Since the Middle Ages, a merchant has enjoyed a special standing in Germany. Therefore, on the basis of the Commercial Code, a legal separation between civil law and the law of merchants takes place. Because merchants are subject to different obligations and rules and thus a different legal status than private individuals. The goal is the uniform regulation of all business activities of the merchants. With our contribution we take a look at the legal framework that applies to merchants with the Commercial Code. Based on selected points, we describe the enormous influence of commercial law on the activity of merchants.
1st Scope of the Commercial Code
The Commercial Code (HGB) is, simply stated, the right of merchants. The laws contained in the HGB therefore mainly concern merchants. However, since merchants are sometimes in contact with private individuals, they also have to observe corresponding laws from the Civil Code (BGB). Furthermore, in certain cases, merchants have to observe laws of the BGB if the HGB does not make any deviating regulations in this respect. This makes the HGB a special addition to the BGB. In this way, it serves the purpose of taking into account the special needs of merchants.
The HGB is divided into the five books Handelsstand, Handelsgesellschaften und stille Gesellschaft, Handelsbücher, Handelshandels und Seehandel. Each of these books is divided into individual sections on specific topics. It takes into account such important aspects as who falls under the term merchant, what a company is and what it has to consider, what forms of trading companies there are and what special obligations exist for merchants. A special feature here is that the legal framework of both the Gesellschaft mit beschränkter Haftung (GmbH) and the Aktiengesellschaft (AG) as well as the Genossenschaft and the Partnerschaftsgesellschaft find appreciation in their own laws outside the HGB. However, this only applies to these types of companies if they contain regulations that deviate from the HGB or are supplementary. Incidentally, the HGB is also decisive for them. Of course, then the BGB also has the same meaning for them, in the corresponding situations, as for other merchants.
3rd example on the meaning of the Commercial Code: The state of the merchants
One of the most important functions of the HGB is the definition of a merchant. The HGB provides the criteria necessary for the determination in the form of the so-called merchant properties. These determine whether someone belongs to the merchants and thus also has to observe their laws. Of course, commercial companies are also on an equal footing with merchants in this respect. This emerges both from the HGB and the special laws that define these bodies. However, it is the HGB that demands the application of the laws contained in it to commercial companies. This impressively underlines the great importance of the HGB as a right of merchants.
Let us now clarify the question of how the HGB defines the term merchants. The HGB distinguishes between the so-called Istkaufmann and the Kannkaufmann.
3.1. The merchant
The actual merchant represents all merchants who belong to the merchants only by the extent of their commercial activity. He is thus obliged by law to have his company registered in the commercial register. The commercial register is the public register of all merchants. It is run by the regionally competent district court.
When checking whether a person holds the property of an actual merchant, the question of the requirement of a commercial organization must be asked. If a company can only be operated with a commercial organization, the condition of the actual merchant is fulfilled. A combination of the following criteria is relevant, representing only a selection:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.