Under commercial law, traders enjoy greater contractual freedom, allowing them to structure their business activities flexibly and effectively. In particular, issues of intellectual property rights and contract law in the B2B sector play a crucial role.
To ensure that you, as a retailer, always keep track of your legal options, I am happy to provide you with comprehensive advice. Contact me and benefit from my expertise in commercial law.
Commercial law is a specialized area of law that applies to merchants. In addition to the German Civil Code (BGB), which primarily governs law between private individuals, merchants can also rely on the German Commercial Code (HGB). In an international context, the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies. In addition, customary law provisions and commercial practice are considered binding, even if they have no statutory basis. In addition, there are specific regulations in civil procedure law, corporate law, banking law, capital markets law, stock exchange law, and securities law that belong to commercial law.
The concept of a merchant represents a central point of reference. A merchant is defined as someone who conducts a commercial business. Both legal entities and natural persons can have the status of a merchant.
Legal entities are referred to as "form merchants" solely based on their legal form. These include:
Natural persons can also have the status of a merchant either due to their function, e.g., as an authorized signatory, or through their commercial activities. This is particularly the case for sales intermediaries such as commercial brokers, sales representatives, or commission agents. The type of sales intermediation depends on the specific contractual terms. Authorized dealers and franchisees act in their own name, while commercial agents act on behalf of others in return for a commission.
The most important factor is whether the person is registered in the commercial register or whether the business is considered commercial due to its size or organization.
The term “merchant” includes not only traditional traders, but also service providers or entrepreneurs in primary production, i.e. in sectors such as agriculture, forestry, fishing, mining or quarrying.
A commercial business is any business that, in terms of its nature and scope, requires commercial operations. Liberal professions such as tax consultants, lawyers, doctors, or architects are exempt from this. In certain cases, the distinction can be difficult and requires a precise interpretation of the activity context. As a merchant, you must register in the commercial register, which is maintained by the local district court (AG). The commercial register is publicly accessible and contains information about company owners, shareholders, liability assets, authorizations, capital (if applicable), and articles of association.
Commercial law grants merchants greater freedom, particularly in the area of sales law, where there is greater contractual freedom. In trade between merchants, for example, formal requirements can be deviated from, deadlines shortened, or delivery conditions specified. Good examples of this are the notification of defects in warranty claims or a merchant's letter of confirmation after the conclusion of a contract, where silence can be interpreted as confirmation or consent. For this reason, it is crucial that merchants are well-versed in commercial law to ensure they do not miss out on their rights.
Merchants also enjoy greater freedom when drafting contract templates. Commercial law is particularly advantageous for joint ventures, cooperation agreements, and licensing agreements concluded at multiple levels. In contrast to dealings with consumers (business to customer, B2C), merchants also have more leeway in drafting general terms and conditions. However, unreasonable discrimination remains prohibited under the German Civil Code (BGB), although certain prohibitions on general terms and conditions clauses do not apply to relationships between merchants (business to business, B2B). General terms and conditions clauses that unreasonably disadvantage the contractual partner are therefore invalid.
Legal problems can easily arise when dealing with all these regulations. Disputes in private commercial law can be resolved out of court or in court. For example, chambers of commerce and industry offer arbitration tribunals where independent arbitrators are appointed. This is often faster and more cost-effective than a judgment from a regular court. Legal representation is important, as arbitration awards are enforceable like court judgments. However, when lawsuits are filed in civil court, the procedure follows the German Code of Civil Procedure (ZPO). This largely leaves the course of the proceedings to the will of the parties. Depending on the value in dispute, jurisdiction lies either with the local court (AG) or directly with the regional court (LG). In the case of appeals and revisions, the appeal process proceeds via the higher regional courts (OLG) to the Federal Court of Justice (BGH) in Karlsruhe. Legal representation is mandatory.
A commercial power of attorney (Prokura) is a comprehensive power of attorney regulated by the German Commercial Code (HGB). It can be granted by a merchant and allows representation in all legal transactions, except for fundamental ones such as filing for insolvency. The power of attorney is registered in the commercial register.
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