and those in which only the registration has not been made. It does not matter why the fact is not registered or made public. Therefore, no fault regarding the lack of registration or publication is necessary. In addition, § 15 paragraph 1 HGB shall also apply to persons who are not fully competent.

The third party may not be aware of the fact, i.e. the unregistered change of law. Third parties within the meaning of § 15 paragraph HGB are anyone who is not affected by the fact to be entered, even indirectly. Indirectly affected are, for example, shareholders, members or bodies of the company. Only positive knowledge is harmful, so grossly negligent ignorance alone is not enough. The decisive factor in the assessment is the time at which the third party acted or could have acted.

The legal process must also be part of business transactions. It does not matter whether the third party has consulted the register in individual cases and has actually trusted in his silence. Section 15 (1) HGB is intended to protect right-hand traffic. It cannot therefore be applied if protection of legitimate expectations cannot intervene at all. There must therefore be the possibility, at least abstractly, that the third party orients his behavior with regard to his knowledge of certain facts. The concept of commercial transactions must therefore be interpreted broadly. Consequently, not only legal or similar legal relationships, but also other legally significant relationships that a merchant enters into with third parties in the business of his trade are included in the business. On the other hand, the publication of the commercial register does not apply to unlawful traffic, that is, to purely tortious claims where there is no connection with commercial traffic at all. Nobody looks into the commercial register before he gets hurt.

§ 15 paragraph 3 HGB requires for the publication of the commercial register that a fact to be entered is incorrectly made public. The notice may be incorrect for various reasons. For example, the registration may be correct, but the notice may be different, or the registration may be missing, so that something is made public that is not registered at all. Finally, registration and publication can also coincide but both are wrong. In all these cases § 15 paragraph 3 HGB applies.

Only the pure registration error is controversial. According to its wording, § 15 (3) HGB is not applicable if the registration is incorrect, but the notice is correct. The prevailing view is that only general legal liability should apply in these cases. Accordingly, anyone who makes an incorrect declaration on the commercial register or otherwise arranges an incorrect registration may be retained by a bona fide third party. This also applies to those who did not initiate an incorrect registration, but did not culpably eliminate it. § 15 paragraph 3 HGB, on the other hand, should not apply.

The third party must have had no knowledge of the inaccuracy of the fact. But grossly negligent ignorance does not harm.

In order for the commercial register to be publicized, just as in § 15 (1) HGB, the legally based transaction must be part of business transactions.

The application of § 15 paragraph 3 HGB also requires the imputable causation of a legal act by way of a teleological reduction. The provision is only at the expense of the person who caused the incorrect pronouncement at least indirectly, albeit imputable by a correct application for registration. In the case of the correct application for registration, he is obliged to check the correctness of the announcement in accordance with § 9 (1) HGB. A completely uninvolved third party, on the other hand, does not receive a registration notification and therefore has no reason to carry out controls. In the absence of attributable causation, a liability of the minor according to § 15 paragraph 3 HGB is therefore also excluded.

The publication of the commercial register according to § 15 HGB collectively protects the business partner. This can initially assume that what is in the commercial register is correct (§ 15 paragraph 3 HGB) or is not there (§ 15 I HGB). For the merchant, he should regularly check what is in the commercial register about his company.