General Commercial Law Flashcards
What is the historical and dogmatic basis of special civil law for merchants in Germany?
- Rooted in the concept of a “merchant” as defined in §§ 1-6 HGB (Handelsgesetzbuch).
- Applicability generally requires at least one party to be a merchant (subjective system).
- Merchants must register in the Commercial Register (§ 29 HGB).
How does commercial law differ from general private law for merchants?
- Commercial law takes precedence
(Vorrang)over general private law for merchants. - Example: The General Commercial Power of Attorney (Prokura) is regulated in § 48 HGB.
What are the characteristics of commercial law for merchants?
- Self-Responsibility and Reduced Protection:
*Merchants must act autonomously with fewer protective measures (e.g., notice of defects, § 377 HGB). - Speed and Simplicity:
*Reduced formalities, standardization, and rapid decisions (e.g., silence as acceptance, § 362 HGB). - Protection of Legal Transactions:
*Transparency through the Commercial Register (§§ 8 ff., 15 HGB) ensures reliability for third parties. - Compensation Principle:
*Merchants are entitled to remuneration even without prior agreements (§ 354 HGB). - Internationality:
*Unified practices (e.g., CISG, Incoterms) promote efficient cross-border transactions.
What is the definition of a merchant under § 1 HGB?
- A merchant is someone who operates a commercial business.
- A business is considered commercial unless its nature or size does not require a commercially organized operation.
What is a “Commercial Enterprise” (Gewerbebetrieb)?
- An independent, outwardly visible, planned, and profit-oriented activity.
- Excludes liberal professions (e.g., doctors, architects, lawyers).
What is “Mercantile Trade/Commercial Business” (Handelsgewerbe) under § 1 II HGB?
- Legal presumption: A business is presumed to be commercial unless proven otherwise.
- The burden of proof lies on the party challenging this presumption.
What is a “Voluntary Merchant” (Kannkaufmann) under § 2 HGB?
- If a business is not deemed commercial (e.g., small traders), the owner can voluntarily register it in the Commercial Register.
- Once registered, the owner is considered a merchant.
How is merchant status determined for legal entities under § 6 HGB?
- Certain legal entities are merchants by their legal form, regardless of meeting the general requirements of § 1 HGB.
- Merchant status is automatic based on their structure, not their operations.
What are the types of legal entities considered merchants under § 6 HGB?
- Commercial Partnerships (Handelsgesellschaften):
*Includes OHG and KG. - Both the partnerships and their personally liable partners are considered merchants.
- Corporations/Commercial Companies:
*includes GmbH and AG (e.g., § 13 III GmbHG, § 3 I AktG).
*The companies themselves are merchants, but shareholders are not
What is a “Merchant by virtue of appearance” (Scheinkaufmann)?
- Not explicitly governed by law.
- A person who publicly acts like a merchant (e.g., via a business card or website) is treated as one.
- Applies only in favor of third parties, granting them protections or rights.
- Does not provide special privileges to the “merchant by appearance.”
What is the legal implication of being a “Formkaufmann” under § 6 HGB?
- Merchant status is determined by the legal form of the entity (e.g., OHG, KG, GmbH, AG).
- The status is automatic and independent of the business’s operations.
Who bears the burden of proof when challenging the presumption of a commercial business under § 1 II HGB?
The party challenging the presumption bears the burden of proof.
Does a “Scheinkaufmann” (Merchant by appearance) receive the privileges of a merchant?
No, they do not receive special privileges. This status only benefits third parties.
What happens if a small trader registers their business in the Commercial Register under § 2 HGB?
They become a “Voluntary Merchant” (Kannkaufmann) and are legally considered a merchant.
