Special regulations apply to commercial transactions. These can be found in §§ 343-372 HGB. Therefore, it is of central importance to know what is actually a trading business. In this article we explain when such a one is available.

1st Concept of Trade

1.1. Definition of the trade

For commercial transactions, the special provisions of §§ 343-372 HGB apply. According to the legal definition of § 343 (1) HGB, commercial transactions are all transactions of a merchant that belong to the operation of his commercial business.

1.2. Kaufmann

Thus, the one who does the business must be a merchant. When a person is a merchant in the sense of the HGB, we have explained in one of our other contributions. It is also conceivable, however, that a person merely makes the appearance that he is a merchant, but actually is not a merchant at all. Then the question arises when for the merchant the operation of a commercial business comes into consideration. This is assessed by its occurrence in individual cases. However, someone who creates the legal appearance that he is a merchant will also create the appearance of a commercial business and not that of a private business.

1.3.Business belongs to the operation of the commercial trade

The transaction must be part of the operation of the commercial transaction. Transaction is any legally relevant conduct, i.e. the conclusion of commitment contracts, the execution of disposable transactions, unilateral legal transactions, such as withdrawal, reduction, reminder, termination or deadline setting and real acts, insofar as the legal system attaches legal consequences to this. The latter includes, for example, the mixing, use or dispatch of goods.

The presumption of § 344 (1) HGB that the business belongs to the operation of the commercial business speaks. This is refuted only when it is established that the business entered into by the merchant should not serve the operation of his commercial business. It is not enough that the business alone was objectively a private matter. Rather, it must be added that the private matter was also recognizable for the business opponent.

Thus, because of the presumption of § 344 (1) HGB, a private transaction can only be accepted if this has been clearly expressed. In the area of the purchase of consumer goods, for example, if a GmbH sells movable property to a private person, it is recognized that even non-industry transactions are part of the business of the trade in case of doubt.

1.4 Unilateral or mutual trade

Depending on whether the persons involved in the transaction are both merchants, the law speaks of one-sided commercial transactions or mutual commercial transactions. However, it applies that the regulations on commercial transactions apply in principle to both parties, even if it is only a one-sided commercial transaction, § 345 HGB. Therefore, the special provisions of the HGB also apply to the person who is not a merchant himself. For this reason, for example, there is also a commercial purchase if a private person shops in the supermarket. Therefore, the regulations with the exception of §§ 377, 379 HGB apply.

If a certain person must be a merchant in the one-sided commercial purchase, this is specially regulated by law. This applies, for example, to commercial due diligence (§ 347 HGB), to the contractual penalty (§ 348 HGB), to the exclusion of advance action in the case of the guarantee (§ 349 HGB) and to the freedom of form (§ 350 HGB).

If a mutual trade must exist, i.e. both parties must be merchants, this is also regulated by law. This applies, for example, with regard to the special features for the warranty right (§ 377 HGB) and the right of retention (§ 369 ff HGB).

2. peculiarities in the formation of the commercial transaction

2.1. Conclusion of a contract under civil law

If the commercial transaction is a contract, then the general civil law provisions of §§ 145 ff apply. BGB. In addition, however, the special regulations of commercial law for commercial transactions (§§ 343-372 HGB)

In principle, a contract is concluded in accordance with the civil law regulations by two identical declarations of intent. These declarations of intent may be made expressly or by conclusive conduct. On the other hand, silence does not, in principle, give rise to contracts. Only in individual cases does the law decree that silence is regarded as rejection (§§ 108 paragraph 2 sentence 2, 177 paragraph 2 sentence 2 BGB) or consent (§§ 416 paragraph 1 sentence 2, 516 paragraph 2 sentence 2 BGB). Finally, it can be determined by party agreement that silence in the concrete case should have a meaning. As a rule, silence is not a declaration of will at all.

2.2. Special features of a commercial transaction

In commercial law, there are some peculiarities regarding the conclusion of contracts. These modify the general civil law regulations. Therefore, silence in particular is important. Silence has legal significance if it is made on an offer for business management according to § 362 (1) HGB or on a commercial confirmation letter.

2.3. Silence on an offer, § 362 paragraph 1 HGB

2.3.1. § 362 paragraph 1 sentence 1 HGB

§ 362 (1) HGB lays down conditions under which the merchant is obliged to respond to an offer immediately. Otherwise, his silence shall be deemed to be acceptance of the request. Thus, in two cases, the Treaty is concluded by silence.

The first case is regulated in § 362 (1) sentence 1 HGB. Therefore, the person receiving the request must be a merchant. The business of the merchant must also entail the provision of business for others. For example, the activity of a bank concerns business errands. For example, it carries out payment, transfer and collection orders for its customers.

However, not every business of a merchant has business errands for others. Otherwise, the restriction of § 362 (1) sentence 1 HGB would be superfluous. For example, purchase transactions do not fall under the standard. Thus, the merchant can in principle remain silent in offers for the conclusion of sales contracts without adverse legal effects.

Furthermore, the merchant must already be in a business relationship with the applicant at the time of the offer.

Furthermore, the application must relate to transactions that belong to the usual business circle of the merchant. However, it is not decisive how the merchant actually runs his business or whether such a business is also usual in the concrete business relationship. Rather, it is decisive which business errands according to the traffic concept normally belong to such a business. Therefore, § 362 HGB does not apply to non-industry business management.

2.3.2. § 362 paragraph 1 sentence 2 HGB Silence after offering for business management

A further case in which a contract is concluded by silence is governed by § 362 (1) sentence 2 HGB. According to this, silence of the merchant triggers a contract if the merchant has offered to someone to conduct business. In addition, the application must be complied with within the framework of what the merchant offers. However, § 362 (1) sentence 2 HGB does not require that the business of the merchant involves a business management or that a business relationship exists.

2.3.3 Legal consequence: Creation of the commercial transaction

The legal consequence of the two variants of § 362 (1) HGB is that the merchant is obliged to respond to the offer immediately. Therefore, he must declare without guilty hesitation whether he accepts the request or not. However, the commissioner only harms silence. Consequently, any response of any kind hinders the effects of § 362 (1) HGB. It does not have to be acceptance or rejection of the offer. The promptness is usually only guaranteed for merchants if a reply is made on the day of access to the application.

If the merchant does not reply immediately, his silence shall be deemed to be acceptance of the request. Then the merchant cannot contest his assumption on the grounds that he was mistaken about the effect of his silence. This misconception represents an insignificant motive error.

2.4. Commercial confirmation letter

Another case in which a contract is concluded by silence is a commercial confirmation letter. The commercial confirmation letter is a letter addressed by one contracting party to the other in which the sender communicates his opinion about the conclusion and content of a contract concluded verbally, by telephone or telegraph. It is important that it really must be a confirmation letter. This means that the author of the letter must also only confirm the terms negotiated according to his imagination and not add further conditions.

If the recipient of such a letter does not wish to accept its content, he must immediately object. Otherwise, his silence is considered consent. Then the contract is concluded on the terms of the confirmation letter.

The commercial confirmation letter is based on the commercial custom to record oral agreements in writing as soon as possible. This is to take account of the need for clarity and legal certainty in trade. It is not regulated in the HGB.

In fact, however, case law has also extended the scope of application to persons who participate to a greater extent in economic life. Consequently, the principles about silence are limited to a commercial confirmation letter not only to commercial law.